Abstract
This chapter carries the book’s recommendations. It seeks to demonstrate the applicability of the shared governance model to SADC. In a sense, this chapter carries a ‘model’ of the alternative SADC institutional structure as envisioned by this book. However, this model covers only the main institutions as proposed in this book and how they should relate to each other in terms of norm setting, implementation, and oversight.
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Notes
- 1.
It can also be argued, conversely, that the design of SADC institutions itself reflects lack of political will to accommodate democracy and the rule of law in SADC processes.
- 2.
These include the adoption of protocols for the various integration areas and the adoption of the budget.
- 3.
C. Ng’ong’ola ‘The framework for regional integration in the Southern African Development Community’ (2008) University of Botswana Law Journal 32.
- 4.
J. Isaksen ‘Restructuring SADC—progress and problems’ Development Studies and Human Rights, Chr Michelsen Institute Report R 2002: 15: Norway 1 http://www.cmi.no (accessed 12 December 2013).
- 5.
G.H. Oosthuizen The Southern African Development Community: The organization, its policies and prospects (2006) 69; Isaksen (Footnote 4 above) 1; E.N. Tjønneland ‘Making SADC work? Revisiting institutional reform’ in Hansohm D et al. (eds) Monitoring regional integration in Southern Africa yearbook (2005) 5, 166, 181.
- 6.
B. Sirota ‘Sovereignty and the Southern African Development Community’ (2004–2005) 5#1 Chicago Journal of International Law 346. See also E.N. Tjønneland ‘Making sense of the Southern African Development Community’ (2013) 22 # 3 African Security Review 196. Tjønneland makes the same point (while dismissing pessimists) that Southern Africa would be worse off without SADC and that the organisation has made some progress over time; and that it is in a far better shape than it was in 1980 and in 1995 (at p. 195). Some may argue, as does Sirota, that this is nothing but a counterfactual assessment.
- 7.
G. Ulfstein ‘Institutions and competencies’ in J. Klabbers et al. The constitutionalizaion of international Law (2009) 45.
- 8.
These Principles and Guidelines were adopted in 2005.
- 9.
Oosthuizen (Footnote 5 above) 306.
- 10.
A case in point is the well-documented Zimbabwean example where there were significant flaws in the 2002, 2008 and the 2013 electoral processes where SADC either endorsed the outcomes or failed to act decisively where it was clear that the electoral process was far from being free and fair.
- 11.
G.M. Khadiagala ‘Historical legacy’ in C. Saunders (ed) Region-building in Southern Africa: Progress, problems and prospects (2012) 35.
- 12.
Khadiagala (Footnote 11 above). While Khadiagala expresses this as a tension between narrow nationalisms and supranationalism, Nathan explains the situation in somewhat different terms. According to Nathan, the reason for the current state of affairs in SADC is the subordination of the values of human rights and the rule of law to the principles of regime solidarity and sovereignty. See generally L. Nathan ‘Solidarity triumphs over democracy – The dissolution of the SADC Tribunal’ (2011) 57 Development Dialogue 123.
- 13.
A. Nollkaemper (2012) National courts and the international rule of law 2.
- 14.
Nollkaemper, as above.
- 15.
Even in the absence of empirical evidence, it would be difficult to contest this kind of conclusion since it seems to rest on sound deductive reasoning.
- 16.
Ng’ong’ola, for example, is critical of the SADC institutional design. He criticises, among other things, the dominance of the Summit in SADC and he also challenges the relevance of the SCMCs as, according to him, the functions of the latter overlap with those of the CoM. Another criticism raised by Ng’ong’ola is the SADC lawmaking regime. His view, especially with regard to protocols, is that there is too much discretion accorded to SADC Member States when it comes to the ratification of Protocols and this defeats the purpose of integration since it amounts to the right to make reservations, something that the SADC Treaty itself prohibits with regards to its provisions. See Ng’ong’ola (Footnote 3 above) 3.
- 17.
See, for example, the cumulative, although not necessarily congruent, contributions by Sirota (Footnote 6 above); L. Nathan ‘Solidarity triumphs over democracy…’ (Footnote 12 above) 57 Development Dialogue 123; L. Nathan Community of insecurity: SADC’s struggle for peace and security in Southern Africa (2012); L. Nathan ‘The disbanding of the SADC Tribunal: A cautionary tale’ (2013) 35 # 4 Human Rights Quarterly 870.
- 18.
As evidence of the role of heads of state or government in the amendment or revision of constitutive treaties see generally; art 150 of the EAC Treaty; art 90 of the ECOWAS Treaty; art 36 of the SADC Treaty; and art 48 TEU.
- 19.
N. Walker ‘Reframing EU Constitutionalism’ in L. Dunoff & P. Trachtman (eds) Ruling the world? Constitutionalism, international law and global governance (2009) 149.
- 20.
See particularly arts 22 & 26 of the TEU.
- 21.
J. Habermas ‘The Crisis of the European Union in the light of a constitutionalization of international law (2012) 23 # 2 The European Journal of International law 336 http://www.ejil.org/pdfs/23/2/2211.pdf (accessed 16 July 2013).
- 22.
For a similar view, see Tjønneland (Footnote 5 above) 170. Tjønneland points out, with reference to the relationship between the SADC Secretariat and what he refers to as the ‘governing structures,’ that ‘[i]t is often claimed that the governing structures are spending too much time on administrative details and too little on leadership.’ It is most likely that Tjønneland is here not just referring to the Summit but to such other institutions as the CoM. See also Ng’ong’ola (Footnote 3 above) 32.
- 23.
Art 7(2) of the SADC Treaty.
- 24.
Items 2.5.1 & 2.7 of the minutes of Summit proceedings available in the SADC library (accessed 10 March 2014).
- 25.
Items 4.4.3 of the minutes of Summit proceedings available in the SADC library (accessed 10 March 2014).
- 26.
There are some obvious drafting lapses though. For example, the criterion that an applicant state should not be at war should have been framed in a much clearer and narrower manner to make it clear that such war, in order to disqualify an applicant, should be an illegal one. For example, it does not make sense to disqualify an applicant that is involved in a UN sanctioned war, or in a lawful war in pursuit of SADC’s (or for that matter the African Union’s) legitimate interests.
- 27.
- 28.
See Sect. 7.3 below for the proposal for a reconfigured CoM.
- 29.
For a detailed discussion of the nature of legal instruments adopted by international organisations, see J. Klabbers, An introduction to international institutional law (2009) 178–203.
- 30.
M. Killander ‘Legal harmonization in Africa: Taking stock and moving forward’ in L. Fioramonti (ed) Regionalism in a changing world: Comparative Perspectives in the new global order (2013) 88.
- 31.
- 32.
Art 9(7) of the ECOWAS Treaty. See also Sect. 7.10 below on access to information.
- 33.
A more detailed discussion of this is made in Sect. 7.10 below on access to information.
- 34.
It should be noted that the standing committee of CoM proposed here is distinguishable from an institution with the same name established by art 71 of the Treaty on the functioning of the European Union.
- 35.
Klabbers (Footnote 29 above) 155–156.
- 36.
Klabbers (Footnote 29 above) 155–157.
- 37.
H.G. Schermers & N.M. Blokker International institutional law: Unity within diversity (2011) 321.
- 38.
As above.
- 39.
Schermers & Blokker (Footnote 37 above) 323.
- 40.
Interestingly, the former Belgian Prime Minister, Guy Verhofstadt, is said to have suggested that the name of the European Commission should be changed to ‘European Government’ since, in his view, the former was ridiculous. See A. Saurombe ‘The European Union as a model for regional integration in the Southern African Development Community: A selective institutional comparative analysis’ (2013) 17 Law Democracy and Development 468 and the reference thereunder.
- 41.
Tjønneland (Footnote 5 above) 169, 170.
- 42.
See, for example, the vacancy announcement in http://www.sadc.int/files/5213/9962/0216/ADVERT_-_6__SADC_REGIONAL_POSITIONS_MAY_2014.pdf (accessed 15 October 2014).
- 43.
A similar argument seems to be implied in the observation made by Saurombe in his paper ‘The role of SADC institutions in implementing SADC Treaty provisions dealing with regional integration’ (2012) 15 # 2 Potchefstroom Electronic Law Journal at p. 475 https://doi.org/10.4314/pelj.v15i2.16 (accessed 15 October 2014). After noting that ‘[t]he biggest challenge for the Secretariat is still the apparent reluctance on the part of Member States to surrender national initiative and active representativeness to the principle of supranationalism[,]’ (sic) he states, after making some other relevant observations (the poor funding of the Secretariat and the filling of some of the positions at the Secretariat through a system whereby Member States second their own employees to the Secretariat), that ‘[w]hen jobs are advertised, interested candidates have to apply through each Member State’s national contact point and applications made directly to the Secretariat are not considered.’
- 44.
Item 4.5.1 of the minutes of meeting of the CoM of 11–16 August 2011, Luanda available in the SADC library, Gaborone (accessed 10 March 2014).
- 45.
For these arguments by the Ambassadors/High Commissioners, see item 4.5.1, particularly items 4.5.1.3 (i), (ii), (iii), and (vii) of the minutes of the meeting referred to in Footnote 44 above.
- 46.
Established by art 21 of the Constitutive Act of the African Union available at http://www.africa-union.org/root/au/aboutau/constitutive_act_en.htm (accessed 13 March 2014).
- 47.
See item 4.5.1.3 (iv) of the minutes of meeting of the CoM (Footnote 44 above).
- 48.
Art 21(2) of the Constitutive Act of the AU.
- 49.
Art 10(1) and 13(2) of the Constitutive Act of the AU.
- 50.
http://europa.eu/legislation_summaries/glossary/coreper_en.htm (accessed 17 March 2014). The latter institution, the expert groups, does not form part of this study.
- 51.
As above.
- 52.
As above.
- 53.
As above.
- 54.
As above.
- 55.
The composition, functions, and procedures of the Co-ordination Committee are set out in arts 17–19 of the EAC Treaty.
- 56.
The composition and functions of these committees are provided for in arts 22 & 23 of the ECOWAS Treaty.
- 57.
The term ‘locating … between’ here is used not to imply a hierarchical order but rather refers to operational interface.
- 58.
The SADC Tribunal was established by the 1992 SADC Treaty and the Tribunal Protocol was adopted in 2000. The judges were appointed in 2005 and the Registry was set up in 2006, with the Tribunal starting operating in 2007, some 15 years after its ‘establishment.’ See S.T. Ebobrah ‘Litigating human rights before sub-regional courts in Africa: Prospects and challenges’ (2009) 17 African Journal of International and Comparative Law 83; Nathan ‘Community of insecurity…’ (Footnote 17 above) 124, 134 and the reference on the latter page; http://www.sadc-tribunal.org/ (last accessed 24 August 2014).
- 59.
Schermers & Blokker (Footnote 37 above) 419–421.
- 60.
Schermers & Blokker (Footnote 37 above) 419–420.
- 61.
Schermers and Blokker (Footnote 37 above) 423.
- 62.
Schermers & Blokker (Footnote 37 above) assert (at p. 406) that the distribution of seats of international parliamentary organs should be influenced by the need to include the most important national opinions and the need for equitable representation of the populations of participating states.
- 63.
Any design of SADC institutions should, in addition to considerations of effectiveness, democracy and rule of law, take into account financial considerations. This is more so in view of SADC’s dependency on donor support. For the information on donor support, see G.A. Dzinesa et al. ‘Introduction’ in C. Saunders et al. (eds) Region-building in Southern Africa: Progress, problems and prospects (2012) 17. The size of the proposed parliament should therefore be lean enough so that it can be financed by SADC’s own resources.
- 64.
Schermers & Blokker (Footnote 37 above) 420.
- 65.
K. Mbuende ‘The SADC: Between co-operation and development—an insider’s perspective’ in C. Saunders (ed) Region-building in Southern Africa: Progress, problems and prospects (2012) 57.
- 66.
Mbuende (Footnote 65 above). Mbuende’s proposal is for the establishment of an Economic and Social Council in the mould of similar institutions in the UN and the AU. While Mbuende’s proposal would be an improvement to the current situation, its value is by far limited when compared to the model proposed in this study which bestows clear rights on CSOs that are justiciable and thus enforceable through judicial review. Also, as stated above in connection with the size of the proposed regional parliament, financial considerations (the establishment and operations of an economic and social council will obviously have serious budgetary implications) should also be a factor in the design of SADC institutions.
- 67.
Item 5.9 of the minutes of CoM meeting of 23–24 August 2003. The minutes are available in the SADC library, Gaborone (accessed 14 March 2014).
- 68.
This is captured as a recollection in item 5.9.1 of the Dar es Salaam meeting. See note 67 above.
- 69.
See Footnote 68 above, item 5.9.6 and the bullets thereunder. Save for some minor changes to do with such things as form, the guidelines are captured almost verbatim as adopted.
- 70.
As above, item 5.9.1 of the minutes.
- 71.
As above, item 5.9.3.
- 72.
As above.
- 73.
See H. Melber, ‘Promoting the rule of law: Challenges for South Africa’s policy’ Open Society Foundation for South Africa SAFPI Commentary No. 5, 13 August 2012 http://www.safpi.org/publications/promoting-rule-law-challenges-south-africas-policy (accessed 18 July 2013). See also F. Cowell ‘The death of the Southern African Development Community Tribunal’s human rights jurisdiction’ (2013) Human Rights Law Review (advance access March 12 2013) 10 http://hrlr.oxfordjournals.org/ (accessed 26 April 2013) where mention of the same statement by Dr. Salomão, with reference to Melber, is made. See also Tjønneland (Footnote 5 above) 182. One of the recommendations made by Tjønneland is that ‘…SADC has to change its secretive and bureaucratic mode of operation and become more transparent.’ On access to information generally in international organisations, see the Report of the International Law Association (ILA), Berlin Conference (2004) pp. 8–9 www.ila-hq.org/...cfm/.../6B708C25-4D6D-42E2-8385DADA752815E8 (accessed 2 September 2014); E de Wet ‘Holding international institutions accountable: The complementary role of non-judicial oversight mechanisms and judicial review’ German Law Journal (Special Issue: Public authority & international institutions) (2008) 9 # 11 1990 where she makes reference to the same ILA Berlin Conference (2004) Report.
- 74.
However, with regard to the CJEU and the European Central Bank, the right to access to documents is limited to when these institutions are exercising their administrative tasks.
- 75.
The Charter was adopted by the EP, Council and the Commission at Nice on 7 December 2000 and is available at http://www.europar/.europa.eu/charter/pdf/text_en.pdf (accessed 18 March 2014). In terms of art 6(1) of TEU, the Charter as subsequently proclaimed in 2007 by the same institutions has the same legal value as the Treaties.
SADC also has a Charter of the Fundamental Social Rights that was signed in 2003. The SADC Charter, however, is largely confined to employment and labour relations within the SADC region. See http://www.sadc.int/documents-publications/show/837 (last accessed 2 October 2014).
- 76.
Regulation (EC) 1049/2001 of 30 May 2001 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ%3AL%3A2001%3A145%3A0043%3A0048%3AEN%3APDF (accessed 18 March 2014).
- 77.
See, for example, the framing of arts 7 & 8 of the Regulation on access (Footnote 76 above).
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Nyathi, M. (2019). Applying Shared Governance in SADC. In: The Southern African Development Community and Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76511-2_7
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