Human rights history made as African Commission declares Zimbabwean farmers' case admissible

The campaign to restore the rule of law in Zimbabwe and to reinstate the international court of the SADC Tribunal after its suspension by the SADC Heads of State in August 2011 has seen an important breakthrough.

The African Commission today ruled that the complaint lodged with it on behalf of Zimbabwean farmers Luke Tembani and Ben Freeth against 14 heads of state of SADC countries was admissible despite preliminary procedural objections raised against it by amongst others Tanzania.

The ruling was made at the 52nd Ordinary Session of the African Commission on Human and People's Rights held atYamoussoukro, Cote d'Ivoire.

The complaint by Tembani and Freeth related to the decision of the SADC Summit at Maputo in July to suspend the SADC Tribunal, which in a series of rulings had held the Government of Zimbabwe in breach of the SADC Treaty and other international legal obligations.

The approach to the African Commission followed an earlier urgent application submitted by a legal team led by Adv. Jeremy Gauntlett, SC, a leading South African advocate, to the SADC Tribunal in April 2011. The application asked for an order that would ensure the SADC Tribunal would continue to function in all respects as established by Article 16 of the SADC Treaty. It was the first time in legal history that a group of heads of state was cited by an individual as the respondent in an application to an international court.

Both applications were filed on behalf of two dispossessed Zimbabwean commercial farmers, Ben Freeth (41), formerly of Mount Carmel farm, the son-in-law of the late Mike Campbell, who initiated the original farm test case with the SADC Tribunal, and Luke Tembani (75), formerly of Minverwag farm. However, at the SADC Extraordinary Summit of Heads of State in Namibia on 20 May 2011, the Ministers of Justice of SADC countries were mandated to initiate a process aimed at amending the relevant SADC legal instruments to change the jurisdiction of the Tribunal.  A final report was to be presented the Summit in Maputo in August 2012.

Despite intensive lobbying, SADC leaders resolved at the Maputo Summit that a new Protocol on the Tribunal should be negotiated and its mandate confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.

Consequently individuals in all 14 member states no longer have access to the internationally respected court after being denied access to justice in their own countries. Disputes between the states themselves also now cannot be adjudicated.

Between 2007 and 2010, the Tribunal ruled on 20 cases that included disputes between citizens and their governments as well as cases between companies and governments.

"The move by the Heads of State of SADC to suspend southern Africa's highest human rights and international law court, the SADC Tribunal, sent shock waves throughout the human rights and legal community in the region and internationally," said Freeth from Harare.

Freeth and Tembani's legal team now has 60 days to make further submissions on the merits of their complaint, after which the Commission will consider the complaint.

"We believe this will result in significant pressure to ensure that the SADC Tribunal is allowed to resume operations for the benefit of all victims of injustice and the abuse of power in southern Africa," said Freeth.

Luke Tembani also expressed relief at the news.

"I was previously a successful commercial farmer and was respected in our community," said Tembani. "Now I am poor through no fault of my own. All I want is justice - and in Zimbabwe justice has left me."

In South Africa an international law practitioner who asked not to be named commented that it was "unprecedented" for the African Commission to be considering a human rights matter regarding the actions of 14 governments. "All preliminary procedural objections and hurdles have now been overcome. The case is on track. The matter can now proceed".

Statement issued by Willie Spies, Legal representative: AfriForum and Glyn Hunter, SADC Tribunal Watch, November 20 2012

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