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Southern African Tribunal Weakened By Endorsment of Mugabe Re-Election

JURIST Guest Columnist Drew F. Cohen, a clerk for the Constitutional Court of South Africa, discusses the consequences of the Southern African Development Community endorsing Zimbabwe president Robert Mugabe's re-election...

Despite requests from Botswana to open an investigation into voter fraud, southern African leaders closed ranks several weeks ago at a regional summit in Malawi and endorsed the controversial July 31, 2013 Zimbabwe presidential elections, which extended leader Robert Mugabe's 33-year rule by another five years. Malawi President and Southern African Development Community (SADC) chairperson Joyce Banda congratulated Mugabe at the SADC conference on the "peaceful and fair polls" and further continued, "We wish to offer you continued support as a member of the family."

Botswana had lobbied [video] SADC — a regional economic bloc of fifteen southern African member states bound by a treaty to act in accordance with the principle of "human rights, democracy and the rule of law" — to conduct an independent audit of the results after its 80-member election observation team reported evidence of irregularities concerning voter rolls and identification requirements, "as well as credible allegations of people otherwise being denied the right to vote." The treaty empowers SADC to create "appropriate institutions and mechanisms" to support its initiatives — easily encompassing a commission to investigate instances of voter fraud — and created a binding tribunal to enforce its findings.

At the outset, SADC and its tribunal gained a reputation as an effective check against human rights abuses and an important regional mechanism to enforce the rule of law. SADC heads of government relied on the treaty's founding principles of upholding the rule of law and protecting democratic initiatives as the legal basis to suspend Madagascar following a coup in 2009.

Over its abbreviated lifetime, the tribunal has heard and decided sixteen individual claims of human rights abuses. Most famously, in 2009 the tribunal ruled in favor of white Zimbabwean farmers whose land had been expropriated without compensation by the government of Zimbabwe pursuant to its land redistribution program. Despite protests from the government of Zimbabwe, this June the Constitutional Court of South Africa not only upheld the tribunal's ruling, but also developed the South African common law to empower its domestic courts to enforce rulings of any tribunal where South Africa had an international obligation.

Unfortunately, SADC's resounding victory in the Zimbabwe farmers' case was short lived. In August 2010, following an effective lobbying campaign by the Zimbabwe government at a SADC leadership meeting, the tribunal was provisionally suspended and eventually stripped of its jurisdiction to hear individual human rights claims.

SADC's previous pyrrhic foray into Zimbabwe's internal policies may explain its reluctance to intervene on behalf of Botswana regarding allegations of voter fraud in Mugabe's election. With the recent spate of worrying reports of civil strife in Mozambique and the rebel violence in Bangui earlier this year fresh on their minds, regional leaders were willing to sacrifice democracy for stability and turn a blind eye to an election that, while characterized as peaceful by most accounts, was also widely viewed as marred by serious voting irregularities.

In taking this approach, southern African leaders threaten what little popular legitimacy in SADC and its tribunal remains. Consequently, the region stands to lose an important mechanism to hold states accountable to the people they govern.

Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.

Suggested citation: Drew F. Cohen, Southern African Tribunal Weakened By Endorsment of Mugabe Re-Election, JURIST - Hotline, September 11, 2013, http://jurist.org/hotline/2013/09/drew-cohen-mugabe-reelection.php.

This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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