Civil society leadership to meet Zuma team in Pretoria Wednesday

http://www.swradioafrica.com

By Tichaona Sibanda
19 October 2010

The top leadership of Zimbabwe's civil society organizations will meet with
South African President Jacob Zuma's facilitation team at the Union
Buildings in Pretoria on Wednesday.

The meeting, at the instigation of Zuma's team, will explore ways of how
SADC can help Zimbabwe come up with guidelines for violence-free elections,
which are expected mid next year. The poll is expected after the drafting of
the new constitution.

A highly placed source told us the leadership of the CSO's will ask Zuma's
team to draw up a roadmap that will involve SADC and the African Union in
the supervision of elections, to ensure full compliance with their
principles and guidelines governing democratic elections.

'Top on the agenda of this meeting is the issue of holding free and fair
elections in Zimbabwe next year. The civil society leadership has drafted a
working paper that calls on SADC and the AU as the guarantors of the GPA to
ensure the next poll is not marred by violence. The major issue here is the
prevention of state sponsored violence and intimidation,' our source said.

There are growing calls for the regional bloc to assemble a permanent
monitoring force of SADC, aided by the AU and other international observers,
to come and do the monitoring work. The CSO leadership will ask SADC to send
a team three months before elections and for it to remain there for three
months after the poll, to ensure pre and post election peace.

'This is going to be a brain storming session where the CSO leadership will
want Zuma to ask SADC and the AU to guarantee the democratic transfer of
power to the eventual winner of next year's elections. Any roadmap to an
election in Zimbabwe should ensure that there is security sector-reform to
prevent the security forces from blocking the transfer of power as has
happened in the past,' the source added.

So far there has been no word from SADC about any 'roadmap' for elections
and analysts remain concerned about SADC's apparent support for Robert
Mugabe.

While many CSO's were arguing that the country is not ready for free and
fair elections they've now resigned themselves to the reality that Mugabe
will simply not work with Morgan Tsvangirai. Last week Tsvangirai boycotted
a cabinet meeting after he criticised Mugabe for his unilateral appointment
of governors, in contravention of the GPA. But it was apparently a boycott
for one week only as it was reported that he attended Cabinet this Tuesday.

'It's a reality check that has dawned on all the civil society groups that
elections will definitely be held next year. Instead of wasting energy by
concentrating on issues that ZANU PF will not implement on the GPA they've
now decided to seek Zuma's help to ensure SADC imposes its guidelines on the
elections,'

President Zuma, who is also the SADC mediator on the Zimbabwe crisis, has
made it clear that he favours fresh elections to end the impasse between
parties in the inclusive government.

But two years after a violent election left more than 200 MDC-T supporters
dead and tens of thousands injured, political analysts believe that the
wounds have not yet healed enough to conduct a fresh poll, even though
people are crying out for change. They believe another election can only be
conducted if the conditions improve drastically.

In preparation for the 2008 run-off election soldiers, ZANU PF youth
brigades and militias went on the rampage throughout the country setting up
torture bases for perceived MDC supporters. The injuries that were inflicted
were brutal, for people whose only crime was that they had voted for
Tsvangirai against the ageing Mugabe, who will be 87 next year.

 

Zim NGOs urge ANC to do more

http://www.zimonline.co.za/

by Simplicious Chirinda Tuesday 19 October 2010

JOHANNESBURG - Zimbabwean civil society groups have called on South Africa's
ruling ANC party to do more to pressure President Robert Mugabe's ZANU PF to
embrace democracy, the rule of law and human rights.

The two parties have ties dating back to the struggle against white
supremacist governments in Rhodesia (Zimbabwe's name before independence)
and South Africa, while the ANC's leader and South African President Jacob
Zuma is the SADC's official mediator in Zimbabwe.

Zuma has however met with little progress in his attempts to coax ZANU PF
and the MDC parties of Prime Minister Morgan Tsvangirai and Deputy Prime
Minister Arthur Mutambara to quicken democratic reforms and end political
violence that is resurgent in parts of the country.

The Crisis in Zimbabwe Coalition that brings together about 60 pro-democracy
and human rights groups in the country said in a statement: "The ANC must
insist that political parties in Zimbabwe particularly ZANU PF which
controls the country's security forces must strictly adhere to principles of
democracy and respect for the basic rights of all Zimbabweans.

"We hope that ties with former liberation movements present the ANC with an
important opportunity to reprimand parties implicated in abuses perpetrated
against their people."

Zimbabwe's nearly two-year old coalition government was plunged into fresh
crisis two weeks ago after Mugabe unilaterally appointed several senior
public officials in violation of his political agreement with Tsvangirai and
Mutambara.

The agreement known as the global political agreement (GPA) and a
constitutional amendment enacted to cement the political pact require Mugabe
to consult Tsvangirai before appointing senior public officials.

But Mugabe has flagrantly ignored the requirement, unilaterally appointing
his allies to key positions such as attorney general, central bank governor,
court judges, ambassadors and 10 provincial governors.

ZANU PF insists Mugabe still wields all his presidential powers
notwithstanding the GPA and the constitutional amendment and has also said
it would fully comply with the political pact once Western governments lift
sanctions against the Zimbabwean leader and his close associates.

Mugabe, who has called for the unity government to come to an end following
his latest spate with Tsvangirai, accuses the Premier and his MDC of
campaigning for sanctions during their days as the opposition and says they
must do more to call for their removal.

Tsvangirai says it is not his duty to campaign for removal of sanctions
against Mugabe and other ZANU PF leaders, while he has also said he will not
recognise all appointments made by Mugabe unilaterally.

A team of top representatives sent by Zuma last week to meet the squabbling
Zimbabwean leaders has refused to say what progress it made in trying to
diffuse the latest crisis in Harare, insisting it will speak only after
handing a report to the South African President. - ZimOnline.

Tsvangirai tells boycotting students he can’t help them

http://www.swradioafrica.com/

By Lance Guma
19 October 2010

Prime Minister Morgan Tsvangirai on Tuesday met the national executive of
the Zimbabwe National Students Union (ZINASU) after students embarked on an
indefinite class boycott countrywide, to demand a ‘fresh start’ in the
education sector.

Speaking to SW Radio Africa, ZINASU President Obert Masaraure, confirmed the
meeting saying the Prime Minister admitted in discussions that ZANU PF’s
Higher Education Minister Stan Mudenge was ‘negating’ his responsibilities
and failing to adequately deal with student grievances.
Tsvangirai however told the ZINASU executive he was limited in what he could
do to help their plight, as the MDC was not in full control of the
government. He pledged that an MDC government would not allow much of what
was happening to the students.

The meeting was meant to be a chance for the students to put forward their
demands to the Prime Minister. Masaraure however said they left the meeting
disappointed and would now call off the class boycott to get students back
in campus and ready for ‘active street demonstrations.’

Among the demands in the ‘fresh start’ campaign is the re-instatement of all
students who were expelled, suspended or who dropped out due to problems
paying tuition fees. They want government to re-introduce student loan and
grant schemes and to cancel all tuition fee debts incurred by students.

Masaraure also said they wanted all colleges in the country to release exam
results for students who have failed to pay the exorbitant tuition fees. He
said they will also demand the opening of halls of residence at the
University of Zimbabwe and other tertiary institutions in the country.

Over 100 armed riot police sealed off the University of Zimbabwe on Monday
in an effort to subdue planned class boycotts. ZINASU coordinator Kurayi
Garnet Hoyi said colleges and universities countrywide were besieged by
armed police determined to intimidate students, claiming they had a ‘shoot
to kill’ directive.
Meanwhile police in Masvingo are demanding that 7 students arrested on
Monday should pay US$20 admission of guilt fines for ‘public nuisance’. By
late afternoon ZINASU was running around trying to raise US$140 to get their
colleagues released.

Mbeki Says GPA The Only Solution To Zimbabwe

http://news.radiovop.com

19/10/2010 09:49:00

Johannesburg, October 19, 2010 - Former South African President and the man
who brokered a solution to Zimbabwe's long drawn political crisis, Thabo
Mbeki, said the Global Political Agreement (GPA) still remained the most
viable route to end the country's political crisis.

Mbeki who shuttled between Johannesburg and Harare many times until the GPA
was signed in September 2008, said he believed there was no other way out
except the GPA.

The GPA was signed by the two Movement for Democratic Change (MDC) factions
and President Robert Mugabe's Zanu (PF) party. Mugabe was elected President
unopposed in 2008 in a re-run of the Presidential election which the main
MDC faction leader Morgan Tsvangirai had decided to pull out citing
violence.

Mbeki told South African newspapers following the launch of his Thabo Mbeki
Foundation and the Thabo Mbeki Africa Leadership Institute that if the
country's political parties stick to the GPA, Zimbabwe will soon find a
lasting peace and stability.

"I would hope people are faithfully implementing what was contained in the
GPA. And really what was contained in it was that they would put in place
various measures which would help overcome the causes of conflict that had
taken place in Zimbabwe and create a basis for national reconciliation."

Mbeki, who now leads a group of eminent Africa leaders and trying to chart a
peaceful solution to the long drawn political crisis in Sudan, has been
vilified for pursuing a quiet diplomacy towards President Robert Mugabe.

Mugabe has however said he does not wish to see the life of the inclusive
government extended when it expires in four months time and he wants
elections held in 2011.

Mbeki said this as the MDC party led by Tsvangirai met at the weekend in
Johannesburg to strategise on the best way forward following the stalled
constitution making process due to violence.

The constitution making process is supposed to culminate in a referendum
next year before elections.

Sources in the MDC party confirmed to Radio VOP that a retreat had been held
on Friday and Saturday evening in Johannesburg.

"We met to strategise in view of the prevailing political discourse. The
meeting was attended by members of the party's standing committee," said the
source.

The source said the meeting also discussed the GPA that was never fully
implemented since it was signed due to disagreements mainly about the
swearing in of MDC treasurer general, Roy Bennett, as deputy minister of
Agriculture and the appointment of a new Reserve Bank Governor and the
Attorney General.

The MDC meeting came amid reports of disagreements within the party on the
next course of action following the chaotic manner in which the constitution
process had been handled.

One group within the party wanted the constitution process abandoned while
the other preferred completion of the process or a negotiated outcome.

There were fears that the outcome of the current constitution process would
finally reflect the views of President Robert Mugabe's Zanu (PF) party
because many people did not manage to freely give their views due to
intimidation and the bussing of people.

The process remained suspended in the capital Harare and its dormitory town,
Chitungwiza, due to violence.

The MDC spokesperson, Nelson Chamisa said: "I am not sure if such a meeting
took place."

However highly placed sources said the strategy meeting was aimed at
charting a new political strategy for the party hence the secrecy to the
media.

Tsvangirai and his deputy Thokozani Khupe last week boycotted a cabinet
meeting in protest to President Mugabe's unilateral re-appointment of
provincial governors without consultation as agreed under the GPA.

Tsvangirai has been under fire from some of his supporters for not flexing
his muscle against Mugabe.
 

Hostile broadcasting rules block community radio

http://www.swradioafrica.com/

by Irene Madongo
19 October 2010

Villagers in rural Gwanda will be unable to make their community radio
station a reality because of the Zimbabwe government's restrictive
broadcasting environment, a media monitoring organisation has said.

On Monday the Media Institute of Southern Africa Zimbabwe (MISA) announced
that it had set up the country's first rural community radio in Ntepe, 40kms
South-West of Gwanda town. However, MISA says despite the community radio
having programming plans in place, Zimbabwe's laws still don't allow
independent broadcasters. The state-controlled Zimbabwe Broadcasting
Corporation has maintained a monopoly in the broadcasting industry, which is
tightly controlled by Robert Mugabe's ZANU PF.

MISA points to the unpopular Broadcast Services Act which gives only the
Broadcasting Authority of Zimbabwe (BAZ) the authority to issue licenses,
and it complains that BAZ still does not want to issues licenses to
independent broadcasters. Zimbabwe's laws are hostile to the media, the
organisation says, explaining that the state is increasingly using the
Criminal Law and Codification Act to harass and oppress journalists.
Sections 31 and 33 of the Act focus on what it calls 'publishing false
statements prejudicial to the state' plus penalties for 'undermining the
authority of the President.'

Another law, the controversial Access to Information and Protection of
Privacy Act (AIPPA), states that journalists must be accredited to work in
Zimbabwe, yet accredited journalists are often still prevented from doing
their work. On Friday state security agents blocked accredited journalists
from covering the graduation ceremony at Great Zimbabwe University in
Masvingo, officiated byRobert Mugabe.

On Tuesday MISA's Koliwe Nyoni said the organisation had started a campaign
demanding the government free the airwaves. "The campaign is to say we want
more independent broadcasters but key to the issue of independent
broadcasting is to have an independent broadcasting authority that will look
into applicants and potential broadcasters within the country. The campaign
is for more players and independence within the system."

As they are unable to broadcast the villagers in Ntepe are resorting to what
MISA terms alternative broadcasting. "This is where members will use tape
recorders to record and edit the programmes. The pre-record audio programmes
will be put onto compact discs and distributed to their membership, which is
the community within their areas. Shop owners and business people within
Ntepe will be playing the programmes," she explained, adding that "Another
way is they will have a community meeting in a basic community hall, but the
meeting is conducted as a simulation of a broadcast. There will be a
presenter and everybody who is standing up to give a contribution would be
either a guest on the programme or someone who is phoning in."

A steering committee has been nominated to organise these alternative
broadcast activities. The committee comprises of journalists and some
representatives from the community.

Create environment for free and fair elections - envoy

http://www.dailynews.co.zw

By Guthrie Munyuki
Tuesday, 19 October 2010 17:44

HARARE - Outgoing Norwegian envoy , Gunnar Soreland , has challenged
President Robert Mugabe and Prime Minister Morgan Tsvangirai to create an
atmosphere condusive to the holding of free and fair elections should they
press ahead with the plebiscite next year.

Soreland, who was bidding farewell to Tsvangirai at his Munhumutapa offices,
Tuesday, said his government was disappointed by the slow pace in the
implementation of the Global Political Agreement (GPA) and little reforms.

"Zimbabwe should develop a platform that will allow free and fair elections
, involve Sadc and agree on a roadmap that leads to (credible) elections,"
said Soreland. "What we would like to see Zimbabweans have is a new
constitution which they like, a draft they like and vote yes to that
constitution."

Soreland said while there was dialogue on the removal of sanctions, it was
important to understand and address the issues which brought the European
Union into slapping Zimbabwe with the tough measures.

He ruled out Norway re-engaging Zimbabwe in government to government
economic assistance but would continue providing aid through the Multi Donor
Trust Fund.

"There are obstacles to the re-engagements. There is slow implementation to
the GPA and we would like to see more," Soreland told journalists.

Mugabe and Tsvangirai have agreed to hold elections in 2011 after the
completion of a new constitution which has been dogged and rocked by
financial problems and violence in the outreach meetings.

Civic groups and the business community are shivering at the prospects of
another election which they fear could spark blood-letting violence as
happened in the aftermath of the March 29 2008 elections which forced a
presidential run off.

Hundreds of people died and scores were left maimed and scarred after
suspected military and intelligence operatives led retributive campaigns
against MDC supporters in Mashonaland East and Central Provinces,
historically known to be hotbeds for political violence.

The British government and international rights groups have said Sadc and
the African Union must be involved in the running of the elections and
deploy peacekeeping forces and monitors before, during and after the
elections.

Business fears that the elections would negate the progress made in trying
to put the economy back on track since the formation of the inclusive
government in February 2009.

Both the International Monetary Fund and the World Bank have projected a
growth rate of 6, 5 per cent in the first quarter of next year.

Zimbabwean Human Rights Organization Warns of Resurgence in Political Violence

http://www.voanews.com

Zimbabwe Human Rights NGO Forum Executive Director Abel Chikomo said
militants of the former ruling party have launched violent campaigns in the
provinces in preparation for possible national elections next year

Patience Rusere | Washington DC 18 October 2010

A Zimbabwean human rights watchdog organization warned Monday that political
violence is on the rise again in the country, especially in traditional
ZANU-PF strongholds such as Masvingo and Mashonaland Central.

Zimbabwe Human Rights NGO Forum Executive Director Abel Chikomo said
militants of the former ruling party have launched violent campaigns in the
provinces in preparation for possible national elections next year.

Reports said Zimbabwe War Veterans Chairman Jabulani Sibanda has launched a
campaign code-named '"Budiranai Pachena," Shona for "Let's tell each other
the truth." His critics say this is a cover for intimidation of members of
the former opposition Movement for Democratic Change, in government since
the 2008 elections.

Sibanda is said to be threatening people with "violent consequences" if they
support MDC founder and Prime Minister Morgan Tsvangirai, so much that
community leaders are calling for Mr Tsvangirai's intervention.

Reports said Sibanda and other war veterans have been trying to coerce
villagers in Zaka district into supporting ZANU-PF, saying they can live in
peace under ZANU-PF or support MDC and face danger.

Sources in the Zaka West constituency of Masvingo province said Sibanda
forced school headmasters in the area to attend a meeting at which he sought
to mobilize them to join his campaign.

Earlier, said sources, local villagers refused to attend his meetings,
telling Sibanda to first banish MDC from his own village in Tsholotsho,
Matabeleland North, before creating havoc in Masvingo, on the other side of
the country.

Chikomo told VOA Studio 7 reporter Patience Rusere that Sibanda's behavior
is particularly worrisome as it could signal or spark a return to the
broader-based and deadlier political violence seen in 2008.

Tsvangirai Prepares For Election

http://news.radiovop.com

19/10/2010 09:43:00

HARARE, October 18, 2010 - As Zimbabwe gets into election gear, Movement for
Democratic Change (MDC) leader Morgan Tsvangirai will tomorrow kick start
countrywide consultative meetings with his party structures as he prepares
for elections next year.

Radio VOP understands that Tsvangirai will on Tuesday evening start his
consultative meetings in Mabvuku, Harare after he which he will tour other
areas around Harare before embarking on a nationwide tour.

The MDC has reportedly already started preparing for elections after Zanu PF's
President Robert Mugabe repeatedly announced that elections will be held
next year to choose a government to run the country and not the current
situation where three political parties are all in charge.

Luke Tamborinyoka, who is Tsvangirai's spokesperson confirmed that his boss
will be in Mabvuku on Tuesday evening but refused to divulge much
information.

"The Prime Minister will be in Mabvuku tomorrow on party business but I can't
reveal much. You will have to speak to Mr Chamisa who is the party
spokesperson," said Tamborinyoka.

Mugabe and Tsvangirai are set to lock horns again next year for the country's
highest post with both announcing that elections will be held next year soon
after the referendum.

 Elections are seen as the only solution to solve the country's political
problems as Mugabe and Tsvangirai continue to haggle over outstanding issues
from the Global Political Agreement (GPA).

A minister close to Tsvangirai confirmed that the Zimbabwean Prime Minister
was already in an election mood and will start with grassroots levels.

"President Tsvangirai took a break at the weekend where he was reflecting on
the way forward in Zimbabwe's politics. He evaluated the GPA and also looked
at the way forward in the face of his fight with Mugabe which has now
escalated to very high levels.

"Tsvangirai is not taking any chances and will start with meeting the people
on the ground to hear their grievances and also update them on the progress
made so far in government. He will take the chance to explain his attacks on
Mugabe and will address all other thorny issues.

"His programme will be hectic but he has no option as he strives to win
elections overwhelmingly next year," said the Tsvangirai associate.

On the other hand, Zanu PF will put the 86-year-old Mugabe as their
candidate and at the weekend, the party's women's league said they want the
veteran leader to rule the country for life.

Zanu PF officials arguing that the MDC are at  its weakest as they have also
made mistakes since coming into government last year.
 

EU Gives Funds To Improve Zim Prison Conditions

http://news.radiovop.com

19/10/2010 09:53:00

Harare, October 19, 2010 - The European Union (EU) has released US$700 000
aimed at improving overcrowded filthy prison conditions in Zimbabwe.

In a statement the EU Ambassador Aldo Dell'Ariccia, said, "The EU is
persuaded that this support will make a substantial difference to the more
than 13 000 prisoners in the country's prisons."

The money will be channelled through the Zimbabwe Association for Crime
Prevention and Rehabilitation of the Offender (ZACRO), which is aimed at
improving conditions in prisons.

Prison officers have however attributed the deterioration of prison services
to mismanagement while the Prison Chief Paradzai Zimondi blamed targeted
sanctions imposed on top Zanu (PF) officials by western countries including
the EU.

Food distribution in the country's prisons has improved after the
intervention of non-governmental organisations.

Before the formation of the inclusive government 234 prisoners died of
cholera due to overcrowding and lack of treatment drugs.
 

GALZ statement on the provision of condoms to prisoners

In Zimbabwe, diplomats tread lightly

http://www.thezimbabwemail.com

19 October, 2010 04:38:00    GoalPost

HARARE, Zimbabwe - Zimbabwe's state-owned media have a trick up their sleeve
when new ambassadors present their credentials to President Robert Mugabe.

Let loose after the ceremony, they pounce on the rookie envoys to ask
something bound to compromise them such as, "Should sanctions against
Zimbabwe be lifted?" The newcomers then make a diplomatically optimistic
statement which is then spun by the state media into a ringing endorsement
of the Mugabe regime.

The diplomats then spend a good deal of time and energy in their first weeks
in office seeking to "clarify" what they actually said.

No, they didn't say "sanctions should be lifted." They said that once the
terms agreed by all three parties in government had been fulfilled,
"sanctions would naturally go." Not quite the same thing.

The Swedish ambassador to Harare spent the entire duration of his assignment
in Harare wishing he hadn't pledged himself to "build bridges" between
Zimbabwe and the West. When he departed last month after a four-year stay,
he was excoriated by the state media for having plotted behind the scenes to
pile pressure on Mugabe to deliver meaningful change. Meanwhile, his
colleagues derided his naivety in thinking he could build bridges, a galling
predicament for an old Africa hand who had served elsewhere in the region in
the 1980s.

A previous U.S. ambassador explained the diplomats' dilemma: "Most new
arrivals think Zimbabwe is a wonderful country with wonderful people. Its
problems cannot possibly be intractable, they conclude. So the first six
months are spent in a round of futile negotiations until the new boy
realizes he is banging his head against a brick wall marked Mugabe."

U.S. ambassadors have taken to saying and doing what they like in preference
to diplomatically dancing around the issues. The previous American
ambassador, James McGee, a large man, led a motorcade of vehicles containing
diplomats and journalists into the country's interior inspecting hospitals
to collect evidence of state-sponsored political violence. Where security
officers attempted to block access by closing gates, the ambassador simply
forced them open.

Last month, the new European Union ambassador, Aldo dell'Arricia, presented
his credentials to Mugabe. "What did he think of the current reforms such as
the new Media Commission?" the official media officer asked.

"I have been in this country for the past eight days," dell'Arricia replied,
"and what I can tell you is that there is a press that is free. You can read
newspapers in this country and have a feeling of independent information."

Having just "got off the boat," he didn't notice that there were no private
media present to cover the presentation. They hadn't been admitted. Nor were
there any independent radio or TV stations present. There aren't any. The
only voice heard across the land is Mugabe's.

Now dell'Arricia has some catching up to do. His claim that Zimbabwe had a
free media was immediately picked up by the state media and reported as "Zim's
press free."

The last thing Zimbabwean journalists, especially those facing charges for
criticizing Mugabe, want to hear is how free they are from new arrivals.

There is indeed a Media Commission in place which has issued several
newspaper licenses, but it is staffed by an official of the old regime who
uses his column in the state-run press to denounce the Movement for
Democratic Change (MDC) in excoriating terms. And no new radio or TV
stations have been licensed. The media minister has still not found it
within himself to give assurances of safe passage to Zimbabwean journalists
wishing to return from the diaspora.

Elsewhere, evidence of meaningful reform is scarce. The Human Rights
Commission has been told it cannot investigate events before 2009. As much
of the electoral violence took place in 2008, this lets a lot of state
employees off the hook. An intelligence officer from Mugabe's office who has
been mentioned in court proceedings in connection with burning to death two
MDC activists in 2000 remains free.

Many diplomats arriving in the country reflect the upbeat mood of MDC
leaders and only later discard their Pollyanna perspectives. The U.S. envoys
by contrast remain skeptical.

Speaking after meeting, a bipartisan delegation from Zimbabwe on Sept. 23,
Assistant Secretary of State for African Affairs Johnnie Carson and Senior
Director for African Affairs Michelle Gavin said "the current political and
human rights environment remains troublesome," pointing to the recent
harassment of WOZA - Women of Zimbabwe Arise - and the violent disruptions
of constitutional reform meetings in Harare by Mugabe's supporters.

"Our sanctions are under regular review," the U.S. officials said in
response to pressure from the Zimbabwean negotiators to lift sanctions, "but
as long as human rights violations, land seizures and intimidation of those
participating in the political process continue, the sanctioned individuals
and entities on the list who continue to perpetrate and benefit from these
acts are unlikely to be removed."

In the week before the Zimbabwe negotiators arrived in Washington, one of
Mugabe's most influential ministers, Didymus Mutasa, said Zanu-PF would
never allow Prime Minister Morgan Tsvangirai to rule the country.

"If we go to the polls and he defeats Mugabe, Zanu-PF and the people of
Zimbabwe will not allow that," Mutasa told supporters.

It is difficult to be upbeat in these circumstances, activists point out. -
GoalPost
 

South Africa confirms it will fight for Robert Mugabe at UN Security
Council

http://www.thezimbabwemail.com

19 October, 2010 06:43:00    By Sapa

JOHANNESBURG - South Africa would again vote "no" to UN sanctions against
Zimbabwe should the issue return onto the agenda of the Security Council
during its second term.

"If a similar situation were to arise, South Africa will vote no," said
International Relations director general Ayanda Ntsaluba in Pretoria on
Tuesday.

He was referring to last term (2007-2008) when South Africa blocked
sanctions against Zimbabwe -- also voting against resolutions on Myanmar and
Iran - "areas which materially we voted wrongly as some people say. We would
contest that."

South Africa surprised many during its first term on the council, when it
joined Russia and China in voting against a Security Council resolution on
human rights issues in Myanmar.

It also frustrated efforts to discuss the Zimbabwean situation on the agenda
before the signing of a global political agreement and the installation of a
unity government in that country.

This in turn led to the country being seen as siding with countries that had
bad human rights records.

Ntsaluba said South Africa had learnt a lot after its first tenure as a
non-permanent security council member, adding that it would from hereon
communicate better and state its case more clearly.

Ntsaluba said even on South African soil, there would never be 100 percent
agreement on the Zimbabwean issue.

Asked how South Africa would vote in its second term with regards to
Myanmar, Ntsaluba said this would depend on the context in which it was
shaped.

"It's difficult to deal with it in abstract.... South Africa is concerned
about rights violations. We continue to urge co-operation with the military
junta to ushering a democratic dispensation in Myanmar.

"Their behaviour thus far has not been encouraging," he said, dismissing
views that the country had acted in a manner that betrayed the South African
constitution.

He said the country was sensitive to what was broadly called "mandate
creep", a tendency of the council to raise issues of particular interest to
the council's five permanent members -- China, Russia, the USA, UK and
France.

Ntsaluba said the council had a tendency of doing this even if issues should
best be addressed by the council's other organs.

"This is an issue we feel strongly about...The critical issue is being able
to distinguish between issues of bad governance, issues of violation of
human rights and issues that pose threats to international peace and
security.

"The three are different and they should not be conflated," he said.

There was a need to see greater consistency in UN Security Council
decisions, Ntsaluba said, emphasising the council was not a platform for
narrow national interests.

"We wish to see greater consistency in decisions and recognition of its
primacy to... global peace and security. We will present ourselves in a
manner that looks beyond narrow national interests."

He said the challenge was how a small country from the southernmost tip of
the continent, tried to pursue independent thought reflective of its own
values.

"How do we make a genuine contribution without being bullied into submission
by the powerful who happen to be the permanent members of the Security
Council," he questioned.

"...And how do you take these independent positions and accept that there
are consequences in taking those positions that the powerful might not
like."

Admitting some issues would be "tricky" to deal with, Ntsaluba said South
Africa needed to be careful not to perpetuate those Security Council
practices South Africa felt needed to be changed.

The country wants to use its newly acquired non-permanent seat on the
council to fight for the reform of the powerful world organ.

"We want to strengthen multilateralism... so we'll engage the Security
Council conscious that we are members of an organ deserving of reform."

Ntsaluba previously said challenging the current status quo was a slow
process that the country was hoping would bear fruit in future.

Global peace and security matters were "very delicate", especially in the
context of war against global terrorism.

"We're also anxious that all actions, no matter how legitimate the need,
should be underpinned by international legality."

Ntsaluba said the country would engage and participate in the UN, fully
conscious of the responsibility that rested with council members.
 

Anglican head concerned for failed Zimbabwe asylum seekers

http://www.episcopal-life.org/

By Trevor Grundy, October 19, 2010

[Ecumenical News International, London] Human rights activists have praised
Archbishop of Canterbury Rowan Williams for showing concern about the safety
problems failed Zimbabwean asylum seekers face if they are forced to return
and live under the regime of President Robert Mugabe.

"I would love to see more and more Christians and church leaders follow his
example and warn the British government that there must be checks and
monitoring systems in place before these people are sent home," Sarah
Harland, co-coordinator of the Zimbabwe Association told ENInews. "This is
not the time for enforced returns."

Reports published in Britain state that up to 10,000 Zimbabweans could be
forced to return to the land of their birth following a statement in the
U.K. Parliament on Oct. 14 by immigration minister Damien Green.

He told lawmakers it is right to send asylum seekers back because of
improved conditions in Zimbabwe following the formation of a Government of
National Unity in 2009 between President Robert Mugabe, who heads the
Zanu-PF party, and Prime Minister Morgan Tsvangirai of the Movement for
Democratic Change.

Tsvangirai recently expressed frustrations with Zanu-PF, which has ruled the
southern African nation since 1980, as the heads of the army, police, air
force, prisons and intelligence agency, known as the Joint Operations
Command, remain under Mugabe's control, and there is no timetable for
security sector reform and de-militarization of the state.

Some estimates say there are around 400,000 Zimbabweans living in Britain
and among them are 10,000 to 11,000 failed asylum seekers, with thousands
more awaiting decisions on their applications.

During his visit to the offices of the Refugee Council in London, on Oct. 7,
Williams, the spiritual leader of the 77-million strong Anglican Communion,
spoke to African refugees about their problems.

"I was concerned about the issue of protection, and the people sent back to
their countries are not monitored," he said. "Without these checks, there's
a risk that what the [U.K.] government regards as being safe may not be. If
we look at situations like the one in Zimbabwe, I think there's a real
question over whether people can be sent back safely to those countries."

On Oct. 18 three British high court judges were to attend a hearing in
London on an immigration and asylum test case which will rule on whether it
is safe, or not, to send asylum seekers back to Zimbabwe.

Exiled business mogul Mutumwa Mawere back in Zimbabwe

http://www.swradioafrica.com/

By Lance Guma
19 October 2010

Business mogul Mutumwa Mawere arrived in Zimbabwe on Tuesday, ending six
years of exile that started when the government controversially seized his
business empire. The pretext for the seizure was that he had 'externalized'
close to US$20 million in foreign currency and his companies owed the state
money.
Over the years the justification for the seizure has been exposed as nothing
more than victimization, for as yet unclear reasons. In May this year
Mawere, along with other prominent businessmen accused of similar crimes,
was 'de-specified' meaning he was free to challenge the seizure of his
companies in a Zimbabwean court.

When Harare provincial magistrate Mishrod Guvamombe last week cancelled the
arrest warrant on Mawere this effectively cleared the way for him to return
home. The Attorney General is reported to have declined to prosecute Mawere,
with commentators saying it proved that the state case had crumbled.

A chance meeting between Mugabe and Mawere, engineered by South African
President Jacob Zuma at his inauguration in May 2009, is said to have been
the turning point in Mawere's fight for his companies. He reportedly handed
a pile of documents on the matter to Mugabe who in turn sought the advice of
Gideon Gono, the country's controversial central bank governor.

In a stunning u-turn Gono advised Mugabe that the takeover of Mawere's
companies was done illegally. This was despite Gono himself leading the
state case against Mawere and other businessmen back in 2004. But a report
from Gono to Mugabe in 2009 says the 'Reconstruction Order' used to take
Mawere's companies was based on the false premise that they were 'insolvent,'
and owed money to the state.

SW Radio Africa understands Defence Minister Emerson Mnangagwa and Justice
Minister Patrick Chinamasa remain the main stumbling blocks in Mawere's bid
to get his companies back. Mnangagwa and Chinamasa have previously told
Mugabe any u-turn will undermine his regime. The two have also reminded
Mugabe that his re-election depended on their violent and murderous
campaign, chaired by Mnangagwa under the notorious Joint Operations Command.

Zimbabwean Students Boycott Classes Over Fees; Activists Arrested in Harare, Masvingo

http://www.voanews.com/

ZINASU President Obert Masaure was detained by suspected state security
agents when he arrived at the university's' main campus, union national
executive Chamunorwa Madiridze

Thomas Chiripasi and Sithandekile Mhlanga | Washington 18 October 2010

Students at the University of Zimbabwe and other institutions of higher
learning in the country on Monday launched a boycott of classes demanding a
cut in tuition fees and access to campus residences closed since 2007.

Student sources said armed police details responding to the boycott action
raided the offices of the Simbabwe National Students Union in the Emerald
Hill suburb of Harare, confiscating documents and publicity posters.

ZINASU President Obert Masaure was detained by suspected state security
agents when he arrived at the university's' main campus, union national
executive Chamunorwa Madiridze told reporter Thomas Chiripasi.

Deputy Minister of Higher and Tertiary Education Lutho Tapela said the
dining hall and some halls of residence at the University of Zimbabwe are
under renovation so students cannot be accommodated yet.

Tapela told VOA Studio 7 reporter Sithandekile Mhlanga that student
complaints about fees were unwarranted as they can enter a so-called
cadetship scheme with fees paid by the government in return for service
after graduation.

But students said they did not want to be bound to service for years after
university in that way.

Zimbabweans face uncertain future in S.Africa

http://af.reuters.com/

Tue Oct 19, 2010 1:49pm GMT

* Last migrant safety camp closes in SAfrica

* Remaining refugees anxious, some returning to Zimbabwe

* South Africa to restart deportations end of year

By Wendell Roelf

DE DOORNS, South Africa, Oct 19 (Reuters) - Mercy Makoma packed her bags and
planned a return to her native Zimbabwe after the last South African camp
offering migrants sanctuary from xenophobic attacks closed at the weekend.

About 1,300 migrants, mostly from Zimbabwe, have called the tented camp set
on a rugby field home for nearly a year, worried that if they if they go
elsewhere, they may fall victim to the ethnic violence that has claimed at
least 60 lives in the past few years.

South Africa has become a haven for migrants from across Africa due to its
liberal immigration policies, with hundreds of thousands from neighbouring
Zimbabwe crossing the border in 2008 when its economy was crushed by
hyperinflation.

The amnesty for visa-free crossing into South Africa granted to the
Zimbabweans will expire at the end of this year, alarming immigrants who
face mass deportations, increased exploitation by employers and a possible
renewal of ethnic violence.

"I have fear. That's why I decided to go back home," Makoma, 21, told
Reuters as tents donated by the United Nations were dismantled around her in
the rural town of De Doorns, about 150 km (100 miles) north of Cape Town.

"It's not easy to go to the location where the people are saying: you can't
come here. We still fear that there may be violence in the township," Makoma
said as her two-year-old daughter milled around the family's meagre, bundled
possessions.

At the De Doorns camp, the Zimbabweans facing an uncertain future have left
behind rotting vegetables, empty food tins and a lattice of sandy footpaths
formed between the barren patches where tents once stood.

ETHNIC VIOLENCE

The tensions remain that caused a wave of xenophobic attacks in 2008, which
displaced tens of thousands and left 62 dead. Impoverished locals still
blame immigrants for taking scarce jobs in the country with 25 percent
unemployment, threatening violence unless they leave.

There are no definitive figures on how many Zimbabweans are in South Africa,
although the International Organisation for Migration estimates the figure
at between 1.5 to 2 million.

In places such as the agricultural community around the De Doorns camp,
Zimbabweans take to the fields for grape picking season, offering farmers
cheap labour off the books.

Even as the last 269 people were departing the camp, about 100 more
Zimbabweans trickled in hoping to find work.

Far away from the camp, Zimbabweans have also been flocking to offices for
the Ministry of Home Affairs in major cities, trying to obtain the documents
that will make their stay legal.

The government has said it expects to provide paperwork for all Zimbabweans
by the end of year deadline, but if the processing continues at its present
rate, more than 1 million will become illegal when 2011 starts.

Queues of immigrants stretching hundreds of metres long have become
commonplace at the Home Affairs office in Johannesburg. The government has
threatened a mass deportation for those who do not receive the appropriate
papers.

"They are short of telling us to leave. I think they feel there are too many
of us. This is their way of trying to catch us out and send us back," said
Zimbabwean Mantombi Mafu.

Experts are not sure what will happen when the year ends and South Africa is
faced with the mass of Zimbabweans who do not have proper papers to stay.

"I would guess that the threat of deportation is there, which will only
encourage corruption and illegality around documentation," said Loren
Landau, director, Forced Migration Studies Programme at the University of
the Witwatersrand in Johannesburg.

Zimbabwe has cooperated with South Africa to supply documents. It would like
to see its skilled workers return but would also like to see a large number
of migrants remaining in South Africa to send money back home to support the
struggling Zimbabwe economy.

Back at the De Doorns camp, few options seemed appealing.

"This is bad, very bad. Where can I go, what must I do now?," a man named Mr
Majoni asked.

Outrage in Zimbabwe after contestant loses African Big Brother final

http://www.telegraph.co.uk

By Aislinn Laing in Johannesburg
Published: 6:38PM BST 19 Oct 2010

The office of Robert Mugabe has reportedly demanded recordings of Africa's
Big Brother after a Zimbabwean contestant was beaten by a Nigerian in the
final.

Mr Mugabe's nephew and another political ally have launched a drive to raise
£190,000 in compensation for Munya Chidzonga, 24, from Harare, after
criticising the voting process as not "free and fair".

Officials at MNET Africa, the continent-wide satellite television company
which screens the show, said that Mr Mugabe's office has also asked for
recordings of the show's Sunday final.

Mr Chidzonga, an actor whose nickname is Diamond Boy, first appeared on
African Big Brother in 2008 but was invited back to take part in this year's
All Stars, which reunites the viewers' 14 favourites characters. The
Zimbabwean often walked around the house, in Johannesburg, South Africa,
draped in his national flag and expressed a wish to meet Robert Mugabe.

Both he and Nigerian Uti Nwachukwu had won the votes of seven African
countries each but Nwachukwu clinched the £127,000 prize after gaining the
Rest of Africa vote.

The result sparked outrage in Zimbabwe, where there were claims that voting
had been manipulated to please the larger Nigerian audience.

Millionaire property tycoon Phillip Chiyangwa, Mr Mugabe's nephew and a
former Zanu-PF MP, said Chidzonga had been "cheated" out of the title by
bogus voting practices.

"We have opened a bank account and created a board of trustees for Munya
because we believe he was cheated and has been traumatised by the outcome,"
he said.

"Let's give to Caesar what belongs to Caesar and release the shock from
him.Where there is no hope, we must invent hope."

He said his property company, Pinnacle Holdings, could give Mr Chidzonga "a
piece of property or even a house to compensate for the traumatic
 experience".

David Chapfika, a former Zanu-PF finance minister and now chairman of the
Indigenisation and Economic Employment Board, said others were keen to back
the fundraising drive for the father-of-one whose son, Pfumai, was born on
July 13 - five days before he went on Big Brother All Stars.

MNET were unavailable to comment.
 

OPINION: Mugabe succession – Divisions over hyped

http://www.zimonline.co.za/

by Alex Magaisa Tuesday 19 October 2010

My attention was drawn to two stories that grabbed headlines in the global
media in the past months. The first was in the UK where Ed Miliband was
elected leader of the opposition Labour party.

The election was remarkable in that it was a close contest between Ed and
his elder brother, David Miliband. It was the climax of a long race in which
David had started as a strong favourite.

It signified the end of the Blair/Brown years that began in the late
nineties, the majority of which Labour was in power and the start of a new
era with Labour trying again to win power.

The significance of this is that leaders of political parties come and go.
Things change and a party does not depend on the leader for its existence.

The second was the reported anointment of young Kim Jong-un by his father,
Kim Jong-il the North Korean president, also known as The Dear Leader.

Apparently, the Dear Leader is not very well and the anointment of Kim
Jong-un paves the way for his eventual succession to the highest office. Kim
Jong-un is known as The Brilliant Comrade.

Note that Kim-Jong-il, The Dear Leader is himself a product of similar
ascendance to power, having been anointed by his own father, Kim ll Sung,
also known as The Great Leader. The Great Leader ruled North Korea from its
founding in 1948 until he died in 1994.

Methods of succession

The two stories give us an indication of the methods of succession in
politics – one through open contest and election by members and the second
through hand-picking the chosen one.

The first is the norm in open democracies and the second is more obviously
associated with dictatorial regimes, in which members of the public have no
say in the choice of who leads them.

Looking home to Zimbabwe, it occurred to me that succession has been a very
sensitive subject in the major political parties. It is almost a taboo
subject, discussed only under cover of darkness and even then behind closed
doors.

Mugabe may not be Zanu (PF)’s founding president but he has held the
leadership position since 1976 following Ndabaningi Sithole’s ouster. MDC-T’s
president Morgan Tsvangirai has led the party since 1999.

Mutambara has been leader of MDC-M since 2005 and ZAPU has recently
installed Dumiso Dabengwa as president.

In most of these parties the issue of leadership succession is frowned
upon.?Various reasons are thrown about to justify non-contestation of the
top leadership post. They include but are not limited to fears that
leadership contests divide the party and in the case of parties seeking
power, that ‘the struggle’ is not yet completed and therefore leadership
changes may derail ‘the struggle’.

Overall, the culture of leadership contestation seems alien to Zimbabwe’s
political culture; indeed, anyone who dares to challenge a political party
leader openly is often denigrated as a divisive ‘faction’ leader or worse, a
traitor. Little wonder then, that when it comes to national leadership
contests, there is much resistance to such challenges.

National sport

There is probably an expectation that a leader will leave of his own
volition but what if he doesn’t?

So high is the secrecy around leadership changes in Zimbabwe’s political
parties that speculation on ‘succession’ has the status of a national sport
with the media as the arena in which it is played on a weekly basis.

For as long as I can remember getting the first taste of political news in
newspapers and magazines such as Moto, Parade, Horizon, Prize Africa, etc
(and those titles reveal that it’s quite some time ago), the ‘succession
story’ in Zanu (PF) has been a permanent fixture in the media, appearing in
various guises from time to time.

It is fuelled by speculation with ‘highly placed’ or ‘impeccable’ sources
routinely deployed in the stories to give the stamp of authenticity.

The audience (readership) follows closely observing the twists and turns,
the plots and sub-plots in what has become a long-running Mafia-type movie
in which The Godfather remains at the helm, pulling the strings and keeping
the family together.

Of late there has been much speculation regarding leadership succession in
Zanu (PF) on account of Mugabe’s advanced age and the failings that often
attend the circumstance of elderly age.

But how really credible are the many plots and sub-plots in this drama? And
how fatal are the so-called succession fights to Zanu (PF)? To my mind, the
often touted speculation that succession ‘wars’ will somehow derail Zanu
(PF) are misplaced.

It seems to me that the succession politics in Zanu (PF) are generously
over-played in the media and quite likely both Mugabe and Zanu (PF) benefit
from this sport of speculation as it keeps opponents guessing and grappling
in the dark.

Fighting baboons

The ties that bind the key players in Zanu (PF) are underplayed as a result,
giving the impression that somehow Zanu (PF) is a severely divided party. To
be sure, like any political party, Zanu (PF) is a conglomerate with many
different people and sub-sectors and there is bound to be conflict from time
to time.

But their reaction to outside challenge is no different from the response of
religious believers who when attacked by non-believers they put aside their
differences and find unity in their common belief that there is a Creator
out there who is in charge of their destiny.

Do they not say in the Shona language that baboons may fight over food but
when it comes to defence they do so in united numbers?

In other words, there is more that unites all those so-called factions in
Zanu (PF). At the heart of all is power – i.e. that power must remain within
their ranks unless doing so threatens to undermine one of their number.
Power facilitates the achievement of two critical things:

First, control over the means of wealth creation – I almost said, means of
production, but I realise that there is a distinction between production and
wealth creation.

You can create wealth illegitimately, without necessarily producing anything
of value – take for example the rent-seeking behaviour whereby politically
connected persons bought foreign currency at cheap rates from the central
bank and sold it at exorbitant rates on the black market or the
money-burning exercise or even clearer, the grabbing of equipment and
machinery from white farmers and selling it on the market.

You may be creating wealth for yourself but you’re not producing anything of
value to the nation. From Marange’s diamonds to the counters of the Zimbabwe
Stock Exchange, there is much wealth to be gained and protected by retaining
power in one’s hands.

Second, power guarantees protection from accountability for legal wrongs.
Specifically, it protects holders of power from prosecution for human rights
violations.

It is common cause that most leaders in Zanu (PF), including the security
sector, have been roundly accused of human rights violations, from
Gukurahundi in Matabeleland to the more recent events in the struggle for
power between Zanu (PF) and the MDC.

There has been a lot of noise from human rights groups both in Zimbabwe and
abroad, all baying for retribution against wrong-doers. In these
circumstances, it matters very little, if at all, which faction you belong
to in Zanu (PF) – they are all fearful of the unknown that might befall them
should they lose the protection that power affords.

The new Godfather

These things matter more to the various leadership aspirants in Zanu (PF).
Each one has to balance the competing interests – whether to pursue power at
all costs and be the top dog or to concede power to another aspirant, whilst
deriving comfort from the fact that his/her party is still in power.

I suspect when it comes to the crunch, they will settle for the latter to
the extent that their access to the means of wealth-creation and their
security are safeguarded. These are the key ties that bind the party or the
aspirants for leadership and it seems to me there is an unwritten
understanding that this would be the case.

A reported leadership-aspirant Emmerson Mnangagwa could have taken his ball
and run away from the football field after the disappointment of the
collapse of his vice presidency bid in 2004 which he lost to Joice Mujuru.
Likewise, Mugabe could have dumped him. But that did not happen because
there is more that binds them in that party than the points of separation.

The overriding consideration will be the extent to which the new Godfather
after the departure of the Boss of all Bosses will continue the legacy of
protecting various members of the ‘Family’.

Whether the new Godfather will be handpicked, following the style of our
‘friends’ in North Korea or will come through an election such as the one
recently held in UK’s Labour Party, the key determinant will be how that
Godfather carries on with the Family tradition.

In the world of the Mafia, tradition is held in very high regard; the wheels
of change turn very slowly in that terrain. Those pinning hopes on the
departure of the Boss of all Bosses, that somehow succession wars will open
new avenues for political change, had better be prepared for a long, tough
brawl ahead.

Alex Magaisa is based at Kent Law School, The University of Kent and can be
contacted at wamagaisa@yahoo.co.uk

JAG - farms situations communique

Dated 18 October 2010

Email: jag@mango.zw : justiceforagriculture@zol.co.zw

JAG Hotlines: +263 (0712) 610 073.  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".

-------------------------------------------------------------------------------

Wantage Farm - Chegutu

-------------------------------------------------------------------------------

Wantage Farm - Chegutu

Thursday 14 October 2010:  Mr Mudavanhu arrived at our homestead
accompanied by 5 young men. He told me we had to get out of the house and
move all our things off as he was taking occupation. They all settled
themselves on the garden chairs and told me that we had until 3pm to
remove our belongings or they would throw them out. My husband went to
the police station to report the situation and ask for a reaction. The
police suggested he ask the Directorate of Lands for assistance and
wouldn't come out to the farm.

In the meantime the young men were extremely belligerent, telling me we
should get out - 'black and white are not together, there is no place for
you here, land is for Zimbabweans only'. I am a fifth generation
Zimbabwean but this I was told was irrelevant as I was white.. He held
out his arm and said 'This is black, even if you are born in Kadoma
(which I was) you are white and have no place here.'

We had been through this two weeks earlier. Timothy Mudavanhu had then
brought six older men to our house, one stating he was the newly elected
chairman of the war veterans in our area, Mr Dzapasi. They had chased
away our workers, stopped the watering of our crops and livestock and
barricaded the gate to our house so that we could not go in without a
confrontation. Efforts to enlist the assistance of the police were
fruitless and as a South African national my husband finally turned to
the South African Embassy to seek advice and help. That same afternoon
the Chegutu police asked to see the court orders we had against Timothy
Mudavanhu and offered us their assistance 'anytime' we were 'experiencing
difficulties' and that we should in future 'contact us [police
station] first before enlisting other aid'.

Early the next morning we returned home as the police had advised and had
just unlocked our house when Timothy Mudavanhu arrived at the locked gate
with the same six people who had been with him the previous day. When we
asked what we could do for them, Mr Dzapasi unleashed a vitriol of hate,
that we had no right to occupy property that had been offered to Timothy
Mudavanhu and should move off immediately. We first explained again that
we had bought the smallholding from the Zimbabwean Pension Fund in 2001
with a letter of No Interest from the government. This letter states that
the government had no interest in the property for the purpose of land
reform. Mr Dzapasi shouted that our uncle Cecil John Rhodes had stolen
the land from them and that this was now their time, we whites must ****
off and get out of Zimbabwe. We then explained that we had been to court
but that didn't get very far as he shouted that he couldn't care about
any court papers, 'There is no law for whites in Zimbabwe, we are
the law!' and then gave us 3 hours to get all our possessions out of the
house and off the property or they would personally come in and throw it
out.

My husband contacted the South African Embassy to update them on
the matter and I phoned Chief Inspector Zengeni on the number he had
given us the previous day. When I told him the problem he said he
couldn't talk now he was in a meeting. When we phoned again he said he
was coming out with the lands officer to 'settle the matter'. When they
came Inspector Zengeni said the two lands officers wanted to see the
court orders. I fetched them and they had a small conference around the
papers. We were told the papers seemed to be very clear on the matter and
that we should attend a meeting along with Timothy Mudavanhu at the lands
office at 8am the following morning to 'clarify matters'. We were also to
bring along copies of the various provisional and final orders we had
from the courts. We should however enlist the aid of the Sheriff of the
court to evict the six men and Timothy Mudavanhu from the property. When
we came back with the sheriff they had all disappeared.

At the meeting the next day we weren't asked one question. The lands
officer and Inspector Zengeni asked Timothy Mudavanhu if he was familiar
with the contents of the order. He dismissed it as of 'no relevance' to
him, he had been given an offer letter to our property and if the
government had made a mistake in allocating it to him then it was our
problem not his. The lands officer explained to him that the dispute over
the property had been brought before a Zimbabwean court and judge and
that the judge had ruled on the matter. This ruling was very clear that
Mr Mudavanhu was not allowed to take the property or to harass us, our
workers or possessions or to employ anyone to do so. Timothy
Mudavanhu shouted that he had enlisted the police and the lands office
the day he brought the people out to Wantage and now they were 'throwing'
him off. He pointed out that we had also taken our case to the SADC court
so they shouldn't offer us any further support. The lands officer and
Inspector Zengeni insisted that the court ruling was very clear and they
were now 'abiding by the law' and bound to uphold it.

When Timothy Mudavanhu shouted that he would go back onto Wantage and
stay there the lands officer stated that if he insisted on 'this course
of action' the lands office would have no choice but to 'distance'
themselves from Mr Mudavanhu. The lands officer then stood up while Mr
Mudavanhu was still shouting and told my husband and I we could go, but
to 'please feel free to contact me or my office if you have any
difficulties in future or need assistance in any matter'. This is
something we have never heard before from a lands officer and were quite
shocked by the abrupt turn around in matters. For the past nine years we
have been fighting constantly to keep and work the property we bought on
the town border and never once has the lands office offered us any form
of assistance or has the police indicated that they would uphold the
court orders.

That was two weeks ago, we had twelve days of quiet and were still trying
to decide whether we could believe the earlier happenings when Timothy
Mudavanhu drove into our yard on Thursday morning 9am with six young men
claiming to be part of the Chegutu Zanu PF youth. The youth leader
eventually produced a card identifying him as 'Mtonga', the others
refused to produce any identity and Timothy Mudavanhu insisted they
didn't need to, they all 'work for me, I have employed them'. I asked him
what about the previous meeting at the lands office and he laughed saying
it was 'irrelevant', they had had another meeting to 'establish the new
position' and he was now here to take his house. I asked what about the
Chief Inspector and the lands officer's decisions and he replied 'phone
them they're not dead.'

Indeed Inspector Zengeni said it was a 'hot potato' and refused to send
out any form of support or detail and the lands officer had conveniently
been removed and was no longer available. Inspector
Zengeni eventually turned off his cellphone and attempts at the police
station - which had pledged their assistance 'anytime' two weeks earlier
- to enlist a detail to accompany the sheriff for an eviction were
fruitless.

They eventually made a bonfire on our lawn and appeared to be both
intoxicated and drugged, singing Chimurenga songs. The South African
Embassy didn't seem able to enlist any form of help and we decided that
we would start with contempt of court proceedings against Timothy
Mudavanhu. The advocate we had seen on the previous occasion had pointed
out that this was why Timothy Mudavanhu had never been arrested thus far.
We couldn't see why another court order would be any more relevant than
the previous orders which were all blithely being ignored but thought it
once again seemed our only recourse in this mad world. We drove to the
lawyer in Harare and that was our mistake. We should have known what
would happen but perhaps the abrupt turn of events two weeks earlier had
dropped our guard. We never got back into the house and found ourselves
with only the clothes we were wearing that afternoon. All our things and
the children's things were in the house. The children had come home
from school for the first time in 3 weeks only to find there was no home
to go to. All they had was the clothes they had brought from school and
our youngest son, only the clothes he wore to school.

That night Timothy Mudavanhu had a huge party to celebrate their
'victory' outside the house.

Friday 15 October 2010: broke our locks to the main gate, fitted his own
padlocks and starts to move his equipment into the yard, Manager Nicolas
Mawiti and family also locked out of his home in the main security fence
as Mudavanhu also fits his own padlock onto Mr Mawiti's gate.

Saturday 16 October: Continual report from guards that we are expected to
bring the keys to the house or the doors will be 'kicked down' and
everything `thrown out'. The six youth maintain a constant
presence and receive constant supplies of beer and food from a jubilant
Timothy Mudavanhu.

Sunday 17 October: Guard reports that Mudavanhu is now waiting for a
housebreaker from Kadoma (name given) to force entry into the house. He
informs our security guard that he will not allow anything to be removed
off the property including generators, pumps, etc. and expects cattle and
horses to be moved off with immediate effect. He announces his intention
to remove the newly planted flower bulbs tomorrow (Monday) in order to
plant his beans in the beds.

We deliver an official complaint to the to the Police General
Headquarters in Harare as foreign investors and South African nationals,
against the deliberate inaction and refusal to provide assistance, of the
Chegutu Police, particularly Chief Inspector Zengeni.

The security of our investments as of those of countless other foreigners
have been reduced to crisis-driven phone calls that may or may not
alleviate matters.

This current incident is far-reaching as we risk losing everything
including our personal possessions, crops, movables and equipment. The
tomato crop will be ready in 4 weeks with a potential yield of 260 tons.
We recently replanted 2 hectares of Polyanthus Tuberosa and expectations
based on previous crops would allow us to export 400 000 stems to the
European market. On the same property we are currently feeding 80 head of
cattle for slaughter and kraal 140 weaners each evening. It is these
cattle that Mr Mudavanhu is insisting we remove with immediate effect.

We sit now with our heads in our hands. We have never stolen this land.
We are white and that is our downfall. We haven't broken the country's
laws and have on each occasion appealed through the proper processes for
the protection of our property. This has made no difference to any of the
authorities, it remains a 'tricky' issue. I put it to the
authorities that it is because we are white that we have lost all our
constitutional rights to protection and recourse and have endured ongoing
harassment for the past nine years.

Heidi Visagie

Wantage Farm

Chegutu

The Ninth Mofokeng Lecture, 2010 - Jeremy Gauntlett

JUSTICE FOR AGRICULTURE - LEGAL COMMUNIQUE

Dated 18 OCTOBER 2010

Email: jag@mango.zw : justiceforagriculture@zol.co.zw

JAG Hotlines: +263 (0712) 610 073.  If you are in trouble or need advice,
please don't hesitate to contact us - we're here to help!

==========================================

==========================================

THE NINTH MOFOKENG LECTURE, 2010 - Jeremy Gauntlett

THE LIE OF THE LAND:

LAW AND LAND SEIZURE IN ZIMBABWE 1890 - 2010

President and Judges of the Court of Appeal and of the High Court,
members of the Lesotho Law Society and its Executive, members of the
Mofokeng family, other honoured guests, ladies and gentlemen:

It is now almost a quarter of a century since the death of Judge
Mofokeng.  He was a pioneering legal practitioner, writer and judge in
Lesotho.  It is an honour to be asked to deliver this year's
lecture in his memory, and a privilege to do so in the presence tonight
of his family, judges of Lesotho and members of its legal profession.
This is the more so given my own years appearing before the courts of
this country, followed by twelve years' service on the Bench of the
Court of Appeal, first under the leadership of Judge Jan Steyn and
thereafter the current President, Judge Michael Ramodibedi.

Many scholarly topics have been chosen for this lecture over the years.
So have perennial issues concerning, for instance, the independence of
the judiciary.  Given the wide range of Judge Mofokeng's own
interests in the law, I thought that an apt topic to offer tonight in
memory would be an issue which is simultaneously a matter of legal
history and current controversy.  It does not concern, at least directly,
a domestic issue in Lesotho, although I know the question of land rights
is a very topical one here too.  It is however a matter which is not
confined to the country to which it relates.  Land, its dispossession in
colonial times and its reallocation now loom large across Southern Africa
and, indeed, elsewhere.  We mark in this regard another anniversary: 125
years last week since the Berlin Conference where, without of course a
single indigenous person from Africa present, in Chancellor
Bismarck's music room in his villa on Wilhelmstrasse competing
colonizers drew lines on a map before them.  Recognising that they did
not own the land, they recorded their rights to `pursue'
ownership of the designated spheres of interest.

My topic tonight is just such a `pursuit' of land between the
Limpopo and the Zambezi by its early occupiers in the 1890's
- and a new `pursuit' a century later by a different
class of takers of land. It considers two seizures of land, involving in
both instances a  disregard for rights and the principle of the rule of
law, articulated, ironically, at very much the time of the first seizure
by Albert Venn Dicey. What the second seizure, still underway,
exemplifies is, I shall suggest, Auden's bleak adage:

"I and the public know

What every schoolchild learns

Those to whom evil is done

Do evil in return".

And what both seizures illustrate is the observation by the great South
African Appeal Court Judge, F.P. (Toon) van den Heever, father of a
former colleague on the Court of Appeal of Lesotho, in his work The
Partiarian Agricultural Lease in South African Law (1943) 4:

"It is a sad reflection on human nature that laws should always
have tended to entrench power and privilege against the serving and
deserving classes who are usually disorganised and mute".

My tale tonight, which could equally be subtitled: The Road to the SADC
Tribunal, requires a disclosure: I have acted in proceedings before the
Tribunal for a series of Zimbabwean litigants. One was the first Black
Zimbabwean ever to receive freehold title to a farm in that country, only
to have his farm thereafter taken back by administrative fiat. Another
was an NGO, the Zimbabwean Human Rights Association, seeking to have
Zimbabwe held in breach of its SADC Treaty  obligations because of its
dishonouring of court awards of damages inter alia for assaults and
torture by defence forces in that country. The third has been a group of
commercial farmers, their workers and the families of both.

My story begins with the famous inaugural lecture by Ruskin at Oxford
shortly before Cecil Rhodes went up to Oriel College.  The lecture made a
lasting impression on Rhodes.  Ruskin, the greatly talented artist and
aestheticist, said:

"This is what England must either do or perish; she must found
colonies as fast and as far as she is able, formed of her most energetic
and worthiest men; seizing every piece of fruitful waste ground she can
set her foot on...."[1].

The ethos of high idealism and ruthlessness is exactly stated.  It soon
found particular application in the perceived "waste land"
across the Limpopo in the late 19th century.  There is not time tonight
to do justice to the early history of Zimbabwe, before and after its
invasion by the Ndebele under Mzilikazi following his defeat by the
Voortrekkers in 1837.  This was all part of the mfecane, the
extraordinary diaspora set in train by the militarisation of the Zulu
people under King Shaka.  The Ndebele monarchy which took root in
Bulawayo - it means place of slaughter - was the third
unifying authority of the great territory between the Limpopo and Zambezi
Rivers, between the Kalahari Desert and the Chimanimani Mountains.  It
followed the rule of the Monomatapa and the Changamire.[2]  Mzilikazi was
a very great leader, and he performed the remarkable task of building the
Ndebele nation from the original 10 000 Abezansi who crossed into modern
day Zimbabwe with him, a large group of Avenhla (those conscripted from
the Swazi and Sotho peoples in the course of Mzilikazi's long
journey, and finally, the Amaholi, Shona-speaking people willingly
recruited into the new society.  He treated less compliant Shona tribes,
occupying the eponymous area of Mashonaland, the great north and eastern
swathe of the country, as vassals.  They were frequently plundered, often
with great brutality.

From the beginning Mzilikazi pursued what Lord Blake calls a policy of
diplomatic isolation.[3] He signed a treaty in 1853 with the Boers,
agreeing to give protection to travellers, foreign traders and hunters so
long as they adhered to a single well-guarded route via the Mangwe Pass.
The Transvalers - in 1852, by the Sand River Convention, Britain
had recognised the independence of the South African Republic -
kept their word.  Trouble came from a different quarter. Mzilikazi
himself encouraged the legendary explorer-missionary, Robert Moffat, to
set up a mission station at Inyati.  It seems his indunas warned him
against it.  Mzilikazi however saw the advantage in the technical skills
on offer, particularly medicine.  (He suffered the consequences of what
is being described as "a diet of huge quantities of beef washed
down by pot after pot of beer", and like his son, Lobengula, from
the "statesman's malady": gout).[4]

Mzilikazi died in 1868. Gold was discovered the year before, near the
Umfuli River.  In 1870 Lobengula granted what came to be known as the
Tati Concession: it granted no land, merely the right to mine precious
metal. The area in question was a part of current day Botswana, and
Lobengula's own claim was in fact disputed by the Bamangwato, a
Bechuana tribe.  Little came of the supposed goldfield.  But a process
had begun.  Particularly when in 1886 gold was discovered on the
Witwatersrand: "the world of Southern Africa could never be the
same again".[5]

In 1888 Moffat the missionary procured King Lobengula's signature
to what has come to be known as the Moffat Treaty.  Under it the King
promised to give no part of his territories to anyone "without the
previous knowledge and sanction of Her Majesty's High Commissioner
in South Africa".  For a lawyer, this of course was purely a
cautio: a negative restraint, procedural to boot, not a positive grant.
What did Lobengula seek in return: it seems - but it was never recorded -
an undertaking of British protection.  That was later denied.

A slippery slope beckoned. The Moffat Treaty was followed by the Rudd
Concession which gave the grantees "complete and exclusive charge
over all metals and minerals situated and contained in my kingdom,
principalities and dominions together with full power to do all things
that they may deem necessary to win and procure the same".  Rudd
was an agent of Rhodes.  It seems that simultaneous oral promises were
made never to bring more than ten white men to work in the kingdom, not
to dig anywhere near its principal settlements and to abide by the laws
of the Ndebele. These restraints were soon ignored.

In 1889 Rhodes moved quickly to secure concessions in Mashonaland direct
from the chiefs concerned.  He knew that at best their authority was
dubious, and that the territory concerned was subject to frequent
assertions of suzerainty by Lobengula.  And so it happened that 120 years
ago last month the Pioneer Column crossed the Hunyani River and paraded
at what is now All Africa Square in Harare, hoisting the Union Jack.

Each pioneer was thereafter free to peg his promised 15 gold claims and
to "ride off" a three thousand acre farm.  The British South
Africa Company sought to validate this by the purchase in 1891 of the
Lippert Concession - a most dubious grant from Lobengula of the right to
dispose of land in his dominions for the next 100 years.  The right of
the chartered

company to distribute farms was undermined yet further by the revelation
that it itself had never owned the Rudd Concession and had to buy out the
United Concessions Company in order to do so.[6]

In this situation, the plight of the Shona people was particularly
evident.  They were caught between the continuing depredations by
Lobengula and new ones by the British South Africa Company.  As a writer
has aptly put it, "to one they were a source of cattle and women,
to the other a source of labour; the Mashona, reluctant to fill either
role, could hardly fill both".[7]

Lobengula himself accepted a de facto border between his truncated
dominions and those taken by the Pioneer Column, running along the line
of the Umniati and Shashi Rivers.[8]  But then a Shona chief stole some
of his cattle.  Lobengula sent an impi across the de facto border,
whether to recover the cattle, or to take vengeance, or to make a general
example to Shona petty chiefs is not clear.  That he did not intend war
with the Whites seems clear enough, or else, as Blake points out, he
would neither have divided his forces nor sent a message that his men had
strict orders not to molest the settlers or their property.

But what ensued was the proverbial spark.  The settlers witnessed an
Ndebele impi in full retributive action, reducing Shona kraals to ashes
and assegaiing and mutilating people.  How Dr Jameson responded is
documented.  He sent this telegram:

"I intend to treat them [the marauding impi) like dogs and order
the whole impi out of the country.  Then if they do not go send Lendy out
with 50 mounted men to fire into them".

(This choice of Capt Lendy was because of his ruthlessness: shortly
before he had led the massacre by Maxim gun of a recalcitrant minor Shona
chief and his people).

Jameson sent another cable shortly thereafter:

"I suggest the Ferreira trick, as we have an excuse for the row
over murdered women and children now and the getting Matabele land open
would give us a tremendous lift in shares [of the Chartered Company] and
everything else.  The fact of its being shut up gives it an immense value
for both here and outside".[9]

It is difficult to fault this elegiac assessment by Lord Blake:

"It is hardly conceivable that Lobengula's monarchy could
have survived in its existing form. . . .  Whatever happened, an Iron Age
monarchy would not for long have co-existed with the Chartered Company.

Yet, if it be the case that Lobengula was blown away by the gale of the
world, one can neither withhold sympathy from him nor extend it to Rhodes
and his agents.  They cheated him over the Moffat Treaty which did not
give him the protection he expected.  They defrauded him over the Rudd
Concession which did not mean what he believed it to mean, and when he
found this out Jameson simply threatened him with a White impi.  They did
him down yet again over the Lippert Concession, Rhodes' purchase of
which Moffat regarded as `detestable whether viewed in the light of
policy or morality'.  Finally, they forced a war on him which he
could only have avoided at the price, as he saw it, of abandoning half
his kingdom.  The Ndebele state was cruel and barbarous.  Its passing
need cause little regret. . . .  [But what happened] was a war of
conquest, and conquest henceforth constituted the title deeds of the
White man in both Mashonaland and Matabeleland; for the conquest of the
latter entailed that of the former".[10]

It is also Lord Blake's judgment that the least defensible feature
of the new regime was its treatment of land.  The volunteers for the war
were promised a farm of 6 350 acres each, which should have meant
approximately 6 million acres in total.  (There were 948 volunteers).
But by 1899 15.7 million acres had been alienated to the settlers.  Sir
John Willoughby alone received 600 000 acres.  And by 1899 more than
two-thirds of the original volunteers had in any event sold out their
grants to companies or individual speculators: a lesson in land
distribution never learnt.

It seems that in achieving an end to the 1896 rebellion, Rhodes
negotiated the surrender of the indunas on the basis that they could
return to their old grazing grounds - but that he did this by negotiating
with White owners that this happen only for the next two years.  Of
course what thereafter happened was that very substantially Shona
agriculturalists were either forced from the land or obliged to pay some
form of rental for it.  Coupled with the introduction of hut tax or poll
tax, the trend was established for a new class of landless, rootless
labourer, obliged to congregate in the developing urban areas in what
were called "locations".  These stood apart from the areas of
White habitation, and segregation, separation from families and entire
economic dependence on the new settlers was established.  So did control
over freedom of movement: pass laws were introduced.

The land issue continued to fester, while the company ruled until 1918.
Southern Rhodesia's transition to responsible government led to a
growing awareness of a need to amend the law of land tenure.  By 1925
only 19 farms amounting to 47 000 acres outside the reserves were held by
Africans, whereas some 31 million acres were in European possession.  And
of the latter only half was "occupied", and even less
actually farmed or cultivated.[11]  There was a commission of enquiry.
The Carter Commission recommended that out of the 75 million acres
outside the native reserves just over 48 million should be open to
European purchase and less than seven million only by Africans.[12]  Of
the remainder 17.8 million acres was unassigned land available to either
race (with the rest forest land and game reserves under the control of
Government).

Blake observes:

"The White allocation becomes even more remarkable if we remember
that of the 31 million acres which White owners had acquired by 1925 half
was still unoccupied and that even as late as 1965, by which time there
had been a vast extension of European farming, only 36 million acres were
occupied, and nearly all the development had occurred on the 31 million
acres already in European ownership 40 years earlier".[13]

In later years this imbalance in land ownership, and its related feature
the retention of all urban areas other than designated
`locations' for White ownership, was further entrenched. The
most significant measure in that regard was the Land Tenure Act, 1969,
adopted four years after its unilateral declaration of independence by
the Smith administration. Of course these measures were abolished on
independence in 1980 (they could not have withstood challenge under the
Constitution of that year, providing for a justiciable Bill of Rights).
The UK Government and others provided funding for land reform.  Yet
curiously little attention was paid to land reform - until in the
period of 1998-2000 the War Veterans Association led by Hitler Chenjerai
Hunzvi, and the loss of the referendum in that year by the ruling party,
set in train a sequence of events.

These entailed a series of measures for compulsory acquisition. But their
constitutionality, and particularly the legality of the procedures they
entailed, gave rise to vigorous legal challenges. Ultimately the
Government had had enough: taking a lesson from the book of Prime
Minister Indira Gandhi, when she led India into successive States of
Emergency substantially ousting the courts, the new strategy was to cut
down to size the property clause in the Zimbabwe Constitution - and
to cut out access to courts.

On 17 September 2005 Amendment 17 to the Constitution of Zimbabwe of 1980
took effect.  It amended the property clause entrenched in the
Constitution by authorising State seizure.  This could be effected by the
simple device of gazetting designated properties.  It provided also that
there could be no challenge in a court of law to the constitutionality or
other legality of the measure.  A privately owned company which had taken
transfer of the farm Mount Carmel in the Chegutu District near Harare
challenged the measure, together with its beneficial owner, a farmer
called Mike Campbell.  He with eight family members, 67 workers and their
180 dependants conducted a successful export fruit and general farming
operation.  The company had taken transfer on a certificate of no
interest by the Government of Zimbabwe in 1999; thus almost 20 years
after the grant of independence to Zimbabwe by the colonial power.  The
farm had been initially purchased in the name of Mike Campbell himself in
1974.  At the stroke of a pen, on the gazetting of the farm together with
a number of others, and with all access to the courts ousted by Amendment
17, Mount Carmel had become the property of the State, available for
distribution.

Even before the measure took effect, persons claiming that former
Minister Nathan Shamuyarira - an early member of various
nationalist movements in Zimbabwe, former president of President
Mugabe's Cabinet and (ironically) the person to whom Professor
Ranger pays tribute in the Foreword of his book - had occupied part of
the farm.

In terms of the wider land redistribution programme initiated in Zimbabwe
in 2000, those to be resettled would be "indigenous"
Zimbabweans only.  Of course this classification is problematical.  The
Parliament of Zimbabwe was understandably reluctant to follow Nazi
Germany or Apartheid South Africa in attempting a statutory race
classification system.  Who then was "indigenous", and how
this might apply to second or third generation Zimbabweans of Zambian,
Malawian or British or South African extraction, or originally from Asia,
was not stipulated.  But more specific was a creation of two categories
of potential beneficiaries.  Those from communal lands were designated A2
settlers while persons who were members of the armed services, the public
service, the judiciary and other senior government employees were
designated A1 settlers.  The immediate background to Amendment 17 appears
from the unanimous judgment of the Full Court of the ZSC in Commercial
Farmers Union v Minister of Lands.[14]  This details how a series of
court orders against land invasions had met with "some compliance .
. . but also some open defiance".[15]  The Full Court (comprising
Gubbay CJ, McNally JA, Ebrahim JA, Muchechetere JA and Sandura JA)
concluded:

"It is overwhelmingly obvious that the farm invasions are, have
been, and continue to be, unlawful.  Each provincial governor, each
minister in charge of a relevant ministry, even the commissioner of
police, has admitted it.  They could do nothing else.  Wicked things have
been done and continue to be done.  They must be stopped.  Common law
crimes have been, and are being, committed with impunity.  Laws made by
Parliament have been flouted by the Government.  The activities of the
past nine months must be condemned.

But that does not mean that we can ignore the imperative of land reform.
We cannot punish what is wrong by stopping what is right.

The reality is that the Government is unwilling to carry out a
sustainable programme of land reform in terms of its own law.  The first
thing to be done is to return to lawfulness".

The Campbell challenge failed in the High Court.  It proceeded to the
Supreme Court.  It took nine months to deliver a judgment.  The judgment
was delivered for the Court by Malaba JA

(now DCJ) who rationalised the ouster of access to the courts by
Amendment 17 in these terms:

"To stop what was considered obstructive litigation and secure
finality in cases of compulsory acquisition of agriculture land for
public purposes, the legislature enacted the Constitution of Zimbabwe
Amendment Act (no 17) on 14 September 2005"[16]

Striking, too, is the use of the passive voice - "what was
considered obstructive litigation" - in this passage.
Considered by whom?  If that court had put the thought in the active
voice, it would have had to write: "what the Legislature considered
obstructive litigation".  But, it is submitted, that would have let
the constitutional cat out of the bag - for even that court later
in the same judgment is constrained to acknowledge (in expressing a basic
constitutional principle)

"[w]hat is objectionable as being in violation of the principle of
separation of powers is for the legislature to take the functions of
judicial power and exercise them itself under the guise of a legislative
judgment over facts and circumstances of a particular case.  See Livanage
v The Queen [1967] AC 259 at p 291" (emphasis supplied).

The reliance on Livanage is instructive.  Just as Amendment 17 (on the
ZSC's own characterisation) was aimed at a distinct class of
landowners (those owning the 157 pieces of land listed in Schedule 7), so
the Privy Council in Livanage had to do with a distinct number of
litigants at whom a statute was aimed, curtailing their access to
courts.  The rule of law and the separation of powers - both fundamental
to the Zimbabwean Constitution - require the courts, not the legislature,
to deal with pending legal challenges.  If these are purely
"obstructive" - in the sense that they are frivolous,
or without merit and dilatory - it is for the

courts to make such an adjudication.  Here, however, revealed in the
words of the ZSC itself, is a legislative measure deliberately framed to
prevent adjudication and pre-emptively to rule upon pending legal
challenges.

The irony will be apparent.  What the Full Court of the ZSC had ruled in
the Commercial Farmers case was that the (socially necessary) land reform
programme must comply with the rule of law.  Instead, the legislature has
moved - inter alia through Amendment 17 - to ensure that the
courts' power to ensure compliance with the rule of law is ousted.
A second irony is that the court in the Commercial Farmers case had to
deal with an executive subversion of legislation.  Here the executive has
responded by using legislation to attempt to exclude recourse to the
courts.

From here the contest moved to the SADC Tribunal.  This was constituted
under a Protocol to the SADC Treaty.  Article 4 of the Treaty sets out
principles which the member states of SADC undertake to apply.  Article
4(c) includes "human rights, democracy and the rule of law".
Article 6(1) contains an undertaking by member states to "refrain
from taking any measure likely to jeopardise the sustenance of its
principles, the achievement of its objectives and the implementation of
the provisions of this Treaty".

These provisions are also to be read with the Preamble to the Treaty,
which refers to the "need to involve the people of the region
centrally in the process of development and integration, particularly
through the guarantee of their democratic rights, observance of human
rights and the rule of law".

The Vienna Convention on the Law of Treaties, 1969 enunciates what the
European Court of Human Rights has termed "generally accepted
principles of international law to which the Court has already referred
on occasion".[17]

Under international law, the treaties establishing international
organisations such as SADC have often taken account of the provisions of
other international legal instruments which member states of that
particular international organisation have ratified.  For example, the
European Court of Justice has interpreted the terms of the Treaty of Rome
in the light of the

international treaties which member states of the EU have ratified, and
in particular the provisions of the European Convention on Human
Rights.[18]

The SADC Tribunal agreed that in the interpretation of the terms of the
SADC Treaty, consideration must be given to the provisions of relevant
international legal instruments, in particular to the Charter of the
African Union and the African Charter of Human and People's Rights,
as well as to the interpretation of those instruments by authoritative
bodies such as the African Commission on Human and People's
Rights.  Where all this leads to is a very basic point.  While the legal
representatives for the Government of Zimbabwe conceded at the first
hearing, in answer to a direct question put by Justice Tshosa from
Botswana that Zimbabwe accepted the Tribunal's jurisdiction in the
matter, ultimately Zimbabwe sought to dispute this and to assert the
priority of the Constitution of Zimbabwe as the "supreme
law".  What this ignores is Article 27 of the Vienna Convention
which provides that "a party may not invoke the provisions of its
internal law as justification for its failure to perform a
treaty".  This provision, and its rationale, has been clearly
recognized by the East African Court of Justice, which has ruled that:

"[i]t cannot be lawful for a state that with others voluntarily
enters into a treaty by which rights and obligations are vested, not only
on the state parties but also on their people, to plead that it is unable
to perform its obligation because its laws do not permit it to do
so".[19]

Article 16(1) of the SADC Treaty, moreover, confers on the Tribunal legal
authority to ensure "adherence to and the property interpretation
of the provisions of the SADC Treaty" while Article 16(5) provides
that "the decisions of the Tribunal shall be final and
binding".

Also relevant in this regard is Article 6(1) of the Treaty, which
requires member states to "adopt necessary measures to promote the
achievement of the objectives of SADC, and [to] refrain from taking any
measure likely to jeopardise the sustenance of its principles, the
achievement of its objectives and the implementation of the provisions of
this Treaty".

Article 6(6) also requires member states to "co-operate with and
assist institutions of SADC in the performance of their duties".

The jurisdiction of the Tribunal being conceded, as I have described, at
the outset on behalf of the Government of Zimbabwe, three substantive
issues arose for determination.  Each was a ground on which it was
contended on behalf of the applicants that Amendment 17 to the
Constitution of Zimbabwe breached that country's treaty
obligations, rooted in Article 6, read with Article 4, as regards the
protection of human rights, democracy and the rule of law.  The first
entailed the ouster I have described: the exclusion by Amendment 17 of
access to the courts.  As already noted, Malaba JA for the Zimbabwe
Supreme Court usefully described Amendment 17 as embodying a legislative
(and of course executive) determination that the implementation of the
land seizure programme should not be "obstructed" by legal
challenges.

The Tribunal upheld the attack.  It considered the ouster of access to
the courts of Zimbabwe in relation to Amendment 17 to offend the rule of
law.  Important in this regard were the provisions of Article 7(1) (a) of
the African Charter on Human and Peoples Rights, which reads:

"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 . . .".[20]

As Ngcobo J (now CJ) had earlier ruled for the Constitutional Court of
South Africa[21],

"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".

This fundamental inroad - the use of an ouster to make legislative
and executive measures beyond the reach of courts - the
Tribunal's ruling was also supported by a subsidiary aspect.  That
is that of course the ouster also deprived the applicants of a fair
hearing.  In accordance with a practice which operates to its great
discredit, the Zimbabwe Supreme Court in its own ruling had tried to
justify the ouster contained in Amendment 17 by reference to House of
Lords authority.  The citations were as selective as they were
antiquated.  Thus recourse was had to Smith v East Elloe RDC[22] -
without reference to the subsequent groundbreaking decision in Anisminic
Ltd v Foreign Compensation Commission[23] or that in Attorney-General of
the Commonwealth of the Bahamas v Ryan,[24] let alone more recent rulings
such as that by Lord Steyn in Jackson v Attorney-General.[25]

A striking aspect of the SADC main ruling in Campbell was that it ruled
on all three of the attacks - and sustained each.  Often courts
will not do that, if one is dispositive.  Thus the ruling also considers
and upholds the attack based on discrimination.  This entailed the
complaint that Amendment 17 did not target absentee or inefficient or
large-scale farmers, or any other category determined on a defensible,
non-arbitrary basis.  It targeted only white farmers, irrespective of
their personal land-use or circumstances.  And conversely, the evidence
before the Tribunal established, a class of chefs was benefitted: air
vice-marshals, CIO operatives, party officials, regional governors, and
it must be said, judges.

Already in 2000, the then Full Court of the Zimbabwe Supreme Court in the
judgment to which I have already referred, noting the history of land
injustice in Zimbabwe and the obvious need for a land reform policy under
the rule of law, said this:

"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".[26]

An interesting part of the debate was the lack of explicit racial
discrimination in Amendment 17.  But courts around the world have
grappled with this before: where a particular measure fastidiously avoids
any expressly discriminatory measure, but bears down by consequence upon
a group in a discriminating way. An early example in the United States
was local legislation directed at bus passengers.  On the face of it, it
was quite literally colourless.  But given the fact that those targeted
were overwhelmingly poor and black, in its effect it was not.  In the
words of the US Corpus Iuris Secundum, such a provision both trenches
upon fundamental rights and "operates to the peculiar disadvantage
of a suspect class".[27]

Article 6 of the SADC Treaty contains an absolute prohibition against
discrimination on the grounds of race or ethnic origin.  Sub-article 2
reads:

"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".

Racial discrimination contracts the 1776 United States of Declaration of
Independence, the 1789 Declaration of Rights of Man and of the Citizen
issued during the French Revolution and the 1948 Universal Declaration of
Human Rights, signed after World War II, which all postulate equality
between all human beings.  It is prohibited in clause 1 of the
Proclamation of Teheran 1968, and Article 1 of the Cairo Declaration on
Human Rights in Islam 1990.  It is prohibited by Article 2 of the African
Charter of Human Rights and Article 14 of the

European Convention on Human Rights.  It is specifically dealt with in
the International Convention on the Elimination of All Forms of Racial
Discrimination 1965, see especially clause 5(v).

The prohibition against discrimination based on race or origin has become
jus cogens in international law.  This is because it is so contrary to
the norms upon which any nation is founded and governed that that result
must follow.[28]

Article 53 of the Vienna Convention on the Law of Treaties provides that
a peremptory norm of general international law "is a norm accepted
and recognised by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same
character".

In its 1970 opinion concerning the continued occupation of Namibia, the
International Court of Justice has recognised that this provision merely
restates existing international law.[29]

Accordingly, it is a norm which cannot be derogated from no matter the
excuse or reason.[30]

Significantly, the domestic Constitutions of all members of SADC prohibit
discrimination based on race or country of origin.

The third and final basis on which Amendment 17 was attacked was its
failure to provide duly for compensation.  As already noted, Article 4 of
the SADC Treaty binds member states to act inter alia in accordance with
the principles of human rights, democracy and the rule of law, as well as
the concept of equity.  Article 6, as also noted, binds member states to
adopt adequate measures to promote the achievement of the objectives of
SADC, and to refrain from taking any measure likely to jeopardise the
sustaining of its principles, the achievement of its objectives and the
implementation of the provisions of the Treaty.  There can be little
doubt that this in turn entails an incorporation of the guarantee in
Article 12 of the Universal Declaration of Human Rights, by which
international law guarantees that no one shall be subjected to arbitrary
interference with his or her privacy, family or home, while Article 17
guarantees that no person shall be arbitrarily deprived of his property.
The right is one recognised in one of the earliest statements of human
rights, being the Declaration of the Rights of Man and of the Citizen
(Paris, 1789).  Article 17 states:

"Since property is an inviolable and sacred right, no one shall be
deprived thereof except where public necessity, legally determined, shall
clearly demand it, and then only on condition that the owner shall have
been previously and equitably indemnified".

Significantly, too, Article 14 of the African Charter on Human and
Peoples Rights (1981) guarantees the right to property, while Article 21
specifically gives the right to compensation where there has been a
deprivation.

On the last day of the final hearing in the Tribunal, the legal team for
the Government of Zimbabwe tried to secure a further postponement: there
had been several it had procured before. But this time the Tribunal drew
the line. "We are trying", the Tribunal's President,
Justice Alberto Luis Mondlane of Mozambique, said in quiet voice,
"to build a house of justice in the region". The Government
legal team thereupon walked out of court.

What followed was a series of public statements by the Minister of
Justice of Zimbabwe, Mr. Patrick Chinamasa, decrying the Tribunal and
denying its jurisdiction. He was joined in this regard by a public
statement by Deputy Chief Justice Malaba at the opening of the courts
last year asserting that the Constitution was Zimbabwe's supreme
law and no higher authority could be recognized. Of course this misses
the point: once a state becomes a member of SADC, it is bound in
international law by its Treaty obligations. These include the
recognition of the human rights, protection of democracy and advancement
of the rule of law, which article 6 of the Treaty asserts. It may change
its domestic law as it will, but in if what it does is inconsistent with
the Treaty, it is an outlaw in international law.

The land seizure programme intensified last year, in the run-up to the
elections and thereafter. The farmer applicants returned to SADC, seeking
under Article 32 of the Protocol an order declaring Zimbabwe in breach of
the main award and asking the Tribunal to refer such a finding to the
SADC Summit for action against Zimbabwe as a member state in breach of
its Treaty obligations. Two such further orders have been obtained. But
at its first meeting thereafter, in Kinshasa last year, the Summit
deferred the issue. And two months ago, in Windhoek, the Summit adopted a
new stance: it called for submissions on the functioning of the Tribunal,
more particularly whether it should retain its jurisdiction to hold
member states in default of their Treaty obligations and thus open the
way to action against them in international law, ranging from formal
censure to sanctions and ultimately to expulsion from SADC. Effectively
the Summit suspended the future operation of the Tribunal, save in one
key respect to which I shall revert: the periods for which serving judges
hold office have been allowed to expire (including all but one of the
five judges who sat in the Campbell series of matters), with just three
exceptions.

But before this decision was taken, claims for compensation (on the back
of the main Campbell award) were lodged with the Tribunal. Paragraph 9.4
of the Summit's recent decision makes it plain that pending matters
are not affected. The three judges who continue to hold office are a
quorum. So the saga seems set to continue - unless the Summit at
its next meeting takes further steps to disable the Tribunal.

The SADC Tribunal indeed represented a chance, in Justice
Mondlane's words, "to build a house of justice in the
region". What is happening now is a defining moment. Either the
members of SADC will accept that through their Treaty commitments they
have bound themselves under international law to accept and defend the
overlapping trilogy of internationally-recognised human rights,
democratic institutions and the rule of law, and subjected themselves to
the scrutiny of a regional tribunal in that regard, or they will show
that they are going back on that. In that event, words only will be
left:  words of complicity between political leaders shrugging off the
constraints of law.  In the description of Chief Justice Gubbay's
unanimous court a decade ago, in that event more wicked things will be
done, and true land reform will languish. The pattern of deception and
impugnity, initiated at King Mzilikazi's kraal so long ago, will
continue - in short, the lie of the land.

None of us in SADC should think how any of us deal with land leaves the
rest of us unaffected. Already in 1902, Sir James Rose Innes, for most
South Africa's greatest chief justice and in retirement a doughty
fighter for the African franchise, warned in words which recall John
Donne:

"Henceforth nothing either for good or evil can be done in one part
of this subcontinent that will not affect the remainder".[31]

Jeremy Gauntlett SC*

15 October 2010

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__________________________

[1] Robert Blake A History of Rhodesia (Eyre Methuen, London, 1968) 35.
The account which follows owes much to Blake's remarkable history,
the important revisionist account by Prof T.O. Ranger Revolt in Southern
Rhodesia 1896-7: a Study in African Resistance (Heinemann, London, 1967)
and the more modern assessment by David Martin and Phyllis Johnson The
Struggle for Zimbabwe (Faber and Faber, London and Boston, 1981).

[2] Blake op cit 19-20.

[3] Ibid 21.

[4] Blake op cit 22.

[5] Blake op cit 28.

[6] Blake op cit 99.

[7] Blake op cit 101, quoting Philip Mason Birth of a Dilemma (Oxford
1958) 163.

[8] Blake op cit 102

[9] 105.

[10] Blake op cit 111-112.

[11] Blake op cit 201.

[12] Blake op cit 201-202.

[13] Ibid.

[14] 2001 (2) SA 925 (ZSC), especially at 934A-936G; 2002(2) ZLR 469
(SC).

[15] At 936G.

[16] Ibid, p 13.  The judgment records (p 13) that the Government of
Zimbabwe was faced with pending challenges relating to 157 pieces of land
listed in Schedule 7 to section 16B of the Constitution.

[17] Golder v UK (1975) 1 EHRR 524 at para 29.

[18] Nold v Commission [1974] ECR 491, para 13; Rutili v Ministre de
l'interieur [1975] ECHR 1219 at para 32.

[19] Professor Nyong'O and Ten Others v Attorney-General of Kenya
and Two Others Reference No. 1 of 2006 (30 March 2007).  See also R v
Secretary of State for Transport, ex parte Factortame Ltd and Others
[1990] ECR1-2433.

[20] See further Constitutional Rights Project, Civil Liberties
Organisation and Media Rights Agenda v Nigeria, African Commission on
Human and Peoples' Rights, Comm. Nos. 140/94, 141/94, 145/95
(1999), para 33.

[21] Zondi v MEC for Traditional and Local Government Affairs and Others
2005 (3) SA 589 (CC) at para 82.

[22] [1956] AC 736.

[23] [1969] 2 AC 147.

[24] [1980] AC 718 (PC).

[25] [2005] UKHL 56; [2006] 1 AC 262 at para 102.

[26] Commercial Farmers Union v Minister of Lands 2001 (2) SA 925 (ZSC)
at 937I-J.

[27] Vol 16B, para 714.  Cf also Pretoria City Council v Walker 1998 (2)
SA 363 (CC); Jordan v S 2002 11 BCLR 1117 (CC) at para [9]; Zondi v MEC
2005 4 BCLR 347 (CC) at para [90].

[28] Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya
(The Kingdom of Saudi Arabia) and Others [2006] UKHL 26; [2006] 2 WLR
1424.

[29] Legal consequences for States of the Continued Presence of South
Africa in Namibia (South-West Africa) notwithstanding Security Council
Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 at 47.

[30] Sampson v Federal Republic of Germany 250 F.3d 1145 (7th Cir. 2001)
following Siderman de Blake v Republic of Argentina, 965 F.2d 699, 714
(9th Cir. 1992) and Princz v Federal Republic of Germany, 26 F. 3d 1166
(D.C. Cir. 1994).

[31] Harrison M Wright (ed) The Selected Correspondence of James Rose
Innes (1874-1902) (Van Riebeeck Society, 1970) 342.

* BA LLB (Stell); BCL (Oxon); member of the Cape and Johannesburg Bars
and of the Bar of England and Wales; barrister of Gray's Inn.

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