Spotlight on defunct SADC Tribunal amid calls for reinstatement

Vitalio Angula

Windhoek—“My objective is to do whatever I can to assist in bringing about a conducive environment for people to be able to live and work in Zimbabwe.

“We believe that we can make a difference, that we are making a difference, and that we will continue to make a difference.”

These are the words of Ben Freeth, a Zimbabwean farmer turned human rights activist.

Prayer

In March this year, he made a symbolic visit to the offices of the now defunct Southern African Development Community (SADC) Tribunal in Windhoek, Namibia, where he delivered a “prayer”.

He thanked what was once the region’s most powerful court for ruling against the forced eviction from and destruction of his father-in-law’s  farm in Zimbabwe in the heydays of the fast track land redistribution programme that started in 2000.

“I thank you for paving the way for the opening of the SADC Tribunal to deliver justice for the 400 million people in the region when our own justice systems failed us. You made it possible for us to get a just, final and binding judgment in that Tribunal on 28 November 2008,” pronounced the resolute Kent-born farmer in the “prayer”.

In 2001, Freeth’s farm was designated for redistribution to landless blacks during the widely violent fast track land programme that forced around 5,000 commercial white farmers to give way to more than 300,000 settlers, with the political elite grabbing he most fertile farms.

Freeth, who has publicly announced that he is not opposed to the Zimbabwean government’s policy to empower local blacks through farmland allocations, still hopes that justice will prevail to address the property and human rights violations that attended the fast track programme.

Hounded out

In 2008, the SADC Tribunal ruled in favour of the late Mike Campbell—Freeth’s father-in-law—whose sprawling farm was also violently taken.

Campbell had moved onto Mount Carmel Farm in 1974.

The farm that was situated in the Chegutu area in Mashonaland West province, was then touted as among the biggest farming projects in Zimbabwe.

At the time the government identified it for compulsory acquisition in 2001, Campbell engaged in diversified agro activities that included the production of bananas, citrus, tobacco, maize, wheat, soya bean, sunflower, cotton and vegetables.

He also set up a nature reserve, keeping giraffes, impala, warthogs, zebras, eland and kudu, and topped this with the Biri River Safari Lodge that became a popular international tourist attraction.

The farm was finally taken over in July 2004, with one of the ruling Zanu PF stalwarts, the late Nathan Shamuyarira, a cabinet minister and party spokesperson, expressing interest in the plot.

Campbell, with Freeth’s close support, challenged the removal from his farmland at the tribunal but, in return, got his and Freeth’s farmhouses and properties burnt down by militias aligned to the ruling Zanu PF in retaliation, when he went to court.

The tribunal gave him and thousands other affected white farmers, temporary relief.

The then Zimbabwean president, Robert Mugabe, fumed at the ruling and told the court to back off, arguing that it had no jurisdiction on Zimbabwe’s internal matter and had not ratified the tribunal.

Mugabe’s government won the day because, due to mounted pressure, the SADC Tribunal was first suspended in 2011, with the regional body citing concerns about its jurisdiction and arguing that it needed to be reformed.

The 2018 SADC summit in Windhoek effectively dissolved the tribunal, replacing it with a largely moribund dispute settlement mechanism that has hardly been tested to date.

SADC Tribunal 

The establishment of the SADC Tribunal was first envisioned in terms of Article 9 of the SADC Treaty in the same year.

The tribunal was mandated to hear disputes between states, and between natural or legal persons and states.

Member states agreed to the protocol for its establishment in 2000—almost a decade after—but it only became operational five years later when the first judges of the court were sworn in.

Riding on the Mike Campbell Foundation (MCF) that was set up in 2012, Freeth is praying for the resuscitation of the regional court or that SADC steps in somehow, but is he not hoping against hope?

Zimbabwean law will not allow those thousands of former commercial white farmers to claim back the land they used to occupy.

In 2005, the government amended the constitution for the seventeenth time since its adoption in late 1979, just before black majority rule.

The amendments made it impossible for farmers whose land had been compulsorily acquired to challenge the acquisition or claim it back.

The courts were rendered ineffective and irrelevant in resolving farm disputes relating to the land redistribution programme.

The only reprieve is that the government agreed to compensate the affected farmers for improvements on the farms that they had acquired or bought before the fast track programme, but the restitution is taking long.

And chances of the tribunal returning are pencil slim.

There were serious efforts from some regional players between 2012 and 2918 to revive it, but that came to nought, resulting in SADC adopting the vague dispute resolution mechanism.

The 2008 judgment by the tribunal to restore the late Campbell, who together with his and Freeth’s families were tortured and persecuted by the Mugabe government, to his land was always going to give SADC a headache if it had subsisted.

Land is an emotive question in Southern Africa. If the SADC Tribunal judgment was upheld, it was going to force the Zimbabwean government to reverse the populist resettlements that came with the land reform programme.

To the south, South Africa was—and still is—battling with land reallocations to ensure black empowerment.

With the country’s farms still dominated by whites as was the case in Zimbabwe before the land reform, South Africa would find it difficult to manage land equity.

Political strategy

Apparently, the tribunal was, therefore, dissolved as a political measure to make future land disputes manageable, mostly at the behest of the Zimbabwean government.

Legal experts do not see the tribunal—even if it was to be re-established—developing enough teeth to bite where land disputes are concerned.

A Namibian diplomat, Kaire Mbuende, who served as the executive secretary of SADC from 1994 to 1999, argues that Zimbabwe would be under no obligation to comply with the tribunal’s judgments because Harare would not ratify it for its own expedience.

David Drury, Freeth’s lawyer, insists that SADC member states must have been bound to the tribunal out of principle.

Once they signed up to the tribunal’s protocol, they were acceding to the dictates of its eventual rulings towards justice and fairness.

“They consciously submitted themselves to the principle of adhering to decisions of the tribunal and to every determination on a point of specific law as pronounced,” Drury told NewsHub.

There was a time, before its dissolution, when the tribunal was seen to be following in the footsteps of the European Court of Justice in the broader mandate of protecting individuals against state-sponsored violations.

The western court is considered to wield a jurisdiction that supersedes member states of the European Union.

But the trans-border influence of the European court could not repeat in the SADC Tribunal considering that, according to Mbuende, “the protocol used to implement the tribunal was never ratified by the individual countries.”

Graham Ray, a farmers who also lost land in Zimbabwe and resettled in Zambia, has learnt his weight behind Freeth’s quest to reinstate the tribunal.

“This is not only for Zimbabwean farmers but for the whole SADC region,” remarked Ray in a Facebook post.

And for Ray, the tribunal is not the only route as, according to him, disgruntled evictees can appeal to the International Court of Justice.

As the hope for the resuscitation of the tribunal persists, SADC itself does not seem to be in a rush.

Spokesperson of the regional body, Barbara Lopi, says the re-operationalisation of the SADC Tribunal was yet to be discussed.

“The re-operationalisation of the SADC Tribunal is a matter that is yet to be discussed and finalsed by member states. Currently, member states are undertaking consultations on the matter.

“Upon completion of consultations, a meeting of legal experts from the member states will be convened to review and consider the outcomes which will be submitted to the SADC Council of Ministers for further consideration,” Lopi wrote in an email response.