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African Commission prepared to consider application for reinstatement of SADC Tribunal
SADC Tribunal Rights Watch
March 12, 2012

The escalating campaign to reinstate the international court of the SADC Tribunal after its suspension by the SADC Heads of State in May 2011 has seen an important breakthrough this week.

The African Commission has made a preliminary ruling to be seized of a formal complaint lodged with it on behalf of Zimbabwean farmers Luke Tembani and Ben Freeth.

The complaint relates to the decision of the SADC Summit to suspend the SADC Treaty Tribunal, which in a series of rulings had held the Government of Zimbabwe in breach of the SADC Treaty and other international law obligations.

In response to the application lodged by Namibian lawyer Norman Tjombe, the Commission advised this after its 11th Extra-Ordinary Session in The Gambia last week, inviting further submissions.

"The African Commission on Human and People's Rights (ACHPR) is the organization charged with ensuring the promotion and protection of human rights throughout the African Continent. It also interprets the African Charter on Human and People's Rights and considers individual complaints of violations of the Charter," explained Tjombe.

In the letter to Tjombe, Dr Mary Maboreke, secretary to the ACHPR, wrote that the Commission had "considered your complaint and decided to be seized of it." She said "the matter had been registered and referenced."

This latest legal challenge follows an urgent application submitted by a legal team led by 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, it was agreed that the Tribunal would be dissolved, pending a review in August 2012.

Consequently, individuals in all 15 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 last year 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.

"We cannot have governments paying lip service to human rights and the rule of law while at the same time dictatorially destroying institutions of justice. That can only lead to more poverty in our impoverished continent. We have to challenge our governments on this," he said.

Freeth and Tembani's legal team has two months to make further submissions, after which the Commission will proceed with deliberations on the admissibility of 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."

Advocate Gauntlett, who is senior counsel in the matter before the Commission, commented that it was "unprecedented" for the African Commission to be considering a human rights matter regarding the actions of 14 governments.

Background information

The Luke Tembani case

Luke Tembani (75), a successful black commercial farmer, took his case to the SADC Tribunal in June 2009 after the farm he bought in 1983 was sold by the Agricultural Bank of Zimbabwe in 2000 without any court hearings.

In August 2009, the Tribunal ruled that the repossession and sale of Tembani's farm to recoup an outstanding loan during a period of soaring interest rates - to which the bank was unable to put an exact figure - was illegal and void.

The court noted that Tembani's proposal to sell of a viable section of the farm to cover the debt had been turned down by the bank. The judges ruled that he should remain on his farm where he had built a church and a school which provided free education to 321 pupils.

In defiance of the Tribunal ruling, Tembani and his family were evicted two months later and Tembani's two primary school-going children were forced out of school. Following the collapse of the Zimbabwe dollar, all of Tembani's savings were eroded and he is now struggling to feed his family and educate his children.

The Campbell case

In October 2007, after exhausting all legal remedies under domestic jurisdiction, the late Mike Campbell filed a case with the Tribunal contesting the acquisition of his farm which had been transferred legally in 1999 with a certificate of no interest from the Zimbabwean government.

In March 2008, 77 additional Zimbabwean commercial farmers were granted leave to intervene. Interim relief similar to that given to Campbell on December 13, 2007 was granted to 74 of the farmers since three were no longer residing on their farms.

Eight months later, on November 28, 2008, the Tribunal ruled that the land reform programme was racist and unlawful and that the Zimbabwe government had violated the SADC treaty by attempting to seize the 77 white-owned commercial farms. In response, Lands and Land Reform Minister, Didymus Mutasa said the government would not recognise the ruling.

Background resources

• Wikipedia entry on Mike Cambell Case
• Statement by the SADC Lawyers Association following the decision of the SADC Extraordinary Summit to extend the suspension of the SADC Tribunal - 20 July 2011
• Implications of the decision to review the role, functions and terms of reference of the SADC Tribunal 4 November 2010

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