“The time is always ripe to do right”
Dear Honourable Ministers of Justice,
I humbly submit this letter to you at a time when our region is at peace and when hope for a better future is flowering in all our countries. The people of our region, for centuries the victims of violence, oppression and exploitation, are standing in this the 21st Century as global citizens ready and willing to enjoy the fruits of their labour. We stand together at the door of a new and prosperous age.
Permit me to acknowledge your efforts, individually and collectively, which have contributed significantly to our common and shared optimism for Southern Africa and the Southern African Development Community.
Yet we know that the greatest storms can erupt without a cloud in the sky.
As a representative of civil society in our region, I must warn you Honourable Ministers that a storm is brewing for our region. The clouds of injustice are gathering at the very moment we, and indeed our continent, are at an historic crossroads: one road leads to lasting peace and sustained development, the other to authoritarian “democracy” and unsustainable greed by few at the expense of the many.
I find myself compelled, Honourable Ministers, to address this letter to you and the people of our region on a most critical matter of justice and its institution in our region – the SADC Tribunal.
You will recall that the SADC Tribunal was established under Article 16 of the Treaty of SADC to advance and ensure the rule of law. The SADC Tribunal and its corresponding Protocol are among the central institutions and mechanisms that advance regional integration and development. According to article 16 of the SADC Treaty the Tribunal’s main mandate is to interpret the provision of the Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it. Its jurisdiction has been outlined in detail in Article 15 of the Protocol. Therein it is specified that the scope of the Tribunal’s jurisdiction was to hear and adjudicate on disputes between states, between natural or legal persons and States once the natural and legal person has exhausted the legal remedies available at national level.
Unfortunately, the SADC Heads of State and Government suspended the Tribunal at its Summit in 2010, agreeing at that time to complete a review process of its role, function and terms of reference within six months. Four painful years have passed, in which time the Tribunal has remained suspended and effectively rendered defunct.
The SADC Treaty is the legal instrument which binds us all in this region. It is also a statement of intent, a visionary document outlining the responsibilities and duties of governments in the region towards each other and towards our people. It is a commitment to “enhance the standard and quality of life of the people” in Southern Africa, including a respect for human rights and dignity.
As a passionate and eager observer of the region and its institutions, I have come to the conclusion that your efforts over the past four years seem to have been directed in the opposite direction of those set out in the SADC Treaty. It is now apparent that a new draft Protocol governing the scope and operations of the Tribunal will limit its application to disputes between Member States of SADC. The intention and consequence of such will be to prohibit citizens from accessing the SADC Tribunal.
A bitter injustice Honourable Ministers is being brewed!
Honourable Ministers your actions and those of the Heads of State and Government in SADC caused us great alarm and grave concern. Despite our best efforts and those of highly regarded professional bodies, it seems that the voice of the people and citizens will not be heard by you. It is obvious that your actions undermine the rule of law and subvert the principles of justice, as well the spirit and intent of the SADC Treaty. As Africans we have fought and died for our freedoms. We know that the light of freedom must burn most brightly for the one without dignity, without material power or political influence.
Our system of governance must not be constructed like a dam wall of laws which frustrate the aspirations and desires of our people. When the storm comes in the flood of anger borne of injustices, large and small, which can no longer be endured, the dam of “law” will burst to nothingness. Let me state this clearly: the people will not submit to a “legal” system which is unjust!
As civil society we are mindful of the words of Halie Selaise:
“Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.”
It is my duty to speak out in the face of the miscarriage which you have been directed to carry, and are consequently preparing for our people. It is my duty to defend SADC from those, within and without our region, who seek to undermine it.
As late President Nelson Mandela said: “the time is always ripe to do the right thing”
It is my duty to call your attention to this humble, and yet incontrovertible fact and appeal to you to use your time wisely. Honourable Ministers please heed our call:
Resist the temptation to derail our region! Resist the folly of plunging us into an abyss of the rulers’ law! Resist the desire to be complicit in injustice! Rise to a greater cause and plant your feet firmly on the side of history, justice, freedom, peace and equality. Let the 21st Century record your name on the wall of heroes who gave all the people the gift of permanent peace held safe in the arms of permanent justice!
We call on you, quite simply, to do the right thing. We assure you of our collective support and our unstinting determination to help birth a new and untarnished Regional Court of Justice, a beacon and custodian of justice in Southern Africa! In this regard Honourable Ministers, I must implore you to take the following actions:
- In the first instance it is vital that you delay the decision on the revision of the Protocol governing the Tribunal.
- We call on you to refer the matter for wider consultation with non-?state actors and the SADC Parliamentary Forum, amongst others.
- I urge you to submit your proposal for discussion with SADC citizens to arrive at a decision, which matches the aspirations of all our people and our respective governments.
In our collective wisdom we can surely break this impasse and craft a legal instrument and institution which is befitting our history and our aspirations!
Yours in the Struggle for Justice for All!
A luta Continua
Mr Boichoko A. Ditlhake
Executive Director SADC-?CNGO