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A law unto themselves (Part II): The rulings and dissolution of
the SADC Tribunal
August 03, 2012
This paper is
part of the Zimbabwe Land Series
- View index to Mandi Rukuni's articles here
- View index to Dale Dore's articles here
Part II recounts
the Government of Zimbabwe's unrelenting seizure of white owned
farms, the nationalisation of their land, and how, at the stroke
of a pen and without compensation, white farmers were made trespassers
on their own farms. It shows how the Government of Zimbabwe attacked
the legitimacy of the SADC Tribunal1, refused to obey the Tribunal's
rulings based on international law, and cajoled the region's leaders
into suspending the Tribunal. And how, finally, Zimbabwe's land
laws - that are conspicuously at variance with international law
and offend natural justice - found their way into the country's
constitution. Zimbabweans need to stand united in defence of universally
accepted human rights for all its citizens, and ensure that the
principles of international law are enshrined in their constitution.
I argue that justice must become the cornerstone of our peaceful
transition to democracy and woven into the legal fabric of a future
land policy. Therein lies a shared vision of Zimbabwe: democratic,
inclusive, and at peace with itself.
By 2003, most
white commercial farmers had been displaced and over 200,000 farm
workers and their families - an estimated one million people - had
lost their jobs and homes, as well as their access to farm schools
and other social amenities.2 While the government's own land audit
showed that 2.8 million hectares of farmland lay idle,3 it continued
its relentless prosecution of its chimurenga against white farmers.
The Land Acquisition Amendment Act of 2004 allowed the government
to compulsorily acquire their last and only farm. It allowed the
state to acquire plantations, agriculturally based industries, export
processing zones and wildlife conservancies. And it declared that
the state could acquire as much land as it wanted. The Acquisition
of Farm Equipment and Materials Act of 2004 allowed the government
to compulsorily acquire displaced farmers' farm equipment and materials.
And, to protect those who had earlier seized equipment unlawfully,
the law was back-dated to December 2003.
Amendment No. 17
In its final
push to sweep the remaining white farming citizens from the land,
the government nationalised most commercial farms by passing Constitutional
Amendment No. 17 in 2005. It reiterated that no compensation
would be paid for this land, only improvements. Section 3 of the
Amendment specifically rescinded farmers' constitutional rights
to the protection of the law (Section 18.1), and to a fair hearing
in an independent and impartial court of law (Section 18.9).
In May 2006,
Mike Campbell and other farmers mounted a challenge in the Supreme
Court against Constitutional Amendment No. 17. They argued, first,
was not empowered to exclude the constitutional right of citizens
to be heard in a court of law to settle disputes with the state.
They also claimed that the amendment discriminated against them
on the grounds of race. But before their case could be heard, the
Amendment's enabling Act, the Gazetted Land (Consequential Provisions)
Act, came into force in December 2006. Its passage meant that gazetted
commercial farms had become state land, and that farmers had become
trespassers on their own farms. Unless farmers had a government
'offer letter' or lease agreement, they had to vacate their farmland
within 45 days and their homes within 90 days, or face eviction.
Although 800 commercial farmers subsequently applied for government
authority to remain on their farms, none was granted.4
In October 2007,
11 white commercial farmers appeared before the Chegutu magistrate's
court accused of having failed to leave their gazetted farms. One
of them was Mike Campbell. The Supreme Court had heard his constitutional
challenge to Amendment 17, but had reserved judgement for 6 months.
As the Supreme Court had not responded to inquiries about the case,
it was assumed that it had declined to exercise its jurisdiction.
Thus, when the Chegutu magistrate rejected the farmers' appeal against
eviction, Campbell sought relief from the SADC Tribunal in Windhoek,
Namibia. Campbell, in his application to the Tribunal, contended
that the land acquisition process was unlawful under international
customary law, the SADC Treaty, and the African Charter on Human
and People's Rights. As such, he sought an order from the Tribunal
declaring, first, that Constitutional Amendment No. 17 violated
his fundamental rights protected under Article 6 of the SADC Treaty
and, second, requesting an interdict to stop the Zimbabwean government
from acquiring his farm. In reserving judgement in December 2007,
the Tribunal granted interim relief to Campbell. It ordered the
Zimbabwe government not to evict Campbell or interfere with his
farming operations until the Tribunal had reached its final verdict.
Tribunal's ruling galvanised the Supreme Court into action. In a
belated attempt to pre-empt and nullify the Tribunal's order, the
Supreme Court dismissed Campbell's application in January 2008.5
Unsurprisingly, but contrary to the accepted norms of natural justice
and international law, it ruled that Parliament had the right to
oust the jurisdiction of the courts to prevent judicial arbitration
between citizens and the state. The Court also refused to countenance
the charge that Amendment 17 discriminated against the applicants
on the basis of race or colour.
Then, in June
2008, Mike Campbell, his wife, and his son-in-law, Ben Freeth, were
abducted and grievously
beaten in a bid to terrify them into dropping their case with
the Tribunal; but to no avail. Although the assailants were known,
the police chose not to investigate the crime, and no charges were
laid against them.
SADC Tribunal Rulings
that it had jurisdiction to consider Campbell's application,6
the Tribunal considered, first, whether Campbell and others had
been denied access to the courts. It held that "the rule of
law embraces at least two fundamental rights, namely, the right
of access to the courts, and the right to a fair hearing before
an individual is deprived of a right, interest or legitimate expectation."
Thus any clause that allows an executive decision to prohibit the
court from examining this right offends against natural justice
and is therefore null and void. Having found that Campbell and others
had been deprived of their agricultural lands without these rights,
the Tribunal ruled
that the Zimbabwe government and Constitutional Amendment No. 17
were in violation of Article 4(c) of the SADC Treaty, which requires
member states to respect the principles of "human rights, democracy
and the rule of law".
Tribunal considered whether the applicants had been discriminated
against on the basis of race. Campbell and others had argued that
Constitutional Amendment No. 17 targeted land owned by white farmers
based on the colour of their skin - regardless of any other factors,
such as the proper use of their lands or their citizenship. The
Tribunal agreed. The Tribunal found that such discrimination was
neither reasonable nor objective and based primarily on considerations
of race. It found that the Zimbabwe government and Constitutional
Amendment No.17 violated Zimbabwe's obligation under Article 6(2)
of the SADC Treaty that declares that member states "shall
not discriminate against any person on grounds of gender, religion,
political views, race," etc.
Third, the Tribunal
considered whether or not compensation was payable for the lands
compulsorily acquired. In its submission, the government had claimed
that the "independence agreement in 1978 in London provided
that payment of compensation for expropriated land for resettlement
purposes would be paid by the former colonial power, Britain."
However, the Tribunal was unequivocal in it judgment:
difficult for us to understand the rationale behind excluding compensation
for such land, given the clear legal position in international law.
It is the right of the Applicants [Campbell, et al.] under international
law to be paid, and the correlative duty of the Respondent [Zimbabwe
Government] to pay, fair compensation. Moreover, the Respondent
cannot rely on its national law, its Constitution, to avoid an international
law obligation to pay compensation. Similarly, in the present case,
the Respondent cannot rely on Amendment 17 to avoid payment of compensation
to the Applicants for their expropriated farms. This is regardless
of how the farms were acquired in the first place, provided that
the Applicants have a clear legal title to them. We hold, therefore,
that fair compensation is due and payable to the Applicants by the
Respondent in respect of their expropriated lands."7
were clear. There was no basis in international law that requires
Britain to assume responsibility to compensate displaced white farmers
for their land: Constitutional
Amendment No. 16 passed in 2000 is null and void. Note specifically,
however, that the Zimbabwe Government cannot rely on its national
law, its Constitution, to avoid an international obligation to pay
compensation. This principle is contained in Article 27 of the Vienna
Convention on the Law of Treaties, which states that:
may not invoke provisions of its own internal law as justification
for failure to carry out an international agreement."
Instead of meeting
its obligations under international law, the Zimbabwe government
set about discrediting and emasculating the Tribunal. President
Mugabe contemptuously dismissed the Tribunal and the rule of international
law: "Some farmers went to the SADC... but that's nonsense,
absolute nonsense, no-one will follow that. Our land issues are
not subject to the SADC Tribunal." He then added that, "The
few remaining white farmers should quickly vacate their farms as
they have no place there."8
Demise of the Tribunal
of the Tribunal's ruling, Campbell's farm was invaded. When the
invaders ignored a High Court ruling in May 2009 ordering them to
leave, Campbell again appealed to the Tribunal. Without hesitation,
found Zimbabwe in contempt of its decision and in June referred
the matter to the SADC Summit to take appropriate action. But when
SADC leaders met in September
2009, the matter was not acted upon, let alone considered. By
then Freeth's homestead had been burnt
down and Campbell's farm had fallen into the hands of invaders.
Before the Summit,
in August 2009, the government had issued a specious
legal opinion challenging the legality of the Tribunal, and
its jurisdiction, mandate and powers to enforce decisions. Its aim,
to discredit the Tribunal to avoid compliance with international
law, slowly gained acceptance amongst SADC leaders.
Zimbabwe's commercial farmers sought a High
Court order to register the Tribunal's decision in Zimbabwe
in November 2009.9 Contrary to the government's attempts
to repudiate the Tribunal's jurisdiction, the High Court found that
the Protocol of the Tribunal undeniably constituted an integral
part of the SADC Treaty and, hence, the Tribunal's decisions were
binding on Zimbabwe. Yet, the High Court refused to confirm and
register the decision. To obfuscate Zimbabwe's indisputable treaty
obligations to enforce the Tribunal's ruling, the Court instead
- based on South African legal opinion on foreign judgments10
- determined whether the recognition and enforcement of the Tribunal's
decision would be contrary to 'public policy'. It then used the
same legal reasoning as the Supreme Court to dismiss Campbell's
application. It argued that the Judiciary had a duty to uphold Parliament's
enactments, even if they infringed fundamental human rights and
contradicted natural justice and international law. In effect, the
Court invoked provisions of Zimbabwe's Constitution and policies
as a justification for its failure to carry out its international
agreement, thus contravening the Vienna Convention on the Law of
Just as hopes
were raised in February 2010, when South Africa's High Court in
Pretoria recognised the Tribunal's ruling as enforceable, faith
in the international justice system quickly faded. At the SADC Summit
2010, the region's leaders decided to bar the Tribunal from
considering any new cases for 6 months while the Tribunal's role
and functions were being reviewed. But when the erudite legal recommendations
for a more robust Tribunal were presented to SADC leaders in May
2011,11 they were pushed aside. Instead the Summit suspended the
Tribunal until a revised SADC Protocol on the Tribunal has been
approved at a Summit scheduled for August 2012. The Summit's presumed
intent was to prevent SADC citizens from seeking international redress
for injustices suffered at the hands of their own governments.12
Campbell died in April 2011. But his fight for justice continues.
In March 2012, the African Commission on Human and People's Rights
made a preliminary ruling to formally register an application brought
by Ben Freeth and another dispossessed Zimbabwean farmer, Luke
Tembani, to be heard by the African Court on Human and People's
Rights.13 They are seeking an order from the Court that will require
the SADC Summit - consisting of all 14 Heads of State, including
President Robert Mugabe - to reinstate the Tribunal so that it continues
to function and protect the human rights of SADC citizens in accordance
with Article 16 of the SADC Treaty.
Government has specifically constructed clauses in its draft
constitution (Chapter 16 on Agricultural Land) to counter the rulings
of the SADC Tribunal. If the Zimbabwean people accept the draft
constitution in a referendum they will have condoned laws that deny
Zimbabwean citizens natural justice and international law - as enshrined
in the Universal Declaration
of Human Rights and the African
Charter on Human and Peoples' Rights.
is taught that "two wrongs do not make a right". Zimbabwe
must correct the historical wrongs regarding land distribution,
but in a manner that is just and inclusive. Only then can we truly
bring closure to the land question and begin a process of healing
and reconciliation, not just between Zimbabweans, but with the world
of the Tribunal established in terms of Section 16 of the Southern
African Development Community (SADC) Treaty was signed on 7 August
2000 by the Summit, which comprises the heads of all 14 member states,
L. (2003) The Situation of Commercial Farm-workers after Land Reform.
(2003) Presidential Land Review Committee, Table 3, p.42
Independent, 29 October 2009: Reporting on CFU statement.
5. Mike Campbell
(Pvt) Ltd & Another v Minister of National Security Responsible
for Land, Land Reform and Resettlement & Another SC 49/07
and Others vs Republic of Zimbabwe SADC (T) Case No. 2/2007.
Campbell had been joined by 77 other commercial farmers in the application
to the SADC Tribunal.
7. Ibid. (p.56).
Radio Africa, 2 March 2009.
(Pvt.) Ltd and Other vs Government of the Republic of Zimbabwe and
Others. HC33/09. 26 January 2010.
(ed.) (1993) The Law of South Africa. Vol. 2.
11. Report prepared
by Lorand Bartels of Cambridge University and advisor to the World
12. Derek Matyszak,
(2011) The Dissolution of the SADC Tribunal. Research and Advocacy
13. The Protocol
to the African Charter on Human and Peoples' Rights on the
establishment of an African Court on Human and Peoples' Rights
was signed by Zimbabwe in June 1998.
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