Monday, September 7, 2009

Pacta servanda sunt

In 2008, a Tribunal ruled against the government of Zimbabwe. The case concerned white commercial farmers whose land was acquired by the government as part of the land reform programme. The Tribunal ruled that it was illegal for Zimbabwe to take the farmers land. A few days ago, the government of Zimbabwe denied the legitimacy of the SADC Tribunal. Why is the international arbitration and alternative dispute resolution (adr) community silent about this?

The legitimacy of the Tribunal’s jurisdiction is what is really at the heart of Zim’s latest manoeuvre. The question surrounds the Tribunal’s competency to hear this dispute and issue an award. In general, if a tribunal is competent, meaning it has jurisdiction, then the parties are bound by tribunal decisions. The Justice Minister of Zim is arguing that the SADC Tribunal had no jurisdiction over the farmer disputes and consequently, Zim is not bound by any decision of the Tribunal. Zim is arguing that the SADC Treaty provisions establishing the Tribunal required further ratification by member states before it was competent to hear disputes and rule on them. Up until that ratification the Tribunal, as an institution of SADC, was incapable of deciding matters.

Below I provide the Treaty provisions for your enjoyment. There may be a (weak) argument that Article 16(2) is ambiguous and it is unclear whether the Protocol for the Tribunal was incorporated in to the Treaty itself. If it was, then the Tribunal was legitimate on the day the general SADC Treaty was ratified. (17 August 1992) If the Protocol required separate ratification of two-thirds of the SADC’s 15 members, then that has not yet happened.

Even though the Treaty discussion is exciting, lawyer-justifying activity, this all begs the question of why the government of Zimbabwe participated in the hearings and expressly agreed to the Tribunal’s jurisdiction throughout the entire case only to argue 10 months after the main ruling that the Tribunal has no jurisdiction? There is no legal loophole here. The rulings written by the Tribunal all cover the jurisdiction of the Tribunal over the matter at hand. Whether it was the main case or the request for interim measures by the commercial farmers not to be ejected from the land until a decision was issued by the Tribunal, each discussed jurisdiction. No objection was raised by the respondent Zimbabwe. That means they accepted the Tribunal's competency and they are bound by it's decisions.

This is not about legal procedure. This is about respect for processes that go on everyday all over the world. Arbitration and adjudication happen in countries all over the world regardless of the race, creed or colour of any of the parties. There is no requirement for democracy to have a tribunal formed, with the consent of parties, to preside over disputes. This is about respecting agreements. That is certainly not an idea that the West owns. This is about agreements between African nations by and for their own benefit. It is also about a process of dispute resolution that has been going on in Africa and the West for centuries. Why are advocates for international and domestic arbitration not making more noise about what is happening in this situation?

The community of lawyers, academics, associations and forums who promote adr and arbitration must be more active in supporting the SADC Tribunal. Legitimacy in terms of the law is not just about formal courts and proper legislation. That is what is so ultra-cool about things like arbitration. It can resolve disputes without a lot of legal stuff. Parties agree on how to resolve things, submit themselves to the Tribunal, and obey the decision. There is a rich and powerful community which should be more involved. This is an opportunity to support an emerging dispute resolution forum in a place where it is sorely needed.

Where are those voices??

Thanks again to JRW!

Article 16(2) of the SADC Treaty reads “the composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol, which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.” Article 22 of the Treaty states that no Protocol is binding on member states unless it is ratified by two-thirds of the SADC signatories. The Protocol for the Tribunal has not been ratified by two-thirds of the member states of SADC.


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