The Southern African Development Community (SADC) is a regional economic community (REC) mandated to promote free trade, development and regional co-operation amongst its member states. There are 15 member states: Angola, Botswana, the Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Swaziland, Seychelles, South Africa, Tanzania and Zambia. Madagascar is currently suspended from the organisation, after a constitutional coup d'état in March 2009. Zimbabwe is subject to a range of sanctions due to the worsening state of civil and political rights in the country, although it is not completely suspended from the organisation's political organs.
The SADC's forerunner, the Southern African Development Coordination Conference (SADCC), was an association of nine majority-ruled southern African countries who were signatories of the 1980 Lusaka Declaration. The SADCC evolved into the SADC in 1992 with the signing of the 1992 Windhoek Declaration, which established the treaty of the SADC (it set up the Community's main administrative and political organs) and set out its common aims of greater economic, political and security cooperation. Like other regional RECs, the SADC has an adjudicative tribunal (hereafter ‘the Tribunal') to resolve disputes between member states and hear individual petitions on matters of community law.
The SADC tribunal has to date been highly inactive and ineffective and has heard few cases. However, the Tribunal has made an important decision in a case that examined the lawfulness of the Zimbabwean Government's policy of land reclamation, wherein it considered substantive matters related to the rule of law and the applicant's right to a fair hearing. The enforcement of this case and resistance by the Zimbabwean Government has however led to effective disbandment of the Tribunal.(2) The Zimbabwean Government was determined not to obey the SADC ruling and fiercely objected to the presence of a regional tribunal and its ability to review their domestic human rights record. The SADC conceded to Zimbabwe's demands not to be subject to the Tribunal's jurisdiction by agreeing to an administrative measure which effectively terminated the regional Tribunal's ability to hear cases against human rights abusers. Coupled with the relatively weak stances of other SADC countries regarding the SADC and the consequences of this issue for Southern African citizens, the debacle led to the Tribunal's disbandment.
In the short term, this means that Zimbabwean victims of discriminatory laws in Zimbabwe will not have their rights protected. In the long term, it sets a very dangerous precedent because it shows how Governments that are serial human rights abusers can use their diplomatic presence to escape accountability for their actions. This CAI brief examines why the SADC Tribunal has been suspended, the role of SADC heads of state in the process, and what the consequences are for Southern African citizens.
The SADC Tribunal and its jurisdiction
The Tribunal was established under Article 9 (g) of the 1992 SADC Treaty and was intended to be an institution of the SADC alongside other community institutions. The Tribunal was empowered, under Article 16 of the SADC Treaty, "...to ensure adherence to and the proper interpretation of the provisions of (the) Treaty and subsidiary instruments" and to adjudicate upon disputes accordingly. Under Article 14 of the Protocol, the Tribunal's jurisdiction extends to interpretation of the 1992 SADC Treaty, SADC Protocols and "all matters specifically provided for in any other agreements that States may conclude among themselves or within the community and which confer jurisdiction on the Tribunal."
The Tribunal requires that applicants exhaust all domestic remedies before they request the Tribunal to consider their cases. Under Article 15(2) of the Protocol, an applicant is required to demonstrate that domestic remedies are non-existent, ineffective, unduly prolonged or meaningless. If these things can be proved, an applicant may appeal directly to the Tribunal.(3) Note that this procedural protocol is unlike that of the ECOWAS Community Court of Justice, which allows human rights claims against states without such ‘exhaustion' of domestic remedies.(4)
Mike Campbell (PVT) Ltd et al v The Republic of Zimbabwe
Mike Campbell is the only case the Tribunal has heard that dealt with substantive human rights issues. Defence of the principles of rule of law in the Tribunal's judgment was thorough, but the Tribunal declined to explore any of the novel aspects of its jurisdiction. The Tribunal has the potential to implement and apply international human rights instruments, which it declined to do in this case, even though it considered points of argument relating to international law and made several comparative analyses based on international human rights law.(5)
The case concerned Zimbabwe's land redistribution programme. Upon independence from the UK in 1980, the question of farm ownership by the white community was purposefully left unanswered. In order to conclude negotiations between Zanu-PF and the Rhodesian Government, Lord Carrington, the then British Foreign Secretary, was deliberately vague about the question of white farmers' land rights - a position that ultimately rendered land rights precarious for all Zimbabweans. After commercial methods failed to fairly redistribute land in Zimbabwe, legal methods were the next available option. In 1992, the Land Acquisition Act authorised the acquisition of land for ‘resettlement' purposes, which technically violated citizens' constitutional rights to ‘peaceful enjoyment of property' but was upheld by the Supreme Court as constitutional.(6) The process was accelerated in 2000, when the Government made political commitments to help ‘veterans' of the independence struggle to obtain farmland. A constitutional amendment was passed that expanded the original Acquisition Act. These new powers committed the Government to paying for resettlements but not to paying the true value of the land in question, and effectively violated more of the remaining rights of property owners.(7) The Zimbabwean Government maintained that the British were under an obligation to pay for the land. Due to increasing chaos in Zimbabwe when its Government allowed veteran groups to occupy farms owned by the white community, refused to intervene and accused their critics of neo-colonialism, the British Government withdrew a programme that was designed to pay for the land.
The Supreme Court of Zimbabwe first heard a case on land occupation in 2001 and held that the Government had consistently failed to enforce the law and that farm invasions were unlawful.(8) The Government's response was to embark on a series of actions that weakened the Supreme Court and to pass a new constitutional package aimed at ending all future litigation from farmers who had their land seized.(9) On 11 October 2007, Mike Campbell (PVT) Limited, a Zimbabwean-registered company, instituted a case with the Tribunal to challenge the acquisition of agricultural land in Zimbabwe by the Government of Zimbabwe on the grounds that their due process rights had been infringed and that the policy of land redistribution was being applied in a discriminatory manner. Under Article 28 of the Protocol, the applicants applied for an interim measure to prevent evictions whilst their case was being heard.(10)
The Tribunal held that the applicants did not, in this case, have to exhaust domestic remedies, because adequate domestic forums were not available in Zimbabwe. It furthermore held that human rights jurisdiction and human rights treaties had not been incorporated into the SADC Protocol under Article 21(b) of the Protocol, but that the Tribunal was entitled to develop novel sources of law. Under the SADC treaty, member states who had committed themselves to, the Tribunal would adhere to norms of "democracy, human rights and the rule of law."(11) On the issue of access to remedies, the Tribunal found that the failure to provide any international human rights laws for remedy was a violation of the right to a fair hearing. Given that the African Commission had specifically condemned the creation and use of ‘ouster clauses' it was thus held that the statutory land reform programme was incompatible with international human rights law.(12)
The issue of property was not ruled on by the Tribunal. It held, however, that a programme of land distribution could be justified as a matter of social necessity, if that program adhered to the rule of law and were not arbitrary or discriminatory. The Tribunal furthermore held that the application, but not the purpose, of the programme was discriminatory, as had previously been argued by the United Nations (UN) Committee on Racial Discrimination. The enforcement of the legislation since 2000 had been almost entirely directed against whites in Zimbabwe.(13) The Tribunal, after considering numerous international precedents, concluded that the Constitution of Zimbabwe Act (No. 17) "affected disproportionately and unjustifiably a large number of a particular racial group" and ordered the Government to pay compensation to the claimants.
Enforcement and the breakdown of the Tribunal
Under Article 32 of the Protocol, the international law of enforcement of foreign judgments applies to Tribunal judgments. Prior to the Mike Campbell case, this had been identified as a weakness in the Tribunal's legal framework, because in the case of absence of clear mechanisms or frameworks of enforcement, failure to enforce a judgment would become a political question, to be resolved through the diplomatic forums of the SADC. In Mike Campbell the Tribunal found against the Government of Zimbabwe and awarded damages to the applicant. The Government was however reluctant to act against the "war veterans" because they were key Zanu PF supporters. This intransigence led the Zimbabwe forum of non-governmental organisations (NGOs) to take the Government back to the Tribunal to enforce the judgment. The Tribunal found against the Government again, but the Government still refused to enforce the judgment.
The Minister of Justice and Legal Affairs, Patrick Chinamasa, said in a statement that the Tribunal did not bind Zimbabwe because it had been ratified by less than two thirds of the SADC's members. This interpretation ignored the amendments to the SADC Treaty made in 2000, which accommodated the Tribunal and authorised it to exercise its jurisdiction separately from the conditions of the Protocol.(14) Under the SADC treaty, Article 16(5) provides that the decisions of the SADC Tribunal shall be final and binding on the parties of the dispute. A legal opinion written by J.J. Gauntlett SC and Professor Jeffrey Jowell QC in November 2009 concluded that the Government of Zimbabwe was bound by the Tribunal and had to enforce its rulings.(15)
In January 2010, the Zimbabwean High Court ruled that Tribunal orders were unenforceable in Zimbabwe.(16) The claimants in Mike Campbell then applied to the South African High Court, under the terms of the SADC Treaty, to permit them to enforce the original ruling against Zimbabwean commercial properties within South Africa. This request was granted, though other SADC members were quick to issue statements that this would not apply in their jurisdiction.(17) On 1 June 2010, the Tribunal heard an application for contempt against the Government of Zimbabwe. This was ignored by Zimbabwe, who simply repeated their objection to the enforceability of Tribunal judgments.
During the SADC summit in Windhoek in August 2010, Mugabe threatened to block any discussion of Zimbabwe and its human rights record. Senior members of the SADC Secretariat issued press statements, insisting that Zimbabwe would be on the agenda, but during the course of discussions the issue was avoided.(18) The summit communiqué stated that it was decided "that a review of the role, functions and terms of reference of the SADC Tribunal should be undertaken and concluded within six months." Joao Samuel Caholo, Deputy Executive Secretary of the SADC, told journalists that the Tribunal would not be able to conclude any old cases or take on new ones, before the end of the review process to be carried out by SADC Justice Ministers.(19) The review effectively puts the Tribunal's activities on hold, something which Mugabe was quick to cite as a ‘victory' to domestic audiences.(20) On 30 August 2010, President Mugabe finally quashed the notion of any enforcement in the case during a speech at the funeral of a Zanu PF colleague, when he stated that the SADC Tribunal would never be able to reverse the effect of the 2000 Land Acquisition programme.(21)
The Heads of State of the SADC should suspend Zimbabwe's membership of SADC with immediate effect. Refusal to enforce the judgment of the Tribunal in Mike Campbell and President Mugabe's subsequent statements represent a clear breach of the SADC treaty. Regardless of the legal status of the Protocol, the judgment in Mike Campbell has evidentiary value as proof that the rule of law in Zimbabwe is suffering an irreparable breakdown. This is equivalent to the situation in Madagascar, where the Heads of State held that the breakdown of law and order following a coup was a violation of the principles of ‘good governance' which member states are formally committed to under the SADC Treaty.
The SADC previously urged the heads of SADC governments to stand up to Zimbabwe, but the failure of the SADC summit to vigorously defend the Tribunal weakens the rule of law and the legal authority of the community.(22) The Zimbabwean Government's intransigence in relation to the Tribunal ruling represents a continuous and clear human rights violation, which deprives the citizens of Zimbabwe of due process. Allowing Zimbabwe to railroad a summit with a set of demands and requests for concessions that were contrary to the SADC treaty and violated international human rights law, shows incredible weakness on the SADC's part. Moreover, it transmits the message that if a state party is able to mount a successful diplomatic offensive, it can evade human rights obligations.
What conclusions are to be drawn about other sub-regional, regional and international human rights tribunals and review bodies in Africa now? Can states evade their human rights obligations this easily? Zimbabwe should have been suspended for failure to enforce Tribunal decisions and the SADC needs to reassert its commitment to protecting human rights and the rule of law.
Written by: Frederick Cowell (1)
(1) Contact Frederick Cowell through Consultancy Africa Intelligence's Eyes on Africa Unit (firstname.lastname@example.org).
(2) Linda Ensor, ‘SADC Tribunal Disbanded', Business Day, 23 August 2010, http://allafrica.com.
(3) This has been held on several occasions by the African Commission of Human Rights . See Zimbabwe Human Rights NGO Forum v Zimbabwe, Comm 245/2002 Twenty First Annual Activity Report of the African Commission, (2005-06, African Commission) annex III at para. 45.
(4) Ebobrah, S. 2010. "Critical issues in the Human Rights Mandate of the ECOWAS Court of Justice" in Journal of African Law, 54(1): 1-25.
(5) Mike Campbell (PVT) Limited and Another v The Republic of Zimbabwe.
(6) See Commentary in Naldi, G. J. 1998. "Constitutional challenge to land reform in Zimbabwe." in Comparative and International Law Journal of Southern Africa, 31(78).
(7) These were the Land Acquisition Act 2000 and the Constitution of Zimbabwe Amendments Act (No. 2) of 2000.
(8) Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others 2001 (2) SA 925 (ZS).
(9) Naldi, G. 2009. "Mike Campbell (Pvt) Ltd et AL v The Republic of Zimbabwe. Land reform programme held in breach of the SADC treaty." in Journal of African Law, 53(2): 305-320.
(10) Ebobrah, S. 2009. "Litigating human rights before sub-regional courts in Africa: Prospects and challenges." in African Journal of International and Comparative Law, 17(1): 79-101.
(11) Article 4(c) of the 1992 SADC Treaty.
(12) The African Commission previously condemned ouster clauses in Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, comm nos 140/94, 141/94, 145/95, Thirteenth Annual Activity Report.
(13) ‘4th Periodic report of Zimbabwe submitted to the Committee on the Elimination of Racial Discrimination', UN doc CERD/C329/Add.1, paras 21-26.
(14) Zimbabwe Lawyers for Human Rights, ‘Hon Chinamasa's attempt to pull out of SADC Tribunal futile and unjustifiable', Press Release, 3 September 2009.
(15) The Zimbabwean Telegraph ‘Legal opinion on SADC Tribunal ruling explained', 5 September 2009, http://www.zimtelegraph.com.
(16) ‘Zimbabwe court rejects SADC ruling to end farm seizures', 27 January 2010, http://news.bbc.co.uk.
(17) ‘Zimbabwean Government could lose more assets in SADC', Namibia Economist, 23 April 2010, http://www.economist.com.na.
(18) Dumisani Muleya & Faith Zaba, ‘Zimbabwe issue suspiciously blocked from SADC debate', The Zimbabwe Independent, 20 August 2010, http://allafrica.com.
(19) Alex Bell, ‘SADC Tribunal suspended over Government refusal to honour rulings', South West Africa Radio http://allafrica.com.
(20) ‘Mugabe insists SADC Tribunal suspended', Zimbabwe Eye, 23 August 2010, http://www.zimeye.org.
(21) Ralph Mutema, ‘Land appeals are a waste of time: President Mugabe', Talk Radio Zimbabwe, 30 August 2010, http://www.talkzimbabwe.com.
(22) ‘SADC lawyers call on regional heads to confront Zimbabwe over land ruling', Great Indaba, 06 August 2010, http://greatindaba.com.