SADC Tribunal disbandment to be challenged at African Commission - Willie Spies

Comprehensive submission to be presented on behalf of Luke Tembani and Ben Freeth

African Commission receives historic submission for reinstatement of SADC Tribunal

The unilateral decision by the 14 Southern African Development Community (SADC) heads of state in May 2011 to close down the respected regional court of the SADC Tribunal will come under the scrutiny of the African Commission on Human and People's Rights (ACHPR) early this year.

A comprehensive submission contesting the Tribunal's permanent ouster, presented on behalf of two dispossessed Zimbabwean commercial farmers, will be filed with the ACHPR by the applicants' legal team, this week.

The submissions are filed after the Commission has overruled procedural objections to the case, and directed in November 2012 that the claim be admitted for consideration by the Commission.

This ground-breaking initiative was the precursor of a campaign to reinstate the SADC Tribunal for the benefit of victims of injustice and the abuse of power throughout southern Africa and for the restoration of the rule of law in Zimbabwe.

The first applicant is Luke Tembani (75), formerly a successful black commercial farmer, who lost the title to his farm in November 2000 when it was unilaterally auctioned by the Agricultural Bank of Zimbabwe (ABZ) to cover a loan.  This was despite his proposal to sell off a section of the farm to cover the debt.

Although the Zimbabwe High Court ruled in his favour, the ABZ appealed to the Supreme Court and in November 2007 the sale was upheld. Tembani's case was heard by the SADC Tribunal in June 2009 and the judges ruled in his favour.

The second applicant is Ben Freeth, who is representing his late father-in-law, Mike Campbell, an elderly white commercial farmer and Zimbabwean citizen. 

After years of harassment and violence, Campbell's Mount Carmel farm was taken over by an octogenarian former cabinet minister, Nathan Shamuyarira.

Campbell died in April 2011 as a result of injuries sustained during his abduction and torture after the violence-ridden Presidential run-off election in June 2008.  His captors were the state-sponsored militia who insisted he withdraw his case underway before the SADC Tribunal.

The applicants have contested the ouster of domestic courts' jurisdiction to hear cases concerning the Mugabe government's expropriation of white-owned property without compensation, and the validity of ouster-clauses entitling State-owned financial institutions to execute on agricultural land, denying an aggrieved party all access to court.

The Tribunal's decisions against the Zimbabwe government - which included contempt of court judgments - have been repudiated by Justice Minister Patrick Chinamasa, who claimed the court had no legal force in Zimbabwe.

The communication forwarded to the ACHPR on behalf of Tembani and Freeth submits that the suspension and permanent ouster of the SADC Tribunal is unlawful for the following reasons:

  • It violates binding provisions of the African Charter, the SADC Treaty and the International Covenant on Civil and Political Rights by:
    • Infringing the right of access to court
    • Interfering with the independence, competence and institutional integrity of the SADC Tribunal
    • Terminating existing procedures and vested remedies
    • Violating the rule of law, and
    • Trespassing on the doctrine of separation of powers;
  • It is procedurally irregular, because it constitutes an interference with the existence and function of an essential Treaty organ by mere executive decree, not by any amendment of the Treaty;
  • It constitutes an irrational and arbitrary exercise of executive power for which no valid rationale exists;
  • It is in bad faith and motivated by extraneous considerations:  instead of acting on the SADC Tribunal's referral of the recalcitrant State member (Zimbabwe) in order to support the SADC Tribunal and enforce its rulings, the Summit (of SADC heads of state) in the result has defied the Tribunal and effectively created impunity for the defaulting State as regards the rulings of SADC's highest adjudicative institution.

The legal team notes that many of the material facts presented in the communication are not only uncontested but are also derived from official SADC documents.

For example, with respect to rights entrenched by Articles 7 and 26 of the African Charter, the document notes that the Charter is explicit about State Parties' obligations to ‘guarantee the independence of the Courts and .... allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.'

Foreclosing access to the SADC Tribunal to individuals is described as a clear violation of Articles 7 and 26 of the Charter, while the termination of an extant or existing claim is a serious violation of Articles 3(2) and 7(1) of the African Charter, Article 2(3) of the International Covenant on Civil and Political Rights, and Article 27 of the Vienna Declaration and Programme of Action.

Commenting on the violation of the rule by the SADC heads of state, the legal team quotes Judge President Mzikamanda of Malawi, who wrote in the context of the suspension of the Tribunal:

"Rulers have an even greater obligation to observe the rule of law at all times in order to reinforce the rule of law and eliminate the possibility of the emergence of the rule of men.... This will ensure enjoyment by the individual of the rights and liberties guaranteed by the constitution.  Thus an independent judiciary is a critical element to the rule of law."

The legal team concludes that because the impugned decisions are "contrary to the essence of justice" in that they purport to oust the Tribunal's jurisdiction in defiance of the rule of law, they are invalid and should be annulled and their effects remedied.

Note to editors: Please find background information attached.

Willie Spies

South African based attorney of the applicants


Background Information

The government-orchestrated land invasions began in February 2000, immediately after President Mugabe, who had become increasingly unpopular, lost a referendum on a new constitution which would further entrench his presidential powers.  So-called "war veterans" were ferried onto commercial farms, often in government vehicles, to beat up and force off the land the owners, farm workers and their families. This caused a total breakdown of law and order, resulting in widespread intimidation, theft, violence, murder, arson and internal displacement. Many highly productive farming enterprises were wantonly destroyed, with disastrous consequences for the agro-based economy. 

In July 2000, Mugabe formally announced a "fast track" resettlement programme, stating it would acquire more than 3,000 of the 4,500 commercial farms for redistribution.  This was not a "land reform" programme designed to hand white-owned farmland to poor, landless black Zimbabweans, but the nationalisation of all farm land, with the main beneficiaries being the elite - Politburo members and cabinet ministers, security force officers, their family members and even judges.

Luke Tembani:  Luke Tembani (75), one of the first black commercial farmers after Zimbabwean independence in 1980, lost the title to his farm in November 2000 when it was unilaterally auctioned by the Agricultural Bank of Zimbabwe (ABZ) to cover a loan. Despite his proposal to sell off a section of the farm to cover the debt, his entire property was sold to a third party at a fraction of its value.

Tembani took his case to the High Court of Zimbabwe, which ruled in his favour, but the ABZ appealed to the Supreme Court - many of whose members have been recipients of "redistributed" farms - and in November 2007 the sale was upheld.

Tembani then took his case to the SADC Tribunal in Windhoek, Namibia, where it was heard on June 5, 2009. He won the case and the Zimbabwe government was ordered not to evict him and to stop interfering with his use and occupation of the farm.

However, in October 2009, Tembani and his family were evicted and prevented from taking any farm equipment and household goods off the farm.  The family is now destitute.

Mike Campbell:  Litigation for the high profile Campbell case began in October 2007 when Mike Campbell (74), a commercial farmer and conservationist, approached the SADC Tribunal after several years of fruitless litigation in Zimbabwean courts and after the Zimbabwe Government started prosecuting him for living in his home and farming his land.

The hearing, comprised of five judges from various southern African states, ruled in November 2008 that the Zimbabwean discriminatory land nationalisation laws were illegal and racist and that Campbell and 77 other farmers who intervened in his application should be left in peace and their property rights restored.

In the run-up to the proceedings before the SADC Tribunal, Campbell, his wife, Angela, and son-in-law, Ben Freeth, were abducted, brutally assaulted by war veterans and intimidated in order to force them to abandon their action before the Tribunal. They nevertheless proceeded and won the case. 

In September 2009, Campbell's house was burnt down with everything in it.  His crops, which were all ready for harvest, as well as tractors and other equipment, were stolen by an octogenarian former cabinet minister, Nathan Shamuyarira.  Campbell and his family left the farm with nothing.

Issued by AfriForum, January 13 2013

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