ISSN: 2026-8556
Affiliations: Professor of European Law, University College London
Source: SADC Law Journal, The, 2012, Issue 1, p. 1 – 13
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ISSN: 2026-8556
Affiliations: Lecturer, Department of Public Law and Jurisprudence, Faculty of Law, University of the Western Cape
Source: SADC Law Journal, The, 2013, p. 259 – 278
Environmental protection and economic advancement are two goals that require careful balancing by any government. This is often achieved through the creation of domestic, regional and international legal frameworks, aimed at ensuring that aggrieved individuals whose environmental and other fundamental rights are violated are offered an avenue to seek remedies. The Southern African Development Community (SADC) was created for such purposes, and its Tribunal was set up to hear and determine disputes between states and between states and a private person. This jurisdiction to determine matters brought by natural and juristic persons formented the contentions that led to the eventual suspension of the Tribunal, and resolutions to restrict its jurisdiction by excluding the individuals and companies from approaching it. The suspension of the Tribunal, coupled with lack of political will at the domestic level, as well as weak institutions, has allowed powerful multi-national corporations in weak legal regimes such as Swaziland to violate environmental rights with impunity. The mining of iron ore within a nature reserve in Swaziland and flaws within the environmental impact assessment process followed illustrate the disregard for environmental rights that is prevalent in weak legal regimes. The decision of SADC states to suspend the Tribunal with a view to eventually limit its jurisdiction to disputes between states only basically meant that there is no remedy for violations occurring in such weak states. The gains made in the successful enforcement of the Tribunal’s orders against a member state in the courts of a foreign state in the latest South African Constitutional Court Case have, unfortunately come a bit late. Without access to the Tribunal for disputes involving natural and juristic persons, SADC does not offer remedies to aggrieved individuals.
ISSN: 2026-8556
Affiliations: Programme Officer, Konrad Adenauer Foundation – Namibia & Angola Office
Source: SADC Law Journal, The, 2013, p. 238 – 258
The Southern African Development Community Parliamentary Forum (SADC-PF) [fn1], a regional consultative forum, has embarked on a transformation process to become a fully functioning regional parliament, to be called the SADC Parliament. [fn2] The transformation is necessitated by the need to meet modern demands and keep pace with the ever-changing world. As a regional parliament, the SADC-PF would contribute to regional matters and influence national parliaments more effectively on regional issues than is currently the case. At the moment the SADC does not have a fully-fledged regional parliament like the East African Legislative Assembly (EALA) of the East African Community (EAC) or the Economic Community of West African States (ECOWAS) Parliament. Instead, it has a Parliamentary Forum that has no legislative powers and limited influence in the region. A regional parliament will also help bring SADC closer to the people and vice versa [fn3] through the provision of a platform for the participation of the people through law making and outreach. However, the road to the realisation of that goal is filled with uncertainties and more questions than answers. Is the time right for the establishment of a regional parliament? In fact, does the southern African region need a regional parliament or is the idea of SADC Parliament ill-conceived? [fn4] Does the SADC have the capacity, in terms of financial, as well as human resources to accommodate a regional parliament, and if so, where will it be based [fn5] and what would be its relationship with the member’s national Parliaments? The question beckons what value the SADC Parliament will bring to the ordinary citizen. With these questions in mind, it is the objective of this paper to look closely at the idea of SADC Parliament while discussing the issues involved in the formation of the SADC Parliament. The article will, therefore, briefly reflect on the achievements of the SADC-PF over the last fifteen years (1997—2012), looking at the current challenges faced by the institution and the future opportunities that await the institution. It will also, where appropriate, refer to other regional parliamentary structures, to help in analysing whether the idea of a SADC Parliament is fitting for the region. footnote 1: Founded on 8th September 1997, in Blantyre, Malawi. footnote 2: SADC-PF preamble states: We, the representative of the people of the Southern African Development Community, having solemnly resolved to constitute a Consultative Parliamentary Assembly to be known as the Southern African Development Community Parliamentary Forum with a view to developing into a regional parliamentary structure, for the purpose of strengthening the capacity of the Southern African Development Community by involving parliamentarians of members states in its activities. footnote 3: Article 23 (1) of the SADC Treaty (1992) states: ‘in pursuance of the objectives of this treaty, SADC shall seek to involve fully, the people of the region and Non-governmental organizations in the process of regional integration’. footnote 4: Originally the SADC Treaty did not provide for a regional parliamentary structure. Hence, SADC-PF was created under article 9(2) and not under article 9(1) of the SADC treaty. footnote 5: Currently the SADC-PF is hosted by Namibia. A publication by the SADC-PF refers to the seat of the SADC Regional Parliament to be determined by the SADC Heads of State and Government. See SADC-PF consolidated document, ‘Towards the Establishment of a SADC Parliament’, unpublished at page 7.
ISSN: 2026-8556
Affiliations: Lecturer, Law Department, University of Botswana Practising Attorney with Jonas Attorneys
Source: SADC Law Journal, The, 2013, p. 212 – 237
Sovereignty and human rights are seemingly fundamentally opposed notions. Obligations to protect human rights are thus regularly perceived as besieging or assaulting or contradicting state sovereignty. This understanding of the relationship between sovereignty and human rights is the subject of common lament, especially among human rights scholars. They challenge strict legalism that views sovereignty as entitling states to non-interference in their internal affairs. However, legal pragmatism and international relations have propelled states towards cooperation for the establishment of an international comity. In furtherance of this cooperation, especially at multilateral level, states have preferred the creation of specialised international or regional institutions for the realisation of set goals. The SADC is one such regional institution. Though formed to foster regional integration and spur economic growth in Southern Africa, it also has a human rights protection mandate. Owing to its slavish adherence to the venerable doctrine of state sovereignty (in its traditional form), the SADC, as a body or its members countries have on numerous occasions failed to intervene in territories of other member states to protect human rights of citizens. Where it did intervene as it did in Madagascar and Zimbabwe, it has done so in a carefully measured way so as to amount to no intervention at all. This article argues that the reformulation of the notion of sovereignty as by influenced notions of human rights has left states no less sovereign than they were during the time of Aristotle, several decades ago. Far from undermining sovereignty, human rights are embedded in sovereignty itself. In statehood, both sovereignty and human rights have found space and they must coexist. None of the two must be undermined in favour of the other. Legal and political practices demand this to be so.
ISSN: 2026-8556
Affiliations: Lecturer, University of Dar es Salaam School of Law
Source: SADC Law Journal, The, 2013, p. 182 – 211
Labour migration is a fundamental element in fostering African economic integration process. Yet, issues related to intra-regional mobility and regional citizenship continue to be severely constricted. Intra-regional labour mobility is heavily balanced against the competing and conflicting political and economic interests of individual states. Most of countries in the region do not subscribe to the existing international instruments on labour migration and their record in this area is generally poor. Marginalisation of migrants is widespread in most African countries. The East African Community (EAC) and the Southern African Development Community (SADC), being among the sub-regions with higher proportions of intra-regional labour mobility, have responded by formulating new policies and legal instruments. These are aimed to facilitate regularised movements of people across the borders and thereby maximise the potential economic benefits flowing from these movements. This contribution examines the extent to which the human rights of migrants are perceived and integrated in the EAC and SADC legal and policy framework. The relevant instruments are analysed in the context of the prevailing socio-economic situation thereby identifying the critical legal issues and gaps and the implementation challenges. It is argued that, although some positive strides in protecting the rights of migrants in the EAC and the SADC have been achieved, there are several outstanding challenges which require urgent action.
ISSN: 2026-8556
Affiliations: Senior Lecturer, University of Dar es Salaam School of Law
Source: SADC Law Journal, The, 2013, p. 160 – 181
The Southern Africa Development Community (SADC) region is one of the fastest urbanising regions in which a majority of its urban and peri-urban dwellers are extra-legal, in that they do not have clear formal titles of land tenure to their land. Expansion of town boundaries occurs without an increase in basic and essential social services, such as the surveying and servicing of plots. Increasingly, states in the region are devising new forms of land tenure as alternatives to the existing tenures, collectively referred to as flexible land tenures, as a way of addressing land tenure insecurity within urban and peri-urban areas but also to economically empower the residents. This paper discusses the legal implications of flexible land tenures on land tenure security within the SADC region using Tanzania as a focal point. Specifically, it discusses the residential licences of Tanzania in the prism of occupancy licences of Zambia and starter and landhold titles of Namibia. It argues that these tenures are temporary and remedial in nature. As much as they have the potential to afford limited tenure security and contribute to economic growth, if not properly managed they might encourage more squatting and informal settlements. This contribution therefore provides a legal and policy framework upon which these licences are issued, the procedures, and the consequences that are attached to the licence holder. Also the relation between the licence and the future of unplanned settlements is discussed based on the overriding question whether such schemes are more for tenure security or urban planning. It is assumed that urbanisation is the major cause of the unplanned settlements.