Jump to the next navigation bar : Jump to the page contents
About Globalex

An Introduction to the Law of the Southern African Development Community

 

By Dunia P. Zongwe

 

Dunia P. Zongwe  is a former graduate fellow of the Institute for African Development at Cornell University. He holds a doctorate (2010) and a master degree (2008) from Cornell Law School, and a LL.B. (2006) and a B.Juris (2004) from the University of Namibia. He specializes in finance and development and in international human rights, with a particular focus on Africa.

 

Published February 2011

 

Table of Contents

1. Background   

     1.1.  History 

        1.1.1. The coordinating conference 1980-1992   

        1.1.2. The community 1992-present  

        1.1.3. The free trade area 2000 –present

     1.2. Economy

        1.2.1. Outlook

        1.2.2. The bumpy road ahead

2. SADC law

     2.1. Overview

     2.2. Principles

3. The constitution

     3.1. Founding ideals

     3.2. Objectives and obligations

4. Trade and industry

     4.1. The trade protocol

     4.2. Trade in goods

        4.2.1. Removal of trade barriers

        4.2.2. Customs procedures

        4.2.3. Exceptions

     4.3. Trade measures

        4.3.1. Standards-related measures

        4.3.2. Safeguard measures

        4.3.3. Dumping and subsidies

     4.4. Services, intellectual property and competition

     4.5. Intra-regional trade and trade with third parties

     4.6. Committees, forum and panel

5. Finance and investment

     5.1. The finance protocol

     5.2. Investment cooperation

        5.2.1. Promotion

        5.2.2. Regulation and protection

6. Mining

7. Main institutions

     7.1. The Summit

     7.2. The Council

     7.3. The Secretariat

     7.4. The Tribunal

8. Resources

     8.1. Publications

     8.2. Online resources

 

1. Background

The Southern African Development Community (SADC) is a regional economic community composed of 15 countries in Southern Africa (member states), namely Angola, Botswana, the Democratic Republic of the Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. SADC is thus in theory an arrangement that reduces or rules out trade barriers between member states while leaving in place barriers against imports from outside regions. The market and population size of SADC is estimated at 257, 7 million.

 

1.1. History

1.1.1. The coordinating conference 1980-1992

The Southern African Development Co-ordination Conference (SADCC) is the ancestor of the present-day SADC. Nine countries in Southern Africa founded the SADCC in Lusaka (Zambia) on April 1, 1980 by adopting the ‘Lusaka Declaration – Southern Africa: Towards Economic Liberation – A Declaration Made by the Governments of Independent States of Southern Africa. ’ The nine SADCC majority-ruled founding countries were Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe.

 

In 1977, representatives of the Frontline States engaged in consultations. ‘Frontline States’ was the name given to the group of Southern African states (i.e. Angola, Botswana, Mozambique, Tanzania and Zambia) that set out to bring about black majority rule in South Africa. In May 1979, in Gaborone (Botswana), foreign affairs ministers of the Frontline States met and agreed that ministers responsible for the economy in the Frontline States should convene a meeting, which they did two months later in Arusha (Tanzania). The Arusha meeting paved the way for the birth of SADC the following year on April 1, 1980, in Lusaka (Zambia). The Frontline States movement ceased operations following the advent of democratization in South Africa in 1994.

 

The initial purpose of the SADCC was twofold: To coordinate development projects in an attempt to promote collective self-reliance by shaking off the economic dependence of SADCC members on the apartheid and White minority-ruled South Africa as well as other countries; and to implement projects with national and regional impact. 

 

1.1.2. The community 1992-present

Member states turned SADCC into SADC in 1992 in Windhoek (Namibia) and adopted the Windhoek Declaration and the Treaty establishing SADC. The meeting in Windhoek elevated the basis of cooperation among member states from a loose association to a legally binding agreement.[[1]]  The purpose of the transformation from SADCC to SADC was to deepen economic cooperation and integration in order to undo the factors that stop member states from sustaining economic growth and socio-economic development.[[2]] The small size of individual markets, inadequate infrastructure and the cost of providing this infrastructure, and low-income made it difficult for member states individually to bring in investments necessary for sustained growth.[[3]]

 

Prompted by concerns for a more coherent and better coordination, member states approved at an extraordinary meeting Summit in Windhoek in March 2001 the overhaul of SADC. Important decisions at that meeting include the classification of the 21 sectors of SADC into four clusters under four directorates of the SADC Secretariat, and the establishment of SADC national committees to articulate their respective individual member state interests with respect to SADC. The Summit also approved the preparation by the Secretariat of a Regional Indicative Strategic Development Plan. Another decision was to institutionalize – for the first time since the end of the Frontline States movement – security and political cooperation in the Organ on Politics, Defense and Security (Defense Organ). In that sense, the Defense Organ is the descendant of the Frontline States.

 

1.1.3. The free trade area 2000 -present

The formation of a free trade area dates back to 2000. Member states began to join the free trade area gradually. The first to join the area were the Southern Africa Customs Union (SACU) members, which are Botswana, Lesotho, Namibia, South Africa and Swaziland. Madagascar, Mauritius and Zimbabwe then fell in the free trade area. In 2008, Malawi, Mozambique, Tanzania and Zambia formally integrated the free trade area. Only Angola, the DRC and Seychelles have not yet joined the free trade area, although it is anticipated they will do so at an ulterior time. In October 2008, a Tripartite Summit of heads of state and government from SADC, the East African Community (EAC) and the Common Market of Eastern and Southern Africa (COMESA) agreed in Kampala (Uganda) to set up the African Free Trade Zone, a free trade zone with EAC and COMESA.

1.2. Economy                                             

1.2.1. Outlook

SADC comprises roughly 257 million people and 15 heterogeneous states, at different stages of development, though mostly underdeveloped, and with different growth rates, reflecting different resource endowments and economic sizes. The gross domestic product (GDP) of SADC, the largest regional economic community by GDP and gross income in Africa, was in excess of 560 billion US dollars as of January 27, 2011, which placed the economy of the SADC region above the Swiss economy but just below that of Indonesia. Thus, the SADC economy is the 19th in the world.

 

Table 1: Size of SADC economy

 

No.

SADC country

GDP

(in million

US dollars)

rank in Africa

(out of 53

countries)

world rank

(out of 190

countries)

1

South Africa

354,400

1

27

2

Angola

85,810

6

61

3

Tanzania

22,430

12

95

4

Zambia

15,690

17

108

5

Dem. Rep. Congo

12,600

20

115

6

Botswana

12,500

22

117

7

Namibia

11,450

24

121

8

Mozambique

10,210

25

124

9

Mauritius

9,427

26

126

10

Madagascar

8,330

29

130

11

Zimbabwe

5,574

35

143

12

Malawi

5,035

36

145

13

Swaziland

3,165

39

153

14

Lesotho

3,310

45

161

15

Seychelles

919

51

173

Total

560,850

 

 

 

Source: CIA World Fact Book (2011).

 

SADC is predominantly an exporter of primary commodities. 90% of SADC exports consist of mineral and agricultural commodities. SADC exports about 53% of vanadium, 49% of platinum, 40% of chromite, 36% of gold, 50.1% of diamonds and 20% of cobalt.[[4]] SADC member states depend on these exports for foreign exchange earnings, investment and wealth creation. On the other hand, SADC mainly imports capital and intermediate goods, which only South Africa and, to a much lower extent, Zimbabwe has the capacity to produce.

 

1.2.2. The bumpy road ahead

The road to the full integration of SADC is a bumpy one. Insofar as regional integration is both the primary reason and ultimate goal of SADC, the Southern African regional economic community is miles away from realizing its own logic and purpose. As can be seen in the table below, the largest SADC member states (i.e. South Africa, Angola and Tanzania) are more integrated into non-SADC economies, especially China and the United States (US), the two largest trading partners of SADC. The only member state that is fully integrated into SADC is Zimbabwe while South Africa accounts for the greatest volume of intra-regional trade. These data show that SADC has a very long road to walk before full regional integration can become reality.

 

  Table 2: Degree of regional integration

 

 

3 largest export partners

3 largest import partners

South Africa

China

10.34%

US

9.19%

Japan

7.59%

China 17.21%

Germany

11.24%

US

7.38%

Angola

China

35.65%

US

25.98%

France

8.83%

Portugal

18.71%

 

China

17.39%

US

8.51%

Tanzania

India

8.51%

China

7.55%

Japan

7.12%

India

13.97%

China

13.71%

South Africa

7.8%

Zambia

China

21.37%

Saudi Arabia

 8.93%

D.R. Congo

8.55%

South Africa

51.78%

UAE

7.7%

China

5.85%

Dem. Rep. Congo

China

46.75%

US

15.35%

 

Belgium

10.68%

South Africa

18.22%

Belgium

10.2%

 

China

8.34%

Botswana

N/A

N/A

N/A

N/A

N/A

N/A

Namibia

N/A

N/A

N/A

N/A

N/A

N/A

Mozambique

Netherlands

47.62%

South Africa 11.6%

N/A

South Africa

 33.54%

Netherlands

8.42%

India 5.93%

Mauritius

UK

25.55%

 

France

16.89%

US 9.51%

India

24.5%

France

14.02%

 

South Africa 8.55%

Madagascar

France

 28.9%

US

20.49%

Germany 5.89%

China

 12.99%

Thailand 11.93%

Bahrain 7.1%

Zimbabwe

D.R. Congo

 14.82%

South Africa 13.39%

Botswana 13.23%

South Africa 62.24%

 

China

4.2%

N/A

Malawi

Germany

12.37%

Egypt

 8.52%

South Africa 7.67%

South Africa 40.15%

China

6.79%

India 6.73%

Swaziland

N/A

N/A

N/A

N/A

N/A

N/A

Lesotho

US

58.9%

Belgium

37%

Madagascar 1.2%

China

 26.3%

Taiwan

20.1%

Hong Kong 16.4%

Seychelles

UK

24.84%

France 18.53%

Italy 9.45%

Saudi Arabia 16.44%

India

8.33%

Spain 7.49%

 

Source: CIA World Fact Book (2011)

 

Another challenge that confronts SADC is the membership of its member states to other regional economic communities. The problem of multiple memberships is more acute in SADC and in east Africa. [[5]] For example, Tanzania belongs to SADC, the EAC and COMESA; Swaziland belongs to SACU, SADC and COMESA. The SADC Treaty does not prevent its member states from staying in regional groupings that they joined prior to their accession to the SADC Treaty, but the obligations of the different communities are sometimes conflicting and often redundant. Membership to other regional economic blocs may also be seen as undermining the objectives of SADC. At the same time, the leaders of SADC, the EAC and COMESA believe that the African Free Trade Zone will solve the problem created by multiple memberships and regional cooperation schemes. Third, some member states, notably Angola, Namibia and South Africa, have voiced concern over the impact of a controversial economic partnership agreement (EPA) with the European Union on regional integration processes. Finally, many see in the failure by the SADC Summit of Heads of State and Government to pressure Zimbabwe into complying with the decisions of the SADC Tribunal another impediment to regional integration.

 

2. SADC law

2.1. Overview

‘SADC law’ refers to the body of principles, rules and institutions adopted and created by SADC as a regional economic organization in order to foster regional integration and development in the states parties to the SADC Treaty (i.e. member states). SADC law is yet to be entrenched in the curricula of law faculties, legal literatures and public discourses in Africa. The launch of the SADC Law Journal in 2011 is a major step towards the entrenchment of SADC law. This introduction to SADC law, the first one of this kind, should be seen along the same lines as an effort to establish SADC law as a distinct field of law in its own right.  It aims to be a general reference for SADC law.

 

Most of SADC law is binding on member states. Article 6(5) of the SADC Treaty places a duty on all member states to accord the SADC Treaty the force of national law. It is however not yet clear whether the Treaty must prevail over national laws in case of conflict between the Treaty and national laws. SADC legislation is binding only on the states that are party thereto and, once ratified or acceded to, it does not allow for any reservations by the ratifying state. A member state may withdraw from SADC by serving a written notice of its intention a year in advance to the Chair of SADC, who must inform other member states accordingly. SADC law also comprises non-binding legal instruments, such as model laws and memoranda of understanding (MOU). The Treaty and its protocols are the two primary formal sources of SADC law. The Regional Indicative Strategic Development Plan (RISDP) is the framework for the regional integration of SADC. It is not legally binding but it is highly persuasive and enjoys considerable political legitimacy. Other sources include international law and resolutions of SADC.

 

The SADC Tribunal must develop its own jurisprudence with due regard to (1) applicable treaties, (2) the general principles and rules of public international law and (3) the laws of member states (article 21(b) of the Tribunal Protocol). The three sources for the development of SADC jurisprudence duplicate the binding sources of public international law, leading to the reasonable inference that the sources of international law carry persuasive force in SADC law. Scholarly writings by highly regarded authors are not binding. Given that, the SADC community comprises common law (mainly) and civil law countries, it is still uncertain, whether the dispute resolution system of SADC will follow the common law tradition of judicial precedents. The tribunal inaugurated by SADC in 2005 has not decided enough cases to determine whether case law is effectively a source of SADC law.

 

SADC law organizes SADC around 8 institutions, namely (1) the Summit of Head of State and Government (Summit); (2) the Organ on Politics, Defense and Security (Defense Organ); (3) the Council of Ministers (Council); (5) the Integrated Committee of Ministers; (6) the Standing Committee of Officials (Standing Committee); (7) the Secretariat; and (8) SADC national committees (SNCs). The Summit is the highest political body of SADC; the Defense Organ is entrusted with peace and stability in the region; the Council superintends the operations of SADC; the Standing Committee advises the Council; the Secretariat executes SADC policies; SNCs represent individual national interests in SADC; and the Tribunal provides a forum for the settlement of disputes concerning the interpretation and application of the SADC Treaty, protocols and other relevant legal instruments.  

 

The main areas of SADC law are trade, investment, agriculture, infrastructure, services, natural resources and security. The SADC Treaty calls upon member states to cooperate in all areas necessary to foster regional integration and development on the basis of balance, equity and mutual benefit. Member states must, through the appropriate SADC institutions, coordinate, rationalize and harmonize their overall macroeconomic and sectoral policies in the various areas of SADC law.

 

SADC member states cooperate in each area of SADC law by dint of protocols. In that sense, protocols to the Treaty are the legislation or legislative acts of SADC. Their role is to spell out the objectives and scope of, and institutional mechanisms for, regional integration and co-operation. The Summit approves protocols on the recommendation of the Council. SADC enacted protocols on:

 

  1. trade;  
  2. finance and investment;
  3. mining;
  4. energy;
  5. fisheries;
  6. transport, communication and meteorology;
  7. forestry;
  8. shared watercourse systems;
  9. politics, defense and security cooperation;
  10. education and training;
  11. health;
  12. the movement of persons;
  13. culture, information and sport;
  14. tourism;
  15. wildlife conservation;
  16. corruption;
  17. firearms and ammunition;
  18. illicit drugs;
  19. extradition;
  20. legal assistance in criminal matters;
  21. immunities and privileges;
  22. legal affairs; and
  23. The SADC Tribunal.

 

2.2. Principles

From the specific rules, regulating SADC and its member states emerge a few general principles. The following list indicates some of the most outstanding principles, even if it is not exhaustive.

 

  1. Non-discrimination – the foundational principle of SADC trade law is that member states must conduct trade among themselves without discrimination. The most-favored nation and national treatment principles are two manifestations of non-discrimination.

 

  1. Most-favored nation – member states must apply their tariff rules to all other member states without discrimination.

 

  1. National treatment – member states must accord to goods traded within SADC the same treatment as to goods produced nationally in respect of all laws affecting their internal sale, distribution or use.

 

  1. WTO law as normative background – SADC is a ‘free trade area’ within the meaning of the WTO. It is, in terms of Article XXIV (8) (b) of the 1994 General Agreements on Tariffs and Trade (GATT) , an exception to the most-favored nation rule. For that reason, the law of the World Trade Organization (WTO) is the normative background of SADC law. It is not possible to fully understand SADC law without a working knowledge of WTO law.

 

  1. Removal of trade barriers – member states must remove or reduce tariffs, import and export duties, non-tariff barriers and quantitative import and export restrictions.

 

  1. Protection through tariffs – member states may protect their domestic industries only through the use of tariffs

 

  1. International standardization – member states may use applicable international standards when setting technical standards, except where these standards would be ineffective and inappropriate in achieving the legitimate objectives of member states.

 

  1. Financial cooperation – member states must cooperate and coordinate their policies and strategies in investment, taxation, central banking and regional capital and financial markets with a view to the achievement of economic development and poverty eradication.

 

  1. Mining for development – mining sector activities must contribute to economic development, poverty alleviation, and the amelioration of the standard and quality of life throughout SADC.

 

  1. Decision by consensus – subject to a few exceptions, the institutions of SADC must arrive at decisions by consensus. This is particularly the case for the Summit, the Council, the Standing Committee of Officials, and the institutions brought about by the Mining Protocol.  

 

3. The constitution

Member states adopted the treaty of the SADC community (SADC Treaty) in 1992, and the treaty came into force the following year. The SADC treaty, which was amended once in 2001, is the constitution of SADC. It is the most fundamental organic law of SADC. It enunciates the founding ideals and principles of SADC, states the objectives and obligations of member states, and establishes the institutions that implement the ideals, principles, objectives of SADC.

 

3.1. Founding ideals

Regional integration, economic development and people-centeredness thrust themselves into attention as ideals of the SADC community. Cooperation, both regional and international, is deployed to achieve those ideals. Those ideals and the means to achieve them are visible in the preamble of the SADC Treaty, which outlines the philosophy behind the creation of the SADC community. In creating the community, the member states had the resolve to meet the challenges of globalization and to ensure, through common action, the progress and well-being of the peoples of Southern Africa. They felt a collective responsibility to promote the interdependence and integration of national economies for the harmonious, balanced and equitable development of the community. They also felt a responsibility to mobilize resources, regional and international, to promote national, interstate and regional policies, programs, and projects within the framework of regional integration. They recognize that, in an increasingly interdependent world, mutual understanding, good neighborliness and meaningful cooperation among the countries in the community are indispensable to the realization of the ideals of the SADC community.

 

SADC puts people in the community at the center of its preoccupation and action. It tries to involve the SADC people centrally in the process of development and integration, which is why it emphasizes democratic rights, human rights, and the rule of law and poverty alleviation. Deeper regional integration and sustainable economic growth and development are the means by which SADC will realize its ideals. For that purpose, SADC is dedicated to securing international understanding, support and cooperation; observing the principles of international law governing relations between states; and taking in the various legal instruments adopted at the continental level. The African legal instruments to which SADC adheres are the Lagos Plan of Action (on Africa’s self-sufficiency) and the Final Act of Lagos of 1980 (on the establishment of an African Economic Community by 2000); the Treaty on the establishment of an African Economic Community; and the Constitutive Act of the African Union.    

 

The principles of the SADC community transcend the narrowly defined interests of regional integration and economic development. Those principles are sovereign equality; solidarity, peace and security; human rights, democracy, and the rule of law; equity, balance, and mutual benefit; and peaceful settlement of disputes.  

3.2. Objectives and obligations

SADC has set for itself the achievement of a number of key objectives. The overarching goal running as a thread through these key objectives is the promotion of socio-economic development and the forging of common values and a common agenda. The key objectives of SADC are first to promote sustainable and equitable economic growth and socio-economic development to alleviate poverty, to enhance the standard and quality of life of the people in Southern Africa and support the socially disadvantaged through regional integration. The objectives of SADC are, second, to promote common political values, systems and other shared values, which are transmitted through democratic, legitimate and effective institutions. A third objective of the SADC community is to consolidate, defend and maintain democracy, peace, security and stability.

 

A fourth objective is to promote self-sustaining development on the basis of collective self-reliance, and the interdependence of member states. Further, SADC has the objective to achieve complementarity between national and regional strategies and programs; and to promote and maximize productive employment and the utilization of resources of the community. It plans to achieve sustainable utilization of natural resources and effective protection of the environment. Finally, SADC plans to strengthen long-standing affinities and links among the peoples of the region; to combat HIV and other communicable diseases; and to mainstream poverty alleviation in all activities and gender in the community building process.     

 

In order to achieve these objectives, SADC commits to take certain measures with respect to the peoples of SADC, the regional economies and international affairs. Regarding the peoples of SADC, it encourages peoples in the region and their institutions to take initiatives to develop economic, social and cultural ties across the region and to participate fully in the implementation of programs and projects of SADC. It promotes the development of human resources and technology, including the mastery and transfer of technology. With respect to regional integration, SADC commits to improve economic management and performance through regional co-operation and to harmonize political and socio-economic policies and plans of member states.  It undertakes to create appropriate institutions and mechanisms for the mobilization of requisite resources for the implementation of programs and operations of SADC and its institutions. It also undertakes to develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labor, goods and services, and of peoples in the region generally, among member states. Concerning international affairs, SADC must harmonize and coordinate the international relations of member states; secure international understanding, co-operation and support; and mobilize the inflow of public and private resources into the community.

 

The achievement of the key objectives of the community requires that member states perform certain obligations over and above the measures they intend to take in terms of the SADC Treaty. Naturally, the first obligation of member states is to adopt adequate measures for the achievement of the key objectives of SADC and the uniform application of the Treaty. The corollary of this obligation is the duty to refrain from taking any measure likely to jeopardize the achievement of SADC’s key objectives or the implementation of the provisions of the SADC Treaty. The SADC Treaty imposes an obligation on member states not to discriminate against any other member states or against any person in member, states on the grounds of gender, religion, political views, race, ethnic region, culture, ill-health, disability and such other ground as may be determined by SADC.

 

4. Trade and industry

The most important area of SADC law is trade. Trade is part of the trade, industry, finance and investment (TIFI) cluster of the Regional Indicative Strategic Development Plan (RISDP). The four parts of TIFI are connected as they all positively impact development and poverty alleviation in SADC. SADC links – through its protocol on trade – trade, industry, finance and investment. The trade protocol links trade liberalization to a process of viable industrial development and cooperation in finance and investment.

 

The principal challenge of SADC is the establishment of a common market within a reasonable time in order to increase the share of SADC exports in global trade. SADC views regional trade as a tool for sustainable economic development to address this challenge as trade enables deeper regional integration and cooperation and fosters growth. SADC tries to address supply side constraints and industrial competitiveness and to mitigate the incidence of the reduction of tariffs on the development of smaller, landlocked and less developed member states.  

 

Globalization – from competitiveness to industrial and product diversification, to productivity – poses a formidable trial of strength to the industrial sector in SADC. That is the reason why SADC industrial policies target the promotion of exports and industrial linkages, efficient import substitution, the improvement of investment climate, the facilitation of imports of essential goods, enhancing industrial support services, equitable distribution of industrial activity and adopting flexible market oriented exchange rates.

 

4.1. The trade protocol

The 1997 Protocol on Trade recognizes that an integrated regional market opens up new opportunities for a dynamic business sector. The Protocol on Trade in the Southern African Development Community (Trade Protocol) also takes into account the Uruguay Round of Multilateral Trade Negotiations on global trade liberalization. The Protocol is the materialization of the desire expressed in the Treaty on the establishment of an African Economic Community (the Abuja Treaty) to put in place sub-regional groupings as building blocks for the creation of an African Economic Community.  It provides a framework of trade cooperation anchored to equity, fair competition and mutual benefit that SADC believes will contribute to the emergence of a workable development community in Southern Africa. 12 of the then 14 member states signed on 24 August 1996 the Trade Protocol, which came into force on 25 January 2000.

 

The primary objective of the Trade Protocol is to further liberalize intra-regional trade in goods and services on the basis of fair, mutually equitable and beneficial trade arrangements, complemented by protocols in other areas. Another objective is to ensure efficient production within SADC that leverages the comparative advantages of member states. SADC also plans to improve investment climate; enhance economic development, diversification and industrialization; and form a free trade area in the region.

 

The Trade Protocol applies to a vast realm of commercial matters. It covers trade in goods (Part 2); customs procedures (Part 3); trade laws (Part 4); trade related investment measures (Part 5); trade in services, intellectual property rights, and competition policy (Part 6); and trade development (Part 7). Apart from these substantive issues, the Protocol also covers trade relations among member states and with non-member states (Part 8) as well as institutional arrangements and dispute resolution (Part 9). 5 annexes implementing the Protocol address rules of origin (Annex I), customs co-operation (Annex II), simplification and harmonization of trade documentation and procedures (Annex III), transit trade and facilities (Annex IV), and trade development (Annex V).

 

4.2. Trade in goods     

4.2.1. Removal of trade barriers

The first part of the Trade Protocol is devoted to trade in goods and the removal of trade barriers. Subject to a few exceptions and the national treatment rule, the Trade Protocol provides for the removal or reduction of tariffs (article 3), import and export duties (articles 4 and 5), non-tariff barriers (article 6), and quantitative import and export restrictions (articles 7 and 8). The Trade Protocol entrusts a committee of SADC ministers responsible for trade (CMT) with the tasks of controlling the process for the phased elimination of tariffs and non-tariff technical barriers (NTBs). In doing so, the CMT will have to pay attention to the preferential arrangements between and among member states, the time frame for the elimination of barriers, the adverse impact that the removal of trade barriers may have on member states, and different tariff lines for different products.

 

The Protocol stipulates that an industrialization strategy to improve the competitiveness of member states accompany the removal of import duties. However, the Protocol’s prohibition to impose import duties does not prevent member states from imposing across-the-board internal charges. Likewise, the prohibition to impose quantitative import restrictions does not preclude member states to apply a quota system, provided that the tariff rate under such quota system is more favorable than the rate applied under the Protocol.

 

4.2.2. Customs procedures

SADC customs law plays a crucial role in trade. It determines the classification, valuation and origins of goods to allow member states to apply appropriate tariffs and rates. Part 3 of the Trade Protocol lays down common customs procedures to be followed by member states. It obliges member states to take appropriate measures, including arrangements on customs administration co-operation, to make sure that states apply the Protocol effectively and harmoniously, simplify and harmonize trade documentation and procedures, and grant freedom of transit to goods in transit. 

 

4.2.3. Exceptions

Article 9 of the Trade Protocol lists fairly broad exceptions to the removal of trade barriers. As long as it is not done as a means of arbitrary and unjustifiable discrimination between member states or as a disguised restriction on regional trade, the prohibition on the imposition of quantitative restrictions does not stop member states to take some necessary measures. Member states may take measures necessary to protect intellectual property rights; national treasures; public morals and order as well as human, animal, plant life or health; and to maintain peace and security. They may also adopt necessary measures to secure compliance with WTO obligations or any other international obligations; to prevent deceptive trade practices and critical shortages of foodstuffs; to limit transfer of certain mineral resources; or to conserve natural resources and the environment.  

 

4.3. Trade measures

Part 4 of the Trade Protocol regulates the many measures that member states may adopt with regard to trade. These measures include standards-related, sanitary, phytosanitary, safeguard, anti-dumping measures, subsidies, and measures for the protection of infant industries. Standards-related measures often raise non-tariff technical barriers to regional trade, which arise from the application of divergent standards and regulations by states in SADC. Accordingly, the purpose of the Trade Protocol is to harmonize these divergent rules by internationalizing standardization.

 

4.3.1. Standards-related measures

Standards-related measures afford member states more flexibility in the protection of health, life, consumers and the environment while preserving at the same time the compatibility of standards with one another in SADC for the sake of regional trade liberalization. The Protocol allows member states to use applicable international standards when setting technical standards, except where these standards would be ineffective and inappropriate in achieving the legitimate objectives of member states. SADC member states have agreed on the principle of international standards in a MOU on the harmonization of standardization, quality assurance, accreditation and metrology for the elimination of non-tariff technical barriers to trade within SADC.

 

The Protocol creates a presumption that a standards-related measure that conforms to an international standard does not unnecessarily impede regional trade. Member states accept as equivalent the technical regulations of other member states, provided that they sufficiently fulfill the objectives of their regulations. Moreover, a member state must, if requested by another member state, seek to promote the compatibility of specific standards or conformity assessment procedures in its territory with the standards and conformity assessment procedures in the territory of the other state. The divergent sanitary and phytosanitary measures on agricultural and livestock production in SADC are primary examples of technical barriers to regional trade. As standards-related measures in general, the purpose of the Trade Protocol is to harmonize the divergent sanitary and phytosanitary rules by requiring member states to base the rules on international standards, namely the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.

 

4.3.2. Safeguard measures

Member states may apply a safeguard measure to a product if they conclude that the product is being imported into their territory in such quantities and such conditions as to cause serious injury to a domestic industry that produces like or directly competitive products. A ‘serious injury’ is defined, by reference to the equivalent WTO provisions, as a significant overall impairment in the position of a domestic industry. The Protocol does not clarify whether key concepts such as ‘product’, ‘industry’, ‘directly competitive product’, must be defined in terms of WTO Agreement on Safeguards. The basic philosophy of safeguard measures is to cater for the interests of the member states that suffer from trade liberalization by giving them more time to adjust. Safeguard measures may also be seen as a safety valve for SADC governments to dilute protectionist pressures from local constituents. Safeguard measures apply to products in a non-discriminatory manner and regardless of the origin of the products within SADC. A member state may apply a safeguard measure only to the extent and for so long as necessary to prevent or remedy serious injury and to ease adjustment. In any event, a safeguard measure must not last more than 8 years, which should incidentally induce greater efficiency in the state applying the measure. Furthermore, the Trade Protocol embodies special provisions for the protection of infant industry. Upon application by a member state, the CMT may temporarily authorize that state to suspend trade concessions in respect of like products from other member states.       

 

4.3.3. Dumping and subsidies

The Protocol gives member states the freedom to adopt anti-dumping measures and, with some restrictions, apply countervailing duties. Dumping occurs where a member state exports a product to another member state at a price that is inferior to the one charged in the exporting state or the one charged by a non-member state. It also occurs where the exporting state sells the product at a price below production costs. In essence, anti-dumping laws are designed to counter what the importing state considers to be unfair or trade distorting practices. However, a consensus is emerging among experts that anti-dumping measures reduce general welfare more than they benefit the economy of the states that impose the measures. This consensus might be the reason for the requirement that a state apply an anti-dumping measure only if a product imported into its territory has caused serious injury to its domestic industry. With regard to subsidies, a member state may provide subsidies to its domestic products as long as they do not distort regional trade or contravene WTO provisions. An importing member state may levy countervailing duties on a product of another member state in order to offset the effects of subsidies applied by that state on the product.

 

4.4. Services, intellectual property and competition

The Trade Protocol extends its coverage to service industries (e.g. insurance, banking, and securities), intellectual property rights and competition policies. It obliges member states to formulate policies and execute measures in line with their obligations under the WTO Agreement on Trade in Services in order to liberalize the services sector in within SADC. Likewise, member states must protect intellectual property rights following the WTO Agreement on the Trade-Related Aspects of Intellectual Property Rights. Finally, member states must prohibit unfair business practices and promote competition.

 

4.5. Intra-regional trade and trade with third parties

Member states may maintain preferential trade arrangements that existed prior to the coming into force of the SADC Trade Protocol in 2000. They may enter into new preferential trade arrangements among themselves if these arrangements are consistent with the SADC Trade Protocol. Article 28 of the Trade Protocol establishes the principle of the most-favored nation as it ordains that member states accord most-favored nation treatment to one another. Member states must develop intra-regional cooperation and coordinate as much as possible trade policies and negotiating positions in relations with third parties and international organizations in order to advance the objectives of the Trade Protocol. A member state may also enter into preferential trade arrangements with non-SADC states, provided that such arrangements do not frustrate the objectives of the Protocol and that any concession made to non-SADC states is also extended to other SADC member states. However, a member state is under no obligation to extend preferences of another block of which that state was a member at the time of the entry into force of the SADC Protocol.

 

4.6. Committees, forum and panel

The SADC Trade Protocol has instituted (1) a Committee of Ministers responsible for Trade (CMT), (2) a Committee of Senior Officials responsible for trade, (3) a Trade Negotiation Forum (TNF), (4) a Sector Coordinating Unit and (5) a panel of experts. The work of the CMT and the Committee of Senior Officials overlaps in the respect that they both monitor the implementation of the Protocol, with the Sector Coordinating Unit coordinating the day-to-day implementation of the Protocol. The relationship between these 3 monitoring institutions is hierarchical: The Sector Coordinating Unit – the lowest institution in the hierarchy yet the one in control of daily operations – reports to the Committee of Senior Officials, which in turn reports to the CMT.

 

The CMT oversees the application of the SADC Trade Protocol and the work of any sub-committees, and appoints panels of trade experts. The Committee of Senior Officials report to the CMT on matters concerning the application of the Protocol, supervises the Sector Coordinating Unit and TNF, and liaises with the CMT and the Sector Coordinating Unit. TNF conduct trade negotiations and report to the Committee of Senor Officials. The Sector Coordinating Unit provide technical and administrative assistance to the CMT, the Committee of Senior Officials, the TNF, sub-committees and panels established under the Protocol. In addition, it works with the private sector and controls the trade research agenda.

 

The panel of experts is the platform for dispute resolution created by the Protocol. Before the panel can come into the picture, states parties to a dispute must strive to find a settlement, involving the removal of the trade measure accused of violating the provisions of the Protocol. If the states cannot arrive at a mutually satisfactory agreement on the interpretation and application of the Protocol through co-operation and consultation, the state aggrieved by the measure may retaliate and the parties may refer the dispute to a panel of trade experts appointed by the CMT.  If the panel cannot resolve the dispute, the dispute must as a last resort be referred to the SADC Tribunal for settlement.

 

5. Finance and investment

Investment is the second most important area of SADC law after trade. Together with finance, investment is the two remaining components of the trade, industry, finance and investment (TIFI) cluster of the RISDP. Investment is another way of going around trade barriers. It is the category of international business transactions that reflects the objective of a company in one economy obtaining a lasting interest in a company resident in another economy.[[6]] Of all the sub-regions in Africa, SADC was the largest beneficiary of foreign direct investment in 2009.[[7]] The stock of investment inflows increased from 101,4 billion US dollars in 2008 to 165,1 billion US dollars in 2009, but investment inflows to Southern Africa decreased from 28.7 billion US dollars in 2008 to 21.6 billion US dollars in 2009. Angola and South Africa drew in more than 3 billion US dollars each in investment inflows in 2009 while Zambia, the DRC, Mozambique, Tanzania, Madagascar and Namibia fetched each about 1 billion US dollars and more in investment inflows that same year.[[8]]

 

SADC law encourages movement towards regional macroeconomic stability and convergence through [[9]] prudent fiscal and monetary policies. It provides a framework for cooperation in finance and promotes sound investment policies, savings, investment flows, technology transfer and innovation in the region. Strategies SADC devised to achieve its finance and investment policies include investment friendly domestic legislation, macroeconomic convergence, fiscal coordination, current and capital accounts liberalization, reform of payment systems and resource mobilization through financial institutions. SADC prepared a number of memoranda of understanding (MOU) that embraces some of those strategies, including the MOU on macroeconomic convergence and fiscal cooperation .      

 

It follows from the policy objectives and their attendant strategies that the pace of integration and harmonization in finance and investment is the greatest concern of SADC policy makers. No less concerning is the necessity of sound macroeconomic and prudent fiscal and monetary policies to rein in inflation, interest rates, deficits, debts and exchange controls. SADC is also concerned about the difficulties that small and medium enterprises continue to face in accessing credit despite substantial liberalization of the financial sector in the region. Thus, SADC plans to intensify reform the financial sector, stressing non-bank financial institutions, the participation of women in business, and money laundering. 

 

5.1. The finance protocol

The Finance and Investment Protocol (Finance Protocol) deals with financial cooperation and macroeconomic convergence. The idea of having a protocol on regional co-operation and integration in finance and investment was mooted by SADC finance ministers as early as 1995. The Summit in Maseru (Lesotho) adopted the Finance Protocol on 18 August 2006 when all member states signed it. The Finance Protocol and the Trade Protocol are the two pivots of SADC legislation.

 

The Finance Protocol incarnates the conviction of SADC that cooperation and coordination of macroeconomic, fiscal and monetary policies will accelerate growth, investment and employment in the region. For SADC, macroeconomic stability is a precondition to sustainable economic growth and the creation of monetary union in the region. The Finance Protocol prizes investment, the private sector, financial and capital markets for their increasingly important role in productive capacity, higher economic growth and sustainable development. Mindful of the different economic levels of member states and the need to share equitably the fruits of regional integration, the Protocol underscores the link between investment and trade and the utility of greater regional integration in making the region a more attractive investment destination.

 

The Finance Protocol spells out its main objective as the harmonization of financial and investment policies of member states to make them conform to the objectives of SADC. It ensures that changes to investment and financial policies in one member state do not lead to undesirable adjustments in other member states. To hit that objective, the Finance Protocol chose to facilitate regional integration, co-operation and coordination within finance and investment sectors. It also chose to diversify and expand the productive sectors of the economy and enhance trade to attain sustainable economic development and poverty eradication.

 

The Protocol contains a menu of the means by which it wants to achieve economic development and poverty eradication: A favorable investment climate, macroeconomic stability and convergence, co-operation in financial matters, creation of frameworks for central banks and development of capital markets. Co-operation and coordination occupy a place of choice in the achievement of economic development and poverty eradication.    Over and above financial cooperation, the Finance Protocol obliges member states to cooperate with respect to information and communication technologies among central banks, development finance institutions (DFIs), non-banking financial institutions, stock exchanges, and anti-money laundering. Accordingly, the greater part of the Protocol is devoted to the various matters for cooperation. The balance of the Protocol treats macroeconomic convergence, DFIs, anti-money laundering and the creation of a development fund. These strategic themes are expounded upon in the 11 annexes to the Finance Protocol.

                                  

5.2. Investment cooperation

The Finance Protocol earmarks four fields for financial cooperation, namely (1) investment, (2) taxation, (3) central banking, and (4) regional capital and financial markets. This version of the introduction to SADC law only deals in greater detail with investment. However, an update to this introduction will elaborate on financial cooperation in the fields of taxation, central banking, and regional capital and financial markets.

 

In the field of investment, the Protocol obliges member states to co-ordinate their investment regimes and cooperate to create a favorable investment climate within SADC as outlined in the first annex to the Protocol (Investment Annex). The Investment Annex specifically aspires at achieving economic growth and sustainable development through regional integration and investment promotion agencies (IPAs) in the SADC region. It is guided by the ideals, objectives, and spirit of the Finance Protocol in the facilitation and stimulation of investment flows, technology transfer and innovation. It is a response to alarms over the low levels of investment in the SADC region, despite numerous measures taken to attract investment. It is also an acknowledgement that IPAs need to cooperate among themselves to enhance the attractiveness of SADC, alive to the truism that without effective policies the region will continue to be marginalized. The Investment Annex is essentially a set of measures for adoption by member states. These measures may conveniently be grouped into promotional, protective, and regulatory categories.

 

5.2.1. Promotion     

Arguably, the core promotional activity of member states is, as far as investment in SADC is concerned, to promote (1) trade openness and intra-regional industrial policies as contemplated in the Trade Protocol and (2) regional cooperation in the area of investment, including public private partnerships (PPPs). This promotional activity insists on the link between trade and investment. For the purposes of turning SADC into an investment zone, member states must harmonize investment regimes in accordance with the best practices within the overall strategy towards regional integration. Best practices include ratifying the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States and the 1985 Convention Establishing the Multilateral Investment Guarantee Agency.

 

There is a duty on member states to promote and admit investments in their territory by putting in place conditions favorable to investments through suitable administrative measures, in particular the expeditious clearance of authorizations. Member states are also invited to encourage PPPs and avoid amending or modifying the terms of their authorizations arbitrarily to the detriment of investors. They should extol the free movement of capital and conclude agreements among themselves to avoid double taxation. They must advance a competition policy in SADC and develop local and regional entrepreneurship and enhance regional productive capacity within SADC through the development of skills, small and medium enterprises (SMEs), supporting infrastructures, and other necessary supply-side policies. In the process, member states are free to prioritize industries providing upstream and downstream linkages and that impact positively on foreign investment inflows and job creation. However, the duty to develop local and regional entrepreneurship does not apply to advantages, concessions or exemptions resulting from bilateral investment treaties (BITs) or any multilateral arrangement for economic integration in which a member state participates.    

 

Moreover, member states must promote transparency by instituting predictability, confidence, trust and integrity, which in turn may be accomplished by espousing and enforcing open and transparent policies, practices, laws, regulations and procedures as they relate to investment. Member states must permit investors to hire key personnel, regardless of nationality, if the host state or SADC does not have those skills and if such sourcing builds local capacity through skills transfer. States must also promote the optimal use of their natural resources in a sustainable and an environmentally friendly fashion. Finally, member states are to promote IPAs. They must ensure their IPAs operate in tune with national and regional development priorities; advise the host states, the private sector and other stakeholders on trade and investment policies; and raise awareness of investment opportunities, incentives and laws, using regular exchange of information.

 

5.2.2. Regulation and protection  

The Investment Annex enunciates the right of member states to regulate. Member states may exercise their right to regulate in the public interest and to adopt, maintain or enforce any measure that it considers appropriate to ensure that investment is undertaken in a manner sensitive to health, safety or environmental concerns. The corollary of the right of member states to regulate is that investors must abide by the regulations, laws and guidelines and policies of the states. Member states may enact regulations that provide conditions favorable to the least developed countries of SADC in the process of economic integration on the basis of non-reciprocity and mutual benefit. They must ensure that the least-developed countries of SADC receive effective preferential treatment.

 

An important portion of the Investment Annex is devoted to the protection of investments. Investments and investors must enjoy fair and equitable treatment in the territory of any member state, and that treatment must not be less favorable than that granted an investor from a non-member state. Member states are forbidden to nationalize or expropriate except for a public purpose, under due process of law, on a non-discriminatory basis and subject to the payment of prompt, adequate and effective compensation. This provision protects foreign investors from political risks by restraining the right of member states to take or otherwise interfere with property and property rights. It achieves that purpose by imposing requirements that lawful takings be for a public purpose, non-discriminatory and compensatory of the investors aggrieved by the taking. It is however possible for member states to accord preferential treatment to qualifying investments and investors in order to fulfill national development objectives. In addition, member states must make sure that investors are able to repatriate investments and returns on investments.

                                                    

Foreign investors must have the right of access to the courts, judicial and administrative tribunals, and other competent authorities for the redress of their investment-related grievances, such as expropriation claims or differences over the determination of compensation for expropriation. A member state and foreign investor must settle investment disputes amicably and at any rate exhaust local remedies before they can submit their disputes to international arbitration if either the state or the investor so wishes. Should either party choose to go for international arbitration, they may refer the dispute to the SADC Tribunal, the International Center for the Settlement of Investment Disputes (ICSID), an international arbitrator or an ad hoc arbitral tribunal. If parties cannot agree on any of those dispute settlement fora 3 months after written notification of the claim, they must submit the dispute to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).

 

 

6. Mining

The RISDP states that mining and agriculture account for more than 50% of total SADC GDP. Apart from South Africa and Mauritius, which have sizeable manufacturing sectors, SADC member states largely rely on mining, agriculture or services. Given the economic prominence of these sectors, this introduction to SADC law zeroes in on the Mining Protocol as this is the only one of those 3 vital areas for cooperation on which SADC has enacted a protocol. Protocols on agriculture and services will be canvassed in an update of this introduction.

 

The point of SADC mining policies is the development of an economically, socially and environmentally sustainable regional mining sector capable of meeting regional challenges and ensuring long-term competitive growth for the sector. To that end, SADC member states have since 2000 been harmonizing their mining policies in order to improve investment climate, information flows and a commercially viable small scale mining industry with greater participation of women. Inasmuch as harmonization is nonetheless is still unfinished business, the first priority of SADC mining policy is to complete that process. Other challenges include constraints in the form of barriers to the flow of factors of production, which slows down investment in the mining sector.

 

One achievement in the region is the enhanced mineral prospectivity. For instance, all SADC member states have accessible databases.  

 

Below is a list of SADC countries and their comparative advantages in the extractive industries.

 

Country

natural resources

Angola

Oil

Botswana

Diamond

Dem. Rep. Congo

Diamond, gold, copper, cobalt, coltan, zinc

Malawi

Uranium

Mozambique

Coal

Namibia

Diamond, uranium, copper, lead, zinc, tin, silver, tungsten,  and fish

South Africa

Platinum, gold and chromium

Tanzania

Gold

Zambia

Copper

Zimbabwe

Coal, diamond, gold, platinum, copper, nickel, tin, clay

 

Source: Author’s own independent research; and CIA, World Factbook (2010)

 

Another achievement is that SADC has effectively networked public and private mining and training institutions. Member states are thinking up strategies for value addition in an endeavor to boost export earning and benefits from mineral resource extraction.

 

The Mining Protocol is the centerpiece of SADC mining policy. It entered into force in 2000. It puts forth principles by which SADC member states intend to be bound and oriented. Through the Protocol, member states understand the propriety and importance of a comprehensive regional strategy and plan for the development of the mining sector. They promote the interdependence and integration of mining policies for the accelerated growth of the mining sector in SADC and for competitiveness and a larger share in international markets. By cooperating and collaborating, member states want to develop the region’s abundant mineral resources to uplift the living standards of people throughout SADC.   

 

The Mining Protocol declares 10 general principles for the mining sector in SADC. The first principle is that a thriving mining sector must contribute to economic development, poverty alleviation, and the amelioration of the standard and quality of life all over SADC. The second principle is that member states must harmonize national and regional policies, strategies and programs related to the development and exploitation of mineral resources. Third, member states must bear their own costs of participation in institutional mechanisms for the enforcement of the Mining Protocol. Fourth, decision is by consensus. Other principles (i.e. fifth and sixth) are that member states must develop human and technological capacity throughout the region. They must encourage private participation in the exploitation of mineral resources (seventh) and empower economically the historically disadvantaged in the mining sector (eight). They must make public information more available to the private sector, member states and other countries (ninth). Finally, they must observe internationally accepted standards of health, mining safety and environmental protection (tenth).

 

The Mining Protocol sets up three institutions: A Committee of Mining Ministers, a Mining Technical Committee of Officials, and a Mining Coordinating Unit. The Committee of Mining Ministers, a group of SADC mining ministers, formulates regional mining policy and strategy, advises and submits annual reports to the SADC Council of Ministers, and considers any matter having a bearing on the objectives, implementation and amendment of the Mining Protocol. The Technical Committee advises and makes recommendations to the Committee of Mining Ministers on the activities of the Mining Coordinating Unit and supervises the operations of the Coordinating Unit. The Mining Coordinating Unit is the executing organ of the mining sector. That is, it implements the Mining Protocol, the mining sector’s work program and the decisions of the Committee of Mining Ministers, and manages finances and general administration. Any dispute between two or more member states concerning the interpretation or application of the Mining Protocol that they cannot settle amicably must be referred to the SADC Tribunal for adjudication. If the dispute is between SADC and a member state, the SADC Council of Ministers must give an advisory opinion. Member states parties to the Mining Protocol may withdraw from the Protocol 12 months after giving written notice to the SADC Executive Secretary.

 

7. Main institutions

SADC law institutionalizes 4 mechanisms: (1) Policy-making; (2) oversight; (3) policy implementation; and (4) dispute settlement. The Summit of Heads of State and Government (Summit) is the highest political body of SADC, the Council of Ministers (Council) oversees the operations of SADC with technical advice from the Standing Committee of Officials (Standing Committee), the Secretariat implements SADC policies, and the Tribunal provides a forum for the settlement of disputes.  A troika system, consisting of a chair, incoming chair and outgoing chair of SADC, works at the level of the Summit, the Defense Organ, the Council and the Standing Committee.

 

7.1. The Summit

The Summit of Heads of State and Government (Summit) is the supreme policy-making institutional mechanism of SADC. The heads of state and government of all SADC member states constitute the Summit. The Summit controls the functions of SADC. It meets at least once a year and adopts legal instruments for the application of the provisions of the SADC Treaty, though the Summit may delegate the latter function to the Council of Ministers. The Summit reaches decisions by consensus and its decisions are binding. It appoints, on recommendation by the Council of Ministers, the Executive Secretary and his or her secretary and decides on the creation of commissions, committees and institutions. The Summit elects a Chair and a Vice-Chair of SADC from among its members for an agreed period – usually 12 months – on a rotation basis. In August 2010, Hifikepunye Pohamba, the President of Namibia, took over the chairmanship of SADC from Joseph Kabila, the President of the DRC.

 

7.2. The Council

The Council of Ministers (Council) performs the oversight function of SADC. The Council is composed of one minister, preferably the economic planning or finance minister, from each member state. It oversees the functioning, the implementation of policies and programs of SADC and the operations of SADC institutions. It meets at least once a year and report to the Summit, to which it is directly responsible. It advises the Summit on overall policy; approves policies, strategies and work programs of SADC; and defines sectoral areas of co-operation. Like the Summit, the Council decides by consensus. The Summit decides on the creation of commissions. Commissions guide and coordinate co-operation and integration policies and programs in sectoral areas defined by the Council. They work closely with the SADC Secretariat and report to the Council, to which they are directly responsible. The Standing Committee of Officials (Standing Committee) is the technical advisor of the Council. It is a technical advisory committee consisting of one permanent secretary or an official of an equivalent rank, preferably from the finance or economic planning ministry, from each member state. It meets at least once a year and decides by consensus.

 

7.3. The Secretariat

The Secretariat, which is located in Botswana’s capital Gaborone, is the institution in charge of implementing the policies of SADC. It is more specifically in charge of implementation of decisions of the Summit and the Council, strategic planning, management of SADC programs, financial administration, representation and promotion of SADC, and coordination and harmonization of policies and strategies of member states. The Executive Secretary heads the Secretariat. The current Executive Secretary is Tomaz Augusto Salomão, a former planning minister in Mozambique. He was appointed at the Summit held in Gaborone in August 2005.

 

The Executive Secretary is the face of SADC. He or she is elected for a term of 4 years, renewable only once. He or she consults and coordinates with the governments and other institutions of member states, undertakes measures to promote the objectives of SADC and enhance its performance, and promotes cooperation with other organizations. He or she is also answerable for diplomatic and other representations of SADC, public relations and promotion of SADC. He or she is the custodian of SADC property prepares annual reports on the activities of SADC and also prepares the budget and audited accounts of SADC for submission to the Council. Lastly, the Executive Secretary liaises closely with commissions, directs and monitors the performance of SADC in the various sectors to ensure conformity and harmony with agreed policies, strategies, programs and projects.

 

7.4. The Tribunal

The SADC Tribunal, whose seat is in Namibia’s capital city Windhoek, is the dispute resolution mechanism of SADC. The Summit established the Tribunal in 1992, appointed the 10 judges (called ‘members’) of the Tribunal in 2005 in Botswana, and sworn in the members and inaugurated the Tribunal the same year in Namibia. The Tribunal Protocol stipulates that the Tribunal must comprise no less than 10 members, nominated and appointed with fair gender representations. Members must be nationals of member states who possess the qualifications for appointment to the highest judicial offices in their respective states or who are jurists of recognized competence. No two or more members may at the same time be nationals of the same state.

 

The current members of the Tribunal are Frederic Mwela Chomba (Zambia), Petrus T. Damaseb (Namibia), Antonia Guvava (Zimbabwe), Rigoberto Kambovo (Angola), Stanley B. Maphalala (Swaziland), Luis Antonio Mondlane (Mozambique), Isaac Jamu Mtambo (Malawi), Ariranga Govindasamy Pillay (Mauritius), Onkemetse B. Tshosa (Botswana), and Frederick B. Werema (Tanzania). The Council designates 5 members who sit regularly on the Tribunal and a pool of 5 additional members from which the President of the Tribunal may invite a member to sit as a judge whenever a regular member is temporarily absent or otherwise unable to carry out his or her functions. 3 members form a quorum and 5 judges constitute a full bench. Members are appointed for a term of 5 years, renewable only once. They must avoid conflicts of interest and may not exercise any political or administrative function, hold any office in the service of the state, or engage in any occupation, which might interfere with the proper exercise of their judicial functions, impartiality or independence. However, they may at any time resign their office by a letter delivered to the Tribunal’s President for transmission to the Council through the Executive Secretary. A member must however complete cases partly heard by him or her before he or she can effectively quit his or her judicial office.

 

The Tribunal must sit only to consider a case submitted to it so that members do not work on a full-time basis, though the President of the Tribunal may recommend that the members serve on a full-time basis because of the Tribunal’s workload. In that event, the members who elect to work on a full-time basis must not hold any other office or employment. The Tribunal appoints a Registrar who must, under the supervision of the President of the Tribunal, see to the day-to-day administration of the Tribunal.

 

The Tribunal asserts its jurisdiction over all disputes and all applications referred to it in accordance to the SADC Treaty and the Tribunal Protocol. That means that the disputes and applications must relate to (1) the interpretation and application of the SADC Treaty or protocols, all subsidiary instruments, and acts of SADC institutions; and (2) all matters specifically provided for in agreements that member states may conclude among themselves or within SADC that confer jurisdiction on the Tribunal. The jurisdictional reach of the Tribunal in trade matters overlaps with other dispute resolution systems, like the WTO, SACU, COMESA and the African Economic Community.[[10]] This situation of overlapping jurisdictions means that member states may opt to bring a dispute to either the SADC Tribunal or another international forum. Since the SADC Treaty does not have rules to work out conflicts of jurisdiction, member states are in practice at liberty to have their dispute tried in the court or jurisdiction where they feel they will ‘receive the most favorable judgment or verdict’[[11]] – a phenomenon known as ‘forum shopping’.  

 

The Tribunal has jurisdiction over disputes between states, between natural or legal persons and states, between states and SADC, and between SADC as an organization and its staff. It enjoys the competence to hand down advisory opinions, which may be requested by the Summit or the Council. In hearing and determining disputes and in giving its opinions, the Tribunal applies the SADC Treaty, the Tribunal Protocol, other protocols, all subsidiary instruments of SADC institutions. It must also develop its own jurisprudence with due regard to applicable treaties, the general principles and rules of public international law and the laws of member states. As of February 2011, the Tribunal  had delivered more than 20 decisions in cases before it. It handled a variety of issues regarding a member states but the controversial expropriations of White-owned commercial lands in Zimbabwe was the most litigated issue from any member state. 

 

8. Resources

Virtually no general reference for SADC law has been published. It is this absence of general reference that this introduction to SADC law seeks to fill. What is more, apart from the newly launched SADC Law Journal, there exist no periodicals on SADC law. The SADC Law Journal is thus poised to become the main periodical on SADC law. The annual publication Monitoring Regional Integration in Southern Africa occasionally features legal or legally relevant information on SADC in the volumes that it started publishing in 2001. Last, the SADC Official Trade, Industry and Investment Review is not a legal publication. It is an annual publication interested in business opportunities in the SADC region. It may sometimes contain some information on SADC law.

 

8.1. Publications

Economic studies and considerably less legal analyses figure prominently in the literature on the Southern African Development Community (SADC). However, as legal writings on SADC are steadily increasing, and much so, since the launch of the SADC Law Journal, this introduction will in future updates list a correspondingly greater number of legal publications and a more selective set of economic studies.

 

Azaikpono, Meshach et al., Banking Market Integration in the SADC Countries: Evidence from Interest Rate Analyses (Universiteit Maastricht, Faculty of Economics and Business Administration, Maastricht Research School of Economics of Technology and Organization, Research Memoranda, No. 047, 2007),.

 

Baregu, Mwesigu & Landsberg, Christopher (eds.), From Cape to Congo: Southern Africa’s Evolving Security Challenges (Lynne Riener Publishers, Inc. 2003).

 

Bezuidenhout, Henri & Naudé, Wim, Foreign Direct Investment and Trade in the Southern African Development Community, in Southern Engines of Global Growth (Amelia U. Santos-Paulino & Guanghua Wan, 2010).

 

Brenton, Paul et al., Rules of Origin and SADC: The Case for Change in Mid Term Review of the Trade Protocol (World Bank, Working Paper No. 83, 2005).

 

Bösl, Anton et al. (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2009 (Konrad-Adenauer-Stiftung Namibia 2010).

 

Bösl, Anton et al. (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2007 (Trade Law Centre for Southern Africa 2008).

 

Bösl, Anton et al. (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2006 (Trade Law Centre for Southern Africa et al., 2007).

 

Bösl, Anton & Hartzenberg, Trudi (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2008 (Konrad-Adenauer-Stiftung Namibia 2009).

 

Chauvin, Sophie & Gaulier, Guillaume, Prospects for Increasing Trade among SADC Countries .

 (Trade and Industrial Policy Strategies, Annual Forum, Paper, 2002)

 

Chigara, Ben, Trade Liberalization: Savior or Scourge of SADC Economies, 10 U. Miami Int'l & Comp. L. Rev. 7 (2002).

 

Cilliers, Jakkie, Building Security in Southern Africa: An Update on the Evolving Architecture (Institute of Security Studies, Monograph No. 43, 1999).

 

Cilliers, Jakkie, The SADC Organ for Defense, Politics and Security, (Institute of Security Studies, Occasional Paper No. 10, 1996),

 

Dahl, Johan, Incentives for Foreign Direct Investment – The Case of SADC in the 1990s,  (Namibian Economic Policy Research Unit, Working Paper No. 81, 2002),

 

Ebobrah, Solomon T. & Nkhata, Mwiza Jo, Is the SADC Tribunal Under Judicial Siege in Zimbabwe? Etheredge v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another, XLIII CILSA 81 (2010).

 

Evans, David et al., SADC: The Cost of Non-Integration (SAPES Books 1999).

 

Flatters, Frank, The SADC Trade Protocol: Outstanding Issues on Rules of Origin (Second SADC Roundtable on Rules of Origin, Gaborone, Botswana, Background paper, 2002),.

 

Goredema, Charles, Legislating Against Corruption in the SADC, in Corruption and Anti-Corruption in Southern Africa (Ugljesa Zvekic ed. 2002).

 

Hansohm, Dirk et al., (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2005 (Namibian Economic Policy Research Unit & Konrad-Adenauer-Stiftung Namibia 2006).

 

Hansohm, Dirk et al., (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2003 (Gamsberg Macmillan 2004).

 

Hansohm, Dirk et al., (eds.), Monitoring Regional Integration in Southern Africa: Yearbook 2001 (Namibian Economic Policy Research Unit & Gamsberg Macmillan 2002).

 

Hess, Simon Peter, The New Economic Geography of a SADC Free Trade Area (Jan., 2004) (Master Thesis, Rhodes University),

 

Hulman, B., Livestock Policy and Trade Issues in SADC, 76 Onderstepoort Journal of Veterinary Research 147-153 (2009).

 

Isaksen, Jan & Tjønneland, Elling N., Assessing the Restructuring of SADC – Positions, Policies and Progress (Chr. Michelsen Institute 2001).

 

Joubert, Patricia et al, Consolidating Democratic Governance in the SADC Region: Swaziland (EISA 2008).

 

Jourdan, Paul. The Mining Sector in Southern Africa (SAPES Trust & Southern Africa Regional Institute for Policy Studies 1995).

 

Kaime, Thoko, SADC and Human Security: Fitting Human Rights into the Trade Matrix, 13 African Security Review 1 (2004).

 

Khandelwal, Padmaja, COMESA and SADC: Prospects and Challenges for Regional Trade Integration (International Monetary Fund, Working Paper, 2004).

  

Klazen, Karin, Towards a Southern African Development Community: The SADC Tribunal and its Recent Cases, 2 Namib. L. J. 2, 147 (2010).

 

Konrad Adenaeur Stiftung, SADC Media Law – Handbook for Media Practitioners: Lesotho, DRC, and Tanzania (Konrad Adenaeur Stiftung 2005).

 

Konrad Adenaeur Stiftung, SADC Media Law – Handbook for Media Practitioners: Zambia, Swaziland, and Botswana (Konrad Adenaeur Stiftung 2005).

 

Kort, A.J.K., Virtual Water Trade in the SADC Region: A Grid-Based Approach (Jan. 2010) (Master Thesis, University of Twente).

 

Levitt, Jeremy, Conflict Prevention, Management, and Resolution: Africa. Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: The Cases of the OAU, ECOWAS, SADC, and IGAD, 11 Duke J. Comp. & Int'l L. 39 (2001).

 

Lewis, Jeffrey et al., Free Trade Agreements and the SADC Economies, (International Food Policy Research Institute, Discussion Paper No. 80, 2001),

 

Matjekana, Kwena M.S., Foreign Direct Investment Flows to the SADC Region in a Globalizing Economic Environment.  (Nov. 2008)(Master Thesis, Rand Afrikaans University),

 

Mowatt, Rosalind, Prospects for Financial Sector Reform in the Context of Regional Integration in SADC 

, (University of the Witwatersrand).

 

Mhlanga, Nomathemba et al., Understanding Foreign Direct Investment in the Southern African Development Community: An Analysis Based on Project-Level Data Contributed paper prepared for presentation at the International Association of Agricultural Economists Conference, Beijing, China (Aug. 16-22, 2009)

 

Mtegha, H.D., National Minerals Policies and Stakeholder Participation for Broad-Based Development in the Southern African Development Community (SADC), 31 Resources Pol’y 4, 231 (2006).

 

Muradzikwa, Samson, Foreign Investment in SADC (University of Cape Town, School of Economics, Development Policy Research Unit, Working Paper No. 67, 2002).  

 

Mwanza, A.M., Structural Adjustment Programmes in SADC: Experiences and Lessons from Malawi, Tanzania, Zambia and Zimbabwe (Southern African Research and Documentation Centre 1992).

 

Nathan, Laurie, SADC’s Uncommon Approach to Common Security, 1992-2003, 32 Journal of Southern African Studies 3, 605 (2006).

 

Nkowani, Zolomphi, The SADC Finance and Investment Protocol and the Reform of Malawi Financial Services Regulation: Reflections in Retrospect

 

Nkowani, Zolomphi, When Elephants Dance, the SADC Charter of Fundamental Social Rights, a Beacon of Hope or Confusion Compounded? 33 Commonwealth L. Bull. 1 41-57 (2007).

 

Ohlson, Thomas and Stedman, Stephen John. The New is Not Yet Born: Conflict Resolution in Southern Africa (The Brookings Institution 1994).

 

Page, Sheila et al., SADC-EU Trade Relations in a Post Lomé World (Overseas Development Institute 1999). 

 

Pauwelyn, Joost, Going Global, Regional or Both? Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with the WTO and Other Jurisdictions, 13 Minn. J. Global Trade 231 (2004).

 

Robinson, Zurika, Corporate Tax Rates in the SADC Region: Determinants and Policy Implications, 73 South African J. Econ. 4 (2005).

 

Ruppel, Oliver C. & Bangamwabo, Francois X., The SADC Tribunal: A Legal Analysis of its Mandate and Role in Regional Trade, in Monitoring Regional Integration in Southern Africa: Yearbook 2008 (Anton Bösl & Trudi Hartzenberg eds. 2009).

 

Rwelamira, Peter Gervase & Kaino, Donatilla K., SADC Integration Efforts and Cross-Border Investments (Foprisa 2008).

 

Saurombe, Amos, Regional Integration Agenda for SADC ‘Caught in the Winds of Change’: Problems and Prospects, 4 J. Int’l Com. L. & Techn. 2 100 (2009).

 

Schoeman, Maxi, From SADCC to SADCC and Beyond: The Politics of Economic Integration (XIII Economic History Congress, Paper, 2002).   

 

Southern African Development Community Tribunal, The SADC Tribunal in 20 Questions: A Guide to SADCT (SADC Tribunal 2010).

 

Southern African Research and Documentation Centre & the World Conservation Union, Directory of Environmental Information and Organizations in Southern Africa SADC Region, Botswana, Mozambique, Zambia, Zimbabwe (Southern African Research and Development Centre & the World Conservation Union 1996).

 

 

United Nations Development Programme et al., SADC Regional Human Development Report: Challenges and Opportunities for Regional Integration (United Nations Development Programme et al., 2000).

 

USA International Business Publications, Southern African Development Community: SADC Investment and Business Guide (International Business Publications USA 2001).

 

Vink, N. et al., Promoting Agricultural Trade and Investment Synergies between South Africa and Other SADC Member Countries, (TRALAC, Working Paper No. 20, 2006).

 

Visser, Martine & Hartzenberg, Trudi, Trade Liberalization and Regional Integration in SADC: Policy Synergies Assessed in an Industrial Organization Framework (African Development and Poverty Reduction: The Macro-Micro Linkage: Forum Paper, 2004).

 

Zongwe, Dunia, Gender Equality and Harmful Practices in the SADC Gender Protocol: The Challenges of Cultural Transformation, 12 The Current 1 99 (2008).

 

Zongwe, Dunia, The Contribution of Campbell v. Zimbabwe to the Foreign Investment Law on Expropriations (Comparative Research in Law & Political Economy, Research Paper No. 50, 2009).

 

8.2. Online resources

Internet searches will retrieve a mass of information on SADC scattered over in a multitude of websites. However, two websites that collect legal information on SADC stand out. First, the Trade Law Centre for Southern Africa (TRALAC) boasts a rich compendium of SADC legal texts. Second, the official website of SADC Tribunal also contains useful legal instruments of SADC .



[[1]] Southern African Development Community. Regional Indicative Strategic Development Plan 3 (Southern African Development Community 2004).

[[2]] Id.

[[3]] Id.

[[4]] Id. at 24.

[[5]] Richard Frimpong Oppong, Redefining the Relations Between the African Union and Regional Economic Communities in Africa, in Monitoring Regional Integration in Southern Africa: Yearbook 2009, 5 (Anton Bösl et al.eds. 2010).

[[6]] See International Monetary Fund (IMF), Balance of Payments Manual 86 (International Monetary Fund 1993).

[[7]] United Nations Conference on Trade and Development (UNCTAD). World Investment Report 2010: Investing in a Low-Carbon Economy 32 (United Nations Conference on Trade and Development 2010).

[[8]] Id. at 32.

[[9]] Id. at 33.

[[10]] Joost Pauwelyn, Going Global, Regional, or Both? Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with the WTO and Other Jurisdictions, 13 Minn. J. Global Trade 231 (2004).

[[11]] Note, Forum Shopping Reconsidered, 103 Harv. L. Rev. 1677, 1677 (1990).