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breakthrough for Zimbabwe farmers
SADC Tribunal Rights Watch/AfriForum
June 27, 2013
developments have now taken place in the legal campaign to ensure
that Zimbabwe is unable to escape its international-law obligations
arising from its land seizure programme.
Today the Constitutional
Court dismissed Zimbabwe’s appeal against South African court
orders authorising the attachment of Zimbabwean Government property
in execution of awards by the SADC Tribunal. Chief Justice Mogoeng
held: “Lawful judgments are not to be evaded with impunity
by any State or person in the global village.”
Court held that South Africa, like Zimbabwe itself, was bound to
give effect to awards of the Tribunal. It noted that Zimbabwean
farmers had lost their land without compensation pursuant to an
“agrarian reform programme”. It held that the Tribunal’s
jurisdiction was founded on the rule of law, and that the aggrieved
farmers had properly had recourse to the Tribunal’s protection.
The second development
is that South Africa, as a SADC member State, has formally conveyed
to the African Commission in The Gambia that it will not be advancing
argument on the merits of the case brought by the Zimbabwean farmers
before the Commission. The farmers had lodged a challenge to the
decision by SADC members to suspend the Tribunal’s operation
following its series of awards against Zimbabwe.
asked for an order that would ensure the SADC Tribunal would continue
to function, as established by Article 16 of the SADC Treaty.
was filed on behalf of Luke Tembani, a dispossessed Zimbabwean commercial
farmer, and Ben Freeth, son-in-law of the late Mike Campbell of
Mount Carmel farm in Zimbabwe, against the 14 SADC governments.
submitted that closing the SADC Tribunal to individual access deprived
250 million inhabitants of SADC countries of access to the only
international-law court in the region when justice systems have
failed them in their own countries. The effect of the closure is
to prevent the Tribunal from hearing cases where governments had
committed human rights violations and domestic law has offered no
In a letter
sent by the South African Embassy in Addis Ababa, Ethiopia, on June
20 to the African Commission, the embassy said that the South African
government would not be making any Submission on the Merits of the
Communication. The embassy also confirmed that the South African
government would “abide by the decision of the Commission
on the Communication.”
Commission will deliberate on the issue. The case may proceed further
to the African Court.
European Court was dissolved following an executive decision by
the Heads of State of Europe without any democratic process, the
world would be outraged,” commented Freeth.
it that when an international regional court in Africa gets dissolved,
and 250 million African citizens become subject to the whims of
various autocratic governments without recourse to justice when
domestic justice systems fail them, the world is so deafeningly
silent?” he asked.
an old man, a committed Christian who contributed to food security
in Zimbabwe and who built a church and school on my farm for the
benefit of the community,” Tembani said. “I am devastated
by the injustice committed against me and my family in Zimbabwe
which has left us destitute.”
calling for Africans and the world to raise their voices so that
younger Africans in the future may be protected from the injustices
that continue to take place without recourse. It’s time that
those who care about the poverty and hunger in Africa speak out
for justice and the rule of law so that Africa’s potential
can be unlocked and its people can thrive,” Tembani concluded.
The Luke Tembani case
Tembani (76), 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.
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 now struggles
to feed his family and educate his children.
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.
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.
of No Interest: Under the Zimbabwean law, farmers who wished to
sell their farms had to first offer them to the government at a
market price. When the government declined to purchase such farms,
it issued the farmers with the “certificate of no interest”
and the farmers could proceed to sell their farms on the open market.
The government purchased some 3.8 million hectares of farmland in
that way between 1980, the year of Zimbabwe’s formal independence
from Great Britain, and the commencement of the fast track land
The Gondo Case [victims of organised violence
and torture in Zimbabwe]
The SADC Tribunal
awarded damages of nearly US$17 million to nine Zimbabwean torture
victims, in a landmark ruling that exposed Harare's continued and
flagrant disregard of the rule of law.
handed down on 9 December 2010 followed a case in which the
victims of organised violence and torture (OVT), assisted by the
Human Rights NGO Forum, sued the Zimbabwean government for failing
to comply with the orders of the country’s High Court.
Barry Gondo and eight other victims had successfully claimed compensation
in the High Court of Zimbabwe but the government of Zimbabwe had
refused or neglected to pay compensation.
the SADC Lawyers Association following the decision of the SADC
Extraordinary Summit to extend the suspension of the SADC Tribunal
- 20 July 2011.
of the decision to review the role, functions and terms of reference
of the SADC Tribunal 4 November 2010. http://www.ditshwanelo.org.bw/SADCOPINIONfinal4%20Nov%202010.pdf
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