SADC Tribunal review upholds unlawful land grab judgement
By Alex Bell
19 April 2011
A controversial review of the role and functions of the regional human
rights Tribunal has defended the court’s findings in the legal battle
against land seizures in Zimbabwe.
The Tribunal of the Southern African Development Community (SADC) ruled in
2008 that Robert Mugabe’s land grab campaign was unlawful, and ordered the
government to protect farmers from future attack. The landmark case was
brought to the court by 79 Zimbabwean commercial farmers, who were all
victims of the campaign that has all but destroyed the country’s
agricultural sector.
But Mugabe’s regime has repeatedly refused to honour the Tribunal’s rulings,
despite being a signatory to the Treaty that formed the SADC leadership
bloc. Instead, the regime has undermined the Tribunal, saying it has no
jurisdiction in Zimbabwe and its rulings are ‘null and void’. The Zim
government also argued that the Tribunal was never legally constituted,
despite being part of the proceedings that formed the court, and even
nominating one of its own judges for appointment to the court.
For farmers the Zim government’s refusal to abide by the rulings of the
regional court has meant ongoing harassment by land invaders and many more
farmers have been forced off their properties since 2008. So, in a desperate
bid to have the Tribunal legally recognised in Zimbabwe, farmers last year
took their appeal before SADC leaders at a heads of state Summit in Namibia.
But, instead of taking action against the Zim government for its contempt of
the Tribunal, SADC leaders decided to review the court, effectively
suspending it.
Observers said this was a brazen show of allegiance to Mugabe, who SADC has
allowed to hold onto power in Zimbabwe by drafting the terms of the unity
government. The move also prompted numerous warnings that SADC was setting a
dangerous precedent that could leave SADC residents with no legal recourse
against their governments.
But the review has since been concluded and has defended the Tribunal’s
findings. It found that SADC law should be supreme over domestic laws and
constitutions and concludes that all decisions made by the court should be
binding and enforceable within all member states. It states that the SADC
Tribunal has the legal authority to deal with individual human rights
petitions, that its rulings should be binding over member states and that
the SADC ruling on the land grab issue “cannot be faulted”
The report and its findings will only be presented to the SADC Heads of
State at their next session later this year, who will then decide the
ultimate future of the court.
Nicole Fritz from the Southern African Litigation Centre (SALC) told SW
Radio Africa on Tuesday that the findings of the review are welcome, but
added the battle is not over yet. She expressed hope that SADC leaders will
fully reinstate the workings of the Tribunal, explaining that any weakening
of its mandate is a serious threat to the region.
“Alarmingly, there is a possibility that individual access to the court will
be scrapped and that only interstate disputes will be entertained,” Fritz
said. “A decision along these lines would deal a fatal blow to the rule of
law in the region. It puts human rights in jeopardy, as well as future trade
and investment, and long- term economic growth.”
Fritz added that although the review does not recommend this, it will be up
to SADC leaders to determine the fate of the court, and they could be swayed
by “political push back.” But she said it would be “difficult for them to
make this decision, because there is no legal road they can take.”