Afeared of its own Tribunal
By Servaas van den Bosch
WINDHOEK, May 16, 2011 (IPS) - The Southern African Development Community
(SADC) faces several awkward problems at the Extraordinary Summit of Heads
of State scheduled for May 20-21.
Mediating between parties in Zimbabwe over a workable plan for elections and
power-sharing in Madagascar may be the headlines, but long-delayed action on
the decisions of the SADC Tribunal could also have long-lasting consequences
for human rights and the rule of law in the region.
Since 2008, the SADC Tribunal has handed down a series of decisions on cases
of expropriation of farmers in Zimbabwe; over 3,000 mostly white commercial
farmers were thrown off their land beginning in 2000, according to the
Zimbabwe government, in order to redistribute their land to landless people.
While the rulings all were in favour of the evicted farmers, Zimbawe flatly
refused to recognise the court's authority to order compensation for the
land seized. The Tribunal referred the matter to the SADC heads of state for
Unable to face the political consequences of ejecting or suspending Zimbabwe
from the regional bloc, SADC leaders instead suspended the Tribunal at their
August 2010 summit, pending a "review" of its functions.
Ten years of land reform in Zimbabwe
Land reform is a powerfully emotive issue in Southern Africa, where a white
minority still holds much of the most valuable agricultural land. Zimbabwe's
rapid, often violent seizure of farm land was framed as fulfilling a promise
A 2010 review by the Southern African Confederation of Agricultural Unions -
an umbrella body for commercial farmers across the region - found land
reform efforts in Zimbabwe and elsewhere had achieved poor results in terms
of agricultural productivity or improving the livelihoods of the poorest.
Poor planning, inadequate funding and a lack of technical support for new
farmers are highlighted as key reasons for the failure.
Members of the agricultural unions are, of course, have a powerful interest
in protecting their ownership of large tracts of land from redistribution to
hundreds of thousands of those dispossessed in colonial times, but the
collapse of farm productivity on land transferred in Zimbabwe and elsewhere
in the region is well-documented.
Farm owners have not been the only casualties; farm workers' lot in both
Zimbabwe and Southern Africa has also been affected.
This review - conducted by a team of University of Cambridge consultants and
completed on Feb. 14 - not unexpectedly confirmed the Tribunal had acted
properly and within its powers on the farmer’s affair. The list of 34
recommendations in the confidential report - of which IPS has a copy –
suggested a strengthening of the regional court to avoid the kind of
maneuvering that has delayed relief for the farmers.
Lawyer Norman Tjombe, who argued some of the cases in question said, "The
report was rather positive on the Tribunal, supporting its rulings on
Zimbabwe and recommending strengthening of its functions. It made Zimbabwe
The first indications that the recommendations were not exactly what SADC
was hoping for came as the SADC Council of Ministers met to consider the
review in Swakopmund, Namibia from Apr. 11-15. The Namibian chairing the
review, Minister of Justice Pendukeni Ivula-Ithana, opened the meeting
saying : "[It] is us, the people of SADC who can own our instruments as they
address our identified concerns and are compatible with our national legal
She went on: "This Tribunal is ours and we have received the advice
contained in the final report of the consultant. Ours is to take out of it
what we deem appropriate and suggest to the Presidents and Heads of States
for their decision."
The evicted Zimbabwean farmers are not the only ones waiting on SADC
leaders' next move. Lesotho, South Africa and Zimbabwe face a R4 billion
(570 million dollar) claim from South African-based mining group Swissbourgh
for expropriation of its minerals rights to pave the way for the Lesotho
Water Highlands Project in 1991.
According to Josias van Zyl, Managing Director of Swissbourgh, the three
countries conspired to suspend the SADC Tribunal last August, just a week
before the case was supposed to be heard.
Swissbourgh filed an application with the Tribunal challenging SADC leaders'
legal authority to suspend its operations. Tjombe lodged a similar
application on Mar. 28, arguing the SADC Summit’s August decision "does not
in law have the effect of suspending [the tribunal’s] operations and
"So far we have heard nothing from the court , not a peep," said Tjombe.
The delays already mean one of the plaintiffs will never see the end of his
struggle to regain his land; Campbell died in early April.
Van Zyl told IPS that Swissbourgh has threatened to sue SADC in Gaborone,
Botswana (where it is headquartered) as well as individual states in their
own countries should "they strip SADC of its Tribunal, or continue to
interfere with our right to access to justice".
"The comments of the Namibian Justice Minister seem to indicate a move in
that direction," he said.
Swissbourgh asserts in a May 13 letter to the heads of state, that is aware
that the outcome of the Swakopmund deliberation was a proposal that the
Tribunal's scope of action be amended to allow only inter-state disputes,
ruling out access for individuals to the regional court.
Swissbourgh says that any weakening of the Tribunal would be "in bad faith"
and a "violation of international law generally and various international
human rights instruments".
But Norman Tjombe is sceptical of the pressure the litigants can exercise on
"They will just ignore the report and likely postpone a decision," he said.
"It’s a sad day for the rule of law.
"The widespread practice in member states of ignoring court rulings, or
replacing critical judges with ones favourable to the regime is now repeated
on a SADC level. The establishment of the SADC Tribunal as a liberal and
accessible court was a leap forward. Now the court is in danger of being
strangled and killed."