SA’s ex-president, Jacob Zuma, already in hot water with pending corruption charges and a court order that he must personally pay some of his massive legal costs, has again become the target of serious criticism from SA’s Constitutional Court. This time the country’s highest court was considering an application to set aside Zuma’s decision backing the dissolution of the SADC Tribunal, a crucial regional rights forum, based in Windhoek, Namibia. The application also asked that his agreement to a “protocol” establishing an effectively toothless body, barred from considering petitions from individuals, be declared invalid. The court said Zuma had the duty to uphold rights, not abandon them, as he had done in this case, and ordered that his presidential ratification of the “protocol” be withdrawn.

Read the full judgment on Saflii

WHEN the SADC Tribunal, set up to protect the rights of everyone in the region, was summarily given the boot at the instance of Zimbabwe’s then president, Robert Mugabe, it came as a great shock to people in SA that the president at the time, Jacob Zuma, joined in the demolition party.

The regional judicial forum was established with the aim of, among others, protecting human rights in the SADC region. But when Mugabe refused to comply with the Tribunal’s judgments and persuaded other SADC leaders to support him in suspending the Tribunal, a new Protocol was drawn up, signed by leaders including Zuma, to found a forum that would not be authorized to consider petitions from individuals.

Outraged, lawyers’ organisations in the SADC region resolved to challenge these developments in their local courts. One of those battles was waged in SA where the Law Society, along with other affected parties, took on the president, the minister of justice and correctional services and the minister of international relations and cooperation, to argue that SA should not have been party to the effective disbanding of the Tribunal, and should not have signed the Protocol aimed at establishing a toothless replacement.

The matter was heard by the Constitutional Court in August and this week the court delivered a judgment that was scathing in its assessment of the former president’s actions.

Analysing Zuma’s support for suspending the Windhoek-based Tribunal, the court said that by this action, SA became “party to denying citizens of SA and other SADC countries access to justice at a regional level” and to resolving disputes including those involving human rights, democracy and the rule of law.

When SA signed the Protocol it was a “very weighty and significant” step, said the court.

“It announces to all that SA is about to make a paradigm shift” and indicated that “access to justice, a commitment to the rule of law and the promotion of human rights would no longer be a paramount feature of our national vision and international relations.”

It also told the SADC member states that SA was no longer continuing its responsibilities to protect and promote values fundamental to democracy including human rights. This was a serious threat to SA’s image and to the essence of SA’s constitutional democracy.

“Our president’s signature is symbolic of a warm welcome by SA of the stealthy introduction of impunified disregard for and violation of fundamental rights”. It further indicated that SA would turn a blind eye to human rights abuses and violations of the rule of law in other SADC jurisdictions even when it affected people from SA.

The demise of the Tribunal and its replacement via the Protocol was part of a “masterplan” devised at the instance of Zimbabwe. “Clearly, Zimbabwe did not want to comply with the unfavourable decisions made by the Tribunal. It then crafted a strategy that would be fatal to the possibility of the Tribunal ever embarrassing it again.”

And in this work of paralyzing the Tribunal, Zimbabwe “had a willing ally in SA as represented by our president.”

Legally, the Tribunal could not be tampered with other than via the provisions of the treaty that established it. It certainly could not be amended in terms of a “protocol”: amendment was only lawfully possible by three-quarters of the members states. But the Summit sought to amend it via a shortcut so as to avoid the trouble and risk of obtaining the necessary support.

SA had not signed and ratified the treaty that led to the Tribunal merely because of the country’s geographical position in the region: it was thought good for the people of SA and its democracy, as well as for the image of the SADC region and of Africa. “As a direct consequence of a series of actions taken by our president and his counterparts, the Tribunal has been dysfunctional for a very long time, (making) it effectively as good as dissolved.”

Zuma had “misconstrued his powers” in signing the Protocol. His signature was unconstitutional: he was not empowered to approve anything that “undermines our Bill of Rights and international law obligations”. The Protocol he signed put the people of SADC in a position that was worse than before.

One interesting observation by the court, perhaps not expected, is its finding that the invalidity of the president’s actions was not related to whether the people of SA had been consulted over the suspension of the Tribunal and its replacement. Much had been made of the lack of consultation in public debate, but as it turns out, this was not considered crucial by the court.

What about the state’s argument that, in signing, the president acted out of concern for “sound diplomatic relations”?

SA’s president was not allowed merely to follow other leaders, but had always to be guided by the constitution and the law. “Sound diplomatic relations ought never to be a product of illegal or unconstitutional compromises that could … be viewed as capitulating to the desires of others to exercise unchecked power”.

SA should relate to other states “with an unshakeable purpose of contributing to the realization of a more just, equal, peaceful, human rights-orientated, truly democratic order and shared prosperity”, and the president could not rely on argument about “diplomatic relations” to insulate his signature from constitutional scrutiny.

So what was to be done? The president’s decision to make the Tribunal dysfunctional was “unconstitutional, unlawful and irrational”. So was his signature. The remedy was to declare his participation in that decision, his own decision and his signing of the Protocol all “constitutionally invalid, unlawful and irrational”.

“We cannot withdraw the President’s signature”, but the court could direct that his successor in presidential office should do so.

Though all the judges agreed with the final order – declaring the decision and signature unconstitutional and that the signature had to be withdrawn – there was a separate concurring decision by four of the judges. In their view the president’s actions were not to be criticized on the basis of international law. Rather, his actions should have been found impermissible under SA’s constitution that provided the foundation from which to view what he had done.

The unlawfulness of his conduct thus came directly from its infringement of the constitution rather than from any violation of international treaty provisions. What was clear, said the four judges, is that the president’s conduct, “resulting as it did in a breach by SA of its obligations under an international treaty as a State, was impermissible under the constitution, as irrational and unlawful.”

The SA Litigation Centre, a friend of the court in the matter, said the decision was to be welcomed, and that it could help in a drive to re-establish the SADC Tribunal in its original form.

  • Jifa Newsletter, 13 December 2018