High Court Judge Anne-Mary Gowora on Wednesday the 6th of March 2009 ruled that the Southern African Development Community Tribunal (hereafter the SADC Tribunal) is not superior to the courts of the individual SADC member countries. This decision nullified a SADC Tribunal ruling made in favour of Richard Etheredge and others. Etheredge a former white Zimbabwean farmer had his farm acquired by the government of Zimbabwe under The Land Reform act. In particular under section 16B of the Constitution of Zimbabwe (Amendment No 17, 2005) hereafter referred to as amendment no 17.
The case brought to the High Court by Richard Etheredge had become a source of controversy both home and abroad. The applicants among other things were seeking an enforcement order of the SADC Tribunal Order that ruled that the Zimbabwean Government had violated its Treaty obligations under SADC by enacting a law (Amendment no 17) that ousted any challenge in the national courts by its citizens or other legal persons after their land had been acquired under amendment no 17.
The Tribunal also ruled that all the land belonging to Richard Etheredge and others who were party to this application had been unlawfully acquired by the Government of Zimbabwe since the Minister who carried out the compulsory acquisition had failed to establish objective criteria in order to satisfy himself that the land to be acquired was necessary for resettlement purposes in conformity with the land reform programme.
Richard Etheredge and others also claimed they had been denied access to the national courts to challenge the legality of the compulsory acquisitions and that they suffered racial discrimination since they were the only ones who had their land acquired under the land acquisition act and that they had been refused compensation for the land taken from them.
The applicants were therefore seeking an order that declared that the Government of Zimbabwe was in breach of its Treaty obligations under the SADC Treaty by implementing Amendment 17 and hence the acquisition of their land was illegal.
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The Government of Zimbabwe respondent by arguing that the SADC Tribunal had no jurisdiction to entertain the application brought by Richard Etheredge and others as the premises of the land reform was on a willing seller and willing buyer basis and that the land was to be purchased from the white farmers who by virtue of colonial history were in possession of most of the arable land in Zimbabwe.
The government of Zimbabwe further argued that land acquisition was an ongoing exercise and that it continues to acquire large tracts of land from white farmers who because of circumstances brought about by the country’s colonial history so happens to be possession of most of the land. The government argued that this policy cannot surely be misconstrued as racism.
The government of Zimbabwe went on further to state that some black farmers have also had their land acquired under the land reform exercise and that the white farmers would receive compensation under the land reform act as provided for in the law.
Further to this, the land reform exercise was directed at rectifying a colonial imbalance that has existed for centuries and it so happened that the applicant’s farms were suitable for the envisaged resettlement exercise. The argument that the white farmers were not getting access to local courts was unfounded. If at all they had issues with the courts it was up to the applicants to apply for judicial review the government added.
After consideration of the above arguments the SADC Tribunal had to decide on a number of issues. Firstly whether the Tribunal had jurisdiction to entertain the application brought by Richard Etheridge and others. Whether they had indeed been denied access to the national courts in Zimbabwe and therefore denied a local remedy. Also at issue were whether or not the issue of racism had indeed been a factor in the acquisition of their farms and whether or not the compensation was forth coming.
With regards to the issue of jurisdiction the SADC Tribunal cited Article 9 as the enabling provision in the SADC Treaty that created the Tribunal as an international organisation with its functions clearly outlined under Article 16.They are to ensure adherence to the Treaty provisions when it came to dispute among member states. The bases of jurisdiction among others are all disputes and applications referred to the Tribunal in accordance with the Treaty and the Protocol which relate to the interpretation and application of the Treaty.
The scope of the jurisdiction is stated in Article 15 sub-section 1. That is to adjudicate upon “disputes between states and natural and legal persons and states” In terms of Article 15, sub section 2, “no person may bring an action before the SADC Tribunal without first exhausting all available remedies or unless is unable to proceed under the jurisdiction of such a state.
Richard Etheredge and others commenced their proceedings initially in the Zimbabwe Supreme Court. The highest court in the land challenging the acquisition of their farms. Their claim among others was that Amendment 17 obliterated their right to equal treatment before the law, to a fair hearing before an independent and impartial court and their right not to be discriminated on the bas
On October 11, 2007, before the Supreme Court had issued its judgement, some of the applicants applied to the SADC Tribunal for interim relief. The Government of Zimbabwe raised this matter with SADC Tribunal as to whether the applicants had followed procedure and exhausted all the legal remedies provided for in domestic courts.
The concept of exhaustion is not unique to the SADC Tribunal as it is standard in other regional and international conventions. In the European Convention on Human rights Article 26 provides “The Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally excepted rules on International law” Similarly the African charter on Human and Peoples rights provides in Article 50 “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving the remedies would have been unduly prolonged”. The Tribunal accepted the requirement of exhausting the local remedies in national courts as paramount before approaching the SADC Tribunal. The rationale used was to allow domestic courts to first deal with what is regarded as a local matter before escalating it to the SADC Tribunal.
In deciding on this matter the SADC Tribunal concluded that amendment 17 as a law in Zimbabwe ousted the provision of using local remedies when it came to the issue of land acquisitions and therefore the applicants who applied directly to the SADC Tribunal for relief argued they were not able to institute proceedings before Zimbabwe’s national courts. This position was subsequently confirmed by the decision of The Supreme Court given on February 22, 2008 in Mike Campbell (Pty)Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).
The Tribunal also referred to Article 14 (a) of the Protocol, and observed That Amendment 17 had indeed ousted the jurisdiction of the courts of law in Zimbabwe. The next issue to be decided was whether or not the Applicants have been Denied access to the courts and whether they had been deprived of a fair hearing by Amendment 17.It is settled law that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to fair hearing before an individual is deprived of a right, interest or Legitimate expectation. As indicated already, Article 4 (c) of the Treaty Obliges Member States of SADC to respect principles of “human rights, Democracy and the rule of law” and to undertake under Article 6 (1) of the Treaty “to refrain from taking any measure likely to jeopardize theSustenance of its principles, the achievement of its objectives and the
Implementation of the provisions of the Treaty”. Consequently, Member States of SADC, including the Government of Zimbabwe, are under a legal obligation to respect, protect and promote those twin fundamental rights.
The right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation is another principle well recognized and entrenched in law.
Any existing ouster clause in terms such as “the decision of the Minister shall not be subject to appeal or review in any court” prohibits the court from re-examining the decision of the Minister if the decision reached by him was one which he had jurisdiction to make. Any decision affecting the legal rights of individuals arrived at by a procedure which offended against natural justice was outside the jurisdiction of the decision-making authority so that, if the Minister did not comply with the rules of natural justice, his decision was ultra vires or without jurisdiction and the ouster clause did not prevent the Court from enquiring whether his decision was valid or not
The Tribunal found in favour for the applicants in that they had been expressly denied the opportunity of going to court and seeking redress for the deprivation of their property, giving their version of events and making representations.
“We are, therefore, satisfied that the Applicants have established that they have been deprived of their agricultural lands without having had the right of access to the courts and the right to a fair hearing, which are essential elements of the rule of law, and we consequently hold that the Respondent (The Government) has acted in breach of Article 4 (c) of the Treaty.
The issue of racial discrimination was dismissed by the SADC Tribunal. It was found that amendment no 17 was not discriminatory in its approach because it so happened that white Zimbabwe farmers where in the unique place of being targets of acquisition as a result of a historical imbalance. “The Respondent has, therefore, not discriminated against white
Zimbabwean farmers and has not acted in breach of Article 6 (2) of the Treaty.
The applicant also raised the issue of compensation. The Zimbabwe Government argued that Britain the former colonial power was responsible for compensating the land. It argued that the independence agreement reached in 1978 in London provided that payment of compensation for acquired land for resettlement purposes would be paid by the former colonial power.
The SADC Tribunal disagreed and held that The Payment of compensation was an international law obligation and therefore it refuted the position of the Zimbabwe government of relying on amendment no 17 which provides for compensation on improvements on the land only.
The SADC Tribunal final decision concluded for the reasons given above that the Zimbabwe Government had been in breach of its SADC Treaty obligations and that the Zimbabwe Government should take all necessary steps to correct these breaches and that amendment number 17 was in breach of the SADC Treaty
It is this decision that came before the High Court brought by Former White farmer Richard Etheredge who was seeking to enforce the SADC ruling to evict the land reform beneficiary, President of the Senate Edna Madzongwe. The judge reasoned that although Zimbabwe signed the SADC Treaty that established the court, the treaty does not expressly state that the tribunal is to be considered the superior court for all member states.
The decision by the High Court Judge Anne-Mary Gowora is instructive. It brings a new dimension to the SADC Tribunal ruling. It suggests that Zimbabwe was not bound by the decision of the SADC Tribunal for the reasons she outlined and a whole lot more. It is this decision I propose to interrogate briefly and in the process add my own reasons why I think her decision is instructive.
Whenever a country signs up to a Treaty, the potential always exists in national law that the incoming Treaty laws might contradict or be in conflict with a national law. This was the case in the above matter. There is no provision in the Constitution of Zimbabwe giving supremacy to any foreign law. In fact in the case of Zimbabwe the Constitution is the supreme law.
.Any law that is not consistent with the Constitution is void at law. The SADC Tribunal held that amendment no 17 to the Constitution of Zimbabwe violated Zimbabwe’s Treaty obligations. Zimbabwe signed the SADC Treaty. By enacting amendment no 17, Zimbabwe demonstrated its parliamentary sovereignty. It demonstrated that SADC law has no direct effect on Zimbabwean law.
To this end SADC member states upon signing up to the SADC Treaty, they were supposed to cede part of their sovereignty to SADC. Make provision for SADC laws to have a direct effect on member states in the process empower the SADC institutions to adopt laws. These laws (regulations, directives and decisions) would take precedence over national law and are binding on national authorities in member states.
To demonstrate this concept, the European Union model is the most ideal example. By signing to the European communities act of 1973, it did not immediately mean that the United Kingdom would obey all laws coming from Brussels. The United Kingdom had to pass an enabling legislation hence incorporating European law into United Kingdom domestic law; Zimbabwe has not passed any enabling legislation ceding parliamentary or constitutional sovereignty to SADC.
In 1972, the UK a signed the Treaty of Rome in Brussels. European law was incorporated into UK law by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.
Section 2(1) of the European Communities Act 1972 states that:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.
Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.
Section 2(4) of the European Communities Act 1972 states that:
The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.
Section 3(1) of the European Communities Act 1972 states that:
For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).
The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law - including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised.
SADC member states have not ceded any power over its national institutions to SADC. It then begs the question whether a treaty signature amounts to a SADC law that will have a direct effect on SADC member states without any enabling legislation in the relevant member state?
Because of the different legal traditions followed in SADC member states it would seem logical to have an enabling legislative provision over and above signing and ratifying the SADC Treaty. The decision in the High Court of Zimbabwe seems to suggest that any enabling legislation is required for the SADC Tribunal to demonstrate the kind of authority it showed when it ruled against a member state. There is a requirement for the Zimbabwean government to consent by way of legislating in parliament ceding the requisite authority to SADC to make laws that have a direct effect on national institutions in Zimbabwe. As the laws stand today in Zimbabwe or any other SADC member state, the SADC Tribunal is a white elephant capable only of giving advisory opinions which are not binding to member states as demonstrated by Zimbabwe.
Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. His website is http://www.lmsipa.com/
The case brought to the High Court by Richard Etheredge had become a source of controversy both home and abroad. The applicants among other things were seeking an enforcement order of the SADC Tribunal Order that ruled that the Zimbabwean Government had violated its Treaty obligations under SADC by enacting a law (Amendment no 17) that ousted any challenge in the national courts by its citizens or other legal persons after their land had been acquired under amendment no 17.
The Tribunal also ruled that all the land belonging to Richard Etheredge and others who were party to this application had been unlawfully acquired by the Government of Zimbabwe since the Minister who carried out the compulsory acquisition had failed to establish objective criteria in order to satisfy himself that the land to be acquired was necessary for resettlement purposes in conformity with the land reform programme.
Richard Etheredge and others also claimed they had been denied access to the national courts to challenge the legality of the compulsory acquisitions and that they suffered racial discrimination since they were the only ones who had their land acquired under the land acquisition act and that they had been refused compensation for the land taken from them.
The applicants were therefore seeking an order that declared that the Government of Zimbabwe was in breach of its Treaty obligations under the SADC Treaty by implementing Amendment 17 and hence the acquisition of their land was illegal.
.
The Government of Zimbabwe respondent by arguing that the SADC Tribunal had no jurisdiction to entertain the application brought by Richard Etheredge and others as the premises of the land reform was on a willing seller and willing buyer basis and that the land was to be purchased from the white farmers who by virtue of colonial history were in possession of most of the arable land in Zimbabwe.
The government of Zimbabwe further argued that land acquisition was an ongoing exercise and that it continues to acquire large tracts of land from white farmers who because of circumstances brought about by the country’s colonial history so happens to be possession of most of the land. The government argued that this policy cannot surely be misconstrued as racism.
The government of Zimbabwe went on further to state that some black farmers have also had their land acquired under the land reform exercise and that the white farmers would receive compensation under the land reform act as provided for in the law.
Further to this, the land reform exercise was directed at rectifying a colonial imbalance that has existed for centuries and it so happened that the applicant’s farms were suitable for the envisaged resettlement exercise. The argument that the white farmers were not getting access to local courts was unfounded. If at all they had issues with the courts it was up to the applicants to apply for judicial review the government added.
After consideration of the above arguments the SADC Tribunal had to decide on a number of issues. Firstly whether the Tribunal had jurisdiction to entertain the application brought by Richard Etheridge and others. Whether they had indeed been denied access to the national courts in Zimbabwe and therefore denied a local remedy. Also at issue were whether or not the issue of racism had indeed been a factor in the acquisition of their farms and whether or not the compensation was forth coming.
With regards to the issue of jurisdiction the SADC Tribunal cited Article 9 as the enabling provision in the SADC Treaty that created the Tribunal as an international organisation with its functions clearly outlined under Article 16.They are to ensure adherence to the Treaty provisions when it came to dispute among member states. The bases of jurisdiction among others are all disputes and applications referred to the Tribunal in accordance with the Treaty and the Protocol which relate to the interpretation and application of the Treaty.
The scope of the jurisdiction is stated in Article 15 sub-section 1. That is to adjudicate upon “disputes between states and natural and legal persons and states” In terms of Article 15, sub section 2, “no person may bring an action before the SADC Tribunal without first exhausting all available remedies or unless is unable to proceed under the jurisdiction of such a state.
Richard Etheredge and others commenced their proceedings initially in the Zimbabwe Supreme Court. The highest court in the land challenging the acquisition of their farms. Their claim among others was that Amendment 17 obliterated their right to equal treatment before the law, to a fair hearing before an independent and impartial court and their right not to be discriminated on the bas
On October 11, 2007, before the Supreme Court had issued its judgement, some of the applicants applied to the SADC Tribunal for interim relief. The Government of Zimbabwe raised this matter with SADC Tribunal as to whether the applicants had followed procedure and exhausted all the legal remedies provided for in domestic courts.
The concept of exhaustion is not unique to the SADC Tribunal as it is standard in other regional and international conventions. In the European Convention on Human rights Article 26 provides “The Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally excepted rules on International law” Similarly the African charter on Human and Peoples rights provides in Article 50 “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving the remedies would have been unduly prolonged”. The Tribunal accepted the requirement of exhausting the local remedies in national courts as paramount before approaching the SADC Tribunal. The rationale used was to allow domestic courts to first deal with what is regarded as a local matter before escalating it to the SADC Tribunal.
In deciding on this matter the SADC Tribunal concluded that amendment 17 as a law in Zimbabwe ousted the provision of using local remedies when it came to the issue of land acquisitions and therefore the applicants who applied directly to the SADC Tribunal for relief argued they were not able to institute proceedings before Zimbabwe’s national courts. This position was subsequently confirmed by the decision of The Supreme Court given on February 22, 2008 in Mike Campbell (Pty)Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).
The Tribunal also referred to Article 14 (a) of the Protocol, and observed That Amendment 17 had indeed ousted the jurisdiction of the courts of law in Zimbabwe. The next issue to be decided was whether or not the Applicants have been Denied access to the courts and whether they had been deprived of a fair hearing by Amendment 17.It is settled law that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to fair hearing before an individual is deprived of a right, interest or Legitimate expectation. As indicated already, Article 4 (c) of the Treaty Obliges Member States of SADC to respect principles of “human rights, Democracy and the rule of law” and to undertake under Article 6 (1) of the Treaty “to refrain from taking any measure likely to jeopardize theSustenance of its principles, the achievement of its objectives and the
Implementation of the provisions of the Treaty”. Consequently, Member States of SADC, including the Government of Zimbabwe, are under a legal obligation to respect, protect and promote those twin fundamental rights.
The right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation is another principle well recognized and entrenched in law.
Any existing ouster clause in terms such as “the decision of the Minister shall not be subject to appeal or review in any court” prohibits the court from re-examining the decision of the Minister if the decision reached by him was one which he had jurisdiction to make. Any decision affecting the legal rights of individuals arrived at by a procedure which offended against natural justice was outside the jurisdiction of the decision-making authority so that, if the Minister did not comply with the rules of natural justice, his decision was ultra vires or without jurisdiction and the ouster clause did not prevent the Court from enquiring whether his decision was valid or not
The Tribunal found in favour for the applicants in that they had been expressly denied the opportunity of going to court and seeking redress for the deprivation of their property, giving their version of events and making representations.
“We are, therefore, satisfied that the Applicants have established that they have been deprived of their agricultural lands without having had the right of access to the courts and the right to a fair hearing, which are essential elements of the rule of law, and we consequently hold that the Respondent (The Government) has acted in breach of Article 4 (c) of the Treaty.
The issue of racial discrimination was dismissed by the SADC Tribunal. It was found that amendment no 17 was not discriminatory in its approach because it so happened that white Zimbabwe farmers where in the unique place of being targets of acquisition as a result of a historical imbalance. “The Respondent has, therefore, not discriminated against white
Zimbabwean farmers and has not acted in breach of Article 6 (2) of the Treaty.
The applicant also raised the issue of compensation. The Zimbabwe Government argued that Britain the former colonial power was responsible for compensating the land. It argued that the independence agreement reached in 1978 in London provided that payment of compensation for acquired land for resettlement purposes would be paid by the former colonial power.
The SADC Tribunal disagreed and held that The Payment of compensation was an international law obligation and therefore it refuted the position of the Zimbabwe government of relying on amendment no 17 which provides for compensation on improvements on the land only.
The SADC Tribunal final decision concluded for the reasons given above that the Zimbabwe Government had been in breach of its SADC Treaty obligations and that the Zimbabwe Government should take all necessary steps to correct these breaches and that amendment number 17 was in breach of the SADC Treaty
It is this decision that came before the High Court brought by Former White farmer Richard Etheredge who was seeking to enforce the SADC ruling to evict the land reform beneficiary, President of the Senate Edna Madzongwe. The judge reasoned that although Zimbabwe signed the SADC Treaty that established the court, the treaty does not expressly state that the tribunal is to be considered the superior court for all member states.
The decision by the High Court Judge Anne-Mary Gowora is instructive. It brings a new dimension to the SADC Tribunal ruling. It suggests that Zimbabwe was not bound by the decision of the SADC Tribunal for the reasons she outlined and a whole lot more. It is this decision I propose to interrogate briefly and in the process add my own reasons why I think her decision is instructive.
Whenever a country signs up to a Treaty, the potential always exists in national law that the incoming Treaty laws might contradict or be in conflict with a national law. This was the case in the above matter. There is no provision in the Constitution of Zimbabwe giving supremacy to any foreign law. In fact in the case of Zimbabwe the Constitution is the supreme law.
.Any law that is not consistent with the Constitution is void at law. The SADC Tribunal held that amendment no 17 to the Constitution of Zimbabwe violated Zimbabwe’s Treaty obligations. Zimbabwe signed the SADC Treaty. By enacting amendment no 17, Zimbabwe demonstrated its parliamentary sovereignty. It demonstrated that SADC law has no direct effect on Zimbabwean law.
To this end SADC member states upon signing up to the SADC Treaty, they were supposed to cede part of their sovereignty to SADC. Make provision for SADC laws to have a direct effect on member states in the process empower the SADC institutions to adopt laws. These laws (regulations, directives and decisions) would take precedence over national law and are binding on national authorities in member states.
To demonstrate this concept, the European Union model is the most ideal example. By signing to the European communities act of 1973, it did not immediately mean that the United Kingdom would obey all laws coming from Brussels. The United Kingdom had to pass an enabling legislation hence incorporating European law into United Kingdom domestic law; Zimbabwe has not passed any enabling legislation ceding parliamentary or constitutional sovereignty to SADC.
In 1972, the UK a signed the Treaty of Rome in Brussels. European law was incorporated into UK law by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.
Section 2(1) of the European Communities Act 1972 states that:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.
Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.
Section 2(4) of the European Communities Act 1972 states that:
The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.
Section 3(1) of the European Communities Act 1972 states that:
For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).
The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law - including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised.
SADC member states have not ceded any power over its national institutions to SADC. It then begs the question whether a treaty signature amounts to a SADC law that will have a direct effect on SADC member states without any enabling legislation in the relevant member state?
Because of the different legal traditions followed in SADC member states it would seem logical to have an enabling legislative provision over and above signing and ratifying the SADC Treaty. The decision in the High Court of Zimbabwe seems to suggest that any enabling legislation is required for the SADC Tribunal to demonstrate the kind of authority it showed when it ruled against a member state. There is a requirement for the Zimbabwean government to consent by way of legislating in parliament ceding the requisite authority to SADC to make laws that have a direct effect on national institutions in Zimbabwe. As the laws stand today in Zimbabwe or any other SADC member state, the SADC Tribunal is a white elephant capable only of giving advisory opinions which are not binding to member states as demonstrated by Zimbabwe.
Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. His website is http://www.lmsipa.com/
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