The Zimbabwe Government remains in contempt of court and continues to flout the rule of law

International rule of law expert Sir Jeffrey Jowell QC points out the Zimbabwe Government’s continued contempt of court, which begs the question whether it is legal and ethical for the international community to continue financing the Zimbabwe government without calling this into question.

Source: The Zimbabwe Government remains in contempt of court and continues to flout the rule of law – The Zimbabwean 18.05.2017

Sir Jeffrey Jowell QC has written the letter below and attached about the Zimbabwe Government’s continued contempt of court and its failure to even take preliminary steps in righting this situation.

He has done this in view of the fact that the international community and foreign funders such as the UNDP, World Bank, IMF, EU, UK and others need to ask questions of the Zimbabwe Government regarding its continued defiance of the landmark Campbell Judgment (see below) and the rule of law implications that relate to it.  Is it ethical – legally and morally, to finance a government which is in continued contempt of court?

The letter is pertinent to all those concerned about the rule of law and its paramount importance in the longed for – and desperately needed – recovery of Zimbabwe.

Sir Jeffrey was the founder director of the Bingham Centre for the Rule of Law (an influential international body); and the UK Member of the Council of Europe’s Commission for Democracy Through Law (the ‘Venice Commission’, which provides advice to countries in Europe and beyond on rule of law issues).  He has advised a number of countries on their constitutions, on their law-making, electoral, law-enforcement and regulatory systems and on techniques to ensure access to justice, rights and judicial independence.

Sir Jeffrey was involved in the Campbell case in the Southern African Development Community’s SADC Tribunal. Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe was a landmark test case decided by the SADC Tribunal, based in Windhoek, Namibia, in 2008. The Tribunal held that the Zimbabwe Government violated the organisation’s treaty by denying access to the courts and engaging in racial discrimination in the confiscation of land in the land expropriation programme in Zimbabwe.

Sir Jeffrey is a leading authority on administrative law, including the necessary powers of the State and ways to ensure good and lawful governance.

He is described in “Legal 500” 2016 as “A giant of the English bar and an expert on rule of law issues generally.”  The Times “100 List” describes him as “a leading authority on public, constitutional and administrative law.”

His letter (below and attached) is therefore of great importance.

Yours faithfully,

Ben Freeth

Executive Director – The Mike Campbell Foundation, Zimbabwe

Mobile:  +263 773 929 138   E-mail:  freeth@bsatt.com

11 May 2017

TO WHOM IT MAY CONCERN

The Zimbabwe Government remains in defiance of findings and orders of the Southern African Development Community (SADC)’s Tribunal, in Mike Campbell (Pvt) Ltd et al v. Republic of Zimbabwe.

The SADC Tribunal made a final and binding judgment on 28 November 2008 regarding the ouster clause in the Zimbabwe Constitution that prevents land owners who are being dispossessed from being allowed to challenge the acquisitions of their properties in court.  The Tribunal held the ouster clause to violate Zimbabwe’s international law obligations, as a signatory to the SADC Treaty, on three grounds. The first was that it infringed the rule of law, because it excluded access to courts. The second was it infringed international law in its simultaneous exclusion of any compensation for the deprivation of property rights. The third was its racially discriminatory nature.

The clause was reproduced in the new 2013 Constitution of Zimbabwe and continues to be used in defiance of the SADC Treaty and all the human rights charters that Zimbabwe is signed up to.

The SADC Tribunal ruled that the claimants before it (and by implication those in the same position) should be allowed to continue in peaceful possession, occupation and ownership of their lands.  The Zimbabwe Government defied the international award, and the claimants were violently evicted from their legally-owned farms.

The SADC Tribunal ruled that fair compensation should be paid to those applicants who had already been evicted from their farms.  Eight years after the due date of payment (June 2009), not a penny has been paid to them and no moves have been made by the Zimbabwe Government to compensate them.

In fact, when the Campbell claimants put a case into the SADC Tribunal in 2010 regarding the quantum and the non-payment, moves were made to prevent the case from being heard. At the instigation of President Robert Mugabe, the Tribunal’s operation was first suspended in 2011 and then all access by individuals terminated in 2012. The termination is itself now under legal challenge in court proceedings in South Africa. It does not in any event change the final and binding nature of the Campbell final award by the SADC Tribunal of 28 November 2008, nor subsequent enforcement awards holding the Zimbabwe Government in contempt of the SADC Tribunal, and directing compliance.

The SADC Tribunal’s finding of a racially discriminatory basis to the stripping of ownership rights also stands.  The Zimbabwe Government has done nothing to change this fact and the eviction of farmers continues.

In the interests of the rule of law and human rights it is important that questions be asked by the International Community regarding the Zimbabwe Government’s continued contempt; and that concern be expressed that the rule of law is not being adhered to.

Sir Jeffrey Jowell KCMG QC,

Founding Director of the Bingham Centre for the Rule of Law; Emeritus Professor of Public Law, University College London