A HUMAN rights court declares the emperor has no clothes — and the emperor’s rejoicing victims become fierce champions of the court and the rule of law. No wonder, then, that when the SADC heads of state “suspended” the organisation’s tribunal, people who benefited from the court’s human rights rulings protested.

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BY CARMEL RICKARD

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Robert Mugabe Jacob Zuma: Improved relations.  Picture: GALLO IMAGES/AFP/STEFAN HEUNIS

Robert Mugabe Jacob Zuma: Improved relations. Picture: GALLO IMAGES/AFP/STEFAN HEUNIS

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Based for its brief lifetime in Windhoek, the tribunal was a regional court mandated to hear cases brought by individuals and governments. It finalised 19 cases between 2007 and 2011 and, to the astonishment of many, delivered hard-hitting decisions in defence of human rights.

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But then came pressure by Zimbabwe, most exposed by the tribunal’s findings, for it to be “suspended”. SA agreed.

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Now, after years of discussion, the region’s dictators and human rights abusers are finally satisfied: the new tribunal’s work will be limited to inter-governmental disputes and it may no longer hear cases brought by individuals against their governments.

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Among the protocol signatories permitting the establishment of this toothless new body is President Jacob Zuma.

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SA’s law associations are challenging this travesty. Their litigation, headed to the Gauteng high court, asks for an order declaring as unconstitutional Zuma’s approval of both the “suspension” of the tribunal and its feeble replacement.

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Pretoria’s response, via Nonkululeko Sindane, director-general of the justice & constitutional development department, is to say that the changing fate of the tribunal must be seen in the context of the need for stability in the SADC region.

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This includes respect for the principle of sovereignty, whatever the size of the country concerned, with decisions made on the basis of consensus.

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The application was both too late and premature, she says. Too late because the decision to “suspend” the tribunal was made in 2011, so the challenge should have been made earlier. And premature because though Zuma has signed the new protocol it is not binding on SA unless he puts it to parliament and it is approved there.

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During the current hiatus South Africans have not been negatively affected, she says, because our courts are recognised for their independence and commitment to constitutional democracy: even if we can’t go to Windhoek we are protected by our bill of rights.

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Finally, the law society “fails to appreciate” that SADC decisions often require a “level of compromise” between the different states and their interests.

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Contrast Sindane’s response with an application in the same case by Zimbabwean Luke Tembani (78), who successfully litigated against the Harare government at the tribunal. He and five others want to be allowed to participate in the upcoming litigation as “friends of the court”.

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You can’t fail to sense Tembani’s brave passion, his sense of indignation at the SADC’s curtailment of his basic rights and those of others who fall victim to predatory governments.

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He speaks of Zuma’s “conniving” with other heads of state to “eviscerate” the protections originally offered by the tribunal to 250m people in the region.

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You hear his anger when he speaks of the torture experienced at the hands of their governments by people trying to use the tribunal, and when he speaks of the tribunal’s role in fighting corruption. One case, against the Congo, highlighted among other issues the failure of that country’s judiciary, whose members had demanded bribes, and the tribunal awarded the litigant almost US$2m plus interest and punitive costs.

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Tembani and others who have been before the tribunal already have decisions in their favour against their governments. What is to happen about their so-far-unpaid compensation and the other restitution they were awarded?

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The papers describe a nightmare mix of law, politics, dashed hopes and human tragedy. The upcoming litigation could be among the most searing yet heard by SA’s-post 1994 courts. – Financial Mail

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