SADC leaders cited in landmark Zim legal case
By Alex Bell
04 April 2011
All 15 leaders in the Southern African Development Community (SADC) have
been cited as respondents in a landmark legal case, launched by Zimbabwean
farmers.
The application, made to the SADC Tribunal last week, is the first time in
legal history that a group of heads of state is being cited by an individual
as the respondent in an application to an international court.
Jeremy Gauntlett, a leading South African advocate, filed the urgent
application on behalf of two dispossessed Zimbabwean commercial farmers,
both of whom ran highly successful farming enterprises, and both of whom are
elderly.
This includes Michael Campbell of “Mount Carmel” farm in Chegutu, who led an
historic legal battle in the Tribunal against Robert Mugabe and his land
grab campaign. The Tribunal ruled in 2008 that the land grab scheme was
unlawful, and ordered Mugabe’s government to compensate farmers who lost
land, and protect the remaining farmers from future illegal seizures.
That has not happened, and Campbell was eventually forced off his property,
along with his family, when land invaders burnt the farm down in 2009. In
reaction to the Tribunal’s findings the government said rulings of the
international court were ‘null and void’ and held no sway in Zimbabwe. Land
seizures have continued ever since, and last month Campbell’s son was forced
of his farm after a week long ‘jambanja’.
Also involved in this new case is Luke Tembani from the “Remainder of
Minverwag” farm in Nyazura district, who took his case to the SADC Tribunal
in June 2009. This was after the farm he bought with a loan in 1983 was sold
by the Agricultural Bank of Zimbabwe in 2000, without any court hearings. In
August 2009, the Tribunal ruled that the repossession and sale of Tembani’s
farm to recoup an outstanding loan was “illegal and void”. The judges ruled
that he should remain on the farm.
But in defiance of the Tribunal ruling Tembani and his family were evicted
two months later.
Zimbabwe’s refusal to honour the Tribunal’s rulings was eventually brought
before SADC leaders last year, who were urged to take action against it’s
errant member. But instead of rebuking Zimbabwe or forcing Mugabe to honour
the Tribunal, the court was suspended. A SADC summit resolved last year to
‘review’ the role and functions of the Tribunal, a review that has
reportedly been conducted.
Campbell’s son-in-law Ben Freeth, who now heads the SADC Tribunal Rights
Watch group, told SW Radio Africa on Monday that this new legal case holds
the 15 SADC leaders to account, by asking them to fully reinstate the
workings of the Tribunal. The application asks for an order that ensures
“the Tribunal continues to function in all respects as established by the
Treaty, which all the leaders are signatory to.”
“African leaders must acknowledge that they have a responsibility to their
people,” Freeth stressed, adding: “If they unilaterally decide to abandon
them to a continent devoid of institutions through which justice can be
sought, injustice and evil will continue to prevail, ordinary people will
continue to suffer and the continent will regress.”
New application to SADC Tribunal makes legal history
MEDIA RELEASE FOR IMMEDIATE RELEASE
SADC Tribunal Rights Watch
4 April 2011
New application to SADC Tribunal makes legal history
For the first time in legal history, a group of heads of state is being cited by an individual as the respondent in an application to an international court – in this case the Southern Development Community (SADC) Tribunal – located in Windhoek, Namibia.
Jeremy Gauntlett, SC, a leading South African advocate, filed the urgent application on behalf of two dispossessed Zimbabwean commercial farmers, both of whom ran highly successful farming enterprises, and both of whom are elderly.
The first applicant is William Michael Campbell of Mount Carmel farm in the Chegutu district of Mashonaland West province, and the second applicant is his company, Mike Campbell (Pvt) Ltd.
The third applicant is Luke Tembani of the Remainder of Minverwag farm at Clare Estate Ranch in the Nyazura district of Manicaland province.
The first respondent is the “Summit of the Heads of State or Government of SADC” and the Presidents of 15 countries, including Zimbabwe’s President Robert Mugabe.
The second respondent is the Council of Ministers of SADC and the third is the Republic of Zimbabwe.
The application asks for an order that ensures “the [SADC] Tribunal continues to function in all respects as established by Article 16 of the Treaty.”
In the Preamble to the Declaration and Treaty of SADC, the SADC Heads of State agreed to be “Mindful of the need to involve the people of the Region centrally in the process of development and integration, particularly through the guarantee of democratic rights, observance of human rights and the rule of law…”
According to the protocol establishing the Tribunal, a person can bring a case after exhausting all available remedies or when unable to proceed under domestic jurisdiction.
Despite this commitment, in August last year at the two-day SADC Summit in Windhoek, the SADC heads of state decided “that a review of the role functions and terms of reference of the SADC Tribunal should be undertaken and concluded within six months.”
The terms of the judges presiding over the SADC Tribunal were not renewed and the Tribunal was effectively disbanded pending the outcome of the review.
Responding to widespread criticism, SADC executive secretary Tomaz Salamao claimed that the Tribunal had not been suspended and that it could “deal with those cases at hand” although it “could not entertain any new cases.”
For the Mugabe government, the decision was of major significance as the Tribunal would no longer be able to hear controversial cases regarding Zimbabwe’s conduct with respect to human rights abuses and the disastrous land reform programme which the Tribunal had judged to be unlawful.
The Campbell case
In October 2007, after exhausting all legal remedies under domestic jurisdiction, Mike Campbell filed a case with the Tribunal contesting the acquisition of his farm which had been transferred legally in 1999 with a “certificate of no interest” from the Zimbabwean government.
In March 2008, 77 additional Zimbabwean commercial farmers were granted leave to intervene. Interim relief similar to that given to Campbell on December 13, 2007 was granted to 74 of the farmers since three were no longer residing on their farms.
Eight months later, on November 28, 2008, the Tribunal ruled that the land reform programme was racist and unlawful and that the Zimbabwe government had violated the SADC treaty by attempting to seize the 77 white-owned commercial farms.
In response, Lands and Land Reform Minister, Didymus Mutasa said the government would not recognise the ruling.
The Luke Tembani case
Luke Tembani, a successful black commercial farmer, took his case to the SADC Tribunal in June 2009 after the farm he bought in 1983 was sold by the Agricultural Bank of Zimbabwe in 2000 without any court hearings.
In August 2009, the Tribunal ruled that the repossession and sale of Tembani’s farm to recoup an outstanding loan during a period of soaring interest rates – to which the bank was unable to put an exact figure – was “illegal and void”. The judges ruled that he should remain on the farm.
In defiance of the Tribunal ruling, Tembani and his family were evicted two months later and Tembani’s two primary school-going children were forced out of the school he had built personally on the farm at significant cost for children in the area.
Commenting on the decision to suspend the Tribunal, the group legal representative of South African civil rights initiative AfriForum, Willie Spies, said it was cause for serious concern. He warned that it was very bad news for the Southern African region if disregard for the rule of law was supported in this way.
“We do not want to be sending a message from Africa that we are disregarding human rights. We do not want to send a message that the rule of law is being trampled on when it does not suit the rulers in power,” Spies said.
In the Founding Affidavit for this new case, Campbell stated that the application was being brought on behalf of the commercial farmers who joined his case in March 2008 and their employees and their families.
“Many have been forced from their farms and are scattered around Zimbabwe….. With us they have suffered evictions, destruction of their homes and possessions, assaults, torture and other gross human rights violations,” Campbell said.
He said it had also not been possible to join hundreds of thousands of similarly affected farm workers, or to obtain separate affidavits from them.
“They live in daily fear of further attacks and dispossession, and of reprisals. Many now live hand-to-mouth, scattered near relief centres and across the country.”
Campbell’s son-in-law, Ben Freeth, who has supported him in his quest to gain justice through the SADC Tribunal, was also abducted and tortured with Campbell and his wife immediately after the Presidential run-off election in June 2008. They were forced to sign a paper stating they would withdraw their case, which was due to be heard by the Tribunal the following month.
Although Freeth has recovered fully from his injuries, which resulted in major brain surgery, the serious head injuries Campbell sustained have left him severely incapacitated.
“Despite this, Mike remains resolute and was able to sign the application – which will have far reaching implications for the sub-continent – with a quivering hand,” said Freeth.
“African leaders must acknowledge that they have a responsibility to their people,” Freeth stressed. “ If they unilaterally decide to abandon them to a continent devoid of institutions through which justice can be sought, injustice and evil will continue to prevail, ordinary people will continue to suffer and the continent will regress.”
“There are encouraging signs though,” continued Freeth. “Zambian President Rupiah Banda, who chaired the SADC double troika summit in Livingstone on Friday, said: ‘If there is anything that we must learn from the upheavals going on in the northern part of our continent , it is that the legitimate expectations of the citizens of our countries cannot be taken for granted.
‘We must therefore continue at the SADC level to consolidate democracy through the establishment of institutions that uphold the tenets of good governance for human rights and the rule of law,’ he concluded.
ENDS
Background information:
The Declaration and Treaty of SADC, Article 16 – The Tribunal, reads:
1. The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.
2. The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol adopted by the Summit.
3. Members of the Tribunal shall be appointed for a specified period.
4. The Tribunal shall give advisory opinions on such matters as the Summit or the Council may refer to it.
5. The decisions of the Tribunal shall be final and binding.
For further information:
Ben Freeth – SADC Tribunal Rights Watch
Cell: +263 773 929 138 (Zimbabwe)
E-mail: [email protected]