The Malawi Law Society (MLS) has informed Solicitor General Janet Banda about its intention to take government to court over its participation in suspending the Southern Africa Development Community (Sadc) Tribunal without proper consultations.
In a letter dated July 24 2014 addressed to Banda, who is also secretary for the Ministry of Justice and Constitutional Affairs, MLS secretary Felisah Kilembe said the court will, among other things, be moved to stop government from further participating in the adoption of the new protocol.
Article15 of the Sadc Protocol which tackles the aspect of the Scope of Jurisdiction says, in part, the tribunal shall have jurisdiction over disputes between States, and between natural or legal persons and States and no natural or legal person shall bring an action against a State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.
Essentially, the decision by member States to suspend the tribunal means that citizens have no opportunity of appealing against any verdict of the Supreme Court of Appeal.
Said Kilembe: “The Malawi Law Society has noted with regret, that the Malawi Government knowingly participated and took a decision along with other Sadc Heads of State and Government to suspend the Sadc Tribunal without consulting its citizens on the matter were going to be affected by its participation in that decision.”
She said similarly, government also knowingly participated and took a decision to re-negotiate a new protocol whose mandate will be confined to interpretation of the Sadc Treaty and protocols relating to disputes between member States.
Further, wrote Kilembe: “This means that Malawian citizens and those of other Sadc countries are effectively barred from accessing the Sadc Tribunal. The decisions also infringe internationally-recognised tenets on independence of the judiciary and the doctrine of separation of powers as well as the basic tenets of human rights and the rule of law as enshrined in Article 4(c) of the Sadc Treaty.”
According to Kilembe, MLS has information that the new protocol would most likely be adopted during the forthcoming Sadc Summit of Heads of State and Government next month in Zimbabwe.
Banda yesterday confirmed receiving the letter and that the matter would be discussed by relevant authorities since it concerns government decision.
Said Banda: “I can confirm that we received the letter on Friday. They have just notified us on their intention to take the matter to court. So, I am bringing it to the relevant authorities since the matter is to do with government.”
Malawi is currently chairing Sadc and would be handing over to Zimbabwe during the forthcoming summit.