Zim pulls out of Sadc Tribunal

The Herald – 2 September 2009  Zim pulls out of Sadc Tribunal By Mabasa SasaZIMBABWE has formally withdrawn from any legal proceedings involving the Sadc Tribunal until the establishment of the court is ratified by at least two-thirds of the bloc’s membership as per the requirements of rules and procedures governing the regional grouping. In a letter dated August 7, 2009, and delivered to the registrar of the Tribunal on August 10, Justice and Legal Affairs Minister Patrick Chinamasa said the court did not exist by law and as such Zimbabwe would not appear before it anymore, and neither would Government be bound by any decisions already made or future ones emanating from there. This followed a meeting of Sadc Justice Ministers and Attorneys-General in South Africa from July 27 to August 3 this year that proved the Protocol on the Tribunal and rules of providing for the composition and powers governing the court had not yet been ratified by two-thirds of Sadc members. “The purported application of the provisions of the protocol on Zimbabwe is a serious violation of international law. “There was never any basis upon which the Tribunal could seek or purport to found jurisdiction on Zimbabwe based on the protocol which has not yet been ratified by two-thirds of the total membership of Sadc. “As we are unaware of any other basis upon which the Tribunal can exercise jurisdiction over Zimbabwe, we hereby advise that, henceforth, we will not appear before the Tribunal and neither will we respond to any action or suit instituted or be pending against the Republic of Zimbabwe before the Tribunal. “For the same reasons, any decisions that the tribunal may have or may make in future against the Republic of Zimbabwe are null and void. “We note that the meeting of the ministers of Justice/Attorneys-General recommended that the (2009 DRC Sadc) Summit should urge member-states to ratify those protocols which are not yet in force. “We look forward to this exercise which will no doubt create opportunity for Sadc to regularise the composition of the tribunal,” Minister Chinamasa wrote. A group of 79 white commercial farmers took the Republic of Zimbabwe to the Tribunal in a bid to block the compulsory acquisition of their farms by the State for the purpose of redistribution under the land reform programme. The Tribunal, which is based in the Namibian capital Windhoek, subsequently made two judgements in their favour – an interim relief and a final relief order barring the acquisition. Observers saw this as an attempt to block the land reform programme, an exercise that has seen the State correcting historical land tenure imbalances that reserved the best arable land for whites. However, Zimbabwe and nine other Sadc members are yet to ratify both the protocol creating the Tribunal and a subsequent amendment to that document. Minister Chinamasa’s letter further reads: “We add that until such a time that the Protocol is ratified by the requisite membership of Sadc, the Tribunal is not properly constituted and is therefore not in a position to exercise jurisdiction even on the five members who have so far ratified the Protocol.  “Zimbabwe remains bound by the Sadc Treaty that it ratified on 17^th November, 1992, and by all those protocols that is has ratified to date. “We also might also further add that Article 22 of the Sadc Treaty that Zimbabwe reaffirms the principle of international law that all protocols are subject to ratification by State parties thereto.” Efforts yesterday to get a comment from Minister Chinamasa were fruitless with his secretary saying he was out of the country. When questioned on why Government had not raised these arguments earlier on and why Zimbabwe had consistently appeared before the Tribunal since 2007, an official at the AG’s Office said it was out of the country’s “respect for the Sadc Secretariat”, which he said erred in allowing the court to function. “Insomuch as the white farmers were trying to use legal manoeuvring to stop land reforms, we felt it would not be right to abuse Sadc in such a manner. “Our considered view was that sense would prevail but we have realised that not everyone treats the ties that bind Sadc with the same respect that we do. “We went along as an indication of our noble intentions because we had nothing to hide and it was clear that State land reforms were embarked on to guarantee the human and economic rights of the black majority.  “We have no choice now but to point out that the creation of the tribunal was an administrative blunder that cannot be allowed to continue to subsist,” he said.