Rule of Law in Southern Africa

I’ve spent my summer in Johannesburg, South Africa, working for the Southern Africa Litigation Centre (SALC). SALC helps lawyers in southern Africa bring strategic human rights litigation, and also works to strengthen the rule of law in southern Africa. Strengthening the rule of law is the theme that has run through the research that I’ve done this summer, and I’ve worked on three projects in particular.

Earlier in the summer SALC co-hosted, along with Redress and African Rights, a conference focused on ensuring that Rwandan genocide suspects living in southern Africa are prosecuted for their crimes. The International Criminal Tribunal for Rwanda (ICTR) was meant to ensure that those most responsible for the Rwandan genocide would be prosecuted, but was never meant to be the only forum for trying all suspected genocidaires. The ICTR has also stopped taking new cases, and will be winding down in 2013, but there are still many suspected perpetrators living in southern Africa. The conference then focused on ways that southern African states could ensure that genocide suspects do not continue to benefit from impunity. It examined the concept of aut judicaire aut dedaire (extradite or prosecute), which refers to a state’s obligation to either prosecute an individual or to extradite that person to a state willing to prosecute. For states unwilling to extradite suspects to Rwanda, the conference examined the ability of states to prosecute on the basis of universal jurisdiction. The conference was aimed at spurring action, because to date no southern African states have extradited any suspects to Rwanda nor have any southern African states prosecuted any suspects for their crimes. This is in contrast to European and North American countries, which have prosecuted genocide suspects after refusing to extradite them to Rwanda out of concern that fair trail standards would not be met. The conference brought together civil society organizations and government officials, both from the region and globally, and sought to determine how to overcome barriers to prosecution that spring from both a lack of political will and a lack of capacity.

SALC also co-hosted, along with the Southern African Development Community (SADC) Lawyers Association and the International Commission of Jurists, a conference on the future of the SADC Tribunal. SADC is a regional economic body, and one of its organs is a Tribunal that can hear cases between states, and between individuals and states where the individual has exhausted all other remedies or is unable to proceed under the domestic jurisdiction. Crucially, the court is able to hear cases that concern individual human rights violations.

However, the SADC Summit has recently suspended the Tribunal, during which time a review process is meant to take place. The review and suspension of the Tribunal was precipitated by a decision of the Tribunal in which it ruled that the seizure of land from white Zimbabwean farmers was done illegally. Zimbabwe refused to enforce the decision and argued that the Tribunal had been improperly constituted. Rather than sanction Zimbabwe, SADC ordered a review of the Tribunal. SADC hired outside consultants to conduct the review, and the consultants concluded that the Tribunal was properly constituted and made a number of recommendations for the improvement of the Tribunal. The SADC Committee of Ministers of Justice/Attorneys-General also confirmed the findings of the outside consultants. However, the SADC Summit of Heads of State decided to extend the review period, not to reappoint members of the Tribunal whose terms of office were about to expire, and stopped the Tribunal from receiving new cases during the review process. SALC argued that this amounted to a suspension of the Tribunal, which was an illegal action for the SADC Summit to take because it was not allowed according to the SADC Treaty and would deny individuals redress for violations of their rights. The meeting that SALC co-hosted worked to address ways in which regional lawyers, law societies, and civil society organizations could work to ensure that the Tribunal was preserved, and that it emerged from the review process a stronger and more effective mechanism for citizens to secure justice.

SALC has also been assisting in the legal defense of Swaziland Judge Thomas Masuku, a case that it part of a wider rule of law crisis in Swaziland. Swaziland is the last remaining absolute monarchy in Africa, and King Mswati III recently installed a new Chief Justice, who is at the center of the crisis. For example, promptly after being appointed, the Chief Justice issued a judicial edict that said that the King could not be the subject of any legal suit.

The Chief Justice also brought twelve charges of judicial misconduct against Judge Masuku, all of which are unsubstantiated and most of which are not deserving of serious response. For instance, he is accused of destabilizing the court and associating with people who wished to overthrow the regime. He is also accused of referring to the King as “forked tongued” in a judicial decision, a charge that represents a clear misreading of the opinion and a threat to the principle of judicial independence. SALC has been working closely with the advocates representing Judge Masuku in preparation for his hearing before the Judicial Service Commission, a hearing that is presided over by the Chief Justice, the same person who brought the charges. SALC has urged the Swazi authorities to drop the case, which is clearly motivated by fear of independent judges such as Masuku.

However, to be clear, not all of my time this summer has been spent indoors at conference centers and in office parks. I’ve also had the opportunity to explore some of South Africa’s natural beauty, and since pictures are worth a thousand words I’ll end with a picture of myself on the Cape Peninsula.