While two rival meetings were being held in Africa this week on the disputed future of Western Sahara, the territory – often referred to as Africa’s last colony – won an unexpected victory in court.
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At opposite ends of Africa, the disputed future of Western Sahara was a major issue this week. Way down, almost at the bottom of the continent, South Africa and Namibia jointly hosted a meeting of Southern African Development Community members. Among the guests was a delegation from Polisario, the organization that claims to represent the people of Western Sahara or, as it is sometimes called, the Sahrawi Arab Democratic Republic.
At the other end of Africa, in Marrakech, Morroco had called a rival meeting, also to deal with the future of Western Sahara, but with quite a different outcome in mind.
The meeting in SA appeared intended to open the door to a solution that might be driven by Africa with SADC playing a key role, while the meeting in Marrakech stressed that any movement on the problem had to be led by the United Nations.
But while the politicians continued discussions over the future of Western Sahara, the courts in the United Kingdom handed the territory – or rather its cause – a significant victory.
It is far from the first judgment to come down on the side of the Western Sahara. This time the decision originated in the UK, where the tax authorities and other official bodies were wrapping up a complex, long-running legal dispute between themselves and the Western Sahara Campaign UK, a body founded in 1984 to support the right of the Saharawi people of Western Sahara to independence.
One of the issues in dispute between the two sides over the last few years has been the validity of a fishing contract concluded between Morocco and the European Union, in which the fish to be provided by Morocco to the EU were actually caught by Morocco in the waters of the Western Sahara.
Western Sahara Campaign UK strongly objected to the contract, claiming it was unlawful for Morocco to benefit from the sale of the fish instead of the people of Western Sahara to whom the fishing waters rightly belonged. The organization therefore asked the UK courts to refer the dispute to the Court of Justice of the European Union to test the validity of the contract. In February 2018, the Court of Justice found in favour of Western Sahara support group saying, in essence, that Morocco could not sell fish that had not been caught in its own waters.
Following the decisions of the Court of Justice, the UK court was asked to declare, along the lines of the finding of the Court of Justice, that the EU’s agreement with Morocco did not include either the territory of the Western Sahara or its waters. It also declared that the UK revenue officials had erred in law by not investigating and querying the “stated place of origin” of products that actually originated in Western Sahara.
All of this meant that the Western Sahara support group had been “completely successful” in its UK litigation, as the court put it. Now the organisation wanted to recover its legal costs, amounting to just under 100 000 GBP, excluding VAT, mostly related to preparing and arguing the case at the Court of Justice.
According to the organization, there was no reason not to apply the normal practice in which costs follow the outcome. The UK revenue authorities argued, however, that because they were not a party to the case before the Court of Justice, they were not liable for any of the legal costs. It would be “unprincipled and unprecedented” for them to pay costs for proceedings at the Court of Justice in which they were not “the true defendants, and where they did not participate”.
The Lagos-born UK judge who heard the dispute over costs, Nicholas Mostyn, said that when the matter was argued at the Court of Justice, the Western Sahara support group was “rather surprised” to find that the UK government did not participate, even though it had been a party to referring the matter to that court.
However, he said he did not consider that “the non-participation (by the revenue authorities) has any relevance to the decision I have to make. Non-participation in proceedings is rarely, if ever, any defence to a claim for costs.”
“At the end of the day it seems to me that the decision I have to make is simple. The claimant has succeeded. It has incurred costs in achieving its success. Those costs have included the incidental expense of a reference to the (Court of Justice). Those incidental costs are plainly claimable. They should be awarded in the claimant’s favour.”
Among other judgments favouring the Western Sahara in recent years have been several delivered by the courts in SA.
Despite its obvious success in terms of raising the profile of this long-standing dispute, the solidarity conference held in Pretoria was not without detractors, however. Almost 40 African countries were represented at the rival Marrakech meeting including several from the SADC region like eSwatini, Madagascar, Tanzania and Zambia. Some, such as Malawi and the Democratic Republic of the Congo, sent delegates to both events.
- Newsletter, Judicial Institute for Africa (Jifa), 28 March 2019