The Role of SADC Institutions in Implementing SADC Treaty Provisions Dealing with Regional Integration

Without some level of institutionalisation or other means of enforcement, national commitment to regional trade integration is bound to face some challenges. Accordingly, transnational trade is obviously inhibited when the validity and enforcement of contracts, obligation and rules cannot be guaranteed beyond the term of office of an administration. Thus Member States' commitment to the work of institutions within a regional economic community like SADC is critical for the full implementation of the SADC Treaty and its Protocols. The Protocol on Trade has been hailed as the most important for integration in SADC. This paper will indicate that institutions are essential drivers of organisations and their role in regional integration is therefore very important. However under the current legal and institutional framework, the SADC regional integration agenda faces major challenges of implementation. SADC institutions are not capable of completely fulfilling their legal obligations, although in some instances the lack of fulfilment was clearly a result of the legal instruments themselves being incomplete and needing further reform.


Introduction
The Southern African Development Community (SADC) Treaty constitutes not only a statement of intent and resolve to overcome the burden of history but also an acknowledgement of the immense benefits of regional economic integration. 1 The SADC Treaty, its various institutions and legal instruments constitute an important step in the direction of integration. 2 The challenge now is how SADC Member States are willing to subject themselves to supranational governance as provided for by the Treaty and implemented by the key institutions that also derive their mandate from the Treaty. Among the many interventions that can be employed, the SADC needs the political consensus necessary among its Member States and the technical capacity required among those charged with the responsibility for such a task for both an unequivocal commitment to deep integration and the full acceptance of the inevitable, but short-lived, political costs of such an undertaking. 3 Sovereign states of the SADC will undoubtedly feel the effects integration will have on their sovereignty. However, it has to be pointed out here that the SADC came into being within the context of a freely concluded agreement; hence, the fear of supranational structures of the organisation jeopardising national sovereignty is not convincing. 4 Supranational structures do not limit the sovereignty of Member States, because they are established as a result of negotiated power vested in a political entity that may not necessarily have the power to enforce its authority. The concept Thus, the drive towards deeper integration in the SADC should equally be supported by stronger supranational mechanisms and the highest political level in a Member State. Regional economic integration in the SADC will be discussed with a thorough examination of the important institutional and legal structures of the organisation.
This discussion will focus on the various institutions whose legal mandate is related to the economic integration process. making is delegated to regional institutions that are to some extent independent of Member States' influence. If this is not done, regional institutions might lack democratic legitimacy and may result in the loss of popular support for the whole project. This is important because the nature and extent of the powers vested in regional institutions determines the institutions' ability to promote the region's integration agenda. 32 Therefore the importance of the existence of supranational institutions in promoting regional integration cannot be overemphasised. 33 According to Mutharika 34 Economic integration requires the delegation of power to a supranational body entrusted with the task of safeguarding the interest of both the supranational entity as well as that of the individual Member States.
The principal organs driving regional economic integration in the SADC are the For the purposes of this paper only the important institutions relevant to regional integration will be discussed. Each institution will be discussed according to the provisions of the Treaty and the mandate of the Protocol on Trade. The role of each of these institutions in SADC regional integration is also analysed.

3.1
The Summit 35 and its role in regional integration Special Summit meetings are also called to discuss issues of emergency and whenever there is a need. The Summit is a critical institution that has to approve policy before it is considered for adoption into law, for example protocol formulation.
Even the judgements of the SADC Tribunal have to be referred to the Summit, since it is the only body that can sanction the findings of the Tribunal. 47 Many commentators have placed the hope of SADC integration on the political willingness of regional leaders. In future, the SADC's ambitious trade timetable needs to be matched by the political will to meet the deadlines in order to restore the organisation's flagging credibility. This means that this body has to show political willingness to implement the SADC integration agenda. Unfortunately this is lacking, as regional leaders are reluctant to surrender state sovereignty for the benefit of the region.
Regional integration is a priority for the Summit. The SADC Trade Protocol itself is evidence of this need. In 2006, the Summit agreed to convene an Extraordinary Summit to discuss regional integration matters. 48 The Extraordinary Summit was held in South Africa and the SADC Heads of State and Government reviewed the state of integration of the region and resolved to accord this process high priority, bearing in mind the key milestones approved by the Regional Indicative Strategic Development Plan (RISDP). The priority accorded to regional integration at the Summit suggested that political momentum seems to have developed in recent years. Subsequently, the Ordinary Summit held in Lusaka in August 2007 focused its attention on the imperatives to deepen regional economic integration and fast-track The above discussion has emphasised the importance of the Summit in SADC economic integration. As the supreme policy-making institution, it has to promote economic integration objectives if deeper integration is to be realised. The leadership of the Summit has not always been clear. As part of its structure the Summit is led by a chairman and vice-chairman elected 'for an agreed period' and 'on the basis of rotation'. 50 However, the election procedures have not been specified, which has left the Heads of State and Government some latitude in the selection of the political leader of the organisation at any particular time. This leadership role is not necessarily taken on by the persons best qualified to guide the SADC agenda at any particular time; thus, regional integration efforts may be either weak or robust depending on the calibre of the current leader. This problem is not unique to the SADC, and it could be resolved by amending the SADC Treaty and giving more power to the Secretariat, which would be in charge of the daily running of the organisation. Another weakness in the role of the Summit in regional integration is that, since the Heads of State and Government cannot meet as often as there are binding decisions to be made, the efficiency of the organisation is seriously compromised.
The SADC Treaty does not state if the binding decisions of the Summit have a direct effect in the territory of Member States. The silence on the part of the SADC Treaty creates a gap in the quest for regional integration in the SADC because the manner in which decisions of the Summit are implemented is left to the discretion of Member States. To complicate matters further, it is also notable from Articles 10(8), 11(3)(6) and 13(6) that the Summit and other subsidiary organs make decisions by consensus, 51 and yet there are no provisions in the Treaty for breaking an impasse where a consensus cannot be reached. In order to reach consensus, decisions are clouded in vague formulations and wide discretions that undermine legal certainty 49 SADC 2008 www.sadc.int. 50 Article 10(4) SADC Treaty (1992). 51 Articles 10(8), 11(3)(6) and 13(6) SADC Treaty (1992). and are, in fact, anathema to rules-based trade. 52 This was clearly illustrated by the Summit's refusal to sanction the Tribunal judgement given against Zimbabwe in the Campbell case. 53 To make matters worse, this case has led to the suspension of the Tribunal with its judges pronouncing that the actions of the July 2011 Summit clearly amounted to Tribunal dissolution, an ultra vires action on the part of the Summit. 54 The Summit does not have the power to suspend the judicial arm of the SADC or any part of the Treaty. Changes can be made only by an amendment of provisions in the applicable legal instruments. Thus, the SADC Summit's decisions have given rise to serious concerns about the rule of law in the organisation. 55 It is now very doubtful that the Summit will in future make decisions that are not favourable to some Member States but favourable to the region. According to Erasmus the consensus nature of decision making by the Summit gives the member in violation of its obligations veto over any sanctions. 56 This point can be illustrated this way; as the Summit reaches its decisions through consensus, a Member State may decide to protect its individual interests by voting against a policy. By so doing it will prevent the achievement of the required consensus. This is a major flaw in the system. 57 Given this scenario, the critical decision-making processes affecting regional integration are subjected to uncertainties to some extent. There is a need to deal with these uncertainties. One way of dealing with these uncertainties is to amend the provisions of the Treaty in order to reflect who should be in charge of making sure that Member States implement their SADC Treaty obligation. It is clear from this discussion that the Summit is playing a pivotal role in SADC regional integration at the moment and in the foreseeable future. However, as an institution of the SADC the Summit has not garnered enough political will to draw the line between the individual interest of Member States and that of the region. These challenges will have to be addressed if this organ is to remain the backbone to regional integration in the region.

The Troika 58 and its role in SADC regional integration
The Extraordinary Summit decided to formalise the practice of a Troika system, consisting of the Chair, the incoming Chair and the outgoing Chair of the SADC, which has been effective since it was established by the Summit in Maputo, Mozambique in 1999. 59 According to Article 9(1), the Troika also applies with respect not only to the Summit but also to the Organ, the Council, the integrated Committee of Ministers and the standing Committee of Officials. 60 Other members may be coopted into the Troika as and when necessary. 61 This system has enabled the organisation to execute tasks and implement decisions expeditiously, as well as to provide policy direction to SADC institutions in periods between regular SADC meetings, as it is easy to convene. 62 This is a key institution responsible for decision making, 63 facilitating the implementation of decisions 64 and providing policy direction. 65 The Troika has been very functional with regard to the issues pertaining to the resolution of the Zimbabwean crisis, 66 as well as the instabilities in the DRC and Madagascar.
The Troika is an important institutional organ that has to keep the integration agenda on track during its frequent meetings. Strategically, it plays a critical role in meeting more often than the Summit and its decisions and work are closely linked to the month. 67 The Summit merely noted the resolution; a move that did not convey any legal significance.
It is evident in the character of the Troika that the SADC intended to foster the continuity of SADC activities. The idea of putting together an organ consisting of the current, outgoing and incoming Chairs is an ideal strategy for promoting continuity and is critical for the regional integration process, which requires an organisation that embraces change. In its practical work, the Troika will be an ideal vehicle for the full implementation of the RISDP. Another advantage for the regional integration that can be derived from the Troika is its ability to involve as many stakeholders as possible for regional integration within the SADC Treaty. Regional integration is a process that is highly likely to succeed if there is buy-in from as many stakeholders as possible. critical since regional integration that lacks popular support from the ordinary citizens of Member States is bound to fail.

The Council of Ministers and its role 68 in regional integration
A very important role of this institution is its advisory role to the Summit on matters of overall policy, and the efficient and harmonious functioning and development of the SADC. 72 Since the Summit normally meets once or twice a year, this advisory role is critical in keeping the most important organ of the SADC well informed of the developments around regional integration. Closely associated with this role is the Council's duty to perform such other duties as may be assigned to it by the Summit of the Treaty. 73 The Council of Ministers also approves the policies, strategies and work programmes of the SADC. This role is important for regional integration; especially for programmes initiated by the RISDP. The role of convening conferences and other meetings for the purpose of promoting the objectives and programmes of the SADC is also important for regional integration. 74 A number of these activities are necessary for the success of regional integration in the SADC, for example the awareness that is created through these conferences. The Council's role of considering and recommending to the Summit any application for membership 75 directly influences the process of regional integration. The addition of new members to the SADC is also a mirror of the pace of regional integration in the SADC. The formation of the Tripartite FTA that includes members of the SADC, the EAC and the COMESA is testimony to the advantages associated with the increase in numbers to a regional economic community. 76 The main weakness of the Council of Ministers is that it has no power to make binding decisions; it must report all of its actions to the Summit. As an institution that oversees the implementation of SADC policies, it is vital that it should have the power to make binding decisions. 77 72 Article 2(3) SADC Treaty (1992). 73 Article 2(12) SADC Treaty (1992). 74 Article 2(11) SADC Treaty (1992). 75 Article 2(7) SADC Treaty (1992). 76 Saurombe Regionalisation 1. 77 Afadameh-Adeyemi and Kalula 2010 Monitoring Regional Integration in Southern Africa: Yearbook 5.

The Integrated Committee of Ministers and its role in regional integration
The The main challenge of this institution is that its decisions are made by consensus and are reported to the Council. 84 The weakness of requiring consensus has already been emphasised during the discussion of the Summit.

The Standing Committee of Officials 85 and its role in regional integration
The as an expediting tool for the SADC regional economic integration agenda, which has often been accused of a slow pace. Their main function is also to process documentation from the Integrated Committee of Ministers and report to the Council.

The SADC Tribunal 86 and its role in regional integration
The SADC Tribunal is currently not operational after the decision to suspend it by the The Tribunal is critical for the integration process for the SADC, as it provides a legal guidance to all SADC institutions and, most importantly, can play an oversight role during the implementation stages of the integration agenda. Its decisions are final and binding. 96 If the SADC is truly rules based, the rulings by the Tribunal will normally be binding on the parties involved. 97 However, the discussion of the SADC Tribunal points to its apparent weaknesses and, most importantly, the Summit's failure to sanction its judgment on the Campbell case. 98 On 28 November 2008, the SADC Tribunal ruled that 78 white Zimbabwean farmers could keep their farms because the Zimbabwean land reform programme had discriminated against them. 99 The Zimbabwean Government rejected this ruling, challenging its legality and lobbied the Summit to suspend the Tribunal. The Tribunal was dully suspended in August 2010, pending an independent six-month review of its "role, functions and terms of reference". 100 The review process was required to address inter alia the jurisdiction of the Tribunal; Tribunal inoperative until at least August 2012. The remaining four judges 102 of the SADC Tribunal described this move as amounting to the dissolution of the Tribunal altogether. This is contrary to the findings of the review process, which had even found that the Tribunal's ruling was legitimate and suggested a need for the further strengthening of the Tribunal.
The Tribunal had acted within its mandate when it took the decision in accordance with Article 32 (5)  obligations under the relevant regional instruments. 107 Accordingly, if regional integration is to be firmly rooted within the SADC, the SADC Tribunal must be allowed to develop the jurisprudence of SADC law, as was the case with the On the assumption that the Tribunal will be reinstated, its influence and credibility have already been eroded. If it is envisaged that the Tribunal will then be called upon in the near future to decide on issues relating to regional integration, and if the Zimbabwean experience is used as a precedent, Member States may get away without being sanctioned after a breach of their obligations under the SADC Treaty. This is a dangerous precedent for an institution that is entrusted with developing the jurisprudence of the region. 110 The Summit can, at will, decide to make decisions that directly impact on the path of regional integration in SADC. There are already several integration breaches that are happening in the region, especially to the citizens of the region. An example is the charging of high tariffs on imports. This these issues because the court has jurisdiction to hear matters affecting private citizens. 111 The Tribunal is empowered by the Treaty to apply SADC law without fear or favour and to pave the way for the harmonisation of business law to the extent that these laws can also be applied by the Tribunal. 112 The harmonisation of policies or the adoption of similar policies is a signal that a regional arrangement is seeking to achieve a high degree of economic integration. 113 The drastic action taken to dissolve the Tribunal has sent the worst possible signal to the SADC region and to potential investors and the whole international community, reflecting the SADC's poor record on human rights, democracy and the rule of law. 114

The Secretariat 115 and Executive Secretary's role in regional integration
The SADC Secretariat is the principal executive institution of the SADC responsible for the strategic planning, coordination and management of SADC programmes. The task of organising and managing the SADC meetings also rests on the shoulders of the Secretariat; 119 hence the timeframe of the full implementation of the RISDP has to be done properly. The responsibility for financial and general administration 120 is critical for the SADC integration agenda and funding for the implementation of the RISDP has to be properly managed. Since SADC depends mostly on donor funding, proper management and administration of such is critical if the SADC wishes to secure future funding. The SADC Secretariat is called upon to mobilise financial support from both the private and public sector stakeholders for the purpose of funding regional integration programmes like transport corridors. 121 The representation and promotion of the SADC is also a key responsibility of the Secretariat, 122 as the SADC requires key representation at regional and multilateral levels. The SADC is highly regarded in Africa as one of the most promising RECs.
This reputation is based on to SADC's image and vision when compared with those of the other RECs operating in Africa. In addition, the SADC has already been identified by the African Union as one of the key pillars for the Africa Economic Portuguese. In terms of the Agreement, the CPLP will provide the financial support for the translation of the content of the SADC website into Portuguese. 124 Such a translation will be useful for the SADC since Mozambique and Angola are Portuguese-speaking countries, whose optimal participation in SADC programmes has always been hampered by the language barrier. Deeper integration will be enhanced through this effort.
The Secretariat plays a critical role in the promotion and harmonisation of the policies and strategies of Member States. 125 The task of exercising this mandate is important at this critical phase of the FTA and customs union, as these stages require that Member States find a common ground on the elimination of all trade barriers for the FTA, as well as a compromise on a common external tariff (CET) acceptable to all Member States. The common external tariff will be a challenge, since the lowest level in existence in the proposed CU has to be adopted. Mauritius tariffs have already reached zero, hence the CET cannot go beyond that. With most SADC members still relying on tariffs as sources of revenue, a common ground will be difficult to find and an agreement can be achieved only once individual states' 475 /569 policies are harmonised. Common strategies to achieve common objectives are the starting point that the Secretariat is tasked to promote. The Secretariat has also been given a mandate to drive appropriate strategies for self-financing and incomegenerating activities and investments, as well as undertaking research on community building and the integration process.

An analysis of the role of SADC institutions in regional integration
It is apparent therefore that the transformation from the SADCC to the SADC has not completely brought about the creation of supranational institutions. This is not the case with the SADC. Evidence from the dissolution of the SADC Tribunal clearly shows that SADC institutions are not independent of the influence of Member States. Furthermore, key institutions within the organisation should work in harmony and exercise their powers in a manner that reflects the common agenda of the regional body. The SADC Summit is clearly playing a bullying role on the institutions which report to it. The current SADC setup creates institutions which only resemble supranational institutions. The pertinent outcome of this analysis is that the SADC institutional framework is not independent of the influence of Member States.
The requirement of consensus in decision making for all institutions also weakens the organisation. These institutions therefore cannot be fully relied upon to propel the SADC towards deeper regional integration.

Recommendations on how the law can address the problems of poor treaty implementation
Firstly, the discussion of the different treaty provisions giving the SADC's institutions a mandate to pursue regional integration indicates that the organisation is rules based, and a deliberate effort should therefore be made to ensure respect of its rules. 131 The Tribunal has confirmed certain aspects of this rules-based system. 132 The shortcomings of the SADC Treaty are mostly evident from the excessive powers given to and employed by the Summit. It is recommended that the Summit's powers be limited. It must not be possible for the Summit to undermine the efforts of the other institutions. This paper has identified the Tribunal as the most appropriate institution to be mandated to keep the Summit in check, instead of which the Summit has actually rendered the Tribunal inoperative. It is recommended that the Tribunal be reinstated in order to resume its role as the custodian of the rule of law in the SADC.
The issue pertaining to the monitoring of the implementation of SADC Treaty provisions would also be enhanced by the reinstatement of the Tribunal, since the Tribunal was "constituted to ensure adherence to and the proper interpretation of the States "shall take all steps necessary to ensure the uniform application of this Treaty" as well as "all necessary steps to accord this Treaty the force of international law". This means that Article 6(5) prescribes that the Treaty needs to be given effect within the Member States. It is recommended that Member States comply with this requirement, and in cases where the relevant national legislation is not available, new legislation may be required. Member States need to respect these provisions.

Conclusion
The SADC Treaty and Protocol on Trade provides a solid legal and institutional platform for its Member States to integrate their economies. Each and every SADC institution discussed in this paper has a unique role to play in this regional integration process. The debate on the success of the SADC regional economic integration agenda has not been the focus of this study; hence, it will not be concluded here.
However, it is very important to realise that, in the current SADC legal and institutional framework, though it is not adequate, the effort of putting the SADC on the road to regional integration has not gone unrewarded. were to take place. Thus, under the current legal and institutional framework, the SADC's regional integration agenda faces major challenges of implementation. The SADC's legal arrangements should be seen as constituting binding and enforceable law which must be implemented before national and regional courts.

Bibliography
Abegunrin "Southern African Development Coordination Conference"