Patrick Chinamasa, the Minister of Justice is reported as having stated that Zimbabwe is not bound by the Protocol on the SADC Tribunal (Tribunal Protocol) as she has not ratified this instrument. He goes on further to state that the Protocol is not yet in force as only 5 countries had ratified it. The Zimbabwe Human Rights NGO Forum (the Forum) respectfully disagrees with this view for the reasons stated below.
The Declaration and Treaty of SADC (SADC Treaty) establishes the institutions implementing the sub-region’s integration policies and founding principles. Article 16 of the SADC Treaty provides for the establishment of the SADC Tribunal. In terms of article 16(2) the “the composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol, which shall, no twithstanding the pro visions o f Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit”. Essential Article 16 (2) exempts the
Tribunal Protocol from the provisions of Article 22 of the SADC Treaty, which prescribes that each Protocol approved by the Summit of Heads of State and Government (Summit) shall become binding on member states 30 days after two thirds of the 15 SADC members have ratified the instrument. This means that 9 SADC member states should ratify a Protocol before it may be implemented and applied against any of them by the relevant body tasked with its
enforcement. Furthermore since Article 16 (2) by-passes adherence to Article 22, the Tribunal Protocol became binding when it was approved by the Summit.
The institutionalization of the Protocols in the SADC legal framework came as a realization of the fact that effective implementation of regional policies required more than just political will, but the existence of legally binding instruments and enforcement mechanisms such as the SADC Tribunal and its protocol. Of the over 20 protocols now in force only the Tribunal Protocol did not require ratification by two thirds of the SADC member states for it to become
a binding instrument. This therefore means that all SADC states which ratified the SADC Treaty, that became a legally binding instrument in 1993, are also bound by the SADC Protocol which became an integral part of the constitutive treaty of the sub-regional body by virtue of article 16(2). All SADC member states have ratified or acceded to the SADC Treaty and are therefore bound by its provisions and by extension the provisions of the Tribunal Protocol. It is therefore misleading for the Minister of Justice or any judicial body to argue that Zimbabwe is not bound by the Tribunal protocol on grounds that the instrument has neither been ratified nor entered into force. Therefore under international law Zimbabwe is bound by the decisions recently handed down against her by the SADC Tribunal in terms of legal instruments that she has voluntarily ratified.
We urge the Summit meeting in September to mount pressure on the Zimbabwean government to respect the rule of law by complying with court decisions delivered at the domestic, regional and international level. We further call upon the Zimbabwean government to put in place laws and regulations for the registration and enforcement of foreign judgments to facilitate the execution of decisions from the SADC Tribunal and the newly operationalised African Court on Human and Peoples’ Rights. We also call upon the Zimbabwean parliament to enact laws consonant with ratified regional and international legal instruments and amend repugnant laws accordingly. The Zimbabwean parliament is further called upon to domesticate all ratified regional and international instruments to enhance the protection of fundamental human rights at the domestic level.