Commercial Farmers' Union of Zimbabwe

Commercial Farmers' Union of Zimbabwe

***The views expressed in the articles published on this website DO NOT necessarily express the views of the Commercial Farmers' Union.***

Afeared of its own Tribunal

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 
a decision.

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 
of liberation.

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 
very angry.”

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 
the leaders.

“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.”


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