Farmers fight on in Zimbabwe land-grab case
BY FRANNY RABKIN, 03 JANUARY 2013, 07:11
THE suspension of the Southern African Development Community (Sadc) Tribunal
and the drastic curtailment of its jurisdiction were a “clear violation” of
the right of access to the courts, Zimbabwean farmers Luke Tembani and Ben
Freeth have said in legal argument.
Their legal submissions late last month to the African Commission on Human
and Peoples’ Rights are the latest step in a prolonged 11-year battle with
the state of Zimbabwe over the loss of title to their farms in land grabs
after 2000 — a process widely viewed as executive self-help to land in
Zimbabwe.
When the tribunal was first set up, it had the jurisdiction to hear disputes
between member states and disputes between individuals and their
governments — once individuals had exhausted their country’s domestic
courts.
But in 2010 the tribunal was in effect suspended and then, last year, the
Sadc heads of state decided that the tribunal’s protocol should be amended
to disallow individuals from approaching it.
These decisions were widely condemned, with critics saying the summit had
bowed to pressure from Zimbabwe, after it refused to enforce a number of the
tribunal’s orders relating to unlawful land expropriations.
The summit decisions also effectively squashed Mr Tembani and Mr Freeth’s
case.
The two farmers then approached the African Commission, saying they had
“nowhere else to turn” and asking the commission to refer their case to the
African Court of Justice and Human Rights.
But the commission found last year that it could hear the case itself, and
asked Mr Tembani and Mr Freeth to make legal submissions. Their counsel,
Jeremy Gauntlett SC, said the “initially temporary suspension and now
permanent ouster” of the tribunal’s jurisdiction was unlawful on a number of
grounds.
It infringed the African Charter on Human and Peoples Rights and the Sadc
Treaty — because it infringed the right of access to courts, interfered with
judicial independence and violated the rule of law and the separation of
powers. The suspension was also procedurally irregular, irrational and “in
bad faith”, he said. He also referred to warnings of a contagion-effect
across the continent.
If the commission finds that the Sadc summit’s decisions were unlawful it
may then make a “recommendation” to the summit — not quite a court order but
almost as good as one, in diplomatic terms at least.
If a recommendation is nonetheless ignored, the African Court may then be
approached for an order. Mr Tembani and Mr Freeth have asked the com-mission
to direct Sadc states to lift the tribunals’s suspension, and to do what is
necessary to restore its jurisdiction.