THE NINTH MOFOKENG LECTURE, 2010 – Jeremy Gauntlett
THE LIE OF THE LAND:
LAW AND LAND SEIZURE IN ZIMBABWE 1890 – 2010
President and Judges of the Court of Appeal and of the High Court, members of the Lesotho Law Society and its Executive, members of the Mofokeng family, other honoured guests, ladies and gentlemen:
It is now almost a quarter of a century since the death of Judge Mofokeng. He was a pioneering legal practitioner, writer and judge in Lesotho. It is an honour to be asked to deliver this year’s lecture in his memory, and a privilege to do so in the presence tonight of his family, judges of Lesotho and members of its legal profession. This is the more so given my own years appearing before the courts of this country, followed by twelve years’ service on the Bench of the Court of Appeal, first under the leadership of Judge Jan Steyn and
thereafter the current President, Judge Michael Ramodibedi.
Many scholarly topics have been chosen for this lecture over the years. So have perennial issues concerning, for instance, the independence of the judiciary. Given the wide range of Judge Mofokeng’s own interests in the law, I thought that an apt topic to offer tonight in memory would be an issue which is simultaneously a matter of legal history and current controversy. It does not concern, at least directly, a domestic issue in Lesotho, although I know the question of land rights is a very topical one here too. It is however a matter which is not
confined to the country to which it relates. Land, its dispossession in colonial times and its reallocation now loom large across Southern Africa and, indeed, elsewhere. We mark in this regard another anniversary: 125
years last week since the Berlin Conference where, without of course a single indigenous person from Africa present, in Chancellor Bismarck’s music room in his villa on Wilhelmstrasse competing colonizers drew lines on a map before them. Recognising that they did not own the land, they recorded their rights to `pursue’ ownership of the designated spheres of interest.
My topic tonight is just such a `pursuit’ of land between the Limpopo and the Zambezi by its early occupiers in the 1890’s – and a new `pursuit’ a century later by a different class of takers of land. It considers two seizures of land, involving in both instances a disregard for rights and the principle of the rule of law, articulated, ironically, at very much the time of the first seizure by Albert Venn Dicey. What the second seizure, still underway, exemplifies is, I shall suggest, Auden’s bleak adage:
“I and the public know
What every schoolchild learns
Those to whom evil is done
Do evil in return”.
And what both seizures illustrate is the observation by the great South African Appeal Court Judge, F.P. (Toon) van den Heever, father of a former colleague on the Court of Appeal of Lesotho, in his work The Partiarian Agricultural Lease in South African Law (1943) 4:
“It is a sad reflection on human nature that laws should always have tended to entrench power and privilege against the serving and deserving classes who are usually disorganised and mute”.
My tale tonight, which could equally be subtitled: The Road to the SADC Tribunal, requires a disclosure: I have acted in proceedings before the Tribunal for a series of Zimbabwean litigants. One was the first Black
Zimbabwean ever to receive freehold title to a farm in that country, only to have his farm thereafter taken back by administrative fiat. Another was an NGO, the Zimbabwean Human Rights Association, seeking to have
Zimbabwe held in breach of its SADC Treaty obligations because of its dishonouring of court awards of damages inter alia for assaults and torture by defence forces in that country. The third has been a group of
commercial farmers, their workers and the families of both.
My story begins with the famous inaugural lecture by Ruskin at Oxford shortly before Cecil Rhodes went up to Oriel College. The lecture made a lasting impression on Rhodes. Ruskin, the greatly talented artist and
aestheticist, said:
“This is what England must either do or perish; she must found colonies as fast and as far as she is able, formed of her most energetic and worthiest men; seizing every piece of fruitful waste ground she can set her foot on….”[1].
The ethos of high idealism and ruthlessness is exactly stated. It soon found particular application in the perceived “waste land” across the Limpopo in the late 19th century. There is not time tonight to do justice to the early history of Zimbabwe, before and after its invasion by the Ndebele under Mzilikazi following his defeat by the Voortrekkers in 1837. This was all part of the mfecane, the extraordinary diaspora set in train by the militarisation of the Zulu people under King Shaka. The Ndebele monarchy which took root in Bulawayo – it means place of slaughter – was the third unifying authority of the great territory between the Limpopo and Zambezi Rivers, between the Kalahari Desert and the Chimanimani Mountains. It followed the rule of the Monomatapa and the Changamire.[2] Mzilikazi was a very great leader, and he performed the remarkable task of building the Ndebele nation from the original 10 000 Abezansi who crossed into modern day Zimbabwe with him, a large group of Avenhla (those conscripted from the Swazi and Sotho peoples in the course of Mzilikazi’s long journey, and finally, the Amaholi, Shona-speaking people willingly recruited into the new society. He treated less compliant Shona tribes, occupying the eponymous area of Mashonaland, the great north and eastern
swathe of the country, as vassals. They were frequently plundered, often with great brutality.
From the beginning Mzilikazi pursued what Lord Blake calls a policy of diplomatic isolation.[3] He signed a treaty in 1853 with the Boers, agreeing to give protection to travellers, foreign traders and hunters so long as they adhered to a single well-guarded route via the Mangwe Pass. The Transvalers – in 1852, by the Sand River Convention, Britain had recognised the independence of the South African Republic – kept their word. Trouble came from a different quarter. Mzilikazi himself encouraged the legendary explorer-missionary, Robert Moffat, to set up a mission station at Inyati. It seems his indunas warned him against it. Mzilikazi however saw the advantage in the technical skills on offer, particularly medicine. (He suffered the consequences of what is being described as “a diet of huge quantities of beef washed down by pot after pot of beer”, and like his son, Lobengula, from the “statesman’s malady”: gout).[4]
Mzilikazi died in 1868. Gold was discovered the year before, near the Umfuli River. In 1870 Lobengula granted what came to be known as the Tati Concession: it granted no land, merely the right to mine precious metal. The area in question was a part of current day Botswana, and Lobengula’s own claim was in fact disputed by the Bamangwato, a Bechuana tribe. Little came of the supposed goldfield. But a process had begun. Particularly when in 1886 gold was discovered on the Witwatersrand: “the world of Southern Africa could never be the
same again”.[5]
In 1888 Moffat the missionary procured King Lobengula’s signature to what has come to be known as the Moffat Treaty. Under it the King promised to give no part of his territories to anyone “without the previous knowledge and sanction of Her Majesty’s High Commissioner in South Africa”. For a lawyer, this of course was purely a cautio: a negative restraint, procedural to boot, not a positive grant. What did Lobengula seek in return: it seems – but it was never recorded – an undertaking of British protection. That was later denied.
A slippery slope beckoned. The Moffat Treaty was followed by the Rudd Concession which gave the grantees “complete and exclusive charge over all metals and minerals situated and contained in my kingdom,
principalities and dominions together with full power to do all things that they may deem necessary to win and procure the same”. Rudd was an agent of Rhodes. It seems that simultaneous oral promises were made never to bring more than ten white men to work in the kingdom, not to dig anywhere near its principal settlements and to abide by the laws of the Ndebele. These restraints were soon ignored.
In 1889 Rhodes moved quickly to secure concessions in Mashonaland direct from the chiefs concerned. He knew that at best their authority was dubious, and that the territory concerned was subject to frequent
assertions of suzerainty by Lobengula. And so it happened that 120 years ago last month the Pioneer Column crossed the Hunyani River and paraded at what is now All Africa Square in Harare, hoisting the Union Jack.
Each pioneer was thereafter free to peg his promised 15 gold claims and to “ride off” a three thousand acre farm. The British South Africa Company sought to validate this by the purchase in 1891 of the Lippert Concession – a most dubious grant from Lobengula of the right to dispose of land in his dominions for the next 100 years. The right of the chartered
company to distribute farms was undermined yet further by the revelation that it itself had never owned the Rudd Concession and had to buy out the United Concessions Company in order to do so.[6]
In this situation, the plight of the Shona people was particularly evident. They were caught between the continuing depredations by Lobengula and new ones by the British South Africa Company. As a writer
has aptly put it, “to one they were a source of cattle and women, to the other a source of labour; the Mashona, reluctant to fill either role, could hardly fill both”.[7]
Lobengula himself accepted a de facto border between his truncated dominions and those taken by the Pioneer Column, running along the line of the Umniati and Shashi Rivers.[8] But then a Shona chief stole some of his cattle. Lobengula sent an impi across the de facto border, whether to recover the cattle, or to take vengeance, or to make a general example to Shona petty chiefs is not clear. That he did not intend war with the Whites seems clear enough, or else, as Blake points out, he would neither have divided his forces nor sent a message that his men had strict orders not to molest the settlers or their property.
But what ensued was the proverbial spark. The settlers witnessed an Ndebele impi in full retributive action, reducing Shona kraals to ashes and assegaiing and mutilating people. How Dr Jameson responded is
documented. He sent this telegram:
“I intend to treat them [the marauding impi) like dogs and order the whole impi out of the country. Then if they do not go send Lendy out with 50 mounted men to fire into them”.
(This choice of Capt Lendy was because of his ruthlessness: shortly before he had led the massacre by Maxim gun of a recalcitrant minor Shona chief and his people).
Jameson sent another cable shortly thereafter:
“I suggest the Ferreira trick, as we have an excuse for the row over murdered women and children now and the getting Matabele land open would give us a tremendous lift in shares [of the Chartered Company] and everything else. The fact of its being shut up gives it an immense value for both here and outside”.[9]
It is difficult to fault this elegiac assessment by Lord Blake:
“It is hardly conceivable that Lobengula’s monarchy could have survived in its existing form. . . . Whatever happened, an Iron Age monarchy would not for long have co-existed with the Chartered Company.
Yet, if it be the case that Lobengula was blown away by the gale of the world, one can neither withhold sympathy from him nor extend it to Rhodes and his agents. They cheated him over the Moffat Treaty which did not give him the protection he expected. They defrauded him over the Rudd Concession which did not mean what he believed it to mean, and when he found this out Jameson simply threatened him with a White impi. They did him down yet again over the Lippert Concession, Rhodes’ purchase of which Moffat regarded as `detestable whether viewed in the light of policy or morality’. Finally, they forced a war on him which he
could only have avoided at the price, as he saw it, of abandoning half his kingdom. The Ndebele state was cruel and barbarous. Its passing need cause little regret. . . . [But what happened] was a war of conquest, and conquest henceforth constituted the title deeds of the White man in both Mashonaland and Matabeleland; for the conquest of the latter entailed that of the former”.[10]
It is also Lord Blake’s judgment that the least defensible feature of the new regime was its treatment of land. The volunteers for the war were promised a farm of 6 350 acres each, which should have meant approximately 6 million acres in total. (There were 948 volunteers). But by 1899 15.7 million acres had been alienated to the settlers. Sir John Willoughby alone received 600 000 acres. And by 1899 more than two-thirds of the original volunteers had in any event sold out their grants to companies or individual speculators: a lesson in land
distribution never learnt.
It seems that in achieving an end to the 1896 rebellion, Rhodes negotiated the surrender of the indunas on the basis that they could return to their old grazing grounds – but that he did this by negotiating with White owners that this happen only for the next two years. Of course what thereafter happened was that very substantially Shona agriculturalists were either forced from the land or obliged to pay some form of rental for it. Coupled with the introduction of hut tax or poll tax, the trend was established for a new class of landless, rootless
labourer, obliged to congregate in the developing urban areas in what were called “locations”. These stood apart from the areas of White habitation, and segregation, separation from families and entire economic dependence on the new settlers was established. So did control over freedom of movement: pass laws were introduced.
The land issue continued to fester, while the company ruled until 1918. Southern Rhodesia’s transition to responsible government led to a growing awareness of a need to amend the law of land tenure. By 1925 only 19 farms amounting to 47 000 acres outside the reserves were held by Africans, whereas some 31 million acres were in European possession. And of the latter only half was “occupied”, and even less actually farmed or cultivated.[11] There was a commission of enquiry. The Carter Commission recommended that out of the 75 million acres outside the native reserves just over 48 million should be open to European purchase and less than seven million only by Africans.[12] Of the remainder 17.8 million acres was unassigned land available to either
race (with the rest forest land and game reserves under the control of Government).
Blake observes:
“The White allocation becomes even more remarkable if we remember that of the 31 million acres which White owners had acquired by 1925 half was still unoccupied and that even as late as 1965, by which time there had been a vast extension of European farming, only 36 million acres were occupied, and nearly all the development had occurred on the 31 million acres already in European ownership 40 years earlier”.[13]
In later years this imbalance in land ownership, and its related feature the retention of all urban areas other than designated `locations’ for White ownership, was further entrenched. The most significant measure in that regard was the Land Tenure Act, 1969, adopted four years after its unilateral declaration of independence by the Smith administration. Of course these measures were abolished on independence in 1980 (they could not have withstood challenge under the Constitution of that year, providing for a justiciable Bill of Rights). The UK Government and others provided funding for land reform. Yet curiously little attention was paid to land reform – until in the period of 1998-2000 the War Veterans Association led by Hitler Chenjerai Hunzvi, and the loss of the referendum in that year by the ruling party, set in train a sequence of events.
These entailed a series of measures for compulsory acquisition. But their constitutionality, and particularly the legality of the procedures they entailed, gave rise to vigorous legal challenges. Ultimately the Government had had enough: taking a lesson from the book of Prime Minister Indira Gandhi, when she led India into successive States of Emergency substantially ousting the courts, the new strategy was to cut down to size the property clause in the Zimbabwe Constitution – and to cut out access to courts.
On 17 September 2005 Amendment 17 to the Constitution of Zimbabwe of 1980 took effect. It amended the property clause entrenched in the Constitution by authorising State seizure. This could be effected by the simple device of gazetting designated properties. It provided also that there could be no challenge in a court of law to the constitutionality or other legality of the measure. A privately owned company which had taken transfer of the farm Mount Carmel in the Chegutu District near Harare challenged the measure, together with its beneficial owner, a farmer called Mike Campbell. He with eight family members, 67 workers and their 180 dependants conducted a successful export fruit and general farming operation. The company had taken transfer on a certificate of no interest by the Government of Zimbabwe in 1999; thus almost 20 years after the grant of independence to Zimbabwe by the colonial power. The farm had been initially purchased in the name of Mike Campbell himself in 1974. At the stroke of a pen, on the gazetting of the farm together with a number of others, and with all access to the courts ousted by Amendment 17, Mount Carmel had become the property of the State, available for distribution.
Even before the measure took effect, persons claiming that former Minister Nathan Shamuyarira – an early member of various nationalist movements in Zimbabwe, former president of President Mugabe’s Cabinet and (ironically) the person to whom Professor Ranger pays tribute in the Foreword of his book – had occupied part of the farm.
In terms of the wider land redistribution programme initiated in Zimbabwe in 2000, those to be resettled would be “indigenous” Zimbabweans only. Of course this classification is problematical. The Parliament of Zimbabwe was understandably reluctant to follow Nazi Germany or Apartheid South Africa in attempting a statutory race classification system. Who then was “indigenous”, and how this might apply to second or third generation Zimbabweans of Zambian, Malawian or British or South African extraction, or originally from Asia,
was not stipulated. But more specific was a creation of two categories of potential beneficiaries. Those from communal lands were designated A2 settlers while persons who were members of the armed services, the public
service, the judiciary and other senior government employees were designated A1 settlers. The immediate background to Amendment 17 appears from the unanimous judgment of the Full Court of the ZSC in Commercial Farmers Union v Minister of Lands.[14] This details how a series of court orders against land invasions had met with “some compliance . . . but also some open defiance”.[15] The Full Court (comprising
Gubbay CJ, McNally JA, Ebrahim JA, Muchechetere JA and Sandura JA) concluded:
“It is overwhelmingly obvious that the farm invasions are, have been, and continue to be, unlawful. Each provincial governor, each minister in charge of a relevant ministry, even the commissioner of police, has admitted it. They could do nothing else. Wicked things have been done and continue to be done. They must be stopped. Common law crimes have been, and are being, committed with impunity. Laws made by Parliament have been flouted by the Government. The activities of the past nine months must be condemned.
But that does not mean that we can ignore the imperative of land reform. We cannot punish what is wrong by stopping what is right.
The reality is that the Government is unwilling to carry out a sustainable programme of land reform in terms of its own law. The first thing to be done is to return to lawfulness”.
The Campbell challenge failed in the High Court. It proceeded to the Supreme Court. It took nine months to deliver a judgment. The judgment was delivered for the Court by Malaba JA (now DCJ) who rationalised the ouster of access to the courts by Amendment 17 in these terms:
“To stop what was considered obstructive litigation and secure finality in cases of compulsory acquisition of agriculture land for public purposes, the legislature enacted the Constitution of Zimbabwe Amendment Act (no 17) on 14 September 2005″[16]
Striking, too, is the use of the passive voice – “what was considered obstructive litigation” – in this passage.
Considered by whom? If that court had put the thought in the active voice, it would have had to write: “what the Legislature considered obstructive litigation”. But, it is submitted, that would have let the constitutional cat out of the bag – for even that court later in the same judgment is constrained to acknowledge (in expressing a basic
constitutional principle)
“[w]hat is objectionable as being in violation of the principle of separation of powers is for the legislature to take the functions of judicial power and exercise them itself under the guise of a legislative judgment over facts and circumstances of a particular case. See Livanage v The Queen [1967] AC 259 at p 291” (emphasis supplied).
The reliance on Livanage is instructive. Just as Amendment 17 (on the ZSC’s own characterisation) was aimed at a distinct class of landowners (those owning the 157 pieces of land listed in Schedule 7), so the Privy Council in Livanage had to do with a distinct number of litigants at whom a statute was aimed, curtailing their access to
courts. The rule of law and the separation of powers – both fundamental to the Zimbabwean Constitution – require the courts, not the legislature, to deal with pending legal challenges. If these are purely “obstructive” – in the sense that they are frivolous, or without merit and dilatory – it is for the courts to make such an adjudication. Here, however, revealed in the words of the ZSC itself, is a legislative measure deliberately framed to prevent adjudication and pre-emptively to rule upon pending legal challenges.
The irony will be apparent. What the Full Court of the ZSC had ruled in the Commercial Farmers case was that the (socially necessary) land reform programme must comply with the rule of law. Instead, the legislature has
moved – inter alia through Amendment 17 – to ensure that the courts’ power to ensure compliance with the rule of law is ousted. A second irony is that the court in the Commercial Farmers case had to deal with an executive subversion of legislation. Here the executive has responded by using legislation to attempt to exclude recourse to the courts.
From here the contest moved to the SADC Tribunal. This was constituted under a Protocol to the SADC Treaty. Article 4 of the Treaty sets out principles which the member states of SADC undertake to apply. Article 4(c) includes “human rights, democracy and the rule of law”. Article 6(1) contains an undertaking by member states to “refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this Treaty”.
These provisions are also to be read with the Preamble to the Treaty, which refers to the “need to involve the people of the region centrally in the process of development and integration, particularly through the guarantee of their democratic rights, observance of human rights and the rule of law”.
The Vienna Convention on the Law of Treaties, 1969 enunciates what the European Court of Human Rights has termed “generally accepted principles of international law to which the Court has already referred on occasion”.[17]
Under international law, the treaties establishing international organisations such as SADC have often taken account of the provisions of other international legal instruments which member states of that particular international organisation have ratified. For example, the European Court of Justice has interpreted the terms of the Treaty of Rome in the light of the
international treaties which member states of the EU have ratified, and in particular the provisions of the European Convention on Human Rights.[18]
The SADC Tribunal agreed that in the interpretation of the terms of the SADC Treaty, consideration must be given to the provisions of relevant international legal instruments, in particular to the Charter of the African Union and the African Charter of Human and People’s Rights, as well as to the interpretation of those instruments by authoritative bodies such as the African Commission on Human and People’s Rights. Where all this leads to is a very basic point. While the legal representatives for the Government of Zimbabwe conceded at the first hearing, in answer to a direct question put by Justice Tshosa from Botswana that Zimbabwe accepted the Tribunal’s jurisdiction in the matter, ultimately Zimbabwe sought to dispute this and to assert the priority of the Constitution of Zimbabwe as the “supreme law”. What this ignores is Article 27 of the Vienna Convention
which provides that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. This provision, and its rationale, has been clearly recognized by the East African Court of Justice, which has ruled that:
“[i]t cannot be lawful for a state that with others voluntarily enters into a treaty by which rights and obligations are vested, not only on the state parties but also on their people, to plead that it is unable to perform its obligation because its laws do not permit it to do so”.[19]
Article 16(1) of the SADC Treaty, moreover, confers on the Tribunal legal authority to ensure “adherence to and the property interpretation of the provisions of the SADC Treaty” while Article 16(5) provides that “the decisions of the Tribunal shall be final and binding”.
Also relevant in this regard is Article 6(1) of the Treaty, which requires member states to “adopt necessary measures to promote the achievement of the objectives of SADC, and [to] refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this Treaty”.
Article 6(6) also requires member states to “co-operate with and assist institutions of SADC in the performance of their duties”.
The jurisdiction of the Tribunal being conceded, as I have described, at the outset on behalf of the Government of Zimbabwe, three substantive issues arose for determination. Each was a ground on which it was contended on behalf of the applicants that Amendment 17 to the Constitution of Zimbabwe breached that country’s treaty
obligations, rooted in Article 6, read with Article 4, as regards the protection of human rights, democracy and the rule of law. The first entailed the ouster I have described: the exclusion by Amendment 17 of access to the courts. As already noted, Malaba JA for the Zimbabwe Supreme Court usefully described Amendment 17 as embodying a legislative (and of course executive) determination that the implementation of the land seizure programme should not be “obstructed” by legal challenges.
The Tribunal upheld the attack. It considered the ouster of access to the courts of Zimbabwe in relation to Amendment 17 to offend the rule of law. Important in this regard were the provisions of Article 7(1) (a) of
the African Charter on Human and Peoples Rights, which reads:
“Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his fundamental rights . . .”.[20]
As Ngcobo J (now CJ) had earlier ruled for the Constitutional Court of South Africa[21],
“The right of access to courts is an aspect of the rule of law. And the rule of law is one of the foundational values on which our constitutional democracy has been established. In a constitutional democracy founded on the rule of law, disputes between the State and its subjects, and amongst its subjects themselves, should be adjudicated upon in accordance with law. The more potentially divisive the conflict is, the more important that it be adjudicated upon in court”.
This fundamental inroad – the use of an ouster to make legislative and executive measures beyond the reach of courts – the Tribunal’s ruling was also supported by a subsidiary aspect. That is that of course the ouster also deprived the applicants of a fair hearing. In accordance with a practice which operates to its great discredit, the Zimbabwe Supreme Court in its own ruling had tried to justify the ouster contained in Amendment 17 by reference to House of Lords authority. The citations were as selective as they were antiquated. Thus recourse was had to Smith v East Elloe RDC[22] – without reference to the subsequent groundbreaking decision in Anisminic Ltd v Foreign Compensation Commission[23] or that in Attorney-General of the Commonwealth of the Bahamas v Ryan,[24] let alone more recent rulings such as that by Lord Steyn in Jackson v Attorney-General.[25]
A striking aspect of the SADC main ruling in Campbell was that it ruled on all three of the attacks – and sustained each. Often courts will not do that, if one is dispositive. Thus the ruling also considers and upholds the attack based on discrimination. This entailed the complaint that Amendment 17 did not target absentee or inefficient or large-scale farmers, or any other category determined on a defensible, non-arbitrary basis. It targeted only white farmers, irrespective of their personal land-use or circumstances. And conversely, the evidence before the Tribunal established, a class of chefs was benefitted: air vice-marshals, CIO operatives, party officials, regional governors, and it must be said, judges.
Already in 2000, the then Full Court of the Zimbabwe Supreme Court in the judgment to which I have already referred, noting the history of land injustice in Zimbabwe and the obvious need for a land reform policy under
the rule of law, said this:
“We are not entirely convinced that the expropriation of white farmers, if it is done lawfully and fair compensation is paid, can be said to be discriminatory. But there can be no doubt that it is unfair
discrimination. To award the spoils of expropriation primarily to ruling party adherents”.[26]
An interesting part of the debate was the lack of explicit racial discrimination in Amendment 17. But courts around the world have grappled with this before: where a particular measure fastidiously avoids any expressly discriminatory measure, but bears down by consequence upon a group in a discriminating way. An early example in the United States was local legislation directed at bus passengers. On the face of it, it was quite literally colourless. But given the fact that those targeted were overwhelmingly poor and black, in its effect it was not. In the words of the US Corpus Iuris Secundum, such a provision both trenches upon fundamental rights and “operates to the peculiar disadvantage of a suspect class”.[27]
Article 6 of the SADC Treaty contains an absolute prohibition against discrimination on the grounds of race or ethnic origin. Sub-article 2 reads:
“SADC and Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit”.
Racial discrimination contracts the 1776 United States of Declaration of Independence, the 1789 Declaration of Rights of Man and of the Citizen issued during the French Revolution and the 1948 Universal Declaration of
Human Rights, signed after World War II, which all postulate equality between all human beings. It is prohibited in clause 1 of the Proclamation of Teheran 1968, and Article 1 of the Cairo Declaration on Human Rights in Islam 1990. It is prohibited by Article 2 of the African Charter of Human Rights and Article 14 of the
European Convention on Human Rights. It is specifically dealt with in the International Convention on the Elimination of All Forms of Racial Discrimination 1965, see especially clause 5(v).
The prohibition against discrimination based on race or origin has become jus cogens in international law. This is because it is so contrary to the norms upon which any nation is founded and governed that that result must follow.[28]
Article 53 of the Vienna Convention on the Law of Treaties provides that a peremptory norm of general international law “is a norm accepted and recognised by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.
In its 1970 opinion concerning the continued occupation of Namibia, the International Court of Justice has recognised that this provision merely restates existing international law.[29]
Accordingly, it is a norm which cannot be derogated from no matter the excuse or reason.[30]
Significantly, the domestic Constitutions of all members of SADC prohibit discrimination based on race or country of origin.
The third and final basis on which Amendment 17 was attacked was its failure to provide duly for compensation. As already noted, Article 4 of the SADC Treaty binds member states to act inter alia in accordance with the principles of human rights, democracy and the rule of law, as well as the concept of equity. Article 6, as also noted, binds member states to adopt adequate measures to promote the achievement of the objectives of SADC, and to refrain from taking any measure likely to jeopardise the sustaining of its principles, the achievement of its objectives and the implementation of the provisions of the Treaty. There can be little
doubt that this in turn entails an incorporation of the guarantee in Article 12 of the Universal Declaration of Human Rights, by which international law guarantees that no one shall be subjected to arbitrary interference with his or her privacy, family or home, while Article 17 guarantees that no person shall be arbitrarily deprived of his property. The right is one recognised in one of the earliest statements of human rights, being the Declaration of the Rights of Man and of the Citizen (Paris, 1789). Article 17 states:
“Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified”.
Significantly, too, Article 14 of the African Charter on Human and Peoples Rights (1981) guarantees the right to property, while Article 21 specifically gives the right to compensation where there has been a deprivation.
On the last day of the final hearing in the Tribunal, the legal team for the Government of Zimbabwe tried to secure a further postponement: there had been several it had procured before. But this time the Tribunal drew
the line. “We are trying”, the Tribunal’s President, Justice Alberto Luis Mondlane of Mozambique, said in quiet voice, “to build a house of justice in the region”. The Government legal team thereupon walked out of court.
What followed was a series of public statements by the Minister of Justice of Zimbabwe, Mr. Patrick Chinamasa, decrying the Tribunal and denying its jurisdiction. He was joined in this regard by a public
statement by Deputy Chief Justice Malaba at the opening of the courts last year asserting that the Constitution was Zimbabwe’s supreme law and no higher authority could be recognized. Of course this misses the point: once a state becomes a member of SADC, it is bound in international law by its Treaty obligations. These include the
recognition of the human rights, protection of democracy and advancement of the rule of law, which article 6 of the Treaty asserts. It may change its domestic law as it will, but in if what it does is inconsistent with the Treaty, it is an outlaw in international law.
The land seizure programme intensified last year, in the run-up to the elections and thereafter. The farmer applicants returned to SADC, seeking under Article 32 of the Protocol an order declaring Zimbabwe in breach of the main award and asking the Tribunal to refer such a finding to the SADC Summit for action against Zimbabwe as a member state in breach of its Treaty obligations. Two such further orders have been obtained. But at its first meeting thereafter, in Kinshasa last year, the Summit deferred the issue. And two months ago, in Windhoek, the Summit adopted a new stance: it called for submissions on the functioning of the Tribunal, more particularly whether it should retain its jurisdiction to hold member states in default of their Treaty obligations and thus open the way to action against them in international law, ranging from formal censure to sanctions and ultimately to expulsion from SADC. Effectively the Summit suspended the future operation of the Tribunal, save in one key respect to which I shall revert: the periods for which serving judges hold office have been allowed to expire (including all but one of the five judges who sat in the Campbell series of matters), with just three exceptions.
But before this decision was taken, claims for compensation (on the back of the main Campbell award) were lodged with the Tribunal. Paragraph 9.4 of the Summit’s recent decision makes it plain that pending matters
are not affected. The three judges who continue to hold office are a quorum. So the saga seems set to continue – unless the Summit at its next meeting takes further steps to disable the Tribunal.
The SADC Tribunal indeed represented a chance, in Justice Mondlane’s words, “to build a house of justice in the region”. What is happening now is a defining moment. Either the members of SADC will accept that through their Treaty commitments they have bound themselves under international law to accept and defend the
overlapping trilogy of internationally-recognised human rights, democratic institutions and the rule of law, and subjected themselves to the scrutiny of a regional tribunal in that regard, or they will show that they are going back on that. In that event, words only will be left: words of complicity between political leaders shrugging off the constraints of law. In the description of Chief Justice Gubbay’s unanimous court a decade ago, in that event more wicked things will be done, and true land reform will languish. The pattern of deception and impugnity, initiated at King Mzilikazi’s kraal so long ago, will continue – in short, the lie of the land.
None of us in SADC should think how any of us deal with land leaves the rest of us unaffected. Already in 1902, Sir James Rose Innes, for most South Africa’s greatest chief justice and in retirement a doughty
fighter for the African franchise, warned in words which recall John Donne:
“Henceforth nothing either for good or evil can be done in one part of this subcontinent that will not affect the remainder”.[31]
Jeremy Gauntlett SC*
15 October 2010
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[1] Robert Blake A History of Rhodesia (Eyre Methuen, London, 1968) 35. The account which follows owes much to Blake’s remarkable history, the important revisionist account by Prof T.O. Ranger Revolt in Southern
Rhodesia 1896-7: a Study in African Resistance (Heinemann, London, 1967) and the more modern assessment by David Martin and Phyllis Johnson The Struggle for Zimbabwe (Faber and Faber, London and Boston, 1981).
[2] Blake op cit 19-20.
[3] Ibid 21.
[4] Blake op cit 22.
[5] Blake op cit 28.
[6] Blake op cit 99.
[7] Blake op cit 101, quoting Philip Mason Birth of a Dilemma (Oxford 1958) 163.
[8] Blake op cit 102
[9] 105.
[10] Blake op cit 111-112.
[11] Blake op cit 201.
[12] Blake op cit 201-202.
[13] Ibid.
[14] 2001 (2) SA 925 (ZSC), especially at 934A-936G; 2002(2) ZLR 469 (SC).
[15] At 936G.
[16] Ibid, p 13. The judgment records (p 13) that the Government of Zimbabwe was faced with pending challenges relating to 157 pieces of land listed in Schedule 7 to section 16B of the Constitution.
[17] Golder v UK (1975) 1 EHRR 524 at para 29.
[18] Nold v Commission [1974] ECR 491, para 13; Rutili v Ministre de l’interieur [1975] ECHR 1219 at para 32.
[19] Professor Nyong’O and Ten Others v Attorney-General of Kenya and Two Others Reference No. 1 of 2006 (30 March 2007). See also R v Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] ECR1-2433.
[20] See further Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, African Commission on Human and Peoples’ Rights, Comm. Nos. 140/94, 141/94, 145/95 (1999), para 33.
[21] Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) at para 82.
[22] [1956] AC 736.
[23] [1969] 2 AC 147.
[24] [1980] AC 718 (PC).
[25] [2005] UKHL 56; [2006] 1 AC 262 at para 102.
[26] Commercial Farmers Union v Minister of Lands 2001 (2) SA 925 (ZSC) at 937I-J.
[27] Vol 16B, para 714. Cf also Pretoria City Council v Walker 1998 (2) SA 363 (CC); Jordan v S 2002 11 BCLR 1117 (CC) at para [9]; Zondi v MEC 2005 4 BCLR 347 (CC) at para [90].
[28] Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Others [2006] UKHL 26; [2006] 2 WLR 1424.
[29] Legal consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 at 47.
[30] Sampson v Federal Republic of Germany 250 F.3d 1145 (7th Cir. 2001) following Siderman de Blake v Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) and Princz v Federal Republic of Germany, 26 F. 3d 1166 (D.C. Cir. 1994).
[31] Harrison M Wright (ed) The Selected Correspondence of James Rose Innes (1874-1902) (Van Riebeeck Society, 1970) 342.
* BA LLB (Stell); BCL (Oxon); member of the Cape and Johannesburg Bars and of the Bar of England and Wales; barrister of Gray’s Inn.