AFRICAN BAR ASSOCIATIONS AND RULE OF LAW INSTITUTIONS ARUSHA COMMUNIQUE

THE REPRESENTATIVES OF THE PREMIER REGIONAL BAR ASSOCIATIONS AND RULE OF LAW INSTITUTIONS ON THE AFRICAN CONTINENT, GATHERED IN ARUSHA, TANZANIA ON 15 AND 16 SEPTEMBER 2009 TO AMONG OTHER THINGS REFLECT ON THE STATE OF THE RULE OF LAW IN AFRICA AND THE CURRENT STATE OF REGIONAL AND SUB-REGIONAL JUDICIAL ORGANS HAVE MADE AND ADOPTED THE FOLLOWING COMMUNIQUE:

Reaffirming that the observance of human rights, good governance and the Rule of Law are indispensible requirements for the greater democratisation of the African Continent;
Mindful that these are dependent on the existence of independent, impartial and effective institutions that deliver justice without fear or favour;
Acknowledging that in a significant number of African countries the Rule of Law has entrenched itself and judicial institutions operate without interference from any quarters;
Wary that some African countries have depicted a tendency to undermine judicial authority at both the domestic and regional levels;

ON THE SADC TRIBUNAL
THE REPRESENTATIVES OF REGIONAL BAR ASSOCIATIONS AND RULE OF LAW INSTITUTIONS
1. Observed with alarm the current efforts of the government of Zimbabwe through the Minister of Justice and Legal Affairs of Zimbabwe, Honourable Patrick Chinamasa, to cause SADC to dismantle a sub-regional judicial organ - the SADC Tribunal – on his perceptions relating to non-ratification and the implications thereof.
2. Are not convinced by the official reasons, which the Minister has raised to justify his decision. They observed among others that:
a. The establishment of the SADC Tribunal needs no ratification.
b. The Zimbabwean Government nominated a judge to sit as a Member of the Tribunal. Other SADC states have also nominated judges to constitute a full complement of Tribunal judges.
c. The Government of Zimbabwe has appeared before the Tribunal in more than one case, and has at no time raised objections to its legality and/or legitimacy.
d. The Government of Zimbabwe is only challenging the Tribunal as a result of it being referred to the SADC Heads of State and Government to explain its non-compliance with binding decisions of this sub-regional judicial organ.
e. The failure of the Government of Zimbabwe to comply with a court decision, whether of a domestic or international tribunal, is consistent with its endemic culture of defiance of court orders that it dislikes.
f. In Zimbabwe the Government dismantled the Supreme Court and the High Court when they were seen as issuing decisions which the Government disliked through forcing out judges and hiring “politically correct” individuals. Its current thrust to destroy the SADC judicial organ is consistent with the Government’s conduct in dealing with judicial organs that it dislikes.
3. There have been suggestions that the SADC Ministers of Justice and Attorneys General will meet shortly to decide the fate of the SADC Tribunal. Attention must be drawn to the fact that the jurisdiction of the Ministers of Justice (as extensions of executives) to consider this matter is irregular, as this potentially amounts to an assault on the principle of separation of powers. It is an established principle of international law that the Tribunal, as the judicial organ itself – and not the executive organ constituted by ministers - must be the ultimate judge of its own jurisdiction.

THE REPRESENTATIVES OF REGIONAL BAR ASSOCIATIONS AND RULE OF LAW INSTITUTIONS THEREFORE IMPLORE THE SADC AND THE AU TO

1. Encourage the government of Zimbabwe to comply with the decisions of the SADC Tribunal rather than to use disingenuous and convoluted legal arguments to destroy the Tribunal, in an apparent quest to avoid submitting to the rule of law.
2. Strengthen and defend its institutions of justice when they make decisions, which are within their competencies. Failure by the SADC and AU leadership to vigorously defend regional and sub-regional judicial organs from such a blatant assault is likely to have a contagion effect throughout the continent which is so desperate for strong institutions of democracy and rule of law to protect the rights of the people, assure investors of the sanctity of contract and availability of credible enforcement mechanisms, and generally promote socio-economic development on the continent.

ON THE UNICTR ARCHIVES IN AFRICA
THE REPRESENTATIVES OF REGIONAL BAR ASSOCIATIONS AND RULE OF LAW INSTITUTIONS
1. Observed that the substantial archives in respect of the Rwanda Genocide are part and parcel of Rwanda’s and Africa’s history and heritage. The AU and the UN are therefore implored to work together to ensure that the UNICTR archives are retained and stored in Africa, with appropriate levels of access for citizens, researchers, scholars and others.
ON THE ESTABLISHMENT OF A FORUM FOR AFRICAN REGIONAL LAWYERS ASSOCIATIONS (FARLA)
The leadership of the representatives of regional bar associations and rule of law institutions welcomed the establishment of this forum and committed to continue working together and deepen collaboration on strengthening of the rule of law in Africa through this forum.
Done and signed at Arusha, Tanzania, this 16th September 2009.

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EAST AFRICA LAW SOCIETY (EALS)

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SOUTHERN AFRICA DEVELOPMENT COMMUNITY LAWYERS ASSOCIATION (SADCLA)

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WEST AFRICAN BAR ASSOCIATION (WABA)

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PAN-AFRICAN LAWYERS’ UNION (PALU)

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COALITION FOR AN EFFECTIVE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS (CEAC)

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AFRICAN REGIONAL FORUM OF THE INTERNATIONAL BAR ASSOCIATION (AfrIBA)

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INTERNATIONAL COMMISSION OF JURISTS (ICJ)