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Tribunal to rule soon on farms seized in Zimbabwe
Business Day Africa
July 28, 2006

Investment treaty with Netherlands binds Harare to compensate Dutch nationals hit by land expropriation. Eleven dispossessed Zimbabwean farmers of Dutch origin are poised to take their case for compensation for confiscated land to an international tribunal, reports Business Day, Johannesburg.

The Dutch Farmers Association, with UK-based AgricAfrica, registered the case on behalf of the farmers at the International Centre for the Settlement of Investment Disputes, a World Bank resolution forum, in Washington. The claims total more than US$15m.

The case has been brought in terms of a bilateral investment treaty between the Netherlands and Zimbabwe in which Zimbabwe’s government promised to pay compensation to Dutch nationals in disputes arising out of an investment in Zimbabwe.

Arbitrators are expected to hear the case by the end of next month. Should the tribunal rule in favour of the dispossessed farmers it could set a precedent for similar claims against President Robert Mugabe’s government in the international courts.

The centre’s rulings are enforceable in the 139 states that have ratified the organization’s convention. Three arbitrators, drawn from a list of the finest legal minds, will consider the matter. The Zimbabwean government is permitted to choose one arbitrator.

AgricAfrica chairman Bob Fernandes used to work as a property valuer in Zimbabwe. Since land invasion began in 2000, he has been involved in valuing more than 3 000 title deeds of agricultural properties.

He said the body created by Zimbabwean farmers, Justice for Agriculture - which helped bring cases to the Zimbabwean courts, many of which resulted in rulings that were not obeyed by the government - had set a precedent that should see the Dutch farmers succeed.

The case has been funded partly by the Open Society Initiative for Southern Africa, a nonprofit organization.

Since 2000, the Zimbabwean government has taken over 4 000 white-owned commercial farms.

Reuters reports that last year, the Zimbabwe government passed laws that nationalized the farms and barred farmers from challenging seizure of their property in courts. Economists and critics say the policy has ruined a once-thriving agricultural sector.

Zimbabwe Security Minister Didymus Mutasa, who heads land reform and resettlement, said last week that those with farms covered by such agreements would receive full compensation, and had the right to contest the seizures in court.

Fernandes said while Zimbabwe offered farmers some compensation it amounted to less than 10% of the value of expropriated land. "With the current rate of inflation, it means farmers would be paid a fraction of what the farms are worth. If the arbitration is successful, the compensation will reflect the farms’ true worth," he said.

"It will also set a precedent for claims by the rest of the farmers."

Should the Dutch farmers succeed, the foreign-exchange starved Zimbabwean government will have to pay the amount awarded. Once liability is established, the arbitrators will determine how much former farmers are owed. This should happen by the end of January. The centre’s association with the World Bank may be an added incentive for Zimbabwe to settle the Dutch group’s claim.

"If it refuses to pay, the law allows for Zimbabwe’s assets to be seized in any one of the countries that signed the New York convention on the recognition of arbitral award. But this is unlikely to happen as every . . . compensation ruled on in the past has been paid," Fernandes said.

Harare vowed to compensate white farmers only for improvements, arguing that former colonial power Britain should pay for the land.

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