4.4.4 Opportunities and Challenges
Since the ECOWAS Court is not a human rights court, it has limited experience adjudicating
human rights matters, which may present some challenges. The challenges may manifest
by way of lack of foresight on understanding the nuances of violations and state
responsibility and/or therefore not seizing opportunities to rule on violations as basic as
discrimination that levels up with international standards.
However, one of the opportunities with the ECOWAS Court is the relative speed with which
the Court addressed the urgent human rights issue on slavery. A court’s ability to render
timely justice is of critical importance in situations of ongoing grave human rights
violations. The Hadijatou Mani case was completed within a year of filing the application, a
much encouraging timeline as compared to the prolonged proceedings before other human
rights commissions and courts. The Court’s ability and willingness to sit and conduct
hearings in the State where the violations occur is of further significance in the struggle for
justice for human rights violations. 121 Moreover, not requiring applicants to exhaust
domestic remedies and the fact that the Court has a mandate to issue binding judgments
should encourage women victims and survivors from the sub-region to file applications with
the ECOWAS Court.
4.5
SADC Tribunal
Like the ECOWAS Court, the Southern Africa Development Community’s (SADC) Tribunal too
recently exerted its influence on a human rights matter and decided on a case of racial
discrimination and unlawful expropriation of land without access to courts in Zimbabwe. 122
The SADC Tribunal, like other sub-regional courts, does not have an exclusive mandate to
adjudicate on human rights matters but has jurisdiction to decide on questions of human
rights violations among other issues. Indeed, the SADC Tribunal’s mandate to judge human
rights matter is not without contention. The Tribunal has been effectively stalled following
the judgment in the landmark Zimbabwean case.
The Tribunal was established in 1992 as an institution of the treaty establishing the
Southern Africa Development Community’s (SADC) and was sworn in November 2005. By
Article 4 of that treaty, SADC and its Member States are obliged to act in accordance with
the principles of human rights, democracy and the rule of law. This is the basis of the SADC
Tribunal’s interpretation of its own role. The Tribunal’s seat is Windhoek, Namibia.
It has jurisdiction over disputes between SADC Member States and on disputes between
legal or natural persons and Member States. However, in order for a person to bring a case
before the Tribunal, all internal legal remedies of the Member State concerned have to be
exhausted.
Also, a person can bring a case against another person under SADC law directly to the
Tribunal if the other party so agrees. Persons may sue the Community over the legality,
interpretation or application of SADC law. A person may also bring a Member State to the
Tribunal in connection with SADC law or the State’s obligations under such law once
national remedies have been exhausted, thus making the Tribunal a final court of appeal
for matters relating to SADC Law.
Proceedings before the Tribunal shall be instituted by either an application or a special
agreement between the parties to the proceedings. Conditions for admissibility are the
following:
1. The application shall state:(a) the name and address of the applicant (b) the name,
121
Ibid., at page 18.
122
Mike Campbell (Pvt) Ltd & Ors v. Republic of Zimbabwe [2008] SADCT2008/2 available at http:
//www.saflii.org/sa/cases/SADCT/2008/2.
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