The SADC Council of Ministers and Summit Heads of State and Government on 20 May 2011 decided not to reappoint them or allow them to remain in office pending a further review in August 2012.
The four judges, whose five-year term expired in August 2010, remained in office due to the “legitimate and reasonable expectation that, at the end of the initial independent review commissioned by the SADC Heads of State, their terms of office would be renewed.”
Officials from SADC Tribunal Rights Watch say this expectation was justifiable given that the consultants, WTI Advisors Ltd, Geneva, an affiliate of the World Trade Institute, confirmed in their review report of February 2011 that the Tribunal was properly established and that its protocol entered into force in accordance with international
Instead of upholding the review findings however, the SADC Summit took the decision on May 20 to dissolve the Tribunal, dealing a devastating blow to the rule of law in the region because it denies individual people access to justice when they have no legal recourse in their own countries.
The four judges seeking compensation are Justice Ariranga G Pillay (Mauritius), former president and member, Justice Rigoberto Kambovo (Angola), former member, Justice Onkemetse B Tshosa (Botswana), former member, and Justice Frederick Chomba (Zambia), former member.
They recently wrote a letter to Topaz Augusto Salamao, executive secretary of the SADC Secretariat, demanding compensation.
They also pointed out that the wording of the communiqué issued after the Extraordinary Summit of Heads of State and Government of SADC demonstrates that the Tribunal has not only been suspended but dissolved altogether.
In their letter the judges this decision, they noted, was “clearly illegal and ultra vires (invalid) because the Summit has no power to restrict the jurisdiction of the Tribunal, not the least because it is itself subject to the Tribunal’s jurisdiction.”
Documents in possession of VOP show that while the judges recognise that the Summit does ultimately have the power to amend the SADC Treaty and Protocol with respect to the Tribunal, they stress that the proper procedures have not yet been followed.
In their letter, the judges find it inappropriate that the SADC Ministers of Justice / Attorneys Generals should express serious concern regarding the scope and jurisdiction of, and the law applied by the Tribunal instead of deciding about the appropriate action to take against Zimbabwe for non-compliance of the judgments of the Tribunal in 2008, 2009 and 2010.