IN THE SOUTHERN AFRICAN DEVELOPMENT
COMMUNITY (SADC) TRIBUNAL WINDHOEK,
NAMIBIA
SADC (T) Case No.
2/2007
IN THE MATTER BETWEEN
Mike Campbell
(Pvt) Ltd. 1st
Applicant
William Michael
Campbell 2nd
Applicant
Gideon
Stephanus Theron 3rd
Applicant
Douglas Stuart
Taylor-Freeme 4th
Applicant
Merle Taylor-Freeme
5th Applicant
Konrad Van Der
Merwe 6th
Applicant
Louis Karel Fick
7th Applicant
Andrew Paul
Rosslyn Stidolph 8th
Applicant
R.J Van Rensburg and Sons (Pvt)
Ltd. 9th
Applicant
Reinier Janse Van
Rensburg (Senior) 10th
Applicant
Harlen
Brothers (Pvt) Ltd.
11th Applicant
Raymond
Finaughty 12th
Applicant
Bounchcap (Pvt) Ltd.
13th Applicant
Dirk Visagie
14th Applicant
Sabaki (Pvt) Ltd.
15th Applicant
William
Bruce Rogers
16th Applicant
J.B.W Arden & Sons (Pvt)
Ltd. 17th
Applicant
William
Gilchrist Nicolson
18th Applicant
Richard Thomas
Etheredge 19th
Applicant
John Norman
Eastwood 20th
Applicant
Johannes Frederick
Fick 21st
Applicant
W.R
Seaman (Pvt) Ltd.
22nd Applicant
Wayne Redvers
Seaman 23rd
Applicant
Petrus Stephanus Martin
24th Applicant
Ismael
Campher Pasques 25th
Applicant
Claremont Estates (Pvt) Ltd.
26th
Applicant
Gramara (Pvt) Ltd.
27th Applicant
Colin Baillie
Cloete
28th Applicant
Blakle Stanley Nicolle
29th
Applicant
Newmarch Farm (Pvt) Ltd.
30th Applicant
John
McCleary Beatie
31st Applicant
Hermanus Gerhardus Grove
32nd
Applicant
Frederick Willem Biutendag
33rd
Applicant
L.M.Farming (Pvt) Ltd.
34th Applicant
Bart Harvey
McClelland Wilde 35th
Applicant
P.N.Stidolph (Pvt) Ltd.
36th Applicant
Neville
Stidolph
37th Applicant
Katambora Estates (Pvt) Ltd.
38th
Applicant
Andrew Roy Ferreira
39th Applicant
Herbst Estate
(Pvt) Ltd.
40th Applicant
Andrew Marc Ferangcon
Herbst 41st
Applicant
Izak
Daniel Nel
42nd Applicant
Johannes Hendrik
Oosthuizen 43rd Applicant
Murray Hunter
Pott
44th Applicant
Gary Bruce Hensman
45th
Applicant
Charles Thomas
Schoultz 46th
Applicant
Jack Walter Hall
47th Applicant
Busi Coffee
Estate (Pvt) Ltd.
48th Applicant
Algernan Tracy Taffs
49th
Applicant
Elsje Hester Herbst
50th Applicant
Cristoffel Gideon
Herbst
51st Applicant
Jacobus Adriaan Smit
52nd
Applicant
Palm River Ranch (Pvt) Ltd.
53rd Applicant
John
Robert Caudrey Beverley 54th
Applicant
Robert Anthony
McKersie 55th
Applicant
S.C.Shaw (Pvt) Ltd.
56th Applicant
Grant Ian
Locke
57th Applicant
Peter Foster Booth
58th
Applicant
Aristides Peter Landos
59th Applicant
Ann Lourens
60th Applicant
N & B Holdings (Pvt)
Ltd. 61st
Applicant
Digby Sean Nesbitt
62nd Applicant
Kenneth
Charles Ziehl
63rd Applicant
Kenyon Garth Baines
Ziehl 64th
Applicant
Mleme
Estate (Pvt) Ltd.
65th Applicant
Jean Daniel Cecil de
Robbilard 66th
Applicant
Anglesea
Farm (Pvt) Ltd. 67th
Applicant
Gameston Enterprises (Pvt)
Ltd. 68th
Applicant
Malundi
Ranching Co (Pvt) Ltd. 69th
Applicant
Gwelmid Property Holdings (Pvt)
Ltd. 70th Applicant
Tamba Farm (Pvt) Ltd.
71st Applicant
R.H.Greaves (Pvt) Ltd.
72nd Applicant
Heany
Junction Farms (Pvt) Ltd. 73rd
Applicant
Rudolf Isaac Du Preez
74th Applicant
Walter
Bryan Lawry
75th Applicant
Derek Alfred Rochat
76th
Applicant
Christopher Mellish Jarrett
77th Applicant
Tengwe
Estate (Pvt) Ltd. 78th
Applicant
France Farm (Pvt) Ltd.
79th
Applicant
AND
The Republic of Zimbabwe
Respondent
CORAM:
H.E. JUSTICE ARIRANGA
GOVINDASAMY PILLAY PRESIDENT
H.E. JUSTICE ISAAC JAMU MTAMBO,
SC
MEMBER
H.E. JUSTICE DR. LUIS ANTONIO MONDLANE
MEMBER
H.E. DR. RIGOBERTO KAMBOVO
MEMBER
H.E. DR.ONKEMETSE
B. TSHOSA
MEMBER
APPLICANT'S AGENTS
J. J.
GAUNTLETT,
SC
A. P. DE BOURBON,
SC
J L JOWELL
QC
E. N. ANGULA (MRS), COUNSEL
RESPONDENT'S AGENTS P.
MACHAYA, DEPUTY
ATTORNEY-GENERAL
N.
MUTSONZIWA (MRS),
CHIEF LAW OFFICER
HON. JUSTICE M. C. C.
MKANDAWIRE
REGISTRAR
MR. DENNIS SHIVANGULULA
COURT
CLERK
JUDGEMENT
Delivered
by H. E. JUSTICE DR. LUIS ANTONIO MONDLANE
I FACTUAL
BACKGROUND
On 11 October, 2007, Mike Campbell (Pvt) Limited and
William Michael
Campbell filed an application with the Southern African
Development
Community Tribunal (the Tribunal) challenging the acquisition by
the
Respondent of agricultural land known as Mount Carmell in the District
of
Chegutu in the Republic of Zimbabwe. Simultaneously, they filed an
application in terms of Article 28 of the Protocol on Tribunal (the
Protocol), as read with Rule 61 (2) - (5) of the Rules of Procedure of the
SADC Tribunal (the Rules), for an interim measure restraining the Respondent
from removing or allowing the removal of the Applicants from their land,
pending the determination of the
matter.
On 13 December, 2007, the
Tribunal granted the interim measure through its
ruling which in the
relevant part stated as follows:
"[T]he Tribunal grants the
application pending the determination of the main
case and orders that the
Republic of Zimbabwe shall take no steps, or permit
no steps to be taken,
directly or indirectly, whether by its agents or by
orders, to evict from or
interfere with the peaceful residence on, and
beneficial use of, the farm
known as Mount Carmell of Railway 19, measuring
1200.6484 hectares held
under Deed of Transfer No. 10301/99, in the District
of Chegutu in the
Republic of Zimbabwe, by Mike Campbell (Pvt) Limited and
William Michael
Campbell, their employees and the families of such employees
and of William
Michael Campbell".
Subsequently, 77 other persons applied to
intervene in the proceedings,
pursuant to Article 30 of the Protocol, as
read with Rule 70 of the
Rules.
Additionally, the interveners
applied, as a matter of urgency, for an
interim measure restraining the
Respondent from removing them from their
agricultural lands, pending the
determination of the matter.
On 28 March, 2008, the Tribunal
granted the application to intervene in the
proceedings and, just like in
the Mike Campbell (Pvt) Ltd. and William
Michael Campbell case, granted the
interim measure sought.
Mike Campbell (Pvt) Ltd. and William
Michael Campbell case as well as the
cases of the 77 other Applicants were
thus consolidated into one case,
hereinafter referred to as the Campbell
case - vide Case SADC (T) No.
02/2008.
On the same day
another application to intervene was filed by Albert Fungai
Mutize and
others (Case SADC (T) No. 08/2008). The Tribunal dismissed this
application
on the basis that it had no jurisdiction to entertain the matter
since the
alleged dispute in the application was between persons, namely,
the
Applicants in that case and those in the
Campbell case
and not between persons and a State, as required under Article
15 (1) of the
Protocol.
On 17 June, 2008, yet another application to intervene
in the proceedings
was filed. This was by Nixon Chirinda and others - Case
SADC (T) No.
09/2008. The application was dismissed on the same ground as
in Case SADC
(T) No. 08/2008.
On 20 June, 2008, the
Applicants referred to the Tribunal the failure on the
part of the
Respondent to comply with the Tribunal's decision regarding the
interim
reliefs granted. The Tribunal, having established the failure,
reported its
finding to the Summit, pursuant to Article 32 (5) of the
Protocol.
In the present case, the Applicants are, in
essence, challenging the
compulsory acquisition of their agricultural lands
by the Respondent. The
acquisitions were carried out under the land reform
programme undertaken by
the Respondent.
We note that
the acquisition of land in Zimbabwe has had a long history.
However, for the
purposes of the present case, we need to confine ourselves
only to
acquisitions carried out under section 16B of the Constitution of
Zimbabwe
(Amendment No. 17, 2005), hereinafter referred to as Amendment
17.
Section 16B of Amendment 17 provides as
follows:
"16B: Agricultural land acquired for resettlement and
other purposes
(1) In this section
-
"acquiring authority" means the Minister responsible for lands
or any other
Minister whom the President may appoint as an acquiring
authority for the
purposes of this
section;
"appointed day" means the date
of commencement of the Constitution of
Zimbabwe Amendment (No. 17) Act, 2004
(i.e. 16 September, 2005)
(2) Notwithstanding anything
contained in this Chapter
-
(a) all
agricultural land -
(i) that was identified on or before the 8th July,
2005, in the Gazette or
Gazette Extraordinary under section 5 (1) of the
Land Acquisition Act
[Chapter 20:10], and which is itemized in Schedule 7,
being agricultural
land required for resettlement purposes;
or
(ii) that is identified after the 8th July, 2005, but before
the appointed
day (i.e. 16th September, 2005), in the Gazette or Gazette
Extraordinary
under section 5 (1) of the Land Acquisition Act [Chapter
20:10], being
agricultural land required for resettlement purposes;
or
(iii) that is identified in terms of this section by the
acquiring authority
after the appointed day in the Gazette or Gazette
Extraordinary for whatever
purposes, including, but not limited
to
-
A. settlement for agricultural or
other purposes; or
B. the purposes of land
reorganization, forestry,
environmental conservation or the utilization of
wild life or other natural
resources; or
C. the
relocation of persons dispossessed in consequence of
the utilization of land
for a purpose referred to in subparagraph A or B;
is acquired by
and vested in the State with full title therein with effect
from the
appointed day or, in the case of land referred to in subparagraph
(iii),
with effect from the date it is identified in the manner specified in
that
paragraph; and
(b) no compensation shall be payable for land
referred to in paragraph
(a) except for any improvements effected on such
land before it was
acquired.
(3) The provisions of any
law referred to in section 16 (1) regulating
the compulsory acquisition of
land that is in force on the appointed day,
and the provisions of section 18
(1) and (9), shall not apply in relation to
land referred to in subsection
(2) (a) except for the purpose of determining
any question related to the
payment of compensation referred to in
subsection (2) (b), that is to say, a
person having any right or interest in
the land -
(a)
shall not apply to a court to challenge the acquisition of the land
by the
State, and no court shall entertain any such challenge;
(b)
may, in accordance with the provisions of any law referred to in
section 16
(1) regulating the compulsory acquisition of land that is in
force on the
appointed day, challenge the amount of compensation payable for
any
improvements effected on the land before it was
acquired".
Amendment 17 effectively vests the ownership of
agricultural lands
compulsorily acquired under Section 16B (2) (a) (i) and
(ii) of Amendment 17
in the Respondent and ousts the jurisdiction of the
courts to entertain any
challenge concerning such acquisitions. It is on
the basis of these facts
that the present matter is before the
Tribunal.
II SUBMISSIONS OF THE
PARTIES
It was submitted, in substance, on behalf of the
Applicants that:
(a) the Respondent acted in breach of its
obligations under the Treaty
by enacting and implementing Amendment
17;
(b) all the lands belonging to the
Applicants which have been compulsory
acquired by the Respondent under
Amendment 17 were unlawfully acquired since
the Minister who carried out the
compulsory acquisition failed to establish
that he applied reasonable and
objective criteria in order to satisfy
himself that the lands to be acquired
were reasonably necessary for
resettlement purposes in conformity with the
land reform programme;
(c) the Applicants were denied access
to the courts to challenge the
legality of the compulsory acquisition of
their lands;
(d) the Applicants had suffered racial
discrimination since they were
the only ones whose lands have been
compulsory acquired under Amendment 17,
and
(e) the
Applicants were denied compensation in respect of the lands
compulsorily
acquired from them.
Learned Counsel for the
Applicants submitted, in conclusion, that the
Applicants, therefore, seek a
declaration that the Respondent is in breach
of its obligations under the
Treaty by implementing Amendment 17 and that
the compulsory acquisition of
the lands belonging to the Applicants by the
Respondent was
illegal.
The learned Agent for the Respondent, for his part, made
submissions to the
following effect:
1. the Tribunal
has no jurisdiction to entertain the application under
the
Treaty;
2. the premises upon which acquisition of lands was
started was on a
willing buyer willing seller basis and that the land was to
be purchased
from white farmers who, by virtue of colonial history, were in
possession of
most of the land suitable for agricultural
purposes;
3. the Respondent continues to
acquire land from mainly whites who own
large tracts of land suitable for
agricultural resettlement and this policy
cannot be attributed to racism but
to circumstances brought about by
colonial history;
4.
the Respondent had also acquired land from some of the few black
Zimbabweans
who possessed large tracts of land;
5. the figures for land
required for resettlement were revised from 6
to 11 million hectares. The
Applicants' farms were considered for
allocation after they had been
acquired as part of the land needed for
resettlement;
6. the increase in the demand for land
resulted in the portions left
with the applicants being needed for
resettlement;
7. the Applicants will receive compensation
under Amendment 17;
8. the compulsory
acquisition of lands belonging to Applicants by the
Respondent in the
context must be seen as a means of correcting colonially
inherited land
ownership inequities, and
9. the Applicants have not been
denied access to the courts. On the
contrary, the Applicants could, if they
wish to, seek judicial review.
III ISSUES FOR
DETERMINATION
After due consideration of the facts of the case,
in the light of the
submissions of the parties, the Tribunal settles the
matter for
determination as follows:
- whether or
not the Tribunal has jurisdiction to entertain the
application;
- whether or not the Applicants have been
denied access to the
courts in Zimbabwe;
- whether or not
the Applicants have been discriminated against on
the basis of race,
and
- whether or not compensation is payable for the
lands compulsorily
acquired from the Applicants by the
Respondent.
IV JURISDICTION
Before
considering the question of jurisdiction, we note first that the
Southern
African Development Community is an international organization
established
under the Treaty of the Southern African Development Community,
hereinafter
referred to as "the Treaty". The Tribunal is one of the
institutions of the
organization which are established under Article 9 of
the Treaty. The
functions of the Tribunal are stated in Article 16. They
are to ensure
adherence to, and the proper interpretation of, the provisions
of the Treaty
and the subsidiary instruments made thereunder, and to
adjudicate upon such
disputes as may be referred to it.
The bases of jurisdiction are,
among others, all disputes and applications
referred to the Tribunal, in
accordance with the Treaty and the Protocol,
which relate to the
interpretation and application of the Treaty -
vide
Article 14 (a) of the Protocol. The scope of the
jurisdiction, as stated in
Article 15 (1) of the Protocol, is to adjudicate
upon "disputes between
States, and between natural and legal persons and
States". In terms of
Article 15 (2), no person may bring an action against
a State before, or
without first, exhausting all available remedies or
unless is unable to
proceed under the domestic jurisdiction of such State.
For the present case
such are, indeed, the bases and scope of the
jurisdiction of the Tribunal.
The first and the second Applicants
first commenced proceedings in the
Supreme Court of Zimbabwe, the final
court in that country, challenging the
acquisition of their agricultural
lands by the Respondent.
The claim in that court, among other
things, was that Amendment 17
obliterated their right to equal treatment
before the law, to a fair hearing
before an independent and impartial court
of law or tribunal, and their
right not to be discriminated against on the
basis of race or place of
origin, regarding ownership of
land.
On October 11, 2007, before the Supreme
Court of Zimbabwe had delivered its
judgment, the first and second
Applicants filed an application for an
interim relief, as mentioned earlier
in this judgement.
At the hearing of the application, the
Respondent raised the issue as to
whether the Tribunal has jurisdiction to
hear the matter considering that
the Supreme Court of Zimbabwe had not yet
delivered the judgement and,
therefore, that the Applicants had not
"exhausted all available remedies or
were unable to proceed under the
domestic jurisdiction", in terms of Article
15 (2) of the
Protocol.
The concept of exhaustion of local remedies is not
unique to the Protocol.
It is also found in other regional international
conventions. The European
Convention on Human Rights provides in Article 26
as follows:
"The Commission (of Human Rights) may only deal with
a matter after all
domestic remedies have been exhausted, according to the
generally recognized
rules of international
law."
Similarly, the African Charter on Human and
Peoples' Rights states in
Article 50 as follows:
"The
Commission can only deal with a matter submitted to it after making
sure
that all local remedies, if they exist, have been exhausted, unless it
is
obvious to the Commission that the procedure of achieving the remedies
would
have been unduly prolonged".
Thus, individuals are required to
exhaust local remedies in the municipal
law of the state before they can
bring a case to the Commissions. This
means that individuals should go
through the courts system starting with the
court of first instance to the
highest court of appeal to get a remedy. The
rationale for exhaustion of
local remedies is to enable local courts to
first deal with the matter
because they are well placed to deal with the
legal issues involving
national law before them. It also ensures that the
international tribunal
does not deal with cases which could easily have been
disposed of by
national courts.
However, where the municipal law
does not offer any remedy or the remedy
that is offered is ineffective, the
individual is not required to exhaust
the local remedies. Further, where,
as the African Charter on Human and
Peoples' Rights states, ".it is obvious
. that the procedure of achieving
the remedies would have been unduly
prolonged", the individual is not
expected to exhaust local remedies. These
are circumstances that make the
requirement of exhaustion of local remedies
meaningless, in which case the
individual can lodge a case with the
international tribunal.
In deciding this issue, the Tribunal
stressed the fact that Amendment 17 has
ousted the jurisdiction of the
courts of law in Zimbabwe from any case
related to acquisition of
agricultural land and that, therefore, the first
and second Applicants were
unable to institute proceedings under the
domestic jurisdiction. This
position was subsequently confirmed by the
decision of the Supreme Court
given on February 22, 2008 in Mike Campbell
(Pty) Ltd v Minister of National
Security Responsible for Land, Land Reform
and Resettlement (SC
49/07).
The Tribunal also referred to Article 14
(a) of the Protocol, and observed
that Amendment 17 had indeed ousted the
jurisdiction of the courts of law in
that country in respect of the issues
that were raised before us, and
decided that the matter was properly laid
before the Tribunal and,
therefore, that the Tribunal had jurisdiction to
consider the application
for the interim relief.
It will be
recalled that the Supreme Court of Zimbabwe delivered its
judgment
dismissing the Applicants' claims in their entirety, saying, among
other
things, that the question of what protection an individual should be
afforded in the Constitution in the use and enjoyment of private property,
is a question of a political and legislative character, and that as to what
property should be acquired and in what manner is not a judicial question.
The Court went further and said that, by the clear and unambiguous language
of the Constitution, the Legislature, in the proper exercise of its powers,
had lawfully ousted the jurisdiction of the courts of law from any of the
cases in which a challenge to the acquisition of agricultural land may be
sought. The Court further stated that the Legislature had
unquestionably
enacted that such an acquisition shall not
be challenged in any court of
law. The Supreme Court, therefore, concluded
that there cannot be any
clearer language by which the jurisdiction of the
courts has been ousted.
Such are the circumstances in which we
are to consider the question of
jurisdiction. The Respondent first
submitted that the Treaty only sets out
the principles and objectives of
SADC. It does not set out the standards
against which actions of Member
States can be assessed. The Respondent also
contended that the Tribunal
cannot borrow these standards from other
Treaties as this would amount to
legislating on behalf of SADC Member
States. The Respondent went on to
argue that there are numerous Protocols
under the Treaty but none of them is
on human rights or agrarian reform,
pointing out that there should first be
a Protocol on human rights and
agrarian reform in order to give effect to
the principles set out in the
Treaty. The Respondent further submitted that
the Tribunal is required to
interpret what has already been set out by the
Member States and that,
therefore, in the absence of such standards, against
which actions of Member
States can be measured, in the words of its learned
Agent, "the
Tribunal appears to have no jurisdiction to
rule on the validity or
otherwise of the land reform programme carried out
in Zimbabwe".
In deciding this issue, the Tribunal first referred
to Article 21 (b) which,
in addition to enjoining the Tribunal to develop
its own jurisprudence, also
instructs the Tribunal to do so "having regard
to applicable treaties,
general principles and rules of public international
law" which are sources
of law for the Tribunal. That settles the question
whether the Tribunal can
look elsewhere to find answers where it appears
that the Treaty is silent.
In any event, we do not consider that there
should first be a Protocol on
human rights in order to give effect to the
principles set out in the
Treaty, in the light of the express provision of
Article 4 (c) of the Treaty
which states as follows:
"SADC
and Member States are required to act in accordance with the following
principles -
(a) ..
(b)
..
(c) human rights, democracy and the rule of
law"
It is clear to us that the Tribunal has jurisdiction in
respect of any
dispute concerning human rights, democracy and the rule of
law, which are
the very issues raised in the present application. Moreover,
the Respondent
cannot rely on its national law, namely, Amendment 17 to
avoid its legal
obligations under the Treaty. As Professor Shaw Malcolm in
his treatise
entitled International Law at pages 104-105 aptly
observed:
"It is no defence to a breach of an international
obligation to argue that
the state acted in such a manner because it was
following the dictates of is
own municipal laws. The reason for this
inability to put forward internal
rules as an excuse to evade international
obligation are obvious. Any other
situation would permit international law
to be evaded by the simple method
of domestic
legislation".
This
principle is also contained in the Vienna Convention on the Law of
Treaties,
in which it is provided in Article 27 as follows:
"A party may
not invoke provisions of its own internal law as justification
for failure
to carry out an international agreement".
V ACCESS TO
JUSTICE
The next issue to be decided is whether or not the
Applicants have been
denied access to the courts and whether they have been
deprived of a fair
hearing by Amendment 17.
It is settled law
that the concept of 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. As indicated already, Article 4 (c) of the Treaty
obliges
Member States of SADC to respect principles of "human rights,
democracy and
the rule of law" and to undertake under Article 6 (1) of the
Treaty "to
refrain from taking any measure likely to jeopardize
the
sustenance of its principles, the achievement of its
objectives and the
implementation of the provisions of the Treaty".
Consequently, Member
States of SADC, including the Respondent, are under a
legal obligation to
respect, protect and promote those twin fundamental
rights.
As stated in De Smith's Judicial Review (6th edition
2007) at paragraph
4-015:
"The role of the courts is of high
constitutional importance. It is a
function of the judiciary to determine
the lawfulness of the acts and
decisions and orders of public authorities
exercising public functions, and
to afford protection to the rights of the
citizen. Legislation which
deprives them of these powers is inimical to the
principle of the rule of
law, which requires citizens to have access to
justice".
Moreover, the European
Court of Human Rights, in Golder v UK (1975) 1 EHRR
524, at paragraph 34 of
its judgement stated as follows:
"And in civil matters one can
scarcely conceive of the rule of law without
there being a possibility of
having access to the courts".
The same Court held, in Philis v.
GREECE (1991), at paragraph 59 of its
judgement
that:
"Article 6, paragraph 1 (art. 6-1) secured to everyone the
right to have any
claim relating to his civil rights and obligations brought
before a court or
tribunal; in this way the Article embodies the "right to a
court", of which
the right of access, that is the right to institute
proceedings before
courts in civil matters, constitutes one aspect. This
right of access,
however, is not absolute but may be subject to limitations
since the right
by its very nature calls for regulation by the State.
Nonetheless, the
limitations applied must not restrict or reduce the access
left to the
individual in such a way or to such an extent that the very
essence of the
right is impaired."
The Inter-American Court
of Human Rights, in its Advisory Opinion OC-9/87 of
6 October, 1987,
Judicial Guarantees in States of Emergency (Articles 27
(2), 25 and 8 of the
American Convention on Human Rights), construed Article
27 (2) of the
Convention as requiring Member States to respect essential
judicial
guarantees, such as habeas corpus or any other effective remedy
before
judges or competent tribunals - vide paragraph 41. The Court also
considered that Member States were under a duty to provide effective
judicial remedies to those alleging human rights violations under Article 25
of the Convention. The Court stated at paragraph
24:
"According to this principle, the absence of an effective
remedy to
violations of the rights recognized by the Convention is itself a
violation
of the Convention by the State Party in which the remedy is
lacking. In
that sense, it should be emphasized that, for such a remedy to
exist, it is
not sufficient that it be provided for by the Constitution or
by law or that
it be formally recognized, but rather it must be truly
effective in
establishing whether there has been a violation of human rights
and in
providing redress. A remedy which
proves illusory
because of the general conditions prevailing in the country,
or even in the
particular circumstances of a given case, cannot be
considered
effective".
The Court also, at paragraph 35 of its judgement,
pointed out that the rule
of law, representative democracy and personal
liberty are essential for the
protection of human rights and that "in a
democratic society, the rights and
freedoms inherent in the human person,
the guarantees applicable to them and
the rule of law form a triad. Each
component thereof defines itself,
complements and depends on the others for
its meaning".
The right of access to the courts is also enshrined
in international human
rights treaties. For instance, the African Charter
on Human and Peoples'
Rights provides in Article 7 (1) (a) as
follows:
"Every individual shall have the right to have his cause
heard. This
comprises:
(a) The right to
an appeal to competent national organs against acts
violating his
fundamental rights."
The African Commission on Human and Peoples'
Rights in its decision in
Constitutional Rights Project, Civil Liberties
Organisation and Media Rights
Agenda v. Nigeria, Comm.No. 140/94, 141/94
145/95(1999), held at paragraph
29 of its judgement that the ouster clauses
introduced by the Nigerian
military government which prevented Nigerian
courts from hearing cases
initiated by publishers against the search of
their premises and the
suppression of their newspapers "render local
remedies non-existent,
ineffective or illegal. They create a legal
situation in which the
judiciary can provide no check on the executive
branch of the government".
The African Commission on Human and
Peoples' Right also in its decision in
Zimbabwe Human Rights NGO
Forum/Zimbabwe, Comm.No.245 (2002), found that the
complainant had been
denied access to judicial remedies since the clemency
order introduced to
pardon "every person liable for any politically
motivated crime" had
prevented in effect the
complainant from bringing criminal action
against the perpetrators of such
crimes. The Commission began by stating at
paragraph 171 of its decision:
"The general obligation is on
States Parties to the different human rights
treaties to ensure through
relevant means that persons under their
jurisdiction are not discriminated
on any of the grounds in the relevant
treaty. Obligations under
international human rights law are generally
addressed in the first instance
to States. Their obligations are at least
threefold: to respect, to ensure
and to fulfill the rights under
international human rights treaties. A
State complies with the obligation
to respect the recognized rights by not
violating them. To ensure is to
take the requisite steps, in accordance
with its constitutional process and
the provisions of relevant treaty (in
this case the African Charter), to
adopt such legislative or other measures
which are necessary to give effect
to these rights. To fulfill the rights
means that any person whose rights
are violated would have an effective
remedy as rights without remedies have
little value. Article 1 of the
African Charter requires
States to ensure that effective
and enforceable remedies are available to
individuals in case of
discrimination."
The Commission went on to point out at paragraph
174:
"For there to be equal protection of the law, the law must
not only be
fairly applied but must be seen to be fairly applied. Paragraph
9 (3) (a)
of the Declaration on the Right and Responsibility of Individuals,
Groups
and Organs of Society to Promote and Protect Universally Recognized
Human
Rights and Fundamental Freedoms provides that everyone must be given
the
right to complain about the policies and actions of individual officials
and
governmental bodies with regard to violations of human rights and
fundamental freedoms, by petition or other appropriate means, to competent
domestic judicial, administrative or legislative authorities or any other
competent authority provided for by the legal system of the State, which
should render their decision on the complaint without undue
delay".
It is useful, finally, to refer to the decision
of the Constitutional Court
of South Africa in Zondi v MEC for Traditional
and Local Government Affairs
and Others 2005 (3) SA 589 (CC). The Court
found that certain provisions of
the Pound Ordinance of 1947 of
KwaZulu-Natal which allowed landowners to
bypass the courts and recover
damages against the owners of trespassing
animals were inconsistent with
section 34 of the Constitution which
guarantees the right of access to
courts.
At paragraph 82 of the judgement, Ngcobo J. made the
following pertinent
observations:
"The right of access to
courts is an aspect of the rule of law. And the
rule of law is one of the
foundational values on which our constitutional
democracy has been
established. In a constitutional democracy founded on
the rule of law,
disputes between the state and its subjects, and amongst
its subjects
themselves, should be adjudicated upon in accordance with law.
The more
potentially divisive the conflict is, the more important that it be
adjudicated upon in court. That is why a constitutional democracy assigns
the
resolution of disputes to "a court or, where appropriate,
another
independent and impartial tribunal or forum'. It is in this context
that
the right of access to courts guaranteed by section 34 of the
Constitution
must be understood".
The right to a fair hearing
before an individual is deprived of a right,
interest or legitimate
expectation is another principle well recognized and
entrenched in
law.
Any existing ouster clause in terms such as "the decision of
the Minister
shall not be subject to appeal or review in any court"
prohibits the court
from re-examining the decision of the Minister if the
decision reached by
him was one which he had jurisdiction to make. Any
decision affecting the
legal rights of individuals arrived at by a procedure
which offended against
natural justice was outside the jurisdiction of the
decision-making
authority so that, if the Minister did not comply with the
rules of natural
justice, his decision was ultra vires or without
jurisdiction and the ouster
clause did not prevent the Court from enquiring
whether his decision was
valid or not
- vide
Attorney-General of the Commonwealth of the Bahamas v Ryan (1980)
A.C.
718.
Lord Diplock for the Board of the Judicial Committee of the
Privy Council
stated in that case as follows:
"It has long
been settled law that a decision affecting the legal rights of
an individual
which is arrived at by a procedure which offends against the
principles of
natural justice is outside the jurisdiction of the
decision-making
authority. As Lord Selborne said as long ago as 1885 in
Spackman v
Plumstead District Board of Works (1885) 10 App.Cas.229,240:
"There would be
no decision within the meaning of the statute if there were
anything.done
contrary to the essence of justice". See also Ridge v.
Baldwin [1964]
A.C.40".
Moreover, in
Jackson v Attorney-General UKHL 56 (2006) 1 A.C. 262, Baroness
Hale made the
following observations at paragraph 159:
"The courts, will, of
course, decline to hold that Parliament has interfered
with fundamental
rights unless it has made its intentions crystal clear.
The courts will
treat with particular suspicion (and might even reject) any
attempt to
subvert the rule of law by removing governmental action affecting
the rights
of the individual from all judicial scrutiny".
We turn now to
consider the relevant provisions of Amendment 17. It is
quite clear that
the provisions of section 18 (1) and (9) dealing with the
constitutional
right to the protection of law and to a fair hearing have
been taken away in
relation to land acquired under section 16B (2) (a).
Indeed, the Supreme
Court of Zimbabwe explicitly acknowledges this in its
judgement, cited
above, when it stated:
"By the clear and unambiguous language of
s 16B (3) of the Constitution, the
Legislature, in the proper exercise of
its powers, has ousted the
jurisdiction of courts of law from any of the
cases in which a challenge to
the acquisition of agricultural land secured
in terms of s 16B (2) (a) of
the Constitution could have been sought. The
right to protection of law for
the enforcement of the right to fair
compensation in case of breach by the
acquiring authority of the obligation
to pay compensation has not been taken
away. The ouster provision is
limited in effect to providing protection
from judicial process to the
acquisition of agricultural land identified in
a notice published in the
Gazette in terms of s 16B (2) (a). An acquisition
of the land referred to
in s 16B (2) (a) would be a lawful acquisition. By
a fundamental law the
Legislature has unquestionably said that such an
acquisition shall not be
challenged in any court of law. There cannot be
any clearer language by
which the jurisdiction of the courts is excluded".
Learned Agent
for the Respondent seized upon the following statement
of
the Supreme Court at page 38
of its judgement to argue that an individual
whose property has been
acquired can proceed by judicial review:
"Section 16B (3) of the
Constitution has not however taken away for the
future the right of access
to the remedy of judicial review in a case where
the expropriation is, on
the face of the record, not in terms of s 16B (2)
(a). This is because the
principle behind s 16B (3) and s 16B (2) (a) is
that the acquisition must be
on the authority of law. The question whether
an expropriation is in terms
of s 16B (2) (a) of the Constitution and
therefore an acquisition within the
meaning of that law is a jurisdictional
question to be determined by the
exercise of judicial power. The duty of a
court of law is to uphold the
Constitution and the law of the land. If the
purported acquisition is, on
the face of the record, not in accordance with
the terms of s 16B (2) (a) of
the Constitution a court is under a duty to
uphold the Constitution and
declare it null and void. By no device can the
Legislature withdraw from
the determination by a court of justice the
question whether the state of
facts on the existence of which it provided
that the acquisition of
agricultural land must
depend existed in a particular case as
required by the provisions of s 16B
(2) (a) of the
Constitution".
No doubt there is a remedy but only in respect of
the payment of
compensation under section 16B (2) (b) but judicial review
does not lie at
all in respect of land acquired under section 16B (2) (a)
(i) and (ii), as
correctly submitted by learned counsel for the Applicants.
Indeed, the
Applicants' land had been acquired under section 16B (2) (a) (i)
and (ii).
It is significant that, whereas under section 16B (2) (a) (iii),
mention is
made of the acquiring authority i.e. a Minister whose decision
can
admittedly be subject to judicial review, no such mention is made in
respect
of section 16B (2) (a) (i) and (ii) so that in effect the Applicants
cannot
proceed by judicial review or otherwise. This is why specific
reference is
made to the fact that the provisions of section 18 (1) and (9)
do not apply
in relation to land acquired under section 16B (2) (a). The
Applicants have
been expressly denied the opportunity of going to court and
seeking redress
for the deprivation of their property, giving their version
of events and
making representations.
We are, therefore,
satisfied that the Applicants have established that they
have been deprived
of their agricultural lands without having had the right
of access to the
courts and the right to a fair hearing, which are essential
elements of the
rule of law, and we consequently hold that the Respondent
has acted in
breach of Article 4 (c) of the Treaty.
VI RACIAL
DISCRIMINATION
The other issue raised by the Applicants is that
of racial discrimination.
They contended that the land reform programme is
based on racial
discrimination in that it targets white Zimbabwean farmers
only. The
Applicants further argue that Amendment 17 was intended to
facilitate or
implement the land reform policy of the Government of Zimbabwe
based on
racial discrimination. This issue is captured in the Applicants'
Heads of
Arguments, paragraph 175, in the following
terms:
"That the actions of the Government of Zimbabwe in
expropriating land for
resettlement purposes has been based solely or
primarily on consideration of
race and ethnic origin. It is being directed
at white farmers. In reality
it was aimed at persons who owned land because
they were white. It mattered
not whether they acquired the land during the
colonial period or after
independence".
The Applicants
further argued at paragraph 128 of the Heads of Argument
that:
"The evidence presented to this Tribunal shows as a
fact that the decision
as to whether or not agricultural raw land in
Zimbabwe is to be expropriated
is determined by the race or country of
origin of the registered owner. In
terms of a policy designed to redress
the ownership of land created during
the colonial period, the GoZ has
determined that no person of white colour
or European origin was to retain
ownership of a farm, and all such farms
were to be expropriated. The fact
that this could not be done through the
normal procedures between 2000 and
2005 led to the enactment of Amendment
17, which was the ultimate
legislative tool used by the GoZ to seize all the
white owned
farms".
The Applicants went on to argue that, even if Amendment
17 made no reference
to the race and colour of the owners of the land
acquired, that
does not mean that the legislative aim is not
based on considerations of
race or colour since only white owned farms were
targeted by the Amendment.
There is a clear legislative intent directed only
at white farmers.
According to the Applicants, the Amendment strikes at
white farmers only and
no other rational categorization is apparent
therein. The Applicants
further contended that the targeted farms were
expropriated and given to
certain beneficiaries whom they referred to as
"chefs" or a class of
politically connected beneficiaries. These were, in
the words of the
Applicants, "senior political or judicial, or senior
members of the armed
services".
It is on the basis of those
arguments that the Applicants, therefore,
submitted in conclusion that the
Respondent is in breach of Article 6 (2) of
the Treaty, prohibiting
discrimination, by enacting and implementing
Amendment
17.
The Respondent, for its part, refuted the allegations by the
Applicants that
the land reform programme is targeted at white farmers
only. It argued
instead that the programme is for the
benefit of people who were
disadvantaged under colonialism and it is within
this context that the
Applicants' farms were identified for acquisition by
the Respondent. The
farms acquired are suitable for agricultural purposes
and happen to be
largely owned by the white Zimbabweans. In implementing
the land reform
programme, therefore, it was inevitable that the people who
were likely to
be affected would be white farmers. Such expropriation of
land under the
Programme cannot be attributed to racism but circumstances
brought about by
colonial history. In any case, according to the
Respondent, not only lands
belonging to white Zimbabweans have been targeted
for expropriation but also
those of the few black Zimbabweans who possessed
large tracts of land.
Moreover, some white farmers have been issued with
offer letters and 99-year
leases in respect of agricultural lands. The
Respondent has, therefore, not
discriminated against white Zimbabwean
farmers and has not acted in breach
of Article 6 (2) of the
Treaty.
The Tribunal has to determine
whether or not Amendment 17 discriminates
against the Applicants and as such
violates the obligation that the
Respondent has undertaken under the Treaty
to prohibit discrimination.
It should first be noted that
discrimination of whatever nature is outlawed
or prohibited in international
law. There are several international
instruments and treaties which
prohibit discrimination based on race, the
most important one being the
United Nations Charter, which provides in
Article 1 (3) that one of its
purposes is:
"To achieve international corporation in solving
international problems of
an economic, social, cultural or humanitarian
character, and in promoting
and encouraging respect for human rights and
fundamental freedoms for all
without distinction as to race, sex, language
or religion". (emphasis
supplied).
There is also the
Universal Declaration of Human Rights which provides in
Article 2 as
follows:
"Everyone is entitled to all the rights and freedoms set
forth in this
Declaration without distinction of any kind, such as race,
colour, sex,
language, religion, political or other opinion, national or
social origin,
property, birth or other status". (emphasis
supplied).
Moreover, Article 2 (1) of the International Covenant
on Civil and Political
Rights and Article 2 (2) of the International
Covenant on Economic, Social
and Cultural Rights prohibit racial
discrimination, respectively, as
follows:
"Each State party
to the present Covenant undertakes to respect and ensure
to all individuals
within its territory without distinction of any kind such
as race, colour,
sex, language, religion, political or other opinion,
national or social
origin, property, birth or other status".
"The States parties to
the present Covenant undertake to guarantee that the
rights enunciated in
the present Covenant will be exercised without
discrimination of any kind as
to race, colour, sex, language, religious,
political or other opinion,
national or social origin, property, birth or
other status". (emphasis
supplied).
The above provisions are similar to Article 2 of the
African Charter on
Human and Peoples' Rights (African Charter) and Article
14 of the European
Convention on Human Rights.
Discrimination
on the basis of race is also outlawed by the Convention On
the Elimination
of All Forms of Racial Discrimination (the Convention). It
is worth noting
that the Respondent has acceded to both Covenants, the
African Charter and
the Convention and, by doing so, is under an obligation
to respect, protect
and promote the principle of non-discrimination and
must, therefore,
prohibit and outlaw any discrimination based on the ground
of race in its
laws, policies and
practices.
Apart from all
the international human rights instruments and treaties, the
Treaty also
prohibits discrimination. Article 6 (2) states as follows:
"SADC
and Member States shall not discriminate against any person on grounds
of
gender, religion, political views, race, ethnic origin, culture, ill
health,
disability or such other ground as may be determined by the Summit"
(emphasis supplied).
This Article, therefore, enjoins SADC
and Member States, including the
Respondent, not to discriminate against any
person on the stated grounds,
one of which is race.
The
question then is, what is racial discrimination? It is to be noted that
the
Treaty does not define racial discrimination or offer any guidelines to
that
effect. Article 1 of the Convention is as follows:
"Any
distinction, exclusion, restriction or preference based on race,
colour,
descent, or natural or ethnic origin which has the purpose or effect
of
nullifying or impairing the recognition, enjoyment or exercise on an
equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life". (the emphasis
is supplied).
Moreover, the Human Rights Committee in its
General Comment No. 18 on
non-discrimination has, in paragraph 7, defined
discrimination as used in
the Covenant on Civil and Political Rights as
implying "any distinction,
exclusion, restriction or preference which is
based on any ground such as
race, colour, sex, language, religion, political
or other opinion, national
or social origin, property, birth or other
status, and which has the purpose
or effect of nullifying or impairing the
recognition, enjoyment or exercise
by all persons, on an equal footing, of
all rights and freedoms". (the
underlining is supplied).
The
Committee on Economic, Social and Cultural Rights, for its part, in its
General Comment No. 16 on the equal right of men and women to the equality
of all economic, social and cultural rights underlined at paragraph 13 that
"guarantees of non-discrimination and equality in international human rights
treaties mandate both de facto and de jure equality. De
jure
(or formal) equality and de facto (or substantive)
equality are different
but interconnected concepts".
The
Committee further pointed out that formal equality assumes that equality
is
achieved if a law or policy treats everyone equal in a neutral manner.
Substantive equality is concerned, in addition, with the effects of laws,
policies and practices in order to ensure that they do not discriminate
against any individual or group of individuals.
The Committee
went on to state at paragraphs 12 and 13 respectively
that:
"Direct discrimination occurs when a difference in
treatment relies directly
and explicitly on distinctions based exclusively
on sex and characteristics
of men or women, which cannot be justified
objectively".
"Indirect discrimination occurs when a law, policy
or programme does not
appear to be discriminatory but has a discriminatory
effect when
implemented". (Emphasis supplied).
It is to be
noted that what the Committee is stating about direct and
indirect
discrimination in the context of sex applies equally in the case of
any
other prohibited ground under the Covenant such as race.
The
question that arises is whether Amendment 17 subjects the Applicants to
any
racial discrimination, as defined above. It is clear that the Amendment
affected all agricultural lands or farms occupied and owned by the
Applicants and all the Applicants are white farmers. Can it then be said
that, because all the farms affected by the Amendment belong to white
farmers, the Amendment and the land reform programme are racially
discriminatory?
We note here that there is no explicit
mention of race, ethnicity or people
of a particular origin in Amendment 17
as to make it racially
discriminatory. If any such reference were made,
that would make the
provision expressly discriminatory against a particular
race or ethnic
group. The effect of such reference would be that the
Respondent would be
in breach of its obligations under the Article 6 (2) of
the Treaty.
The question is whether, in the absence of
the explicit mention of the word
"race" in Amendment 17, that would be the
end of the matter. It should be
recalled that the Applicants argued that,
even if Amendment could be held
not to be racially discriminatory in itself,
its effects make it
discriminatory because the targeted agricultural lands
are all owned by
white farmers and that the purpose of Amendment 17 was to
make it apply to
white farmers only, regardless of any other factors such as
the proper use
of their lands, their citizenship, their length of residence
in Zimbabwe or
any other factor other than the colour of their
skin.
Since the effects of the implementation of Amendment 17
will be felt by the
Zimbabwean white farmers only, we consider it, although
Amendment 17 does
not explicitly refer to white farmers, as we have
indicated above, its
implementation affects white farmers only and
consequently constitutes
indirect discrimination or de facto or substantive
inequality.
In examining the effects of Amendment 17 on the
applicants, it is clear to
us that those effects have had an unjustifiable
and disproportionate impact
upon a group of individuals distinguished by
race such as the Applicants.
We consider that the differentiation of
treatment meted out to the
Applicants also constitutes discrimination as the
criteria for such
differentiation are not reasonable and objective but
arbitrary and are based
primarily on considerations of race. The aim of the
Respondent in adopting
and implementing a land reform programme might be
legitimate if and when all
lands under the programme were indeed distributed
to poor, landless and
other disadvantaged and marginalized individuals or
groups.
We, therefore, hold that, implementing Amendment 17, the
Respondent has
discriminated against the Applicants on the basis of race and
thereby
violated its obligation under Article 6 (2) of the
Treaty.
We wish to observe here that if: (a) the criteria adopted
by the Respondent
in relation to the land reform programme had not been
arbitrary but
reasonable and objective; (b) fair compensation was paid in
respect of the
expropriated lands, and (c) the lands expropriated were
indeed distributed
to poor, landless and other disadvantaged and
marginalized individuals or
groups, rendering the purpose of the programme
legitimate, the differential
treatment afforded to the Applicants would not
constitute racial
discrimination.
We can do no better than
quote in this regard what the Supreme Court of
Zimbabwe stated in Commercial
Farmers Union v Minister of Lands 2001 (2) SA
925 (ZSC) at paragraph 9 where
it dealt with the history of land injustice
in Zimbabwe and the need for a
land reform programme under the rule of law:
"We are not entirely
convinced that the expropriation of white farmers, if
it is done lawfully
and fair compensation is paid, can be said to be
discriminatory. But there
can be no doubt that it is unfair
discrimination.to award the spoils of
expropriation primarily to ruling
party
adherents".
VII COMPENSATION
The
Applicants have also raised the issue of compensation. Learned Counsel
for
the Applicants contended that expropriation of their lands by the
Respondent
was not accompanied by compensation and that failure to do so is
a breach of
the Respondent's obligations under international law and the
Treaty. We
note that the Respondent does not dispute the fact that
the
Applicants are entitled to compensation. It, however, argued that the
independence agreement reached in 1978 in London provided that payment of
compensation for expropriated land for resettlement purposes would be paid
by the former colonial power, Britain.
As regards the
question of who should pay compensation, ordinarily in
international law it
is the expropriating state that should pay
compensation. This would mean
that, respecting the matter at hand, the
Respondent should shoulder the
responsibility of paying compensation to the
Applicants for their
expropriated lands. We note, however, that section 16B
(2) (b) of the
Amendment provides as follows:
"No compensation shall be payable
for land referred to in paragraph (a)
except for any improvements effected
on such land before it is acquired".
This provision excludes
payment of compensation for land referred to in
paragraph (a), (i) and (ii)
which is agricultural land that has been
acquired for resettlement
purposes. It is 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 under international
law to be paid, and the correlative duty of
the Respondent to pay, fair
compensation.
Moreover, the
Respondent cannot rely on its national law, its Constitution,
to avoid an
international law obligation to pay compensation as we have
already
indicated above.
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.
VIII
CONCLUSIONS
For the reasons given, the Tribunal holds and
declares that:
(a) by unanimity, the Tribunal has
jurisdiction to entertain the
application;
(b) by unanimity, the
Applicants have been denied access to the courts
in Zimbabwe;
(c)
by a majority of four to one, the Applicants have been discriminated
against
on the ground of race, and
(d) by unanimity, fair compensation is
payable to the Applicants for
their lands compulsorily acquired by the
Respondent.
The Tribunal further holds and declares
that:
(1) by unanimity, the Respondent is in breach of its
obligations under
Article 4 (c) and, by a majority of four to one, the
Respondent is in breach
of its obligations under Article 6 (2) of the
Treaty;
(2) by unanimity, Amendment 17 is in breach of Article 4 (c)
and, by a
majority of four to one, Amendment 17 is in breach of Article 6
(2) of the
Treaty;
(3) by unanimity, the Respondent is directed
to take all necessary
measures, through its agents, to protect the
possession, occupation and
ownership of the lands of the Applicants, except
for Christopher Mellish
Jarret, Tengwe Estates (Pvt) Ltd. and France Farm
(Pvt) Ltd. that have
already been evicted from their lands, and to take all
appropriate measures
to ensure that no action is taken, pursuant to
Amendment 17, directly or
indirectly, whether by its agents or by others, to
evict from, or interfere
with, the peaceful residence on, and of those farms
by, the Applicants, and
(4) by unanimity, the Respondent is directed
to pay fair compensation,
on or before 30 June 2009, to the three
Applicants, namely, Christopher
Mellish Jarret, Tengwe Estates (Pvt) Ltd.
and France Farm (Pvt) Ltd.
By a majority of four to one, the
Tribunal makes no order as to costs in the
circumstances.
Delivered in open court this ....Day
of........, at Windhoek in the Republic
of
Namibia.
...........................
H.E
Justice Ariranga Govindasamy
Pillay
PRESIDENT
...........................
H.E
Justice Isaac Jamu Mtambo,
SC
MEMBER
...........................
H.E
Justice Dr Luis Antonio
Mondlane
MEMBER
...........................
H.E
Justice Dr Rigoberto
Kambovo
MEMBER
...........................
H.E
Justice Dr Onkemetse B. Tshosa
MEMBER
Reuters
Mon 1 Dec 2008,
6:14 GMT
JOHANNESBURG (Reuters) - Zimbabwe's government will defy a
southern Africa
tribunal ruling to stop the seizure of white-owned farms and
will continue
its land reforms, a state-run newspaper on Monday quoted a
minister as
saying.
A South African Development Community tribunal
ruled on Friday that
Zimbabwe's planned seizure of dozens of white-owned
farms violated
international law and should be halted immediately.
It
said Zimbabwe should take all measures to protect the possessions and
property of 75 white farmers who challenged the legality of a contested land
reform programme, and also ordered other farmers be compensated for land
taken.
But Didymus Mutasa, minister of state for national security,
lands, land
reform and resettlement, was quoted in the Herald newspaper as
saying
President Robert Mugabe's government would ignore the
judgement.
"They (the tribunal) are day-dreaming because we are not going
to reverse
the land reform exercise," he said.
"There is nothing
special about the 75 farmers and we will take more farms.
It's not
discrimination against farmers, but correcting land imbalances," he
said.
Critics blame an economic meltdown in Zimbabwe on Mugabe's
policies,
including the land reform that started in 2000 and replaced white,
commercial farmers with landless blacks.
The move has led to the
collapse of the country's once prosperous
agricultural sector, pushing
millions to the edge of famine.
Zimbabwe is suffering from an official
inflation rate of 231 million percent
and chronic shortages of food and
fuel.
SADC, a regional grouping of 15 African nations that includes
Zimbabwe, has
been pressuring Mugabe and the main opposition Movement for
Democratic
Change to move quickly to form a unity government under a
September 15
power-sharing deal.
The two sides, however, have reached
a deadlock over the control of key
ministries in a future cabinet.
Email: jag@mango.zw : justiceforagriculture@zol.co.zw
JAG
Hotlines: +263 (011) 610 073, +263 (04) 799410. If you are in trouble
or
need advice, please don't hesitate to contact us - we're here to help!
To
subscribe/unsubscribe to the JAG mailing list, please email: jag@mango.zw
with subject line "subscribe" or
"unsubscribe".
----------------------------------------------------------------------------
These
are excerpts of a legal overview by Dave Drury ahead of the SADC
Tribunal
Judgement in the Mike Campbell Case.
RE: THE IMPLOSION OF HUMAN RIGHTS IN
ZIMBABWE - SOVEREIGN IMPUNITY -
DISREGARD OF THE SADC TREATY AND PROTOCOLS -
SADC TRIBUNAL INTERIM RULINGS
MIKE CAMPBELL (PVT) LIMITED AND OTHERS V THE
GOVERNMENT OF THE REPUBLIC OF
ZIMBABWE - SADC CASE NOS 02/07;02-04/08; O6/08
- CONTEMPT OF THE SADC
TRIBUNAL SADCT T 11/08
In spite of numerous
assurances regarding compliance with the SADC interim
ruling in the Campbell
case, Minister Mutasa in his capacity as the
acquiring authority together
with the support of land officials has
continued with the issue of fresh
offer letters, fresh acquisition orders
and fresh or resuscitated
prosecutions under our Gazetted Land
(Consequential Provisions) Act Chapter
20:28.
If the current trend to evictions and confiscation of property
continues, as
appears to be the case, so-called `white' commercial farming in
Zimbabwe
will effectively be extinguished and for no other reason other
than
genetics. This is discriminatory and offends the Treaty as well as all
known
international human right conventions.
We have emphasized before
the Tribunal, as we do here, that there is no
quarrel with an organized, fair
and transparent programme of land reform. We
make it clear in our application
before the Tribunal, that the need to
redress the racially skewed land
holding pattern in Zimbabwe, created and
implemented through colonial laws
and practices, is not only a moral but a
legal necessity.
The
complaints articulated before the Tribunal by the applicants go to the
manner
in which the programme of land reform has been and continues to
be
implemented and executed by the Government of Zimbabwe.
We say that
systemic racism is a crime against humanity.
We have submitted before the
Tribunal that systematic arbitrary deprivations
of agricultural land in
Zimbabwe, solely predicated by racial
considerations, has and continues in
perpetuity. We say that this is a
contravention of international law and
violates the SADC Treaty and its
Protocols in particular Article 6.2 to the
Treaty.
We of course accept that in the absence of discrimination that
any form of
"public interest" to the taking of agricultural land, will
suffice, however
economically or politically controversial" the taking might
be, provided
that the taking of land is in the public interest, is open to
the scrutiny
of the courts and is subject always to the inherent duty or
right recognised
under international law to provide an appropriate measure of
compensation.
It is indisputable that affected parties in Zimbabwe have
been absolutely
deprived, because of the effect and reach of Constitutional
Amendment No 17,
of the opportunity to make application to court to challenge
the fact of
acquisition. Section 16B (3) (a) of the Constitution constitutes
a complete
ouster of the Courts to consider the challenge to the taking of
land.
In terms of Amendment No 17, the acquisition of land takes place
through the
simple expedient of Gazetted publications most of which are
applied
retrospectively. The Amendment extinguished "the rule of law"
and
protection to the law in stark and absolute terms.
A further
grievance articulated by the applicants is that there is not one
instance of
payment for compensation - even the watered-down compensation
for
improvements but not the land - in accordance with the provisions of
section
16 (1) (c) of the Constitution as read with the provisions of Part V
of the
Land Acquisition Act Chapter 20:10. This too offends all known human
right
conventions and is inimical to the Treaty.
It is these human right
complaints, that await determination by the SADC
Tribunal as the final
arbiter of human rights for the region and its people.
THE SADC TRIBUNAL
SUBSTANTIVE RULING
The Registrar of the Tribunal, Hon Mr Justice
Mkandawire has provided us
with written notice that the substantive ruling on
the merits of the
Campbell case is to be handed down in Windhoek on the 28th
November 2008.
CONCERNS WITH CONTINUING OR FRESH PROSECUTIONS,
INTERFERENCE WITH FARMING
OPERATIONS AND FRESH SPOLIATION
No matter
government's verbal assurances and representations through the
Acting
Attorney General and from Government's lead Counsel Advocate Machaya,
we
inform you of a continuation of violations to the Tribunal
rulings.
Minister Mutasa and others acting at local level have continued
with the
issue of fresh offer letters to new beneficiaries of land occupied
by
`white' farmers. In the cases that I have dealt with the beneficiaries
are
invariably senior Reserve Bank employees, high-ranking members of
the
Zimbabwe National Army or the police force and so on.
Land
officials with the support or acquiescence of the police encourage
and
support these summary invasions based on fresh or old offer letters
issued
by the Minister.
Also, fresh or resuscitated prosecutions
against occupants having paper
protection of the SADC interim rulings have
continued.
Admittedly, the Acting Attorney General has attempted to put a
stop to these
prosecutions. However, his directions appear to have difficulty
in filtering
down to local police stations and magistrates courts.
We
do wish to burden this letter with voluminous detailed evidence of each
and
every violation that has occurred. If necessary SITREP's of
spoliations,
threats or interference put together by the Commercial Farmers
Union can be
made available to you.
THE MORAL AND LEGAL DUTY OF MEMBER
STATES TO ENSURE ADHERENCE TO THE TERMS
AND CONDITIONS OF THE
TREATY
We respectfully submit that there is now, more than ever, a
requirement for
urgent collective regional action to ensure the
accountability of the
Government of the Republic of Zimbabwe to the terms,
conditions, objectives
and undertakings of the SADC Treaty, its related
Protocols and more
importantly to the decisions of the Tribunal.
We
submit that this duty is owed not only to the people of Zimbabwe but is
owed
to the peoples of the SADC region as a whole.
If this is not done as a
matter of urgency the core principles, objectives
and general undertakings
articulated in the SADC Treaty - specifically in
Articles 4, 5 and 6 of the
Treaty - which speaks to the rule of law, the
promotion of human rights,
democracy and non-discrimination will be rendered
an illusion.
You
will appreciate that the Tribunal, established under Article 9 of the
Treaty,
is integral to the effectiveness of the Treaty.
You will also note that
the Tribunal is empowered in terms of Article 16 "to
ensure adherence to and
the proper interpretation of the provisions of (the)
Treaty and subsidiary
instruments and to adjudicate upon such disputes as
may be referred to
it."
Article 14 of the Protocol on Tribunal and the Rules of Procedure
Thereof
(the "Protocol") provides that the "Tribunal shall have jurisdiction
over
all disputes and all applications referred to it in accordance with
the
Treaty and this Protocol which relate to:
(a) the interpretation and
application of the Treaty;
(b) the interpretation, application or validity of
the Protocols, all
subsidiary instruments adopted within the framework of the
Community, and
acts of the institutions of the community;
(c) all matters
specifically provided for in any other agreements that
States may conclude
among themselves or within the community and which
confer jurisdiction on the
Tribunal."
Article 15 (1) of the Protocol provides that "the Tribunal
shall have
jurisdiction over disputes between States, and between natural or
legal
persons and States."
Importantly, Article 32 (2) and (3) to the
Protocol - expressed in mandatory
and peremptory language - provides
that:
" 2. States and institutions of the community shall take forthwith
all
measures necessary to ensure execution of decisions of the
Tribunal.
3. Decisions of the Tribunal shall be binding upon the parties
to the
dispute in respect of * [a] * particular case and enforceable within
the
territories of the States concerned."
Their Excellencies, the
Honourable Judges of the Tribunal, have mentioned
that they are attempting to
build a "House of Justice" for the region and
its people. That "House of
Justice" incorporates findings and the
articulation of human rights, the rule
of law and principles of democracy as
enshrined in article 4 c) to the
Treaty.
You will note that the Tribunal was presented with "overwhelming
evidence"
by the applicants of the contempts by the Government of Zimbabwe to
its
rulings.
That contempt finding, as you are aware, was referred to
a Justice
Committee. The committee is mandated to recommend to Summit Heads
what
appropriate measures should be invoked against the government of
Zimbabwe.
This referral took place in August 2007 at the Summit meeting
in
Johannesburg. Since then, the Committee has not been convened.
We
respectfully submit that the delay or warehousing of the contempt
ruling
violates the integrity of the Tribunal.
Whilst we appreciate
that there have been ongoing "unity" talks between the
MDC and ZANU PF
mediated by SADC, it is our respectful submission that this
should not be an
impediment to the final determination of the contempt
finding. To do nothing,
will denigrate the standing of the Tribunal.
We further submit that if
the interim orders are ignored and nothing is done
about the contempt by
Summit Heads, now required as a matter of urgency, any
substantive relief
that may be obtained on the merits on 28 November 2008
will also be ignored
as our Government will have nothing to fear by
disregarding the final
ruling.
We submit that it is imperative that this should not be allowed
to happen.
CONCERNS TO THE IMPLOSION OF HUMAN RIGHTS IN ZIMBABWE
A
SAPA report on the 19 June 2008 recorded that: "Zimbabwe is experiencing
an
`epidemic of torture'. Piers Pigou said that ongoing human
rights
violations*fall into the category of crimes against humanity rather
than
just political violence.
Pigou a former investigator for SA's
Truth and Reconciliation Commission
said the Zimbabwean government would be
hard-pressed to deny the widespread
complicity of state officials in the
perpetration of gross human rights
violations in the country since
2000.
`These include abductions, disappearances,
extra-judicial
executions*extremely widespread employment of torture and
other forms of
physical and psychological' trauma".
The `pungwes' and
`jambanjas'- to use local colloquialisms - that occurred
in the Chegutu
farming district constitute a microcosm of events elsewhere
in the country
between March and the end of June 2008.
Chegutu police station
effectively became a joint operational command center
for the
militarization/politicization of the district between March to at
least the
early part of July 2008.
Major Tauya of the Zimbabwe National Army was
deployed to Chegutu Police
station together with other military personnel and
Central Intelligence
operatives. Their mandate was to control and direct
operations in and about
the district at the specific direction of the prior
Government and ruling
party.
Militia camps or bases comprising ZANU
(PF) militia were specifically
established in and about the Pickstone Mine
area in Chegutu.
Gilbert Moyo of Masterpiece Farm - a so-called war
veteran and beneficiary
of a portion of Masterpiece farm - was given free
reign to mobilize youths
for the specific purpose of targeting `white'
commercial farmers and their
workers on their properties in an effort to
drive them off their land and
from their homes.
From affidavits and
statements obtained from numerous witnesses, the reason
for targeting `white'
commercial farmers and their workers was that they
were perceived to be
aligned to the MDC political party, and/or were
advocating a change of
government and/or had embarrassed government by
taking government to the
Tribunal to assert human right violations.
It is common cause that a
spate of lawless invasions, beatings, and looting
took place on targeted
commercial farms in the Chegutu district between
March to the end of June
2008.
It is true that Moyo and others were belatedly - in July 2008 -
arrested and
that they were placed on remand.
We submit that this was
probably done to sanitise Governments prior inaction
to the wave of
lawlessness that was allowed to occur with impunity between
March and June
2008.
The arrests, we surmise, were to give some credibility to
Government's
response to complaints reported to the Tribunal of this
lawlessness.
Government's response to the accusation articulated chiefly
through the
Government owned Herald newspaper was predictable. This was to
the effect
that persons such as Moyo were a lawless element on a frolic of
their own
over whom they had no control.
This is not a new position
adopted by Government.
A similar explanation was preferred by our
Government in the matter of
Zimbabwe Human Rights NGO Forum v Zimbabwe. This
was case brought before the
African Commission [Communication 245/2002 - 21st
Activity Report (2006)]
which complained that the blanket pardon offered by
the President to
political violence that was spawned in 2002 constituted
violations to the
African Charter on Human Rights. The Commission in that
case found the
Zimbabwe Government to be culpable.
The truth is that
Moyo and his accomplices were given free reign to beat up,
steal and throw
white farmers and their workers off their properties.
That state of
affairs was allowed to persist over several months, the police
and other
enforcement agents in Chegutu turning a blind eye to this unlawful
conduct.
The Campbells from Mount Carmel farm were as you are well aware
horribly
beaten up and have suffered permanent injuries. During the course
of their
abduction the Campbell's were forced to write a withdrawal note of
their
claims to the Tribunal.
Moyo has still not been substantively tried for
any wrongdoing despite the
passage of several months since his
arrest.
Our request to receive some progress report to the intended
prosecution of
Moyo and others has been met with a wall of silence.
38
other persons arrested with him have since been released from remand with
the
consent of the State.
This development has not been
encouraging.
We also report that we have filmed evidence of looting that
took place
during daylight hours on Stockdale farm on 22 June
2008.
Stockdale is about three kilometers from Chegutu police station as
the crow
flies. Stockdale was at that time occupied and utilized by Richard
Thomas
Etheredge and his sons. (See SADCT Court application
04/08).
The film shows a vehicle that was used to ferry loot from the
Etheredge's
residences.
It also shows persons actually involved in the
looting.
This includes a man believed to be a CIO operative or bodyguard
of Senator
Edna Madzongwe the leader of our Senate. The Senator happens to be
the
aspirant beneficiary of Stockdale farm presently re-occupied by
the
Etheredges who have lost millions to the looting.
A copy of the
film was handed to the CID investigating team in July 2008.
However, the
driver of the vehicle - believed to be in the employ of the
State - has not
been arrested. In all probability his arrest has not taken
place because of
political pressure and concomitant potential political
embarrassment that
could arise.
To be fair, to the credit of the current CID investigating
team from
Chinhoyi, quantities of loot have since been recovered principally
from the
Pickstone mine area.
This recovered loot has been handed back
to affected complainants including
Etheredge, the Campbells and other
complainants.
We acknowledge that civil and political rights are
fundamental, but they
cannot be enjoyed on an empty stomach and less still by
reason of
unaccountability.
The Universal Declaration of Human Rights
is expressly or impliedly embraced
by the Constitutive Act of the African
Union, the African Charter on Human
and People's Rights and by the general
provisions expressed in the SADC
Treaty and its associated Protocols. Those
rights impose a duty on States to
protect the "inherent dignity" of
humankind.
It is submitted this duty goes further than clothing
individuals with legal
powers: they must be clothed with clothing.
We
submit that SADC as a community expects its citizens to be fed and
housed; to
be educated; to have access to protection to the law including
respect for
the rule of law; to the promotion and protection of human rights
and
democracy; that its citizens should enjoy access to medical and
social
services where needed and that SADC citizens have the right to work
and earn
a livelihood of their choice.
There is also a legitimate
moral and legal expectation by SADC citizens that
they have a right to good
governance through democratically elected
representatives appointed to office
through free and fair elections.
These broad based rights and
expectations - though not exhaustive - are
fundamental to the attainment of
peace, stability and to the dignity of
humankind within the SADC
region.
Empirical evidence in Zimbabwe establishes the
following:
We do not have a Parliament that validly functions. Nor do we
have a validly
elected Cabinet.
A Parliament comprising duly elected
Members has not effectively sat since
its dissolution in February/March
2008.
Arguably, the present de facto Zimbabwean `government' is
unconstitutional.
The 180 days between dissolution of the last Parliament
- for the purpose of
holding elections in March 2008 to appoint Members of
Parliament, Senators
and a President - and the reconvening of Parliament has
long since expired.
We respectfully submit that as presently constituted,
the de facto
`Government" does not truly represent an expression of the will
of the
people through democratically held free and fair elections.
It
is beyond doubt that the March 2008 elections were intrinsically flawed
-
marred as they were by violence and intimidation - as was the re-run
to
elect a President.
The violence and intimidation got so bad that Mr
Morgan Tsvangarai of MDCT
took the difficult step of withdrawing from the
June re-run.
The result of the re-run is now a matter of
history.
The SADC and Pan-African Parliamentary observer missions were
witness to the
reign of terror during this period.
Our Government, on
the pretext that there was a prior hidden agenda to
discredit the elections,
blocked other observer missions from entry into
Zimbabwe.
Speaking for
myself, I have seen and heard the testimony of tortured persons
burnt with
hot plastic, who have suffered broken or severed limbs caused by
vicious
assaults because of their perceived support for the MDC and to the
burning
and looting of homes. These instances have been catalogued, recorded
and
reported graphically in numerous NGO reports, in affidavits, in
video
footage, in photographs and through taped recordings that have been
widely
disseminated.
The existence and proof of these facts
establishes that inroads into
democracy and to protection to the law has
occurred.
We submit these concerns ought to be of regional and not simply
domestic
concern.
So far as militarisation is concerned, we understand
that a military team
from your country were witness to this fact.
We
further understand that reports were compiled or are available by
that
team.
Naturally we are not privy to the content of those reports and
stand
correction if this assumption is wrong.
Be that as it may, I and
other legal practitioners in Zimbabwe are aware of
many instances of direct
involvement of military personnel in land
invasions.
Major General
Dube's invasion of Paul Stidolph's (SADCT 04/08) property on
Grand Parade in
Karoi, initially in September 2007 which, ultimately
resulted in Stidolph's
forced eviction from his house under gun-point in
May/June 2008 is but one
example.
It is a matter of public record that Brigadier-General Walter
Tapfumaneyi,
already a beneficiary of Nehanda's Promise farm in
Banket/Trelawney, took
over land on a Danish BIPA protected property occupied
by Kim Birketoft
registered in the name of Nyahondo Farm (Pvt) Ltd.
He
did so in July 2008 on the strength of an offer letter issued by
Minister
Mutasa dated 1st April 2008. The takeover and concomitant
deprivation to
Birketoft's land, home and livelihood has been ruled by our
Courts to be in
order. As to whether prompt, full and fair compensation by
Government in a
currency of choice by Birketoft in accordance with the BIPA
will be honoured
remains to be seen. With reference to past performance - the
Dutch ICSID
case in Paris - this is doubted.
Alex Masterson of Coghlan
Welsh & Guest has submitted written
representations concerning army
involvement to land invasions to the
Commissioner General of the Police Force
and to the Army Commander. He did
so under cover of letters dated 11 July
2008 and 21 July 2008. The content
of these letters is self-explanatory. As
far as we aware, the facts set out
in these letters have not been
disputed.
Copy letters are marked Appendix 2 and 3 and.
Our
economy has fallen into the abyss.
Inflation is the highest in recorded
history surpassing the fall of Nazi
Germany and Argentina in the worst days
of their economies.
Ten zero's were dropped off our currency some months
ago. Those zero's have
since reappeared.
The Governor of the Reserve
Bank keeps printing notes with ever increasing
number values.
The
current largest denomination is $1 million. That amount will not pay for
one
day's food requirement for an individual.
The Governor has now limited
cash access from personal bank accounts to a
paltry $500 000.00 a day as
sufficient notes to keep pace with inflation
cannot be printed quickly
enough.
$500 000.00 will not buy a can of Coke let alone provide for
three square
meals a day. Queues, particularly at Banks are enormous. We are
sure that
you have witnessed this as you drive through the City Centre in
Harare.
Banks and Building Societies, more often than not, in any event
run out of
cash before their close of business.
Save for "dollar"
shops - at selected "Spar" stores and their like - the
general public cannot
access supermarkets to buy basic commodities like oil,
sugar, mealie meal and
milk with Zimbabwean money.
The reality is that three square meals a day
for most people is a faint
memory or mist.
Agricultural inputs such as
seed, fertilizer and chemicals are simply not
obtainable. Even when imported
quantities are realized through the Central
Bank a chosen few [Reserve Bank
personnel, senior military officials and so
on] have priority to these
inputs.
Even with the best rain in living memory coupled with optimum
sunny periods,
Zimbabwe will not be able to feed itself in 2009.
Mr
Ambassador, a trip down any road into the former commercial farming
areas
will illustrate vast swathes of grass or weeds with little or no sign
of
commercial farming. Isolated islands of production are visible here
and
there.
Hospitals have collapsed. Medicines are not attainable and
even if one can
find them in a Pharmacy they are staggeringly
expensive.
Cholera is endemic.
Magistrates and court officials
have no bench paper or stationary.
The last reported cases in Zimbabwe is for
2002.
The High Court does not even have a circularized court
roll.
Education for the most part has collapsed.
There is no
freedom of the press.
Irrational laws continue to remain on our statute
books. One example is the
Exchange Control Act. This prohibits charging or
making payment for goods
and services in foreign currency at a time when no
one in the market is
prepared to receive local payment! Payment by cheque is
an impossibility as
no vendor or service provider is prepared to accept
cheque payments. The
American dollar, kept in stuffed mattresses and tin
boxes is king.
The mis-governance list and examples of economic implosion
go on and on.
It is not an exaggeration to say that Zimbabwe as a nation
is staring
starvation in the face.
Bilateral protection of investment
agreements - when it comes to
agricultural properties and investments - are
now, not protected against
summary acquisition.
Previously they
were.
The High Court of Zimbabwe granted numerous judgments in favour of
bilateral
protected properties.
I personally know of 16 prior High
Court Orders affirming BIPA property
protections.
The Ministry of
Foreign Affairs, to their credit have always supported the
protective status
of these properties.
However, you will know that our Supreme Court,
yesterday handed down an
order in the Nyahondo Farm (Pvt) Ltd case under SC
176/08.
This concerned a Danish previously protected property - now been
taken over
by Brigadier General Tapfumaneyi.
The judgment in that
matter is not now available as reasons are to follow.
The fact that an
order dismissing the appeal has been handed down before
written reasons have
become available is in itself extraordinary.
No matter that reasons have
not yet been provided by our Supreme Court, it
is clear that the decision of
the Court, which we are compelled to respect,
must be predicated on the fact
that Government did not domesticate the
Danish BIPA as an Act of Parliament
and accordingly the protections signed
for in that agreement are trumped by
Amendment No 17.
Whilst the Supreme Court decision requires to be
domestically respected, we
submit that the detrimental implications to
international investment
potential in Zimbabwe must be enormous.
It is
submitted that non-observance to bilateral agreements and Treaties
signed by
our Government, which can now be repudiated because the agreements
have not
been domesticated through promulgation of an Act of Parliament,
despite an
express or implied undertaking to do so, evidences a certain
degree of
dishonesty. This decision and the apparent stance adopted by
Government to
impugning these agreements is bound to put a brake on offers
of international
support and investment for this country by outsiders which
the region is
presumably anxious to attract.
These kinds of decisions, with respect,
cannot be in the domestic public
interest or for that matter in the interests
of the region as a whole.
But the stance adopted by our Government to
flouting Treaty provisions and
bilateral agreements cannot be defensible in
international customary law.
Article 27 of the Vienna Convention to which
Zimbabwe is a signatory - as
are all other Member States - provides
that:
"[a]* State may not invoke the fact that its consent to be bound by
a treaty
has been expressed in violation of a provision of its internal law
regarding
competence to conclude treaties as invalidating its consent, unless
that
violation was manifest and concerned a rule of its internal law
of
fundamental importance."
In Reference No 1 of 2006: Professor
Nyong'O and Ten Others v Attorney
General of Kenya and Two Others the East
African Regional Court had this to
say:
"it cannot be lawful for a
state that with others voluntarily enters into a
treaty by which rights and
obligations are vested, not only by the state
parties but also on their
people, to plead that is unable to perform its
obligation because its laws do
not permit it to do so".
See also R v Secretary of State for Transport,
ex parte Factortame Ltd and
Others [1990] ECR 1-2433.
DEFERENCE TO THE
SADC TREATY
Our Supreme Court, in the Mike Campbell constitutional case
SC 49/07 handed
down in January 2008, to use the words of Senior Counsel in
applicant's
heads of argument `gratuitously' mentioned that "the decision as
to matters
which require legislative control is for the Legislature alone to
make. It
also means that no law made by the legislature can be declared
repugnant to
an international instrument on the fundamental rights unless a
provision of
the Constitution or an Act of Parliament has incorporated it
into the law of
the country as required by section 111B (1) of the
Constitution" (page 11
Mike Campbell (Pvt) Ltd and Another v The Minister of
National Security
Responsible for Land, Land Reform and Resettlement and
Another SC 49/07).
This comment must have been made in consequence of the
receipt by the
Supreme Court of the interim ruling of the Tribunal in
December 2007.
At that time Campbell was still waiting for our Supreme
Court to render its
judgment to what the applicants in that matter had
asserted were
constitutional violations to their fundamental human
rights.
Some comment must be made in respect of Section 111B of the
Constitution.
This provision in our Constitution was introduced by
Section 12 (1) of Act 4
of 1993. The new section came into effect on 1
November 1993.
Subsection (1) reads as follows:
" Except as
otherwise provided by this Constitution or by or under an Act of
Parliament,
any convention, treaty or agreement acceded to, concluded or
executed by or
under the authority of the President with one or more foreign
states or
governments or international organisations --
(a) shall be subject to
approval by Parliament; and
(b) shall not form part of the law of Zimbabwe
unless it has been
incorporated into the law by or under an Act of
Parliament."
Subsection (2) provides that
"Except as otherwise
provided by or under an Act of Parliament, any
agreement --
(a) which has
been concluded or executed by or under the authority of the
President with
one or more foreign organisations, corporations or entities,
other than a
foreign State or government or an international organisation;
and
(b)
which imposes fiscal obligations upon Zimbabwe;
shall be subject to approval
by Parliament."
Subsection (3) reads:
"Except as otherwise
provided by this Constitution or by or under an Act of
Parliament, the
provisions of subsection (1) (a) shall not apply to --
(a) any convention,
treaty or agreement, or any class thereof, which
Parliament has by resolution
declared shall not require approval in terms of
subsection (1) (8); or
(b)
any convention, treaty or agreement the subject matter which falls
within the
scope of the prerogative powers of the President referred to in
section 31 H
(3) in the sphere of international relations;
unless the application or
operation of the convention, treaty or agreement
requires --
(i) the
withdrawal or appropriation of monies from the Consolidated Revenue
Fund;
or
(ii) any modification of the law of Zimbabwe."
Section 12 (2) of
Act 4 of 1993 provided that the new section 111B shall not
have the effect of
requiring approval by Parliament of any convention,
treaty or agreement which
is acceded to, concluded or executed by or under
the authority of the
President before the 1st November, 1993, and which,
immediately before that
date, did not require approval or ratification by
Parliament.
Applying
these provisions to the SADC Treaty we can say that Honourable
President R G
Mugabe signed the SADC Treaty in Windhoek for and on behalf of
the people of
Zimbabwe. He did so on the 17th August 1992.
Section 31H of the
Constitution concerns the Executive functions of the
President.
His
functions are articulated thus:
"The executive authority of Zimbabwe
shall vest in the President and,
subject to the provisions of this
Constitution, may be exercised by him
directly or through the Cabinet, a
Vice-President, a Minister or a Deputy
Minister."
(2) It shall be the
duty of the President to uphold this Constitution and
ensure that the
provisions of this Constitution and of all other laws in
force in Zimbabwe
are faithfully executed.
(3) The President shall have such powers as are
conferred upon him by this
Constitution or by or under any Act of Parliament
or other law or convention
and, subject to any provision made by Parliament,
shall, as Head of State,
in addition have such prerogative powers as were
exercisable before the
appointed day.
(4) Without prejudice to the
generality of subsection (3), the President
shall have power, subject to the
provisions of this Constitution --
(a)*****
(b) to enter into
international conventions, treaties and agreements; and
(c)
******;and
(d)******.;and
(e)******.."
We submit that the President
signed the SADC Treaty in the exercise of his
prerogative powers under
section 31H (3). He did so for and on behalf of the
people of Zimbabwe
including Mike Campbell as well as all the intervener
applicants.
We
submit that the Treaty, when signed, did not require the withdrawal of
any
money from the Consolidated Revenue Fund and did not require any
modification
of the law of Zimbabwe.
We further submit that the Treaty did not require
ratification by
Parliament.
But even if the Treaty did require
ratification by Parliament, it was in
fact ratified on the 17 November
1992.
An extract from page 2 of the Matrix uplifted from our Ministry of
Foreign
Affairs is marked Appendix 4 of the.
But even if all these
contentions are not accepted, the law of Zimbabwe - as
it stood at in August
and November 1992 - did not require, for purposes of
domestication, the
additional procedural requirement of promulgation as an
Act of
Parliament.
This further procedural requirement only came into being with
effect from 1
November 2003 when section 111B was promulgated.
There
is a presumption against retrospectivity. Since retrospection is
not
expressed it cannot apply to prior concluded Treaties.
But even if
this is not accepted, as a matter of international customary
law, the failure
by Government to promulgate the Treaty into an Act of
Parliament because it
forgot to promulgate the Treaty as an Act of
Parliament or deliberately chose
not to do so, that omission cannot trump
the binding nature of the Treaty as
a matter of international customary law.
This submission is supported by
the application of section 27 (2) of the
Vienna Convention (supra) to which
Zimbabwe is a signatory. The cases
mentioned earlier - Professor Nyong'O and
the Factortame case apply.
But in any event, Article 6 (4), 6 (5) and 6
(6) to the Treaty are
significant and important. These provide:
"4.
Member States shall take all steps necessary to ensure the
uniform
application of this Treaty.
5. Member States shall take all
necessary steps to accord this Treaty the
force of national law."
It
is submitted these sections require to be read with Articles 32 (2) and
(3)
of the Protocol signed by the President in Windhoek, in the exercise of
his
prerogative powers on 7th August 2000. Those sections speak to
the
enforcement and execution of Tribunal decisions within the territories
of
the States concerned.
These considerations are mentioned because
Advocate George Coleman of the
Windhoek Bar and Professor Gerhard Erasmus
have provided an opinion to the
meaning and effect of the Treaty. His
Excellency the Ambassador has kindly
provided extracts of the opinion. It was
intimated to me that the learned
Advocate and Professor were of the view that
the Treaty could not be
considered binding or enforceable on the Government
of Zimbabwe.
Having read the opinion closely, I cannot deduce where or
how that
impression arises. Applying a literal interpretation to the language
of the
Treaty and the Protocol to the Tribunal it is manifestly clear that
Member
States intended that the Treaty would be binding on States. The word
shall
is used. This is to make it clear that the objectives, undertakings,
terms
and conditions of the Treaty are taken to be binding on Member States.
What
is more, is that Member States are enjoined to take all necessary steps
to
accord the Treaty the force of national law.
The only criticism
raised by Advocate Coleman and the Professor is a
potential weakness of
enforceability to the decisions of the Tribunal to the
provisions of Article
32 of the Protocol.
As I see it, there is in fact no ambiguity to the
intent and objective of
enforcement. Member States are obliged to apply the
Treaty uniformly. They
must also accord the Treaty the force of national law.
These obligations are
expressed in mandatory and peremptory
language.
But even if there could be some perceived ambiguity to the
intent and
objective of the Treaty, the rules of interpretation and
application in
terms of customary international law with particular reference
to the Vienna
Convention, cures all and any ambiguity.
I see no danger
arising from any ambiguity of purpose or intent.
The only danger to the
integrity of the Treaty is a lack of resolve on the
part of Member States at
Summit level to robustly support the decisions of
the Tribunal.
Summit
Heads have the capacity to make the Treaty and Tribunal work by
insistence on
adherence and accountability of Member States to the decisions
of the
Tribunal.
Put differently the Summit Heads have the capacity to carry the
human rights
baton or to drop it.
The Treaty and the Tribunal are in
one sense revolutionary. For the first
time in history on the African
continent a Regional Court has been
established with the potential or
capacity to ensure that Member States to
the Treaty have a duty, in the event
of any adverse judgment, to change
their laws.
An errant Member State
must if necessary bring its laws into conformity with
the decision of the
Tribunal for the common good of the region and its
peoples.
Of course
Member States must be prepared and are enjoined to give the
Tribunal the
power to require changes in domestic legislation if change is
so
required.
It is submitted that the Tribunal has the capacity, for the
collective good
of the peoples of the region, to perform its functions in
much the same
manner as the European Court does sitting in
Strasbourg.
As mentioned by Geoffrey Robinson QC in his book "Crimes
Against Humanity --
The Struggle for Global Justice" (Third Edition - Penguin
Books at p 65)
"What has made the European Court stand head and shoulders
above the UN or
other regional arrangements is the simple fact that adverse
decisions are
implemented, under supervision. State parties comply with its
rulings, even
though they generally require legislation or some restructuring
of the
domestic legal system. It has now become a Constitutional Court for
the
whole continent." It is submitted that this was clearly intended
with
reference to a reading of the Treaty as a whole and to the fact
that
mandatory and peremptory language is used particularly with reference to
the
enforcement provisions mentioned in the Protocol as for the read
with
article 6.4 and 6.5 of the Treaty.
If there is no collective will
to the enforcement of the decisions of the
Tribunal, the Tribunal will be of
academic importance only which would be a
tragedy for the development of
human rights culture, progress, stability and
peace for the region. A
functional Tribunal will enhance collective
stability for the region. A
functional Tribunal operating as an independent
and impartial Court with
reference to universally accepted human rights
principles, the rule of law
and democracy. It is these kinds of universal
principles, which if applied
with uniformity and certainty, that investment
potential will be enhanced
immeasurably for the benefit of the collectivity.
CONCLUSION
As a
matter of international customary law, we respectfully submit that
Zimbabwe
should be accountable to the decisions of the Tribunal.
Sovereignty
impunity or immunity should not be allowed to trump the
decisions of the
Tribunal. To do so, will extinguish considerations to
regional positions. The
core aim and objectives of the community from human
rights perspective is to
give credence to human rights, democracy and the
rule of law.
If there
is no collective will on the part of the Summit Leaders to submit
to the
jurisdiction of the Tribunal as the regional "House of Justice", the
Tribunal
will become a farce and of academic importance only.
It is worth
reminding oneself of page 9 of the Declaration to the Treaty
where it is
stated: "Integration does imply that some decisions which were
previously
taken by individual States are taken regionally, and those
decisions taken
nationally*.[must]*give due consideration to regional
positions and
circumstances. Regional decision-making also implies elements
of change in
the locus and context of exercising sovereignty, rather than a
loss of
sovereignty."
In closing, a Tribunal decision in favour of the
applicants, with particular
reference to your Government's previously
expressed concerns to the
confiscation or potential confiscation of
agricultural investment assets
from South African nationals in Zimbabwe might
also be realised by
collective enforceability.
For these reasons, we
implore that Member States take prompt and adequate
steps to ensure full
adherence to the Treaty provisions and that Tribunal
decisions shall be
honoured in full. Absolute sovereignty amounting to
sovereign impunity, has
for too long retarded or been an impediment to the
realization of universal
human rights, democracy, the rule of law and to
peace and security.
We
submit that Member States at Summit level cannot afford the Treaty and
the
Tribunal to fail or be rendered of academic importance only.
David
Drury
Gollop and Blank
http://www.zimonline.co.za/
by
Nokuthula Sibanda Monday 01 December 2008
HARARE - United
Nations resident representative to Zimbabwe Agostinho
Zacharias has said the
country could become a failed state in the mould of
anarchic Somalia if
current efforts to create a power-sharing government
between President
Robert Mugabe and the opposition flop.
Zacharias told a delegation of
prominent figures led by former UN Secretary
General Kofi Annan that visited
southern Africa a week ago to assess
Zimbabwe's escalating humanitarian
crisis that Mugabe was interested in
protecting his legacy and that of his
ruling ZANU PF party.
He said power-sharing talks between ZANU PF and the
opposition had not fully
addressed the issue of what would happen to Mugabe
and his lieutenants
should they agree to give up power, hinting this was one
issue also blocking
quick resolution of Zimbabwe's political
crisis.
"When asked by Mr Annan what would be the future of Zimbabwe were
no
political agreement reached, Mr Zacharias replied that it would become a
"Somalia", a failed state," Annan's delegation said in a report made
available to ZimOnline Sunday.
Annan, former US President Jimmy
Carter and Nelson Mandela's wife, Graca
Machel, who are part of a group of
prominent figures and former statesmen
called The Elders, had planned to
visit Zimbabwe from November 21 to 22 but
were refused entry.
The
Elders however proceeded to make an assessment of the country's
humanitarian
crisis from Johannesburg, using information gathered during
several meetings
with representatives of regional governments, political
leaders, aid
agencies, business and civil society representatives from
Zimbabwe.
Zacharias spoke to the Elders delegation during a meeting
also attended by
World Food Programme representative Alberto Mendes, acting
UNICEF
representative Roeland Monasch and the International Organisation for
Migration's Marcelo Pisani.
"When asked what President Mugabe wants,
Mr Zacharias explained that his
interest is that of protecting his legacy
and that of his political party.
At one point negotiators had proposed that
he be appointed the founding
President of Zimbabwe to protect him from
prosecution, and that he enjoy
this status of life," the Elders' report
said.
The report said Machel inquired whether there was more at stake
than simply
trying to ensure Mugabe's immunity from prosecution for human
rights abuses
and other wrongs committed during his nearly three decades in
power.
"Mr Zacharias concurred that President Mugabe is a brand name, but
that
there are many others behind him who must also be protected," the
report
said.
It said it was generally agreed that many ZANU PF
leaders fear being
prosecuted for past wrongdoings and that this "issue has
not yet been fully
addressed in power sharing talks".
Annan's group
said that while it was desirable that Mugabe - whose
controversial policies
are blamed for ruining once prosperous Zimbabwe -
steps down from power, his
exit would have to be managed carefully or it
could create a "power vacuum
that would cause worse violence".
Zimbabwe's rival political parties last
Thursday signed a draft
constitutional bill that - once passed by Parliament
- will allow Mugabe to
form a new unity government outlined under a
September 15 power-sharing
deal.
However a unity government is
unlikely to be established anytime soon
because of a variety of other issues
that the main opposition MDC formation
led by Morgan Tsvangirai wants
resolved before it can agree to join the
government.
Tsvangirai's
party, which holds the most seats in Parliament and could very
easily block
passage of the constitutional amendment, wants further
discussions on the
sharing of key ministerial posts, distribution of
gubernatorial posts,
ambassadorships and other top government posts.
Analysts say a unity
government would be best placed to tackle a severe
economic crisis ravaging
Zimbabwe and seen in the world's highest inflation
rate of 231 million
percent, acute shortages of food and basic
commodities. - ZimOnline
http://www.zimonline.co.za/
by Prince
Nyathi Monday 01 December 2008
Harare - Zimbabwe's judicial
system has ground to a halt after magistrates
and prosecutors went on strike
to demand more pay and better working
conditions, as key arms of state show
signs of buckling after nearly 10
years of political and economic
crisis.
The majority of state hospitals and schools are either closed or
severely
understaffed because doctors, nurses and teachers are either on
strike or
have simply stopped reporting for duty because they can no longer
afford bus
fare on their poor salaries.
The judicial officers began
striking last Wednesday and some magistrates
interviewed by ZimOnline said
they wanted the government to provide them
free accommodation, cars and as
well as facilitate them to access cash from
banks before they can return to
work.
"We want the government to buy us cars and give us a place to stay.
We also
want to have access to cash from the banks. Until our demands are
met we are
not going back to work," said one magistrate who refused to be
named.
Zimbabwe, which has faced acute shortages of foreign currency for
years, has
also run out of its own currency and people have to spend several
hours
waiting in long queues in banks to get cash with each individual
allowed to
withdraw a limited amount per day.
The magistrates and
prosecutors last Thursday sent representatives to meet
with the Reserve Bank
of Zimbabwe (RBZ) that has been dolling out cash to
other struggling state
sectors but they got nothing.
"We were told that we were no exception.
Things were tough for everyone and
apart from that the bank had no money,"
said the magistrate.
RBZ spokesman Kumbirai Nhongo could not be reached
for comment yesterday.
Spokesman for the magistrates Never Katiyo said he
was not in a position to
talk to the press on the matter and referred all
questions to the chief
magistrate's office.
Chief magistrate Herbert
Mandeya confirmed the magistrates were on strike
but he referred all
questions to the permanent secretary in the Ministry of
Justice, David
Mangota, who was however unreachable.
The demands by the magistrates come
a few months after the government gave
judges of the High and Supreme Courts
luxurious cars, computers and plasma
screen television sets as part of their
perks.
Zimbabwe's judicial system is stricken by long delays in hearings
and
prisoners can spend up to two years awaiting trial because of a critical
shortage of magistrates, scores of whom have migrated to neighbouring
countries where salaries and working conditions are better. - ZimOnline
http://www.thetimes.co.za
Moses Mudzwiti Published:Dec 01,
2008
ZIMBABWE's
security forces have been rocked by serious indiscipline,
resulting in
arrests of several soldiers amid fears of a
mutiny.
a..
By late last night police were still
holding six uniformed soldiers while
investigations continued into
disturbances in the city on Thursday night.
Witnesses said a group of
soldiers in battle fatigues had arrived at a busy
bus stop in the city
centre and started assaulting people whom they
suspected of dealing in
foreign currency.
Police and military police were called to the scene to
quell the violence.
By the time the melee was brought under control many
civilians had been
injured - some complained that the soldiers had stolen
their money.
But yesterday police were still trying to figure out what
had triggered the
unprovoked attack on the public. Though the police
officially claim they
were investigating theft and assault, it appears that
the matter might be
more serious.
Police have not ruled out the
possibility of a mutiny.
"The soldiers appear to be unhappy because they
cannot withdraw money from
their bank accounts. They say only high-ranking
officers have access to
cash," a police source close to the investigation
said.
Zimbabwe is experiencing a severe cash crunch that has forced
banking
authorities to limit withdrawals.
Earlier this month,
soldiers from the KG Six barracks were arrested on
suspicion of being behind
a bomb blast at Morris police depot.
Two days later, another bomb went
off at Harare Central police station.
There were no arrests.
http://voanews.com
By
James Butty
Washington, D.C.
01 December
2008
Zimbabwe's minister of health and child welfare says
a quick resolution of
the political and economic crises is needed in order
to address the many
challenges facing the country.
David Parirenyatwa
spoke as a cholera epidemic has killed more than 400
people with more than
11 thousand cases reported across Zimbabwe since
August.
City
officials in the capital, Harare, have reportedly offering free graves
for
victims of the epidemic. With more than a 200 million-percent inflation
rate, most Zimbabweans cannot afford the nearly 30 dollars it costs for a
grave.
Parirenyatwa told VOA Zimbabwe's crumbling medical system was
doing all it
can to combat the cholera epidemic.
"We've got 10
provinces in the country, and nine of the 10 have got cholera.
But you see
what's happening now that as Minister of Health and Child
Welfare, together
with out partners, we are trying extremely hard to try and
cope with the
situation," he said.
Parirenyatwa appealed for support from the
international community to manage
water and sanitation.
"The biggest
challenge that we have is to get adequate resources to contain
this
outbreak, and we are trying to mobilize resources from within the
country
and from outside the country. We are therefore making it clear both
locally
and internationally that we do need these resources, particularly
resources
that make us have the first principal of containing cholera which
is having
adequate water and adequate sanitation," Parirenyatwa said.
He said
Zimbabwe was grateful for what the international community has done
so
far.
Parirenyatwa denied that the discrepancy between government and
independent
figures in terms of the numbers of people who have died from the
disease was
due to an information blackout in the early days of
epidemic.
"We could never ever do that because what affects us here
affects also the
countries around us. Clearly the figures that we published,
we worked
together with the professional body, the WHO, the World Health
Organization.
Whatever figures we get here we push them to WHO and they
crosscheck. That's
how we work. May be the figures may be not as precise as
people want, but
this is what we get from our provinces as we collect data,"
he said.
He emphasized the need for clean water and good sanitation to
fight the
epidemic. But Parirenyatwa denied the scope of the disease was
necessitated
by Zimbabwe's dilapidated infrastructure.
"What is
happening here is that you can not be able to contain cholera as
long as you
cannot control and sanitation properly, and we all aware that
for whatever
reason the economic situation has got challenges. And we are
saying to
ourselves as a small country that we are trying the best we can to
cater for
our people in terms of the health delivery system in this
country," he
said.
Parirenyatwa said a quick resolution of the political and economic
crisis is
needed in order to address the many challenges facing
Zimbabwe.
"There's no doubt that political solution is needed to
adequately address
the challenges that we face in this country. And I hope
that sooner rather
than later we will find the political solution in this
country that would
address the suffering of our people in this country. As
long as we don't
have that, we will struggle and struggle," Parirenyatwa
said.
http://www.herald.co.zw
Monday, December 01, 2008
Herald Reporters
Most parts of Harare -
including the city centre - did not get water
yesterday amid claims by Zinwa
staff that the authority had stopped pumping
after it ran out of one of the
essential chemicals, aluminium sulphate.
Aluminium sulphate is used
to clarify water, but its supply has been
erratic in recent weeks.
No official comment could be obtained from Zinwa last night as its
senior
officials could not be reached.
Only Harare water general manager
Engineer Lisben Chipfunde was
reachable, but he declined to comment saying
he was on leave.
But Zinwa workers at Warren Control said there was no
pumping at
Morton Jaffray Waterworks, but could not say when pumping would
resume.
Other Zinwa sources said the water authority had "yet to
receive a
consignment of chemicals imported from South Africa through
funding from the
Reserve Bank of Zimbabwe".
Zinwa recently received
$374,2 quadrillion to address the water
crisis, particularly in the
southwest of the city, hit by a cholera outbreak
centred on
Budiriro
Government also paid 8,7 million rand on behalf of Zinwa for
the
importation of water treatment chemicals.
In an interview
yesterday, the Minister of Health and Child Welfare,
Dr David Parirenyatwa,
said the Government and its partners were still
compiling the latest cholera
statistics.
"I continue to worry over the water situation and sewer
reticulation
in the country, especially during the current rainy season," he
said.
The Government and its partners, Dr Parirenyatwa said, would
continue
to educate people on how to avoid contracting the deadly
disease.
"I want to stress the issue of shaking hands. Although it's
part of
our tradition to shake hands, it's high time people stopped shaking
hands,"
he said.
Dr Parirenyatwa has assured the nation that the
country's health
system was on high alert and taking all necessary measures
to control and
manage the cholera outbreak.
He also confirmed that
a total of 11 071 suspected cholera cases had
been reported at health
centres in the country's nine provinces except
Matabeleland North.
He also dismissed reports by some sections of the international media
that
claimed that Government was falsifying cholera statistics to cover up
for
its shortcomings.
http://www.thezimbabwetimes.com/?p=8048
November 30, 2008
By Eddie
Cross
OVER the past 10 years during which the MDC has sought to achieve a
change
of government via legal, political and peaceful means, we have always
thought that the rightness of our cause would find a ready hearing in the
other democracies of southern Africa. How wrong we were.
Ten years
down the line we now know that a network of patronage spreads out
from
Zimbabwe across the region and that because of this, many regional
leaders
are either silent on the issues that are presented to them by the
Zimbabwe
crisis or are in open support of the illegal regime of Robert
Mugabe. The
patronage links take many forms - illegal contracts that finance
political
parties, secret holdings in companies that earn hundreds of
millions of
dollars from regional enterprise and deals and are paid directly
outside the
country.
Illicit dealings in gold and diamonds, copper and cobalt and
even in just
hard currency looted through the accounts of the Reserve Bank
of Zimbabwe
are involved. Just the other day the Reserve Bank sold 2 million
carats of
diamonds in Mumbai, India - the proceeds going to destinations
unknown.
We have evidence of many heads of Government being involved in
this
activity. The list is astonishing and those who are involved can be
identified by their silence or complicity in the Zimbabwe crisis. Why for
example does the South African, Zambian and Congolese governments not
complain about a tax levied on every tonne of cargo that transits the
Beitbridge border over the New Limpopo Bridge? Why is it only the Botswana
government that complains about the monopoly granted to the Beitbridge
Bulawayo Railway (BBR) on rail traffic from central Africa going south to
South Africa and from South Africa going north?
This willingness to
cast principle aside in return for small or even large
favors and perhaps
hard currency transfers to private accounts is saddening.
It also casts
doubt on the ability and willingness of many African leaders
to support the
very principles they have for so long supported in public,
only to despise
in private.
The demand by the Mugabe regime that they be left alone on
the grounds of
sovereignty and independence and not called to account for
the manner in
which they have abused their power and responsibilities in
government, is
just another example of regional leadership using the power
of language to
defend the indefensible. When he rises at international
forums (as he will
do today in the Middle East) Mugabe should be greeted
with derision and
laughter. He lost the election in March, then carried out
a presidential
rerun election that was so fraudulent and violent that not
even his closest
allies could endorse the results. He heads an illegal
regime and runs a
government without a budget. Yet regional leaders call him
President and
allow him to sit in their forums. He enters into negotiations
to resolve the
crisis in his country; signs a deal and then breaks every
principle
enshrined therein.
He hosted Chogm in Harare and chaired
the sessions that produced the Harare
Declaration on basic rights and good
governance. He then promptly went on to
abuse every principle enshrined in
the declaration and finally withdrew from
the Commonwealth when challenged.
He claims to have two degrees in economics
and a high level of basic
intelligence yet does not even understand the very
basics of how to manage a
country's financial system. He speaks out at the
UN on issues such as
poverty and human and political rights whilst at home
his regime destroys
the economy, impoverishes a whole nation and denies its
entire population
all the basic rights enshrined in the UN Declarations.
If I were an
observer from another planet watching from outer space - I
would find this
all rather bemusing. But I am not; I am just another victim
like millions of
others who have had their personal lives destroyed by a
corrupt and
incompetent government in Africa. Having listened to and
believed in the
high sounding promises of leadership seeking to rectify
injustice in
pre-independence Africa, I must say it is easy not to hold out
any credence
that African leadership can resolve the problems of Africa.
Then there is
Mr. Mbeki - famous for the "African Peer Review" mechanism,
the "African
Renaissance" and the Rainbow nation. Holding out such promise -
a quiet,
pipe-smoking intellectual with a Marxist background. A scion of an
iconic
family in South Africa that has been synonymous with the struggle for
justice and human rights.
What a huge disappointment he has been. He
turned out to be corrupt, a
racist and locked into an ideological straight
jacket that was not used to
direct the State in the direction of greater
equity or the elimination of
poverty or the rehabilitation of the South
African family, but fostered the
fastest growth in the number of new
millionaires in any country in the
latter half of the 20th Century, created
huge disparities in welfare and
wealth and supported distorted views of
HIV/Aids that led to the deaths of
hundreds of thousands who might otherwise
have lived.
Appointed as the mediator or facilitator in the Zimbabwe
negotiations, he
has acted in a partial and negative manner from the very
start. MDC
negotiators have recounted that they were often confronted in the
talks by a
solid phalanx of opposing sentiment - Zanu PF and the Mutambara
group
joining the South African facilitation team in opposition to the MDC
position.
In a 37-page memorandum in 2002, Mbeki wrote about the
Zimbabwe crisis -
accurately predicting the outcome of the illegal farm
invasions and advising
Zanu PF to abandon the exercise - not on principle or
in defence of the
rights of those being abused or the legal principles that
were involved but
on the grounds that "the Party of the Revolution" would
run the risk of
being dispossessed. In pages of closely reasoned argument,
he set out the
case to defend the right of the "Party of the Revolution" to
retain power -
at any cost.
In the six years since that time he has
done everything in his power to
subvert the MDC and to prevent the MDC from
coming to power. He has
subverted its leadership, supported its opponents,
protected Zanu-PF in
international forums and used his considerable power
and influence to deny
the MDC recognition in Africa. In the past two years -
even as he "mediated"
the talks, he manipulated events and outcomes in a
desperate effort to
protect the Zanu-PF from the very consequences he
predicted in his 2002
memo.
Since Monday this week Mr. Mbeki has
shown himself to be true to form -
still locked in a straight-jacket imposed
by his past. He has tried to bully
the MDC negotiators, derided their
principals and supported a fraudulently
based version of legal agreements
designed to create an inclusive government
in Zimbabwe.
The MDC is
not responsible in any way for the crisis in Zimbabwe and will
not allow the
efforts of Zanu PF to intensify the crisis as a means to force
us into a bad
deal. We are fully committed to the deal signed on the 11th
September and
want to see it implemented in full as soon as possible. But we
no longer
accept Mr. Mbeki as facilitator but will continue to press the
other
Zimbabwean participants for a reasonable outcome
http://www.thezimbabwetimes.com/?p=8056
November 30, 2008
ONCE again, as
in many previous instances, we as Zimbabweans find ourselves
hopeful about
endless talks in South Africa yet these talks are centered
around a wrong
premise because SADC is trying to force Zimbabweans into
accepting Mugabe's
loss as a win.
Less than a year ago, the African Union sent Kofi Annan
into Kenya to broker
a deal similar to the one now refusing to take hold in
Zimbabwe.
A few days ago, Kenyan Prime minister, Raila Odinga, strongly
suggested that
the AU should send a peace-keeping force into Zimbabwe "to
keep Mugabe in
line".
Obviously, Odinga should rightly feel
short-changed by the African Union. He
won the December 2007 elections
against Mwai Kibaki but Kibaki refused to
accept defeat, setting off a
bloody internal power struggle.
Because of the ensuing violence and
killings, Odinga accepted Annan's
"solution" of having the position of Prime
Minister created for him and left
the loser, Kibaki, as
president.
Decidedly, Odinga accepted this arrangement with an
unmistakable desire to
make it work; to save people's lives and to save
Kenya whose reputation had
taken a bad knock.
Even though Kenya has
not fully recovered from Annan's bad political
prescription, it is clear
that the political parties involved are trying to
make it work. Forcing a
winner in democratic elections to accept a lesser
position than one to which
the people had voted him into and rewarding the
loser with maintaining a
presidency that the voters had demanded back from
him was a bad precedent,
whether or not the Kenyan experiment succeeds in
the ultimate.
Odinga
has every right to voice his outrage at SADC, the AU and the world at
large
for such double standards.
He was forced to accept what he should not
have accepted but did it in good
faith. Hardly four months after the Kenyan
electoral fiasco, the SADC,
through Thabo Mbeki, arm-twisted the Zimbabwean
opposition into signing an
agreement on power-sharing.
Predictably,
Mugabe stalled and slyly waited for the AU to prescribe the
same settlement
as they did in Kenya. The AU and SADC, ineffective and
offering uninspiring
leadership, had set a wrong precedent in Kenya.
The problem, however, is
that, unlike in the Kenyan case, there was neither
honesty involved nor was
there any intention on the part of Robert Mugabe to
act in good
faith.
Now we have a problem bigger than we had before the
elections.
Before the elections, we knew Mugabe was President, through
whatever means
he got there, and that Morgan Tsvangirai was the leader of
the opposition.
After the elections and SADC/AU intervention, the loser,
Mugabe, who had
turned into the leader of the opposition, remained the
leader of an
opposition party but one that still remained as the governing
party.
Now Zimbabwe is governed by an opposition party while the 'ruling'
party
remains outside government.
The opposition party won the
elections and turned itself into the ruling
party. But, funny enough, the
ruling party, the former opposition party,
still remains the opposition
party.
So much for African solutions to African problems!
Months
after an agreement was signed, Mugabe, who is still President of the
country, refused to accept the terms of the very document that gave him
legitimacy and one which he himself signed.
His functionary, a
non-descript former struggling lawyer called Patrick
Chinamasa, Mugabe's
so0called Justice Minister, made changes to the original
document without
the knowledge of other participants. Under the right
circumstances,
Chinamasa, the lawyer, would have called it forgery but these
people are
fighting for survival and laws be damned!
It, therefore, discourages me a
great deal that the same people who
participated and scuttled the previous
agreement on which the nation had
laid so much hope, should be the very same
ones involved at these talks.
Why is the forging of that document not an
issue and why is it being
down-played? Why has nothing been done about the
violation that was
committed? But the African Union, SADC and South Africa
still continue to
debate with people who have shown bad faith and even
doctored important
documents.
Some African leaders now find it better
and more effective to work "outside"
the AU and SADC. Botswana and Zambia
have lost patience, not only with
Mugabe but with SADC and the AU.
It
is inspiring to see an African leader, like Botswana's Ian Khama, taking
such an initiative to right the situation in the region. South Africa,
through the lackadaisical pro-Mugabe Thabo Mbeki, ignored the Zimbabwean
issue for years. Now they do not have to contend with only the murderous
Zimbabwean dictator but our neighbours also have to contend with a cholera
outbreak.
While South Africa has started to treat Zimbabwean cholera
sufferers just
across the border from Beit Bridge, Botswana has reported a
cholera incident
in east central Botswana.
South Africa should
shoulder the blame because they took care of Mugabe when
the whole world was
screaming for action. South Africa should not complain
and I honestly hope
that the cholera outbreak does not hit their nation.
But if it does, one
Thabo Mbeki should be brought to account for his
mindless attitude towards
the Zimbabwean tragedy which he nursed into a
disaster. When human rights
abuses are being chronicled and when the
culprits are being called out and
lined up to answer for their actions,
Thabo Mbeki's name must, of necessity,
come immediately after Mugabe's name.
Mbeki did, and continues to do,
more damage to Zimbabwe and the region than
some people would care to admit.
With this cholera outbreak, Mugabe is
opening his other chapter on
genocide.
Is there an African president on this continent who can
recognize the
suffering of children, women and the defenseless
elderly?
Is there an African leader out there who cares about the
starvation of a
nation?
Find us an African president out there who
cares enough about malaria,
tuberculosis and HIV/AIDS not to steal from our
desperate afflicted.
It is time to get rid of Mugabe and his government
by any means necessary.
It is distressing that out of Africa's 54
countries and an equal number of
heads of state, only Botswana's Ian Khama
appears to be the only one of this
elite group to see that Mugabe must be
removed now because Zimbabweans have
suffered enough and need to be
assisted; that the region has suffered long
enough to the detriment and
impoverishment of SADC citizens.
Surely, African leaders will not allow
Mugabe to breed cholera for Africa.
Mugabe, a perceived hero to some
Africans across the continent, went into
Ian Smith's jails and came out with
a degree or two. He brags about degrees
he acquired by correspondence while
in Smith's jails.
Would he have achieved that if he were suffering or had
he been abused by
Smith?
But, conversely, those detained by Mugabe
for absolutely no reason at all
come out with nothing.
Most of them
die a couple of months after release.
These talks have become a nuisance.
Mugabe lost the elections and should be
treated as such by the AU and
SADC.
There should not be any accommodating of this man. Diplomacy should
be
reserved for those who respect humanity.
http://www.thezimbabwetimes.com/?p=8060
November 30, 2008
By Mxolisi
Ncube
JOHANNESBURG - Zimbabwean children, some as young as 13 years old,
are
abandoning school in increasing numbers to illegally cross the border in
search of employment in neighbouring countries.
The Zimbabwe Times
learnt last week that in South Africa, which is the most
preferred
destination for Zimbabwean emigrants, minors of both sexes are now
become
the dominant class among those leaving Zimbabwe to find employment
outside
while escaping from a humanitarian crisis which has seen thousands
starve,
some to death.
After they fail to find work in South Africa, which now
has its own growing
unemployment situation, the Zimbabwean minors reportedly
find home in
shacks, under bridges or seeking refuge at churches and
non-governmental
organizations set up to help desperate
immigrants.
Some of the girls, especially those who find themselves
stranded in the fast
life of Johannesburg, are said to be giving themselves
up to work as
commercial sex workers in the densely-populated areas of
Hillbrow, Berea and
Yeoville, risking both contracting and spreading the
deadly HIV/Aids virus.
The Southern African Women for Immigration Affairs
(SAWIMA), a
non-governmental organization set up to assist desperate
immigrants by
providing them with basics such as food, shelter and clothing,
says young
Zimbabwean girls account for the majority of the over 300 African
immigrants
calling in daily to make inquiries about employment.
"They
seem to grow younger with each successive day and in some occasions we
have
had some that are aged between 11 and 12, who say that they fled their
country due to hunger," said Joice Dube, a spokesperson for the
organization.
She said that most of the minors say that they are
being forced to come to
South Africa after having been abandoned by their
parents or relatives, who
travel to South Africa while leaving them to
support their siblings.
"Some of them say that they were bread-winners of
child-headed families,"
Dube said. "They come here to escape from hunger in
Zimbabwe, while also
trying to find work so that they can support their
siblings back at home.
However, after they fail to find work they join the
great trek to South
Africa. The end result is that the next batch of
children is usually younger
than the last."
At the Central Methodist
Church, which accommodates more than 150 Zimbabwean
immigrants, there are
more than 30 Zimbabwean minors, most of who said they
arrived at the
beginning of November.
"I lost my mother in 2005 and my father, who used
to send things to us from
here, stopped doing that early this year. I was
forced to drop out of school
and travel here, after neighbours also stopped
supporting us because they
could also not afford to fend for themselves,"
said Danisa Moyo, a
14-year-old boy from Kezi in Matabeleland
South.
Moyo says that he was offered a lift to Johannesburg by a caring
neighbour,
who however, would not do anything more than that.
"This
shows that the Zimbabwean situation is growing worse by the day. If
something is not done to better the state of affairs in Zimbabwe, then that
country will have a spoiled future generation as more children will continue
to leave school at a very young age. There is nothing more we can do for
them than accommodate them here," said Bishop Paul Verryn, who runs the
church.
"Zimbabwean leaders have the solution to all this and it is
up to them to
commit themselves to it before they spoil the whole future of
that country
and affect the whole region," he added.
Some of the
minors, who did not have money to pay for their transport from
Zimbabwe,
told The Zimbabwe Times that they were forced to walk long
distances to get
to the border. From there they board cheap long distance
trucks.
Some
boys find their first employment as domestic workers on farms and rural
households in the Limpopo province of South Africa upon arrival. After they
get paid they then proceed on their journey south.
Girls are often
enticed by drivers to travel for free on trucks. The drivers
then abuse them
sexually before they dump them on the streets of
Johannesburg and other
cities and towns along the way.
http://www.zimbabwetoday.co.uk/
Is Mugabe's mighty army about to fall apart?
The question
of whether the latest reports of a possible power-sharing
agreement between
Mugabe and Tsvangirai are real or just fanciful became
meaningless this
week, when signs of violent mutiny amongst the armed forces
were seen on the
streets of the Zimbabwe capital, Harare.
For the first time since
Independence, the army, for so long Mugabe's strong
and oppressive right
arm, is visibly breaking ranks, turning against its
commanders, and
demonstrating that it will no longer tolerate current
conditions and
pay.
This weekend bands of dissident soldiers took to the streets of
Harare in an
orgy of robbery, beatings and violent confrontations with the
police riot
squads - something that has never been known in living
memory.
The first signs of trouble were witnessed last Thursday, when
soldiers from
Inkomo Barracks, in full uniform, who had queued all day at a
branch of the
ZABG bank to withdraw local currency, were told that the bank
had run out of
money.
The announcement only added to the frustration
everyone in Zimbabwe feels
over the government ruling that a maximum of
$Z500,000 may be drawn at any
one time - an amount that will scarcely buy
more than a stick or two of
chewing gum.
The angry soldiers moved
into the streets and attacked several illegal
dealers in foreign exchange
who operate in the area. These dealers always
have a ready supply of
Zimbabwean dollars, provided to them by the Zimbabwe
Reserve Bank in order
to buy up foreign exchange, which is then used to
finance government and
Zanu-PF activities.
I myself saw two middle-aged men being beaten to a
bloody pulp by troops,
and there were other incidents when dealers handed
over their money to the
soldiers and ran for their lives.
The
soldiers could be heard chanting slogans calling for the death of Gideon
Gono, boss of the Reserve Bank. "Gono wanyanyha kuba," they sang.
"Tichakuendesa kumakuva mangwana chaiwo." "Gono, your corruption has gone
too far. We will send you to the grave soon."
The rioting and robbery
continued during Friday, and on Saturday another
group, numbering about 70,
and also in full uniform, descended on
Mupedzanhamo, a popular second-hand
market in Mbare, and looted the vendors'
goods.
When I went there the
market was deserted. But a witness told me: "They went
for currency dealers
and ordinary stall holders. They looted clothes, shoes,
belts, anything they
could lay their hands on."
There are other rumours of trouble and mutiny
amongst Mugabe's soldiers,
including a possible strike, and some analysts
are now predicting that if
there is a popular rising against Zanu-PF it will
be led by the military.
For the moment the solid wall of Mugabe's
oppression and terror remains in
place. But perhaps, for the first time,
cracks are at last beginning to
appear.
Posted on Sunday, 30 November
2008 at 20:27