sexual health and human rights in the african region - The ICHRP

the Treaty and to adjudicate disputes arising under the Treaty between member
states, or between member states and individuals. 108 The Tribunal has been
established though the adoption of the Southern African Community Protocol on
the Tribunal. 109 The decisions of the Tribunal are final and binding on member
states. 110 The Tribunal is a judicial body. Its members serve in an independent
capacity and are drawn from persons that are eligible for appointment to the
highest judicial office in their home country. When interpreting the Treaty, the
Protocol on the Tribunal prescribes that the Tribunal must have regard not only to
the law derived directly from the Treaty, but also law that emanates from the
principles developed under international law. 111
[31] The tribunal began operating in 2007. The early indication is that the Tribunal is
seeking to assert its judicial independence in the protection of human rights even
in the face of offending the sensibilities of member states. In Mike Campbell (Pvt)
Ltd & Others v The Republic of Zimbabwe 112 the Tribunal issued a ruling against
Zimbabwe on the ground that the state policy of compulsorily acquiring farms
owned by white farmers pursuant to section 16B of Amendment No 17 to the
Constitution of Zimbabwe was discriminatory on the basis on race. Article 4(c) of
the Southern African Community Treaty requires member states to act in
accordance with human rights. It is significant that though the Tribunal does not
have an express mandate to adjudicate on human rights, it clearly sees the
Southern African Community Treaty’s commitment to human rights as a window
of opportunity for integrating international human rights jurisprudence into
Southern African Community jurisprudence. The Tribunal was able to adjudicate
on and provide relief to, a claim that could not be entertained by Zimbabwean
court because of an ouster clause that was inserted into the Zimbabwean
Constitution as an amendment to the Constitution. 113 It is also significant that the
Tribunal found the discrimination in question to constitute indirect discrimination
notwithstanding that section 16B of Amendment No 17 did not explicitly refer to
race. It was clear to the Tribunal that the compulsory acquisitions powers where
exercised only in relation to farms owned by white farmers. The Campbell case
suggests that the Southern African Community Tribunal would be equally
amenable to adjudicate favourably on claims alleging sex or gender
discrimination arising from the Southern African Community Treaty or the
Southern African Protocol on Gender and Development.
108 Article 16(1) of the SADC Treaty; Article 15 of the SADC Protocol on the Tribunal.
109 SADC Protocol on Tribunal and the Rules of Procedure, adopted on 7 August 2000, and entered into
force on 18 August 2004 .
110 Article 16(5) ibid; Article 24 of SADC Protocol on the Tribunal.
111 Article 21 of SADC Protocol on Tribunal.
112 Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe (2008) SADCT 1, Case No 2/2007.
113 Section 3(a) of Amendment No 17 to the Constitution of Zimbabwe.
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