The Admissibility of Subregional Courts’ Decisions before the African Commission. ..
251
do not provide that the Tribunal has jurisdiction on specific disputes,72 nor do
they exclude from the jurisdiction of the Tribunal any dispute under any field of
law.73
To ascertain the Tribunal’s jurisdiction over a given dispute, one needs to
examine whether SADC has legal instruments that govern the area of the
dispute, because the Tribunal has jurisdiction over instruments applicable in
SADC.74 75 The Tribunal has jurisdiction over human rights because SADC has
human rights instruments that include the Charter of Fundamental Social Rights
and the Protocol on Gender and Development. The Tribunal itself confirmed
that it has jurisdiction on human rights in Mike Campbell (Pvt) Limited v
Zimbabwe15
In the Campbell case, the SADC Tribunal entertained a case in which the
government of Zimbabwe compulsorily acquired agricultural land on the basis
of constitutional amendment that vests ownership of acquired land in the State
of Zimbabwe and sets aside the jurisdiction of courts to question the legality of
such compulsory acquisition. The agricultural lands were mainly acquired from
white owners who, for reasons attributable to colonial history, happened to own
large tracts of land suitable for agriculture. The applicants submitted that the
enactment and implementation of the constitutional amendment violated the
SADC Treaty. They also alleged that they were denied access to justice and
compensation for their land as well as equal treatment. The respondent state
challenged the jurisdiction of the Tribunal over the matters. In confirming its
jurisdiction, the Tribunal relied on Article 21(b) (the Protocol on Tribunal and
Rules of Procedure Thereof) which requires reference to ‘treaties, general
principles and rules of public international law and any rules and principles of
the law of States.’ The Tribunal held that it ‘has jurisdiction in respect of any
dispute concerning human rights, democracy and the rule of law.’76
According to some commentators, the SADC Tribunal has competence to
interpret even non-SADC instruments.77 The subject-matter jurisdiction of the
72
See generally the SADC Treaty; The Protocol on Tribunal and the Rules of Procedure
Thereof, adopted on 7 August 2000 in Windhoek, Namibia by the SADC Heads of
State and Government and entered into force on 14 August 2001, reproduced in
Ebobrah & Tanoh , supra note 6, p. 375.
73 Compare art 27 (2), EAC Treaty where the Treaty confers human right jurisdiction on
the court and suspends it.
74 See Article 16 of SADC Treaty and Article 14 of the Protocol on Tribunal and the
Rules of Procedure Thereof.
75 Mike Campbell (Pvt) Limited and Others v Zimbabwe (2008) AHRLR 199 (SADC
2008).
76 Ibid, para 32.
77 Mmatsie Mooki ‘African regional courts and their role in the promotion and
protection of human rights: The Southern African Development Community