Introduction

The SADC Secretariat is commissioning a study on Review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal and invites suitably qualified and experienced Consultants to submit proposals to conduct the study.

Background

Article 9 of the Treaty establishing the Southern African Development Community (SADC), as amended, created the SADC tribunal as one of the Institutions of the Organization.

The mandate of the Tribunal is outlined under Article 16 of the Treaty as:

1. to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments;
2. to adjudicate upon such disputes as may be referred to it; and
3. to provide advisory opinions on matters referred to it by the Summit or the Council.

The Tribunal is furthermore given the power to make decisions that are final and binding.

The composition, powers, functions, procedures and other related matters governing the Tribunal are prescribed separately in a Protocol on the Tribunal and Rules of Procedure. The Protocol was adopted by the Summit as an integral part of the SADC Treaty. Following recommendation from the SADC Council, the SADC Summit appoints Members (Judges) for the Tribunal.

The SADC Tribunal is based in Windhoek, Namibia and has been operating under the terms of the Protocol. However, in 2009 at a meeting held in Kinshasa in the Democratic Republic of the Congo, the SADC Summit directed the Ministers of Justice/Attorneys-General to undertake a review of the operations of the Tribunal with a view to strengthening it and improving its terms of reference. Therefore, in order to facilitate the process, the SADC Secretariat intends to commission an independent study to undertake this review and seeks to engage the services of experienced Consultants to conduct the study.

The Scope of Work

1. The Consultants are expected to:

1. Undertake a comprehensive study to review the operations of the SADC Tribunal, its role, responsibilities and terms of reference,
2. prepare an analytical report on the basis of the study findings, and
3. synthesize the information from the above review and assessment to come up with recommendations for SADC Ministers of Justice/Attorneys-General to address in order to strengthen the Tribunal and improve its terms of reference.

2. Taking into account the SADC Treaty, the Protocol on Tribunal and any other existing instruments and jurisprudence, the study should review and clarify the following issues (without limitation) which have been identified as problematic:

1. the jurisdiction of the Tribunal with regards to issues and persons (Ratione materiae and personae),
2. the interface between community law and national laws in SADC. In so doing, the study should, clarify the following issues:
   1. the power of the Tribunal to review decisions of domestic courts and the extent of such competence (the specific areas that should fall under the Tribunal’s jurisdiction);
   2. the role of the Tribunal in guiding domestic courts on the application of community law, and
   3. the effect of its decisions on domestic law.
3. the possible impact of the limited mandate of the existing appeals chamber of the Tribunal and make recommendations on how its mandate could be broadened.
4. the recognition, enforcement and execution of the Tribunal’s decisions.
5. the process of nomination, appointment and the qualifications of judges of the Tribunal, taking into account domestic mechanisms and international best practice and the need to be representative of the legal systems within SADC.

3. In addition to the above issues, the study should also consider and recommend possible solutions on the following issues noted by the Member States:

1. the lack of clarity in some provisions of the Treaty and the Protocol on the Tribunal;
2. the tendency by Member States to give primacy or more prominence to domestic laws/jurisdiction over community law;
3. unwillingness of SADC Member States to relinquish some aspects of their sovereignty to the regional organization.

Attachments:

Request for proposals for the Study on the roles, TORs of the Tribunal - French.pdf [341678]
Request for proposals for the Study on the roles, TORs of the Tribunal - Portuguese.pdf [286184]
Request for proposals for the Study on the roles, TORs of the Tribunal - English.pdf [76548]