African Commission receives historic submission for reinstatement of SADC Tribunal
MEDIA RELEASE
AfriForum
13 January 2013
The unilateral decision by the 14 Southern African Development Community (SADC) heads of state in May 2011 to close down the respected regional court of the SADC Tribunal will come under the scrutiny of the African Commission on Human and People’s Rights (ACHPR) early this year.
A comprehensive submission contesting the Tribunal’s permanent ouster, presented on behalf of two dispossessed Zimbabwean commercial farmers, will be filed with the ACHPR by the applicants’ legal team, this week.
The Commission overruled procedural objections to the case, and directed in November 2012 that the claim be admitted for consideration by the Commission.
This ground-breaking initiative was the precursor of a campaign to reinstate the SADC Tribunal for the benefit of victims of injustice and the abuse of power throughout southern Africa and for the restoration of the rule of law in Zimbabwe.
The first applicant is Luke Tembani (75), formerly a successful black commercial farmer, who lost the title to his farm in November 2000 when it was unilaterally auctioned by the Agricultural Bank of Zimbabwe (ABZ) to cover a loan. This was despite his proposal to sell off a section of the farm to cover the debt.
Although the Zimbabwe High Court ruled in his favour, the ABZ appealed to the Supreme Court and in November 2007 the sale was upheld. Tembani’s case was heard by the SADC Tribunal in June 2009 and the judges ruled in his favour.
The second applicant is Ben Freeth, son-in-law of the late Mike Campbell, an elderly white commercial farmer and Zimbabwean citizen.
After years of harassment and violence, Campbell’s Mount Carmel farm was taken over by an octogenarian former cabinet minister, Nathan Shamuyarira.
Campbell died in April 2011 as a result of injuries sustained during his abduction and torture after the violence-ridden Presidential run-off election in June 2008. His captors were the state-sponsored militia who insisted he withdraw his case underway before the SADC Tribunal.
The applicants have contested the ouster of domestic courts’ jurisdiction to hear cases concerning the Mugabe government’s expropriation of white-owned property without compensation, and the validity of ouster-clauses entitling State-owned financial institutions to execute on agricultural land, denying an aggrieved party all access to court.
The Tribunal’s decisions against the Zimbabwe government – which included contempt of court judgments – have been repudiated by Justice Minister Patrick Chinamasa, who claimed the court had no legal force in Zimbabwe.
The communication forwarded to the ACHPR on behalf of Tembani and Freeth submits that the suspension and permanent ouster of the SADC Tribunal is unlawful for the following reasons:
- It violates binding provisions of the African Charter, the SADC Treaty and the International Covenant on Civil and Political Rights by:
- Infringing the right of access to court
- Interfering with the independence, competence and institutional integrity of the SADC Tribunal
- Terminating existing procedures and vested remedies
- Violating the rule of law, and
- Trespassing on the doctrine of separation of powers;
- It is procedurally irregular, because it constitutes an interference with the existence and function of an essential Treaty organ by mere executive decree, not by any amendment of the Treaty;
- It constitutes an irrational and arbitrary exercise of executive power for which no valid rationale exists;
- It is in bad faith and motivated by extraneous considerations: instead of acting on the SADC Tribunal’s referral of the recalcitrant State member (Zimbabwe) in order to support the SADC Tribunal and enforce its rulings, the Summit (of SADC heads of state) in the result has defied the Tribunal and effectively created impunity for the defaulting State as regards the rulings of SADC’s highest adjudicative institution.
The legal team notes that many of the material facts presented in the communication are not only uncontested but are also derived from official SADC documents.
For example, with respect to rights entrenched by Articles 7 and 26 of the African Charter, the document notes that the Charter is explicit about State Parties’ obligations to ‘guarantee the independence of the Courts and …. allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.’
Foreclosing access to the SADC Tribunal to individuals is described as a clear violation of Articles 7 and 26 of the Charter, while the termination of an extant or existing claim is a serious violation of Articles 3(2) and 7(1) of the African Charter, Article 2(3) of the International Covenant on Civil and Political Rights, and Article 27 of the Vienna Declaration and Programme of Action.
Commenting on the violation of the rule by the SADC heads of state, the legal team quotes Judge President Mzikamanda of Malawi, who wrote in the context of the suspension of the Tribunal:
“Rulers have an even greater obligation to observe the rule of law at all times in order to reinforce the rule of law and eliminate the possibility of the emergence of the rule of men…. This will ensure enjoyment by the individual of the rights and liberties guaranteed by the constitution. Thus an independent judiciary is a critical element to the rule of law.”
The legal team concludes that because the impugned decisions are “contrary to the essence of justice” in that they purport to oust the Tribunal’s jurisdiction in defiance of the rule of law, they are invalid and should be annulled and their effects remedied.
For more information, contact
Willie Spies
South African based attorney of the applicants
Tel
or
Ben Freeth
Applicant
Tel +263 77-392-9138