LEGAL AFFAIRS
REPORT TO CONGRESS 2009
Overview Despite the final conclusion of the delayed election results followed by the formation of the Inclusive Government the situation on the ground has remained exactly the same. The main functions of this office has therefore changed to mainly a recording and information centre for compiling all the reports that have been coming in from all around the country particularly during the time of political unrest, which marked the downturn in most farming operations around the country. From the gathering of these reports and graphic images produced it can be clearly seen that land invasions, work stoppages, theft, assaults and prosecutions are always at a peak that coincides with particular political events. The intentions of the fast tracking of prosecutions against all the remaining farmers was clearly outlined in the leaked document entitled “Handling Land Cases”, which is viewed as a blatant disregard of the separation of powers and lack of respect of the basic principles of law in this country. The second most common function undertaken by this office during the past year was just being there to listen to the trauma and problems which the farmers were daily being subjected to. In listening to the traumatised farmers a clear necessity is indicated that there is a full time job for a team of professional counsellors to undertake this very important task at the union. The legal fraternity has done an incredible job this year in defending and protecting farmers from a sustained legal attack against them. They have worked for extremely long hours and have never turned any farmer away. Many, in the smaller centres, have also been subjected to extreme abuse with threats being made against their life during the course of their work in the defence of our embattled community. For this we sincerely thank them on behalf of all our farmers whom they have assisted. During the course of the year the department worked on the following issues:
- Legal advice
- Court and Legal Database
- Legal aid
- SADC Tribunal
- CFU National Land Survey Database
- Assistance to Valuation Consortium
- Farm Disruption Reports
- Post Election Farm Invasions and Disruptions
- List of People Allegedly Involved in Farm Disruptions
1. Legal Advice This office has not been manned by any person with any legal qualifications and has merely been advising farmers from a practical point of view on how to deal with certain situations on their properties and directing them towards recommended legal practitioners who are more experienced in particular fields. In January we saw the initiation of the fast track prosecution of the remaining farmers still on the land in what appears to be a politically motivated move which threatened to remove ownership to land from our entire racial group. Whilst initially we saw a few frustrated lawyers and farmers throw in the towel we can only admire the rest who developed the most innovative and imaginative defences to counter what was in actual fact an order to the magistrates for the prejudgement of all land trials. 2. Court and Legal Database The collection of data has been extremely difficult indeed, firstly because of the difficulties experienced with the ailing communications networks and secondly because the lawyers appear to be overburdened with work and often forget to keep us advised. However, taken from only the information which we have received we can show the following took place over the last year: Number of farmers arrested 32Number of warrants of arrest of farmers 17Number of farmers incarcerated 14Number of farm workers incarcerated 19Number of days in court of farmers in court 165 Number of times farmers remanded 220 Number days in court of farmers on trial 78Number of farmers convicted and evicted 5Number of farm workers convicted and evicted 66 3. Legal aid This has probably been the most frustrating part of the exercise this year as despite many discussions and appeals the union has been unable to obtain any outside finance to assist any of our farmers to defend themselves in court against the punitive charges against them. Whilst we have been told that extremely large amounts of money have been donated to certain NGOs to administer, they express extreme surprise that we have not had access to any of those funds. Despite constant appeals going back and forth nothing has as yet been resolved. With exception of some cases where the lawyers have been somewhat sympathetic in cases they know the farmers genuinely cannot afford their normal fees, farmers have been left to settle the bills themselves. In a few cases the local communities and business have pooled money together to assist. An estimate of accounts exercise was recently carried out in order to submit to a prospective donor, which showed that affected farmers are currently forking out some US$88,000 per month to defend themselves against the punitive prosecutions being brought against them by the office of the Attorney General. It should be emphasised that both this estimate and the figures in paragraph 2 are drawn from known cases. We estimate that as many as 40% of cases have been unrecorded by the union. An extrapolation of these figures against the unknown cases an estimated US$2 million is being paid out by farmers to defend these punitive charges during a period of extremely low income and productivity. For many these unnecessary costs are unbearable and most certainly unsustainable. Appeals for a moratorium or amnesty have apparently fallen on deaf ears so many of the remaining farmers are desperate for financial assistance to help them fight their cases. 4. SADC Tribunal Although the Minister of Justice and the Attorney General have been reported in the press that they both do not consider the successful judgement in the Campbell case at the SADC Tribunal in Windhoek on 28 November 2008 as part of Zimbabwean law, the judgement itself is extremely powerful. Furthermore, the confirmation of the Application for Implementation which was ruled on the 5 March 2009 was even more powerful as it held the Zimbabwean Government in contempt of the first order and referred the judgement to the SADC Summit for the latter to take appropriate action. Of great significance also was the fact that costs were awarded in favour of the applicants, which could really open a can of worms and give considerable leverage in certain respects. The ongoing argument by the Government with regard to the case’s relevance in Zimbabwean law and necessity for its registration has continued. Initially an urgent application was made in December 2008 but the urgency was denied so we have to wait in the queue for the application to be heard. Subsequently the Heads of Argument for another application for registration of the SADC Tribunal judgement has been prepared covering different legal arguments. This is just being finally tweaked and should be filed very soon. Despite this Government being in denial about this case a lot of interest has been shown internationally and in particular a special committee of the African Union for which a substantial report on the case was prepared at their request. The legal team which has been working on the case have been extremely dedicated and professional and are highly commended and are sincerely thanked for their persistence. The Campbell family and the 78 interveners have been of great assistance to the rest of the farming community through their brave stand and we sincerely thank them too. 5. CFU National Land Survey Database For many years our members and other farmers have been the subject of much of the political rhetoric and many people today truly believe that white farmers stole and occupied anything between 75% and 90% of the total land base in Zimbabwe. Although we know that all these statements are absolutely untrue Council felt that there was a need to use our own network to gather the correct information, not only to set the records straight but to channel useful information into a single document for each province. Although we have received completed forms from over 800 farmers we are well off the mark to enable us to get factual information together. We have therefore embarked on the much slower process of trying to extract the information required by other methods, which is very tedious. Although we continue to hand out the questionnaires to farmers who come into the office the best information collection method would be to find people in each district who have had access to local information either from Farmers’ Association or Rural District Council records. Despite this significant progress was made this year of getting all the facts together. 6. Assistance to Valuation Consortium We have had a constant stream of farmers coming into our office as well as receiving emails from farmers who are living outside Zimbabwe checking to see if their names are on the Valuation Consortium database list which we hold in the office. Although we are far from getting every single farm registered with the Valuation Consortium we are encouraged by the fact that over 500 more registered this last year. With the splinter groups working closer together now we have been encouraging everyone to register their farms. The Working Group Survey was sent out on email and we have people coming into the office every day either submitting their forms or else filling them in the office. By registering all farms with the Valuation Consortium those valuations would be more acceptable as and when compensation if finally payable. By going in as a group with a valuator who has been already tested in court in Paris would give more credibility and hasten the process. 7. Farm Disruption Reports Farmers have been incredible in supplying accurate information on what has been happening on the ground to us over the past year. So much so that it has often been very difficult to find the time to document it all. However, what we have been finding is that whilst the initial report is being made there are often no follow up reports being sent in so we have many partly completed information on some individual properties. It is extremely important that we are in the position to tell the full story on all the incidents which have occurred on all the farms in Zimbabwe in order to counter the untruths often published in the media. The many volumes of information which we have recorded have now been put onto a proper database which will allow us to interact with the other groups who are capturing similar information. After all we are not merely capturing the information as a historical record as the information would be available to eventually bring the perpetrators of these heinous crimes to book. Records over the last year show there were 1814 incidents reported on farms from August 2008 until June 2009. The most significant are shown in the following categories: Violent evictions of farmers 16Threat to evict 41Theft of property or looting 25Intimidation or violence 44Jambanja 24Cruelty to animals 19Assault of farmers 23Assault of farm workers 23Attackers or beneficiaries had firearms 19New beneficiary or workers arrived on farm 131Disruptions 128 Other – unspecified incidents 48Police refusing to assist farmers 38Property vandalised 24Arson – e.g. burning of crops 18Theft of crops 22Stocktheft 23 8. Post Election Farm Invasions and Disruptions Although the March and July elections of 2008 are now in the past and we have stopped doing a specific bulletin on election violence it is still important that we have information to follow up on the prosecution of the perpetrators of this violence. This is especially significant as far as farm workers are concerned. This information is now being captured in a combined monthly report. It is important that we are able to monitor such political violence in the future that will inevitably interrupt our farming operations once again. 9. List of People Allegedly Involved in Farm Disruptions A list has been put together of names of individuals who have been accused of disruption and violence on farms for future reference. This is probably one of the most important records which we are keeping and will be extremely useful in the future. During the compilation of this list of names, whether beneficiaries or perpetrators of violence, which have been taken from our above reports it has been shown that there are a number of names that repeatedly appear on many of the reports. This has clearly shown that those individuals are not merely beneficiaries of property but are suspected of being the major organisers of the ongoing conflict. Although many farmers have tended to try to put the horrors of the past behind them and have tried to forget what happened, the importance of capturing this information cannot be overemphasised. Conclusion Bearing in mind the reality that the prosecutions should not be happening at all we have appealed to the Inclusive Government for a moratorium on the issuance of offer letters and prosecution of farmers until the land audit and new land policy document has been completed. This would be in order that vital food production would not be interrupted until the final decisions were made. Should the request for the moratorium not be granted there are very good grounds for a court application to be made in order to achieve this and Heads of Arguments have already been prepared. ICSID Dutch Farmers case and Crawford von Abo case in South Africa are also of great legal significance which we have been following closely due to the valuable precedence which they have set. The most pertinent issue which is being observed in all of these cases is whether they will actually receive the compensation which has been granted in the favourable judgements. The other valuable lesson which has still to be learned is exactly how to phrase the compensation claims to avoid the amount payable being gobbled up by taxes. The ever presence of Alex Masterson at Coghlan, Welsh & Guest to guide us has been appreciated and most welcome as he has assisted both farming and non-farming members with very valuable legal advice. Thank you. To all the other people who have contributed to the success of this department we extend our sincere appreciation as well. We conclude by sincerely thanking the membership, and other farmers, for trusting us with their personal information, which has been used to compile such detailed reports over the past year. It is extremely important, and in our own interests to continue to keep the flow of information coming into your union. Thank you D Theron(Vice President)17 July 2009