The main objective of this book is to assess whether two of the principles set out in the Treaty of the Southern African Development Community (SADC Treaty)âdemocracy and the rule of law, are reflected in the institutional design of the Southern African Development Community (SADC) and, to the extent that they may not be reflected, to proffer an alternative model of a SADC governance framework that is democratic and anchored in the rule of law.
SADC is a regional economic and political integration organisation with 16 Member States from the southern tip of the African continent right up to the Democratic Republic of the Congo and including the Indian Ocean island states of Comoros , Madagascar , Mauritius , and Seychelles .
The objectives of SADC are set out in article 5(1) of the SADC Treaty and include the promotion of sustainable and equitable economic growth and socio-economic development and the promotion of common political values, systems, and other shared values which are transmitted through institutions which are democratic, legitimate, and effective. The SADC Treaty also sets out in article 4 the principles of SADC which include respect for human rights, democracy , and the rule of law .1
This book is written from an international institutional law perspective and seeks to address the following question2: Is the design of the institutions of SADC democratic and reflective of a desire to anchor policymaking and implementation processes in the rule of law? Flowing from this question is a related one: To the extent that the design of the institutions of SADC does not reflect the values of democracy and the rule of law, how best can these design deficits be addressed?
This book is written in a legal style and discusses legal institutional issues. However, it is intended for anyone with an interest in understanding the institutions of SADC and how these institutions relate to each other.
Before delving into the main theme of this book, it is important to first briefly sketch out SADCâs institutional history and current governance structure and legal framework. The history of SADC dates back about five decades. It started in the 1960s when political leaders of newly independent African states were involved in ad hoc political and security cooperation in a bid to achieve the independence of the remaining African countries still under colonial or white minority rule.3 In the 1970s, this political and security cooperation later evolved into yet another informal, loose grouping called the Front Line States .4 The concrete institutional evolution of SADC began in earnest on 1 April 1980. That was the day the leaders of Angola , Botswana , Mozambique , Tanzania , Zambia , Swaziland, Lesotho , and Malawi met in Lusaka, Zambia, and adopted the Lusaka Declaration entitled Southern Africa: Toward Economic Liberation.5 The Southern African Development Coordination Conference (SADCC) was subsequently established by the signatories to the Lusaka Declaration through a Memorandum of Understanding signed on 20 July 1981. SADCC was later transformed into SADC in 1992 through the SADC Windhoek Declaration and Treaty establishing SADC that was ratified by the SADCC Member States.6
The SADC Treaty was amended on 14 August 2001. The amendment of the original SADC Treaty followed introspection by the members that culminated in a number of reports and a review by the Committee of Ministers.7 The sectoral model used in the 1992 SADC Treaty, where Member States were given specific sector responsibilities, was initially seen as a model of decentralisation at regional level meant to provide Member States with a sense of ownership of the regional agenda and at the same time avoid a financially burdensome bureaucratisation.8 The decentralised sectoral model was abandoned in 2001 in favour of the current centralised model, as the former was found to be unworkable.9 Quite expectedly therefore, the amendment saw the abolition of (sectoral) commissions. The other major result of the amendment was the establishment of the Integrated Committee of Ministers (ICM) [now the Sectoral and Cluster Ministerial Committees (SCMCs)], and the SADC National Committees (SNCs).10 However, the 2001 amendment saw the retention of such institutions as the Summit of Heads of State or Government (the Summit) and the Council of Ministers (CoM) with their powers and responsibilities largely intact.
The institutional framework of SADC is set out in article 9 of the SADC Treaty. At the apex is the Summit. This is the supreme policymaking institution of SADC.11 As will be shown in Chap. 3, the powers of the Summit are extensive and overarching and subject to little, if any, oversight and control. Under the Summit are the CoM12; the SCMCs13; the Standing Committee of Officials (SCO)14; the Secretariat headed by the Executive Secretary; and the SNCs. Of these institutions, only the SNCs and the Secretariat are, to a limited extent, outside the domain of national executives of Member States.15
The SADC Treaty also establishes a judicial institution in the form of the SADC Tribunal. Matters to do with the SADC Tribunalâs composition, jurisdiction, and rules of procedure, among other things, are dealt with in the Protocol on Tribunal and the Rules of Procedure Thereof (the Tribunal Protocol), which was adopted in 2000 and subsequently made an integral part of the SADC Treaty.16 Despite initially submitting to the jurisdiction of the Tribunal in the earlier Campbell matters,17 Zimbabwe later challenged the legality of the Tribunal (among other legal contestations), and refused to comply with its decisions, culminating in the suspension of the Tribunal and its eventual effective disbandment as resolved by the Summit.18
There is also the SADC Parliamentary Forum (SADCPF). However, this is an autonomous body that lies outside the SADC legal institutional framework.19 In fact, the SADCPF has been pushing for its transformation into a regional parliament.20
With regard to the legal framework, at the top of the hierarchy of legal instruments is the SADC Treaty. While the SADC Treaty provides in article 6(5) that âMember States shall take all necessary steps to accord [the SADC] Treaty the force of national law,â21 there is no framework set out in the Treaty for the direct automatic applicability of any of its provisions (or decisions taken pursuant thereto) in Member States. Although article 6(5) is couched in peremptory language, the domestication of the SADC Treaty is left to the discretion of individual Member States. The other legal instruments are protocols which may be adopted by the Summit, subject to their ratification by Member States and binding only on the Member States that are parties to that particular protocol.22 There is thus no general, SADC-wide legal framework for the direct applicability and enforceability of the provisions of the protocols in Member States. As the comparative study in Chap. 6 will show, there is now a trend in some African regional economic communities (RECs), such as the East African Community (EAC) and the Economic Community of West African States (ECOWAS), that prefer lawmaking through community acts, regulations, and other instruments, with generally direct applicability in Member States, instead of norm setting through protocols.23
In addition to âlawâ making through the adoption or amendment of the above legal instruments, there are provisions in the Treaty, as shall be discussed in detail in Chap. 3, for norm setting through decisions of the Summit, mostly on the recommendations of the CoM. As shall be shown in Chap. 3, the latter has its own decision-making powers, but largely on administrative and operational matters, but even so, within the overarching control of the Summit.
While the 2001 amendment of the SADC Treaty was no doubt informed by past failures, and the jettisoning of the decentralised model was intended to improve and streamline the SADC governance structure, the 2001 SADC âmakeoverâ did not address the fundamental problems of democracy and the rule of law .24 Too much power remains vested in a single institutionâthe Summit, with no concomitant framework for the balancing and control of the Summitâs powers by the other institutions.
It should be noted that the SADC Treaty does not define or set out the elements of democracy or those of the rule of law. Indeed, with regards to democracy it has been noted that this is a term that is difficult to define as it is ever-changing.25 With regards to democracy, therefore, this book does not engage in an unbounded discussion of all the elements of democracy but assesses the SADC institutional framework against a single dimension of democracyâseparation of powers .26
While this book assesses SADCâs institutional architecture against the normative values of democracy and the rule of law, other related concepts, including constitutionalism and good governance, will unavoidably come up for discussion. This should not be viewed as digression or broadening of the scope of this book but rather as something that is unavoidable in light of the interrelationship of these concepts and the manner they are dealt with in some of the literature and legal instruments. What is proffered in this book, therefore, is a âconstitutionalâ appraisal of the SADC institutional framework from the perspective of democracy (narrowly defined) and the rule of law.27 It needs stating therefore that this book is not concerned with the assessment or review of the achievements of or challenges faced by SADC, something that would need a different (and empirical) study (or studies based on dif...