The former president signed a SADC protocol that would turn a blind eye to human rights abuses, among others, which is illegal, the apex court ruled.
Former president Jacob Zuma lost yet another case this week when the Constitutional Court declared his actions at the Southern African Development Community (SADC) Tribunal to be unconstitutional, unlawful and irrational.

The apex court damned Zuma’s actions “in the decision-making process and his own decision to suspend operations of the Southern African Development Community Tribunal” as well as his signing of the 2014 Protocol, and ordered his signature be withdrawn from the document.

The 2014 Protocol came about after the tribunal in 2008 gave a ruling against Zimbabwe in a dispute involving the expropriation without compensation of private land. It found Zimbabwe to be in violation of Articles 4 and 6 of the SADC Treaty, which obliged member states to act in accordance with democracy, human rights and the rule of law.

The tribunal’s finding was never implemented, and subsequently referred to the SADC Summit, which decided to develop the new protocol instead of acting against the noncompliance. Several decisions and changes made during this process did not adhere to SADC legal principles.

This meant the SADC Tribunal remained in limbo, said Kaajal Ramjathan-Keogh of the Southern African Litigation Centre.

“The president, by appending his signature to that particular document, meant he was disregarding certain constitutional human rights and rule of law obligations he was obliged to uphold,” he said. “The court is holding him to account and instructed him to withdraw his signature so the protocol is not enforced.”

Ramjathan-Keogh noted the SADC Tribunal wasn’t operational.

“The actions of heads of state have led to a situation where judges’ contracts were not renewed, new judges were not appointed and funds were not allocated to the tribunal, so for practical reasons it ceased to operate.”

In the majority judgment penned by Chief Justice Mogoeng Mogoeng, he noted the signing of the 2014 Protocol was “very weighty and significant”.

“It announces to all that South Africa is about to make a radical paradigm shift that is inextricably tied up to who we are as a nation,” said Mogoeng. “Specifically, it signifies that access to justice, a commitment to the rule of law and the promotion of human rights would no longer be a paramount feature of our national vision and international relations.

“That signature of the singular most powerful constitutional being in our country also says to the SADC member states that South Africa has shorn itself of its key responsibilities of protecting and promoting some of the values foundational to our democracy including fundamental rights.

“This constitutes a serious threat to the image and very essence of SA’s constitutional democracy and citizens’ rights.”

Mogoeng noted the 2014 Protocol ensured South Africa would “turn a blind eye to human rights abuses and nonadherence to the rule of law in their jurisdictions even if it affects our people”.

According to the Southern African Litigation Centre, Zuma together with heads of other SADC states decided to remove the possibility of SADC countries ever being held accountable for human rights violations, nonadherence to the rule of law or undemocratic practices.

  • The Southern African Litigation Centre wrote: “This led to SADC heads of state taking several steps to ensure that the tribunal was stripped of its human rights mandate.