SADC lawyers refuse to support new Tribunal

Annual general meeting focuses on judicial independence

Richard Lee's picture


Strategic communications for WWF

August 28th, 2012

Just by holding its annual general meeting under the theme of ‘safeguarding judicial independence’ in Swaziland, the Southern African Development Community Lawyers’ Association (SADCLA) was making a very clear point – as the independence of judiciary has been under attack from King Mswati’s regime for years.

But the meeting also made a number of other important points on issues as diverse as the destruction of the SADC Tribunal, gender and women’s rights, and access to information.

Attended by law society and bar leaders, lawyers, judges, attorneys general and other government officials and civil society representatives from the SADC region and beyond, the three-day conference re-affirmed that an independent, efficient and effective judiciary is the bedrock of just, peaceful, democratic and functional societies – but highlighted that judicial independence has suffered serious blows over the past few years at the regional and national level in SADC.

The first issue to be addressed in the final communique was the SADC Tribunal, which the region’s leaders had gutted just a week before the SADCLA meeting.

The SADC Lawyers’ Association agreed not support the Tribunal in the form proposed by SADC’s leaders – when it will just be an interstate court with its jurisdiction limited to the interpretation of the SADC Treaty and SADC Protocols. There will be no human rights mandate and no individual access to this new, toothless Tribunal.

However, the lawyers remain committed to working with SADC and regional governments to ensure that the decision taken by SADC leaders in Maputo is not implemented and that the Tribunal is revived in an acceptable form.

The next critical issue was the independence of national judiciaries with SADCLA stressing that judiciaries in the region are being undermined in a variety of ways, including financially, by the unjustifiable suspension and removal of judges, and through limiting judges’ ability to exercise their mandate.

“Governments must therefore ensure that the judiciaries in the region are adequately resourced, are independent and are able to carry out their mandate without fear or favour,” said Thoba Poyo-Dlwati, outgoing President of the SADC Lawyers’ Association in the final communique.

The meeting also took governments to task for not living up to their commitments to gender equality, noting that no country in SADC has achieved the 50-50 gender parity called for in the SADC Protocol on Gender and Development.

But it was not just governments that came in for criticism - with the meeting highlighting that there is currently only 1 woman president of the 15 law societies and bar associations linked with the SADCLA itself.

Along with calling for action by the authorities and legal bodies, the meeting also agreed that women lawyers in the region should work towards the establishment of a regional women lawyers’ network to support each other professionally.

The meeting also discussed freedom of expression and access to information, highlighting the fact that  all SADC countries still have criminal defamation laws in their statutes in one form or another, while all countries, except South Africa and Namibia, still have insult laws.

“It is the political leaders and other influential people who determine what insult is, leading to the persecution and prosecution of the media, journalists and other citizens,” stated the final communique.

The meeting also stressed that there is a close link between entrenched rule, dictatorship, the fight for self-preservation and the repression of freedom of expression and access to information – and called for the repeal or amendment of laws that criminalise freedom of expression.

The SADCLA also tackled the issue of illicit money flows based on the view that poverty is a violation of human rights and that tax evasion, corruption and other illicit activities fuel poverty.

The lawyers gave their commitment to get involved in various ways in the fight against illicit financial flows, including in their role as tax advisors to corporates and other institutions, by embracing Economic, Social and Cultural Rights as justiciable and by advocating for the amendment of laws that have over the years made it possible for big multi-national and other corporations to carry out abusive tax evasion without consequences.

The lawyers agreed that there is a need to examine the operations of extractive industries in SADC to understand how they contribute to poverty through corruption, tax evasion, money laundering and other illicit activities.

The final communique urged governments to take steps to tackle the problem – such as being more accountable and transparent; providing access to information about how available resources are spent; and developing functional and effective institutions to address and deal with issues of corruption, tax evasion, money laundering and other illicit activities.

The conference certainly made the position of the SADCLA very clear and the final communique showed that the organisation’s voice is as strong as ever. But whether SADC governments listen to it is another matter.



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