Zimbabwe land

Africa Brief: Zimbabwe land case and SADC Tribunal

How Zimbabwean’s land case ended up in SA’ legal system

Dispossessed Zimbabwean farmer Mike Campbell was able to take his case to the judiciary in SA because of the Southern African Development Community (SADC) Tribunal decision, pronounced before it was dissolved, which found Zimbabwe to have been in violation of the SADC Treaty. Zimbabwe was in contempt of court for refusing to adhere to that ruling.

The petitioners, Campbell and Co, sought to have the SADC judgments enforced in a South African court,” says Nicole Fritz, director of the Southern Africa Litigation Centre.

Zimbabwe’s attorney-general, Johannes Tomana, expressed disappointment at the outcomes of the hearings in SA:

We have spent a lot of money fighting in the South African courts and it all comes down to the fact that SA is disrespecting the diplomatic immunity that governs relations between sovereign states.

If the implications of the ruling need to be enforced outside the territory of the state in which the order was given, you can seek to have the judgment enforced in the other state. The Tribunal ruling can be effected in SA, and because Zimbabwe has certain property holdings in SA”, says Fritz.

Tomana opted for a final fling of the SA judicial dice by taking the matter on appeal to the Constitutional Court. “The South African courts are just playing politics”, Tomana said. Fritz points out that:

If the court decides it is not a constitutional matter and that there will not be a hearing that will then be that, and the execution of property order will be carried out.

The legal battle on this case will end if the Constitutional Court declines to hear Zimbabwe’s appeal.

For the full story, read How Zimbabwean’s land case ended up in SA’ legal system by Tom Nevin, published in Business Day on 28/01/2013.

SADC Tribunal paid the price for threatening states’ authority

Tanzanian president Jakaya Kikwete is said to have described it as a monster that will “devour us all“. Now the Southern African Development Community (SADC) Tribunal – meant to be the region’s supreme symbol of justice – is little more than a pile of mouldering bones.

Reports suggest that the Tribunal wreak havoc and continues to torment the SADC leadership. This comes after the Zimbabwe’s confiscated white farmlands issue which has cross boundaries in search of a legal solution and the leadership of Zimbabwean President Robert Mugabe.

In the opinion of Merran Huise, international relations academic at Radboud University in Holland, the tribunal was trying to run before it could walk and stumbled when it took on Mugabe’s government in one of its first human rights cases, in 2008.

Nicole Fritz, director of the Southern Africa Litigation Centre, believes the SADC summit last year should have acted with more conviction. To her mind, the SADC ministers faced a simple choice: to strengthen the Tribunal, the rule of law and prospects for progress in the region, “or render it toothless and undermine SADC’s own goals of sustainable economic growth and human rights for all“.

Fritz also maintains when SADC acted to deprive individuals of the right to access the Tribunal, it removed one of the last remaining avenues southern Africans have of securing recognition of their governments; unlawful actions. The former judge president of Tribunal, Ariranga Pillay asserted that the decision of SADC’s council and summit sent the worst possible signal not only to the SADC region but also to possible investors, donors and the international community at large.

The thread that started the unravelling of the Tribunal, which sits in Windhoek, was the Mike Campbell farm-seizure case. Mike Campbell and his son-in-law, Ben Freeth, were served with an eviction notice by the Zimbabwe government as part of its campaign to confiscate without compensation white-owned agricultural land.

Campbell and Freeth opted to challenge the grab order. They were thwarted in the Harare High Court and thereafter took the matter to the SADC Tribunal. In due course the court ruled in Campbell and Freeth’s favour, finding that the Zimbabwean government’s land repossessions were “entirely racially based” and were, therefore, in violation of SADC’s principles of human rights. However, the Zimbabwe government ignored the ruling and Mr Mugabe’s supporters invaded the estate of Campbell and Freeth.

Eddie Cross, Zimbabwe opposition MDC MP and party spokesman said the title rights of the farm owners were protected by the Constitution and they remain intact and this has been confirmed by lower courts, SADC Tribunal and SA’s courts; that the only way their rights can be taken is by purchase at fair market price or price set by court of law.

The decision that the confiscation without compensation of Campbell’s land was an illegal act had severe repercussions for the tribunal.

For the full story, read SADC Tribunal paid the price for threatening states’ authority by Tom Nevin, published in Business Day on 28/01/2013.

David Okwara

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