A COURT TOO FAR? REGIONAL COURTS IN SOUTHERN AFRICA AND EUROPE – by Jeremy Gauntlett

The following is an introductory excerpt from the paper given by Adv Jeremy Gauntlett SC to the Middle Temple South Africa Conference in September 2012.  The full paper can be downloaded as a PDF file by clicking the link at the end of the excerpt.

There are three ways to view the advent of international courts – ‘Community law’, as some style it – in Europe and Southern Africa.

The first is suggested by the title for this session: a noble dream (in the phrase Nicola Lacey has so tellingly used in her biography of HLA Hart), but one which wakes to disillusion, or dysfunction, or both.

The second is Lacey’s antithesis: nightmare. There are two variants of this.

The first is that projected in Southern Africa by Zimbabwe, and other countries which (as I shall describe) have flocked to its standard. This nightmare asserts that decisions of the region’s international law court stand to trump its domestic courts, and worse: the ultimate effect of an international court with final jurisdiction over separate nation-states is to destroy their autonomy, as inevitably it dislodges the constitutional cornerstone of each. That is because (the nightmare is elaborate) the price paid is the loss of parliamentary sovereignty and the simultaneous subordination of the nation-state’s own highest law and own highest court.

It is only two decades since Sir William Wade proposed a requiem in modern constitutional law for terms like prerogative and sovereignty. But what today’s discussion highlights is that they are resurgent. Their adherents (certainly in Southern Africa) include those who stand to lose most from their demise, or at least attenuation. Their scholarship is necessarily nostalgic. They explicitly hark back to these words of Dicey:

“The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined, has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”.

Of course for the developed notion of the rule of law, the first proposition is now anathema – as well as anachronism. Parliament, under the justiciable constitutions of countries in my region, is in principle not free ‘to make or unmake any law whatever’, in the sense Dicey intimates. But it is the second proposition on which the focus today should fall: that there is no sense in which a domestic law can be trumped.

In Southern Africa, in quite a dramatic way in recent weeks, the nightmare has won through in a second form and the dream dispelled. Last month the Summit of the Southern African Development Community (SADC) took place in Maputo. The Summit – a treaty organ comprising the heads of state of the 14 members of SADC – issued a communiqué announcing that it intended dismantling the current SADC Tribunal. This the sequel to the Summit’s suspension of the Tribunal last year. In its place will be put a new Tribunal, permitting no individuals access. The Tribunal will be stripped of its current jurisdiction which allows that. It will become an adjudicator of inter-state disputes. In the past 20 years these have comprised a dispute first between South Africa and Namibia, then Angola and Namibia, over the emergence of sandbanks in the estuaries of the meandering rivers which mark both borders; a similar squabble between Botswana and Namibia over a less evanescent but equally minute island in the middle of a similar river-border; and now a dispute whether by colonial treaty Malawi truly owns Lake Malawi (not one yet evinced by the phlegmatic inhabitants of the latter).

No international human rights issues in any of these instances. No access to the SADC Tribunal by any individual in any member state, in any of these circumstances. Those who drew the colonial borders in Bismarck’s music room on the Wilhelmstrasse at the Congress of Berlin in 1848 would view such a body with equanimity, familiarity and even pride. Plus ca change….

The road to this terminus in Maputo for regional human rights and international law needs explanation.

Did the setting up of the SADC institutions mimic those for the EU, the visitor will first ask? Not quite. Lord Steyn describes the effect of the United Kingdom entering into the European Community in 1973 as achieving a divided concept of legal sovereignty:

“The European Communities Act 1972 is a truly fundamental law. Community law is a higher legal order than domestic law and within its sphere the Luxembourg court is the supreme judicial authority in our country. That was vividly illustrated in 1991 by the second Factortame case. There was a clash between community law and a later Act of the United Kingdom Parliament. The House of Lords granted an injunction to forbid a minister from obeying an Act of Parliament. The Act was disapplied. This decision sent seismic shockwaves through our legal system”.

As we shall see, the seismic waves for SADC came after much the same period, and in much the same way, but with different and catastrophic results.

On 17 August 1992, the heads of state of the 14 members of SADC signed the SADC treaty. This itself provided (in Article 16 read with Article 9(1)(g)) for the setting up of the Tribunal. All the member states signed and ratified it.

Crucially for the dispute which followed, the Treaty also provided (Article 16(2)) that the composition, powers, functions, procedures and other related matters governing the Tribunal shall be as prescribed in a protocol. Later Article 16 was amended to make it clear that this protocol, the Protocol on the SADC Tribunal, was an integral part of the original Treaty, requiring no further ratification. The amendment, all commentators to my knowledge (bar those writing in recent aid of Zimbabwe) accept, was purely declaratory, effecting no substantive change. Zimbabwe – although itself appointing a judge as a member of the Tribunal and repeatedly appearing before it, until awards were made against it – has come to challenge the Tribunal and its awards as a nullity, on the basis that it itself has not ratified the Protocol on the Tribunal.

Zimbabwe’s legal contentions have been resoundingly rejected, most notably by an independent legal review commissioned by SADC and carried out by Cambridge’s Dr Bartells. But through a campaign of incremental mobilisation of support for its antipathy for the Tribunal, it has brought home to other leaders in the region the implications of Tribunal rulings being made progressively against them. The result is the Maputo communiqué by the Summit, stripping the Tribunal of its human rights jurisdiction.

Click on the following  link to download the entire paper: Gauntlett – Middle Temple Conference paper 2012

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