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Not So Much A Surprise That The Sadc Tribunal Was Disbanded But That It Was Formed At All

Not So Much A Surprise That The Sadc Tribunal Was Disbanded But That It Was Formed At All

11 March, 2013

Nicole Fritz

On Friday, 1 March, Judge Ariranga Pillay, former Judge President of the 
SADC Tribunal, Professor Laurie Nathan of the Centre for Mediation in Africa 
at the University of Pretoria and I participated in a discussion hosted by 
the University of Pretoria’s Department of Political Science and the South 
African Foreign Policy Initiative (SAFPI), titled: The SADC Tribunal: 
Removing the Scales of Justice.

It was a wide ranging discussion but I was most intrigued, and thought least 
susceptible to any ready answer, those sections of the discussion which set 
law firmly in opposition to political dynamics. Professor Nathan made the 
interesting observation that given the unsettled nature of sovereignty 
within the region, that it has so recently been won, that it is an as yet 
uncompleted project, that southern African states enjoyed de jure as opposed 
to de facto sovereignty, and that there were no common norms and standards 
as between them, the real surprise wasn’t so much that the SADC Tribunal was 
disbanded but that it had ever been established at all.

I speculated, I recognise a little moot and academic at this point, that had 
the Tribunal refused on some procedural basis – i.e. on standing or 
admissibility requirements — to hear the highly contentious issue of 
Zimbabwe’s land reform process as one of its very first cases, it might have 
lived to see another day. Had it had some relatively uncontentious cases 
under its belt — some prisoners’ rights, or fair trial rights judgements 
delivered — and had it managed to secure some state compliance with these 
rulings, before it tackled the land reform cases, it would have made it more 
difficult for the SADC Summit simply to dismantle the court.

I fear I may not necessarily be doing justice to Judge Pillay’s response, 
but my recollection of his response is that he believed that as a judge, his 
province is the law and he is not required nor indeed capacitated to look 
beyond that realm. I think that response would strike most jurists as an 
entirely appropriate, probably the only appropriate, response — that judges 
cannot and should not be required to calculate the political consequences of 
their rulings, that in any event in many cases these will be entirely 

Still, why I know the combination of savvy political strategist and wise 
jurist is probably hard to come by, indeed that combination may cancel 
itself out (and how exactly would you assess for such combination in any 
appointment process?), newly established, fragile regional and international 
courts especially, dependant on states’ voluntary support, require some 
combination of that skill-set. And not only of their judges. Think of how 
the ICC might have avoided some of the more debilitating fracas it has found 
itself engaged in had Prosecutor Moreno Ocampo made some smarter political 

Accommodation of political realities, however, forces some pretty hideous 
conclusions. I recognise the correctness of Professor Nathan’s observations 
regarding sovereignty in the region and the absence of shared norms and 
values, but as inhabitants of this region are we really to have to settle 
with the conclusion that supranational institutions offering protection of 
our human rights where domestic processes fail are not going to be available 
to us but may perhaps avail generations to come. . .

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