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Oversight Institutions of SADC

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The Southern African Development Community and Law

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Abstract

Institutions that exercise oversight and control in international organisations have a legitimating effect on decisions made by an international organisation and they serve to increase the incidence of compliance with such decisions. This chapter discusses the oversight institutions or those institutions which, even though they are not given formal oversight functions by the SADC Treaty, have the potential to play an oversight role. The institutions covered in this chapter are the SADC Tribunal (currently not operational), the SADC National Committees, and the SADC Parliamentary forum. This chapter seeks to identify the different roles of these three oversight institutions and also to establish the extent to which the SADC institutional structure and other challenges constrain them in the discharge of their mandates.

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Notes

  1. 1.

    H.G. Schermers & N.M. Blokker International institutional law: Unity within diversity (2011) 407.

  2. 2.

    As above.

  3. 3.

    O. Nzewi & L. Zakwe, ‘Democratising regional integration in Southern Africa: SADC National Committees as platforms for participatory policy making’ (2009) (Research Report 122) Centre for Policy Studies, Johannesburg 7–8.

  4. 4.

    Nzewi & Zakwe (Footnote 3 above) 8.

  5. 5.

    These normative values are also reflected in some of SADC’s subsidiary documents, for example, the RISDP. See Chap. 2.

  6. 6.

    Schermers & Blokker (Footnote 1 above) 435.

  7. 7.

    A above.

  8. 8.

    Schermers & Blokker (Footnote 1 above) 435–436.

  9. 9.

    Schermers & Blokker (Footnote 1 above) 436. See also G. de Búrca ‘Developing democracy beyond the state’ (2007–2008) 46 Columbia Journal of Transnational Law 221. De Búrca’s concern is the need for democracy in international organisations in general (not just judicial control) especially in those organisations that make ‘authoritative rules and policies outside the state and which lie beyond the control of national democratic and constitutional structures.’ See a related discussion in Chap. 2.

  10. 10.

    J. Klabbers in An introduction to international institutional law (2009) 205 points out two ways of protecting a minority of members against the wishes of a majority—the decision-making procedure itself and judicial review.

  11. 11.

    Schermers & Blokker (Footnote 1 above) 437.

  12. 12.

    As above.

  13. 13.

    Klabbers (Footnote 10 above).

  14. 14.

    Klabbers (Footnote 10 above) 206.

  15. 15.

    As above.

  16. 16.

    See generally C. Baudenbacher & M. J. Clifton ‘Courts of regional economic and political integration agreements’ in C. P. R. Romano et al. (eds) The Oxford handbook of international adjudication (2013) 250–276.

  17. 17.

    G. Ulfstein ‘The international judiciary’ in J. Klabbers et al. The constitutionalization of international law (2009) 126.

  18. 18.

    As above.

  19. 19.

    As above.

  20. 20.

    Ulfstein (Footnote 17 above) 126–127.

  21. 21.

    Ulfstein (Footnote 17 above) 127.

  22. 22.

    While art 22(2) of the original 1992 SADC Treaty provided that any protocol became an integral part of the Treaty, the 2001 amendment, through arts 18 and 21(a) (the amending articles) changed this position by making only the Tribunal Protocol an integral part of the Treaty and thus freeing it from the art 22 protocol ratification procedure applicable to ordinary protocols.

  23. 23.

    http://www.tralac.org/wp-content/blogs.dir/12/files/2011/uploads/20060621_status_SADC_protocols.pdf (accessed 1 October 2013).

  24. 24.

    As above.

  25. 25.

    See Footnote 22 above.

  26. 26.

    The Agreement Amending the Tribunal Protocol is found at http://sadc-tribunal.org/wp-content/uploads/2013/03/AgrementAmendingProtocolTribunal.pdf (last accessed 20 August 2014).

  27. 27.

    Art 18 of the Agreement Amending the Tribunal Protocol. See also L. Nathan ‘Solidarity triumphs over democracy – The dissolution of the SADC Tribunal’ (2011) 57 Development Dialogue 128. While the provisions on the amendment of the SADC Treaty and the Tribunal Protocol appear to be straightforward, there are some who believe that they are so ambiguous as to require judicial elucidation or legislative amendment. For rather overstretched and convoluted alternative interpretations of these and other related provisions (on the Tribunal’s human rights jurisdiction, discussed below) see generally, S.T. Ebobrah ‘Tackling threats to the existence of the SADC Tribunal: A critique of perilously ambiguous provisions in the SADC Treaty and the Protocol on the Tribunal’ (2010) 4 # 2 Malawi Law Journal 199.

  28. 28.

    These include nomination, selection, and appointment of members of the Tribunal.

  29. 29.

    The status of the SADC Tribunal at the time of the finalisation of this study is a complex legal issue. Pending the coming into force of the recently adopted ‘new’ protocol, the Tribunal is still de jure as constituted in terms of the SADC Treaty and the original protocol as later amended in 2002, hence the deliberate use of the present tense in referring to the ‘old’ Tribunal that has de facto been disbanded.

  30. 30.

    It should be noted that in terms of the Agreement Amending the Protocol of the Tribunal adopted at Lusaka, Zambia, on 17 August 2007, the Tribunal’s jurisdiction was ‘extended’ to include determination of appeals arising from the decisions of panels constituted in terms of the Protocol on Trade. See C. Ng’ongo’la in ‘The framework for regional integration in the Southern African Development Community’ (2008) University of Botswana Law Journal who at p. 28 makes reference to art 5 of the Agreement Amending the Protocol of the Tribunal, inserting a new art 20A in the Tribunal Protocol. It can be argued though that art 14 of the Tribunal Protocol is broad enough and would have bestowed such appellate jurisdiction on the Tribunal anyway. However, the 2007 amendment could be defended on the basis that an explicit conferment of appellate jurisdiction in trade matters in the Tribunal Protocol itself was necessary for purposes of clarity especially on the exact nature of the Tribunal’s jurisdiction.

  31. 31.

    Art 15(2) of the SADC Tribunal Protocol.

  32. 32.

    Art 15(3) of the SADC Tribunal Protocol.

  33. 33.

    Art 21(a) of the SADC Tribunal Protocol.

  34. 34.

    Art 21(b) of the SADC Tribunal Protocol. The application of rules and principles of the laws of Member States is well established in international adjudication. See, for example, D. Freestone ‘The European Court of Justice’ in J. Lodge (ed.) Institutions and policies of the European Community (1983) 47.

  35. 35.

    Ernest Francis Mtingwi v SADC Secretariat SADC (T) 1/2007 (decided on 27 May 2008); Bookie Monica Kethusegile-Juru v the Sothern African Parliamentary Forum SADC (T) 02/2009 (decided on 5 February 2010); Mondlane v SADC Secretariat SADC (T) 07/2009 (decided on 5 February 2010); Kanyama v SADC Secretariat SADC (T) 05/2009 (decided on 29 January 2010).

  36. 36.

    Swissbourgh Diamond Mines (Pty) Ltd and Others v Kingdom of Lesotho SADC (T) 04/2009 (11 June 2010); United Republic of Tanzania v Cimexpan ( Mauritius ) Ltd and Others SADC (T) 01/2009 (11 June 2010); Zimbabwe Human Rights NGO Forum v Republic of Zimbabwe SADC (T) 05/2009 (decided on 1 January 2008).

  37. 37.

    Barry L.T. Gondo and 8 others v the Republic of Zimbabwe SADC (T) 05/2008 (decided on 9 December 2010). See Chap. 2 for a summary of the salient facts and the reasoning of the Tribunal in this case; Luke Tembani v Republic of Zimbabwe SADC (T) 07/2008 (14 August 2009).

  38. 38.

    United People’s Party v Southern African Development Community and others SADC (T) 12/2008 (14 August 2009).

  39. 39.

    See, for example, http://www.dailymail.co.uk/news/article-132504/Zimbabwe-white-farmers-fight-flee.html (accessed 1 October 2013); http://www.voanews.com/content/white-zimbabwe-farmer-killed-105789778/156393.html (accessed 1 October 2013).

  40. 40.

    In one of the cases, the government of Zimbabwe deposed to an affidavit to the effect that there was a state of lawlessness prevailing in Zimbabwe at the relevant time and that the authorities had difficulty in addressing the problem of intimidation and violence committed by certain people. See Mike Campbell (Pvt) Limited and others v the Republic of Zimbabwe SADC (T) 11/2008 (decided on 18 July 2008) para 4.

  41. 41.

    Mike Campbell (Pvt) Ltd and others v Republic of Zimbabwe SADC (T) 2/2007 (decided on 28 November 2008). The full judgment of the Tribunal in this case, like in all the cases decided by the Tribunal dealt with in this Chapter, is available at www.salii.org (last accessed 9 September 2013); http://www.worldcourts.com/sadct/eng/index.htm (last accessed 13 September 2014).

  42. 42.

    The order has been paraphrased.

  43. 43.

    It is not clear on what basis the Tribunal did not order a return to the status quo ante.

  44. 44.

    The judgment does not state if the fair compensation was for improvements effected before acquisition or it was fair compensation for the actual value of the lands.

  45. 45.

    Mike Campbell (Pvt) Limited and others v the Republic of Zimbabwe (Footnote 40 above).

  46. 46.

    Gazetted Lands (Consequential Provisions) Act.

  47. 47.

    This was the designation of the Deputy Attorney General responsible for criminal prosecutions at the time. At the time of the finalisation of this study, there is now a separate constitutional institution,—the Prosecutor General, that is distinct from that of Attorney General.

  48. 48.

    These facts are derived from the decision of the Tribunal in the first ‘referral’ matter. See Footnote 40 above.

  49. 49.

    SADC (T) 03/2009 (decided on 5 June 2009).

  50. 50.

    Para 4 of the Tribunal judgment in SADC (T) 03/2009. See Footnote 49 above. It should be pointed out that other than being clearly contemptuous and disdainful of the Tribunal, the attitude of the Deputy Attorney General raises another fundamental concern: In terms of the then Constitution of Zimbabwe , specifically Sect. 76(4) & (4a), when exercising his prosecutorial powers, the Attorney General was not supposed to be under the direction or control of any person or authority. Quite clearly, in this case, the Attorney General was pandering to the political whims of the government of Zimbabwe and thus failed to act independently in the discharge of his constitutional prosecutorial duties.

  51. 51.

    The Tribunal judgment however does not state the name the Deputy Chief Justice.

  52. 52.

    See generally the reasoning of Justice Patel in Gramara (Private) Limited and Another v the Republic of Zimbabwe HC 5483/2009.

  53. 53.

    As above. See also E. de Wet ‘The rise and fall of the Tribunal of the Southern African Development Community: Implications for dispute settlement in Southern Africa’ (2013) 28 # 1 ICSID Review 54–56; Nathan (Footnote 27 above) 127–128.

  54. 54.

    Gramara case (Footnote 52 above). As noted by H.S. Adjolohoun in ‘Giving effect to the human rights jurisprudence of the Court of Justice of the Economic Community of West African States: Compliance and influence’ unpublished LLD thesis, University of Pretoria, 2013; the problem with this procedure is that it treats the SADC Tribunal judgments as judgments of foreign courts instead of making them directly enforceable in Member States as if they were domestic judgments. The latter is in fact the case in EAC and ECOWAS where the only formality for purposes of execution is the verification of the fact that the judgment emanates from the respective regional court. See pp. 109–111 and 125. A similar argument is made by de Wet (Footnote 53 above) 55. See also the reference thereunder.

  55. 55.

    F. Cowell ‘The death of the Southern African Development Community Tribunal’s human rights jurisdiction’ (2013) Human Rights Law Review (advance access March 12 2013) 9, 12 http://hrlr.oxfordjournals.org/ (accessed 26 April 2013).

  56. 56.

    See also De Wet (Footnote 53 above) 58. Of the Summit’s series of decisions on the Tribunal beginning August 2010 [these included the decision not to reappoint judges whose term of office would expire in August 2010 for another five years pending the review of the role, responsibilities, and terms of reference of the Tribunal by the Committee of Ministers of Justice/Attorneys General as mandated by the Summit; and that the members of the Tribunal would remain in office pending the said review but that the Tribunal should not entertain new cases until such time that an extraordinary meeting of the Summit would have decided on the legal status and roles and responsibilities of the Tribunal (See paras 9.3–9.5 of the minutes of Summit meeting of 16–17 August 2010, Windhoek. The minutes are available in the SADC library, Gaborone, accessed 10 March 2014)] the last and most decisive was the one taken at the August 2012 Maputo Summit. Per para 24 of its Maputo resolutions, where the Summit ‘resolved that a new Protocol on the Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols related to disputes between Member States.’

  57. 57.

    Mail and Guardian http://www.mg.co.za/article/2011-08-19-killed-off-by-kings-and-potentates (accessed 1 October 2013).

  58. 58.

    A similar question is posed by Ebobrah (Footnote 27 above) 109. See particularly footnote 35 on that page. There is a difference though since Ebobrah’s question is simply whether one institution of SADC can exercise powers to suspend the operations of another. He does not extend his question to include the question of legality. Indeed the Summit can legally suspend or even dissolve any institution of SADC, including the Summit itself, through Treaty amendment. On the other hand, the Tribunal itself can (or could) suspend or nullify the existence of another institution or organ of SADC on the grounds that the institution or organ in question was not procedurally brought into existence.

  59. 59.

    See also A. Saurombe ‘The role of SADC institutions in implementing SADC Treaty provisions dealing with regional integration’ (2012) 15 # 2 Potchefstroom Electronic Law Journal 471 https://doi.org/10.4314/pelj.v15i2.16 (last accessed 15 October 2014).

  60. 60.

    This was in fact also pointed out by the members of the Tribunal in their letter addressed to the SADC executive secretary in the aftermath of the initial suspension of the Tribunal in 2010. See L. Nathan ‘The disbanding of the SADC Tribunal: A cautionary tale’ (2013) 35 # 4 Human Rights Quarterly 878–879 and the reference thereunder.

  61. 61.

    Some scholars are not in total agreement though. See, for example, M.J. Nkhata ‘The role of regional economic communities in protecting and promoting human rights in Africa: Reflecting on the human rights mandate of the Tribunal of the Southern African Development Community’ (2012) African Journal of International and Comparative Law 100. Nkhata is convinced that the Tribunal did not do a good job in establishing its human rights jurisdiction. Although he does not dispute that the Tribunal has (had) a human rights mandate, he believes the SADC Treaty provisions relied upon by the Tribunal are not adequate to justify the Tribunal’s jurisdiction.

  62. 62.

    The institutions of the EAC are discussed in Chap. 6, Sect. 6.2.

  63. 63.

    This is quite contrary to the observation on the similarity of the EAC Treaty provisions and those of the SADC Treaty and the (then) SADC Tribunal Protocol by S.T. Ebobrah in ‘Litigating human rights before sub-regional courts in Africa: Prospects and challenges’ (2009) 17 African Journal of International and Comparative Law (p. 84), at least in as far as the actual provisions of the relevant instruments are concerned. To his credit, Ebobrah later on concedes (at p. 91) that indeed there is a distinction between the EAC and the (then) SADC regimes.

  64. 64.

    Mr Jakaya Kikwete (former president of the Republic of Tanzania ) is said to have remarked at the time of the establishment of the Tribunal (he was then Minister of Foreign Affairs) that SADC was creating ‘a monster that would devour us all.’ See Mail & Guardian (Footnote 57 above).

  65. 65.

    For a discussion of the nature of the crimes and the difficulties faced by victims and survivors of victims in seeking legal accountability in Zimbabwe and elsewhere, see generally M. Killander & M. Nyathi ‘Accountability for the Gukurahundi atrocities in Zimbabwe thirty years on: prospects and challenges’ (2015) 48 # 3 Comparative and International Law Journal of Southern Africa 463.

  66. 66.

    De Wet (Footnote 53 above) 62. See also D. Wincott ‘The Court of Justice and the European policy process’ in J. Richardson (ed.) European Union: Power and policy making (1996) 195. Wincott, dealing with a similar argument in the context of the EU, criticises the view by one analyst who presented the CJEU’s ‘common tactic’ as gradual introduction of a new doctrine, building a lot of qualifications around it and in due course, if there were not ‘too many protests’ the court would get rid of the initial qualifications and reveal the full extent of the doctrine. Wincott attacks this kind of analysis on the basis that although it ‘gives a nice flavor of the tactics of the Court … it may attribute too much foresight to it.’

  67. 67.

    Art 5 of the Tribunal Protocol, as read with rule 3 sub rule 1 and Annex 1 of the Tribunal Rules of Procedure.

  68. 68.

    For a discussion of the state of democracy in Southern Africa with reference to the dissolution of the SADC Tribunal, see generally Nathan (Footnote 27 above) 123–137. One of the observations made by Nathan (at p. 133) is that in view of the general state of democracy in the SADC region, ‘…it is not possible for the SADC states to be bound—either in the sense of being united or in the sense of being constrained—by democratic principles.’ According to Nathan, SADC legal instruments—the Treaty and protocols, are viewed by the SADC political elite as merely ‘rhetorical rather than substantive and legally binding.’

  69. 69.

    Banjul, Gambia, 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, 22 October to November 2013.

  70. 70.

    Para 138 of the finding.

  71. 71.

    Para 142 of the finding.

  72. 72.

    Paras 143–145 of the finding.

  73. 73.

    Para 131 of the finding.

  74. 74.

    ECOWAS had been established barely six years back in 1975 and SADC became a treaty organisation in 1992.

  75. 75.

    On the relationship between some of the institutions of the AU and African RECs, see S.T. Ebobrah ‘Legitimacy and feasibility of human rights realisation through regional economic communities in Africa: The case of the Economic Community of West African States’ unpublished LLD thesis, University of Pretoria (2009) 58, 81.

  76. 76.

    (2010) ECtHR 43233/028 March 2010 (Final 18 June 2010).

  77. 77.

    (2011) ECtHR 7051/0626 May 2011 (Final 26 August 2011).

  78. 78.

    For a discussion on the relationship between national, sub-regional, regional, and international human rights systems (with particular reference to ECOWAS) see Ebobrah (Footnote 75 above) 139‑140.

  79. 79.

    Art 33.

  80. 80.

    Mankhambira Mkandawire, presenting at a stakeholder roundtable discussion on the SADC Tribunal at the Centre for Human Rights, Faculty of Law, University of Pretoria held on 28 and 29 August 2014. The author was a participant and facilitator at that roundtable discussion.

  81. 81.

    Presentation by Mr Yusuf Danmadami, Senior Recorder at the ECOWAS Court of Justice; and Professor John Ruhangisa, Registrar at the EACJ respectively, at the stakeholder roundtable discussion referred to in Footnote 80 above.

  82. 82.

    Art 34. See also art 16 (4) of the SADC Treaty above.

  83. 83.

    Arts 52 and 53.

  84. 84.

    It should be noted that this is not provided for in the new protocol but is in terms of the SADC Treaty amendment of 17 August 2007.

  85. 85.

    Art 35.

  86. 86.

    See art 2(1), as read with art 3(1).

  87. 87.

    Art 5(1).

  88. 88.

    A number of civil society organisations in SADC are working on multipronged litigation and advocacy strategies for the reinstatement of the Tribunal in its previous form. This came out of some of the plenary discussions at a stakeholder roundtable discussion on the SADC Tribunal referred to in Footnote 80 above.

  89. 89.

    Schermers & Blokker (Footnote 1 above) 407. With regards to employment disputes between SADC and its employees however, SADC Administrative Tribunal (SADCAT ) has now been established by means of ordinary Summit decision. See para 27 of the communiqué of the 35th Summit of SADC Heads of State and Government, Gaborone 17–18 August 2015 https://www.sadc.int/files/7814/3997/3204/Final_35th_Summit_Communique_as_on_August_18_2015.pdf (last accessed 8 April 2016).

  90. 90.

    Art 16A (1) of the SADC Treaty.

  91. 91.

    Art 16A (12) of the SADC Treaty.

  92. 92.

    Nzewi & Zakwe (Footnote 3 above) 7.

  93. 93.

    See S. Ngwenya ‘Regional integration in Africa,’ in M. Mbeki (ed.) Advocates for change, how to overcome Africa’s challenges (2009); B. Moyo ‘Civil society organisations’ engagement with regional economic communities in Africa, people friendly or people driven?’ Final report submitted to the UNDP Regional Service Centre for Eastern and Southern Africa, Johannesburg, 2007.

  94. 94.

    Moyo (Footnote 93 above) 53. It should be noted that participation by civil society actors is not only provided for in the provisions dealing with the SNCs. Art 23(1) of the Treaty commits SADC to ‘involve fully, the peoples of the Region and key stakeholders in the process of regional integration.’ Unfortunately no peremptory framework of ‘full involvement’ is set out in the Treaty.

  95. 95.

    See generally, D. Motsamai ‘SADC’s review of its Principles and Guidelines Governing Democratic Elections: Need for civil society inputs?’ Institute for Global Dialogue (October 2013) Issue # 102.

  96. 96.

    Art 16A (1) as read with art 16A (13) (a)–(e).

  97. 97.

    Art 16A (3).

  98. 98.

    Art 16A (4) (a)–(d).

  99. 99.

    Art 16A (5).

  100. 100.

    Article 16 A (6). Just like the sub-committees, the technical committees are not properly introduced, constituted, and given functions.

  101. 101.

    Art 16A (7).

  102. 102.

    Although the use of ‘shall’ implies a peremptory obligation, the subsequent employment of ‘endeavour’ clearly means participation of key stakeholders in these committees is merely directory.

  103. 103.

    This is contrary to the conclusion reached by Moyo (Footnote 93 above). Indeed even the reference to the involvement of the peoples of the region and key stakeholders in the process of regional integration in art 23 could be said to be merely directory as it does not spell out a peremptory framework of engagement.

  104. 104.

    For example, Nzewi and Zakwe (Footnote 3 above) believe that the SADC Treaty categorically provides that SNCs should be funded by their respective Member States.

  105. 105.

    Art 16A (11) of the SADC Treaty.

  106. 106.

    Art 16A (1).

  107. 107.

    As noted by C. Ng’ongo’la in ‘The framework for regional integration in the Southern African Development Community’ (2008) University of Botswana Law Journal at pp. 27–28, the participation of stakeholders in the SADC integration project is deferred to this peripheral institution and is not accommodated in the core institutions of SADC which remain intergovernmental in character. This view may not be entirely correct since, as pointed out elsewhere in this section, the framework of involvement in art 23(1) is of a general character as opposed to the specific one with regard to SNCs. However, even the art 23(1) framework is, as argued below, not sufficient to guarantee effective stakeholder participation in the SADC integration project.

  108. 108.

    Item 4.5.4.1 (i) of extract of minutes of the said meeting. The minutes are available in the SADC Library, Gaborone (accessed 10 March 2014).

  109. 109.

    Item 4.5.4.1 (iii) of the minutes. See Footnote 108 above.

  110. 110.

    Faced with a similar legal framework, the East African Court of Justice (EACJ) observed: ‘However, neither Article 150 nor any other provision of the Treaty specifies the modality and extent of people’s participation in cooperation activities in general and in the amendment of the Treaty in particular. Ideally, it would have been easier for this Court to uphold and apply the proposition that every amendment of the Treaty must involve prior consultation of the people, if the draftsman had provided the measure for determining such involvement or participation, as is done for example, in integration treaties that provide for consulting the people through referenda. Undoubtedly other forms of involving and consulting the people are also possible.’ See East African Law Society & 3 others v Attorney General of the Republic of Kenya & 4 others (Reference 3 of 2007, decided on 1 September 2008), para 64. See Chap. 6, Sect. 6.2 for a detailed discussion of the EACJ.

  111. 111.

    See, for example, E.N. Tjønneland ‘Making SADC work? Revisiting institutional reform’ in Hansohm D. et al. (eds) Monitoring regional integration in Southern Africa yearbook (2005) 5, 171; Nzewi and Zakwe (Footnote 3 above) 9; L. Giuffrida & H. Müller-Godde ‘Strengthening SADC institutional structures—capacity development is the key to SADC Secretariat’s effectiveness’ in Bösil, A. et al. (eds) Monitoring regional integration in Southern Africa Yearbook (2008); S. Zondi ‘Governance and social policy in the SADC region: An issues analysis’ (2009) Working Paper Series No. 2 Planning Division, Development Bank of Southern Africa 19.

  112. 112.

    Zondi (Footnote 111 above) 19.

  113. 113.

    A. Peters ‘Membership in the global constitutional community’ in J. Klabbers et al. (2009) The Constitutionalization of international law 156.

  114. 114.

    Schermers & Blokker (Footnote 1 above) 408–411.

  115. 115.

    Schermers & Blokker (Footnote 1 above) 411.

  116. 116.

    Schermers & Blokker (Footnote 1 above) 412–415. The examples given include the North Atlantic Assembly; the Parliamentary Assembly of the Council of Europe; the Parliamentary Assembly of the Organisation of Security and Cooperation in Europe; the Parliamentary Assembly of the Black Sea Economic Cooperation; the Parliamentary Assembly of ECOWAS; SADCPF; the Pan-African Parliament; the Latin American Parliament; and the Andean Parliament. For the challenges associated with attempting to categorise/classify international parliamentary institutions and for some of the attempts at their categorisation/classification, see O. Costa et al. ‘Introduction’ in O. Costa et al. (eds) Parliamentary dimensions of regionalization and globalization: The role of inter-parliamentary institutions (2013) 6–10.

  117. 117.

    Z. Šabič ‘International parliamentary institutions: A research agenda’ in O. Costa et al. (eds) Parliamentary dimensions of regionalization and globalization: The role of inter-parliamentary institutions (2013) 25. Šabič makes reference to the works of David Held and Daniele Archibugi, proponents of the cosmopolitan democracy project. See Chap. 1 where reference to the cosmopolitan democratic model is also made, including an outline of a cosmopolitan global order that is envisioned by Held and Archibugi.

  118. 118.

    Šabič (Footnote 117 above) 20–21.

  119. 119.

    The first international parliament, the Inter-Parliamentary Union was set up in 1889. See Costa et al (Footnote 116 above) 1.

  120. 120.

    Costa et al (Footnote 116 above) 5. See also the reference thereunder.

  121. 121.

    As above.

  122. 122.

    As above.

  123. 123.

    Costa et al. (Footnote 116 above) 6; M.A.M., Salih ‘African regional parliaments: legislatures without legislative powers’ in O. Costa et al. (eds) Parliamentary dimensions of regionalization and globalization: The role of inter-parliamentary institutions (2013) 152.

  124. 124.

    Some scholars see the remarkable incremental growth of the European Parliament’s powers within the EU project (discussed in detail in Chap. 6, Sect. 6.4) as a direct result of the influence of democracy as an ideology. See generally O. Costa & N. Brack ‘The role of the European Parliament in Europe’s integration and parliamentarization process’ in O. Costa et al. (eds) Parliamentary dimensions of regionalization and globalization: The role of inter-parliamentary institutions (2013) 45–69.

  125. 125.

    These are, as already discussed in detail so far: the Summit; the OPDS; the CoM; the SCMCs; the SCO; the Secretariat; the Tribunal; and SNCs.

  126. 126.

    The date of establishment of the SADCPF is derived from the date of signing of its constitutive document, the SADC-PF Constitution, available at http://www.sadcpf.org (last accessed 9 September 2013).

  127. 127.

    See, for example, the website of the SADCPF (Footnote 126 above, accessed 9 September 2013).

  128. 128.

    See Footnote 35 above.

  129. 129.

    Para 2 of the ruling.

  130. 130.

    Para 4 of the ruling.

  131. 131.

    Para 5 of the ruling.

  132. 132.

    Para 6 of the ruling.

  133. 133.

    SADCPF website (Footnote 126 above).

  134. 134.

    The document is available in the SADC library, Gaborone (accessed 10 March 2014).

  135. 135.

    Para 6 of the communiqué of the Summit held at Sandton, Johannesburg, available in the SADC library, Gaborone (accessed 10 March 2014). It should also be noted that while the SADC website lists the SADCPF under the ‘SADC Institutions,’ the website goes on to state that the SADCPF ‘does not have a reporting relationship to Summit and other SADC Institutions but works together with them on matters of common interest.’ See http://www.sadc.int/about-sadc/sadc-institutions/sadc-parliamentarian-forum/ (last accessed 25 April 2015).

  136. 136.

    For a relatively detailed discussion of the stance taken by the SADCPF on the 2002 Zimbabwe presidential elections, see J. Isaksen ‘Restructuring SADC—progress and problems’ Development Studies and Human Rights, Chr Michelsen Institute Report R 2002: 15: Norway at p. 33 www.cmi.no (accessed 12 December 2013).

  137. 137.

    Nzewi and Zakwe (Footnote 3 above) 8.

  138. 138.

    SADC library, Gaborone (accessed 10 March 2014).

  139. 139.

    However, art 1 of the SADCPF Constitution states, among other things, that ‘The Constitution shall come into force upon the approval of the creation of the SADC Parliamentary Forum by the Summit of Heads of State or Government in accordance with Article 10(6) of the Treaty of the Southern African Development Community.’ (Own emphasis).

  140. 140.

    Available in the SADC library, Gaborone (accessed on 10 March 2014).

  141. 141.

    The observation by Justice Mkandawire, former registrar of the SADC Tribunal is apposite: ‘For as long as the SADC PF remains outside the mainstream SADC institutions actually mentioned in the SADC Treaty, it will continue to have negligible impact … in policy making in the SADC.’ See C. Mkandawire ‘Perspective on the parliamentary transformation agenda’ Regional Parliamentary Seminar on ‘Africa’s Regional Parliaments: State of Development, Cooperation and Potential’ 6 Southern Sun Hotel, Johannesburg, South Africa, 17–18 May 2012 http://www.awepa.org/wp-content/uploads/2012/05/3__Hon__Justice_Mkandawire_Perspectives_on_The_Parliamentary_Transformation_Agenda.pdf (accessed 12 September 2014). See also T. Musavengana The proposed SADC parliament: Old wine in new bottles or an ideal whose time has come? (2011) who, at p. 50 emphatically observes that SADCPF is not considered a formal SADC structure.

  142. 142.

    Schermers & Blokker (Footnote 1 above) 413.

  143. 143.

    See Footnote 89 above.

  144. 144.

    Art 4(2).

  145. 145.

    The legal status of SADC is set out in art 3 of the SADC Treaty. Para 1 provides that ‘SADC shall be an international organisation and shall have legal personality with capacity and power to enter into contract, acquire, own or dispose of movable or immovable property and to sue and to be sued.’ In terms of para 2, ‘[i]n the territory of each member state, SADC shall, pursuant to para 1[…], have such legal capacity as is necessary for the proper exercise of its functions.’

  146. 146.

    Among the many other objectives of the SADCPF [set out in art 5(a)–(o)] are to promote the principles of human rights, gender equality and democracy within the SADC region; and to familiarise the people of the SADC countries with the aims and objectives of SADC.

  147. 147.

    See generally art 8 of the SADCPF Constitution.

  148. 148.

    Art 7(1).

  149. 149.

    Art 7(2).

  150. 150.

    Art 8(3) (b) of the SADCPF Constitution.

  151. 151.

    Item 4.5.6.6 of minutes of meeting of CoM of 11–16 August 2011, Luanda, available in the SADC library, Gaborone (accessed 10 March 2014).

  152. 152.

    Moyo (Footnote 93 above) 52.

  153. 153.

    Item 4.5.6.5 of minutes of meeting of CoM of 11–16 August 2011 (Footnote 140 above).

  154. 154.

    Mkandawire (Footnote 141 above) 4, 6, 7; Musavengana (Footnote 141 above) 23, 24. In fact, Mkandawire was making reference to the latter.

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    Mkhululi Nyathi

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Nyathi, M. (2019). Oversight Institutions of SADC. In: The Southern African Development Community and Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76511-2_4

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