SADC Date of Establishment: August 17, 1992

SADC Tribunal Date Operational: November 18, 2005

SADC Tribunal Seat: Windhoek, Namibia

States Subject to SADC Tribunal Jurisdiction: Angola, Botswana, DRC, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, Zimbabwe

Number of Cases Received by the Tribunal: 1

The Tribunal of the Southern African Development Community (SADC) is the newest operationalized subregional court in Africa. Provided for under Article 16 of the 1992 Declaration and Treaty Establishing the Southern African Development Community, the Community’s members approved the Protocol required to set up the Tribunal in 2000. Despite the ratification requirements in the Protocol itself, the Protocol entered into force with the signature of the Agreement Amending the Treaty of SADC in August 2001. The Agreement Amending the Treaty marked a renewed energy in the integration of the Community, making the Protocol on the Tribunal an integral part of the Treaty and thus automatically applicable to all Member States. The renewed energy of the Community however, was not reflected in a swift establishment of the Tribunal. The first judges of the Tribunal were not sworn in until November 2005.  The Tribunal became ready to receive cases in April 2007 and received its first complaint in October 2007.

The Tribunal is composed of ten judges elected by the Council and is a permanent court. Only five of the members of the Tribunal are designated by the Council as regular members who will consistently sit on the bench. The other five judges are alternates to be called upon when any of the sitting members is unable to serve. The Tribunal has jurisdiction over controversies involving the interpretation or application of the Treaty, the interpretation, application or validity of Protocols and other Community documents and actions of the Community institutions. In addition the Court’s jurisdiction covers disputes under any other agreements of the Member States that specify use of the Tribunal.

The Tribunal also has a broad purview with respect to the law that it may apply in interpreting the Treaty and other Community instruments. The Tribunal not only can apply the Community law as reflected in the Treaty, Protocols and other instruments adopted by Community institutions, but it is exhorted to develop its own Community jurisprudence, applying also general international law principles and principles from individual states’ laws. This exhortation indicates a clear desire for the Tribunal to influence the direction and speed of the integration process for the Community. It also reflects a desire to create a truly supranational law applicable to the Community Member States; law that is not a pure reflection of the political agreements at the level of the Heads of State. Whether that law will include general principles of human rights as found in international law and the constitutions of the Member States will be determined by Tribunal jurisprudence. This will be particularly important given the state of human rights in some of the Member States.

The move away from political control of the Tribunal is solidified by the provision in the Protocol allowing natural and legal persons to bring cases to the Tribunal. A person can bring a case against another person under Community law directly to the Tribunal if the other party so agrees. Persons may sue the Community over the legality, interpretation or application of Community law. A person may also bring a Member State to the Tribunal in connection with Community law or the State’s obligations under such law once national remedies have been exhausted, thus making the Tribunal a final court of appeal for matters relating to Community Law. These provisions make it likely that the SADC Tribunal will not suffer the idleness that plagued the ECOWAS Court of Justice until access was provided to persons.

The Court’s control over the interpretation and application of Community law is strengthened by the inclusion in its Protocol of referral procedures akin to those of the European Court of Justice. A national court or tribunal in proceedings of any kind may request a preliminary ruling from the Tribunal on interpretation, application and validity of provisions. The relationship that may develop between the national courts of the Member States and the SADC Tribunal through the use of this provision will be key to the harmonized interpretation and application of Community law. The referral system as applied in the European Union played a major role in the development of EU law and in the integration of the region.

The Tribunal is not the only dispute settlement mechanism provided for by the Community. A 2000 amendment to the 1996 Protocol on Trade for the Southern African Development Community contains an alternative. Annex VI Concerning the Settlement of Disputes Between the Member States of SADC provides a complex dispute settlement mechanism modeled on the mechanism of the World Trade Organization. While this mechanism is designed to be ad hoc, the Annex does not include a provision reconciling it with the Protocol for the Tribunal. At the same time, the Protocol for the Tribunal does not recognize the Annex VI mechanism. Further, the Protocol also gives the Tribunal exclusive jurisdiction over cases between Member States regarding interpretation of Community law. Since the Annex VI mechanism has not been used and the Tribunal has not yet heard its first case, the issue of how they will coexist and avoid inconsistent interpretations of SADC law is yet to be addressed.