|
Back to Index
International
perspectives: Counting costs of breaching BIPPAs; upcoming AU Summit;
résumé of recent SADC Summits - Bill Watch 3/2013
Veritas
January 23, 2013
Both
Houses of Parliament have Adjourned until Tuesday 5th February
Land
Reform Exercise to Avoid BIPPA Farms – “For Now”
On New Year’s Eve
Minister of Lands and Rural Resettlement Herbert Murerwa announced
that “for now” the Government would halt compulsory
acquisition of agricultural land covered by Bilateral Investment
Promotion and Protection Agreements between Zimbabwe and other countries
[BIPPAs]. In fulfilment of this decision, official “offer
letters” authorising resettlement farmers to occupy plots
on Tavydale Farm, Mazowe district, which is covered by the BIPPA
with Belgium, had, said the Minister, been withdrawn. The decision
recognises the potential practical implications, the costs, for
Zimbabwe of failure by the Government to abide by binding international
agreements.
Government liability
to pay compensation under BIPPAs is the problem Minister Murerwa
stressed – as did Minister of Justice and Legal Affairs Patrick
Chinamasa a few days later – that BIPPAs do not prohibit compulsory
acquisition or make it illegal under Zimbabwean law.
[Note: The Ministers
are right. A typical BIPPA recognises the possibility of expropriation
for public purposes, under due process of law, on a non-discriminatory
basis and against payment of prompt, adequate and effective compensation,
which must be freely transferable outside Zimbabwe in convertible
currency. While the Zimbabwe Constitution and Land Acquisition Act
authorise acquisition of land covered by BIPPAs and make provision
for some compensation, BIPPA compensation requirements are more
generous to dispossessed landowners. And BIPPAs contain provisions
for disputes between investors and the Zimbabwe Government to be
decided by arbitration, typically by the International Court for
Settlement of Investment Disputes [ICSID] set up in terms of the
international Convention on the Settlement of Investment Disputes
between States and nationals of other States.]
The Minister explained
that the Government’s decision to stop taking over BIPPA farms
had been reached in view of the ongoing litigation in ICSID and
because “we do not want to increase our liability” to
compensate those dispossessed farmers covered by BIPPAs.
As an example
of the Government’s liability under BIPPAs, the Minister cited
ICSID compensation awards against Zimbabwe over the Government’s
failure to pay compensation after taking over farms covered under
the 1996 BIPPA with the Netherlands. The unpaid sum involved is
now some $25 million; it increases every six months when interest
at 10% is compounded [text of ICSID award of 2009 available from
veritas@mango.zw].
Save
Valley Conservancy: another potential BIPPA problem
Some of the investors
in the Save Valley Conservancy, a high-profile wild-life conservation
and tourist attraction in the south-eastern Lowveld, include German
nationals protected by the BIPPA between Germany and Zimbabwe. The
Government’s granting of hunting quotas in the conservancy
under the banner of indigenisation, have according to investors
had an adverse effect on this on the conservancy’s operations.
Potential
cost to tourism: loss of upcoming UNWTO conference?
The German Ambassador
to Zimbabwe has recently pointed out that failure to remedy the
interference with the Save Valley Conservancy by positive Government
action might also affect perception of Zimbabwe’s qualifications
to co-host, with Zambia, the United Nations World Tourism Organisation
[UNWTO] General Assembly scheduled for Victoria Falls at the end
of August. Relocation of the UNWTO gathering – or its failure
to attract comprehensive international attendance – would
be a major setback to those working to make the gathering a success.
And relocation to Madrid is said to have been mentioned as a possibility
last week by visiting UNWTO officials dubious about the slow pace
of preparations, particularly on the Zambian side. The officials
will also have taken note of ZANU-PF supporters’ demonstration
against the US Ambassador on his visit to Mutare on 16th January
– if an ambassador is treated in this way it could keep foreign
tourists away. Successful hosting of the UNWTO event is generally
regarded as vital to ongoing efforts to showcase Zimbabwe’s
tourism facilities and boost the tourism industry, with benefits
for the whole economy.
Coming
Up this Week– AU Regular Summit in Addis Ababa, 21st to 28th
January
The AU Summit runs from
21st to 28th January. Already under way are meetings of the Permanent
Representatives [Ambassadorial level] and the Executive Council
[Ministerial level] preceding the two-day meeting of the AU Assembly
of Heads of State and Government on Sunday 27th and Monday 28th
January.
The Summit theme
is “Pan-Africanism and African Renaissance”. The Zimbabwe
situation does not feature on the draft Heads of State Agenda, but
that does not preclude Zimbabwe and the latest developments in the
constitution-making
process being discussed in official or informal side meetings.
There is also likely to be vigorous civil society lobbying at the
Summit about ongoing violence, attacks on NGOs and the lack of civil
liberties reform ahead of Zimbabwe’s upcoming elections. The
Summit will undoubtedly be preoccupied with serious conflicts throughout
Africa, e.g. Sudan, DRC, and now Mali. The proposed AU intervention
in the Eastern DRC by a Neutral International Force which will include
the SADC Standby Brigade, may affect Zimbabwe if its troops are
committed there.
Résumé
of Recent SADC Meetings
Regular SADC Summit –
Maputo, August 2012
This Heads of
State Summit in August
2012 was covered in Bill
Watch 39/2012 of 20th August. On Zimbabwe the Summit communiqué
urged the GPA parties to complete the constitution-making process
and continue implementing the GPA.
The day before the Summit there was a meeting of the SADC Organ
on Politics, Defence and Security Cooperation. President Zuma’s
Report to the Organ as Facilitator of the Zimbabwe negotiations,
which was transmitted to the full Summit, has now become available
[from veritas@mango.zw].
SADC
Extraordinary Summit – Dar es Salaam, 7th and 8th December
Extraordinary
Summits of the Troika of the Organ on Politics, Defence and Security
Cooperation and SADC Heads of State and Government took place in
Dar es Salaam
on 7th and 8th December. The main subject of the Summit meetings
was the situation in the Eastern DRC, but President Zuma also reported
verbally on the latest developments in Zimbabwe. Zimbabwe was represented
by Foreign Affairs Minister Mumbengegwi.
The communiqué
of the full Summit contained only one short paragraph on Zimbabwe,
reaffirming the SADC position that the elections in 2013 must follow
the completion of the constitution-making process, including the
Referendum:
“9.2 Summit urged
the political stakeholders in Zimbabwe to fully implement the GPA.
9.3 Summit also urged
the political stakeholders to finalise the constitutional process
including referendum before the holding of the elections in 2013.”
The communiqué
does not reveal what President Zuma told his Troika colleagues about
developments in Zimbabwe – but it would no doubt have included,
on the constitution-making process, the setting up of a Principal’s
Committee to resolve outstanding disputes and expedite the process.
Comment: Now that on
16th January the GPA principals have duly announced agreement on
the draft constitution, it is hoped that President Zuma will focus
more on the full implementation of the GPA.
Zimbabwean
Troops for DRC?
What the December SADC
Extraordinary Summit decided
According to its communiqué
the SADC Summit in Dar es Salaam condemned the actions of the M23
rebels in the Eastern DRC and decided that the SADC Standby Force
should be deployed there. The Summit:
“(iv) affirmed
that SADC, as a block will deploy the SADC Standby Force in the
Eastern DRC under the auspices of the Neutral International Force
(NIF) ...
(vi) mandated the SADC
Interstate Politics and Diplomacy Committee (ISPDC) and the SADC
Secretariat to work together with the ICGLR [the International Conference
on the Great Lakes Region] to engage the African Union Peace and
Security Council and the United Nations Security Council for support
to the deployment and sustenance; ...
(vii) noted pledges by
Malawi, Namibia, South Africa and Tanzania to contribute to the
deployment of NIF, and called on other SADC members who had not
made pledges “to do so as a matter of urgency”.
A day or two later President
Mugabe confirmed that Zimbabwean troops might be sent to the Eastern
DRC as part of the SADC Standby Force, and stressed that the costs
of any such intervention would be shouldered by SADC or the AU or
UN, not by Zimbabwe. There have however been local newspaper reports,
perhaps based on an unconfirmed report in a Ruanda newspaper, that
Zimbabwean troops are already there.
About
the SADC Standby Force
The SADC Standby
Force was officially launched in Zambia in August 2007, when SADC
member States, including Zimbabwe, concluded a Memorandum of Understanding
to set it up. The function of the Force is to participate in missions
envisaged in Article 13 of the African Union Protocol establishing
the AU Peace and Security Council. [Full text of MOU available from
veritas@mango.zw].
All the African regional economic organisations have such Standby
Forces in keeping with the “African Peace and Security Architecture”
of the AU.
When
will deployment of the Standby Force to DRC start?
AU consultations on the
envisaged Neutral International Force [NIF] for the eastern DRC
are still under way. There was a Ministerial level meeting in Addis
Ababa on 8th January, chaired by the AU Commissioner for Peace and
Security. And developments were discussed at the Organ meetings
in Dar es Salaam on 9th and 10th January [see below], after which
SADC Executive Secretary Salomao said neither the size nor the functions
of the NIF have been determined. [This will be discussed at the
AU Summit this week.]
What
the Zimbabwe Constitution says about Defence Forces deployment
Section 96(1) of the
Constitution gives the President, in the exercise of his functions
as Commander-in-Chief of the Defence Forces, the power to “determine
the operational use” of the Defence Forces. Article 20 of
the GPA does not in as many words impose curbs on this power, but
unilateral action by the President would not be in accordance with
the spirit underlying the GPA.
What
the COPAC draft Constitution says about deployment
Clause 5.23 of the latest
available COPAC draft lists deploying the Defence Forces as one
of the executive functions of the President that has to be exercised
on the advice of Cabinet. Prior Parliamentary approval is not needed,
and for deployment in accordance with multilateral international
commitments – such as the commitment to the SADC Standby Brigade
– Parliament would not even have to give later approval, but
would have to be promptly notified.
SADC
Organ Troika Extraordinary Summit 10th January
On Thursday 10th December
there was an Extraordinary Summit in Dar es Salaam of the Troika
of the SADC Organ on Politics, Defence and Security Cooperation,
attended by Troika chairperson President Kikwete of Tanzania and
members President Zuma of South Africa and Pohamba of Namibia, plus
Mozambique President Guebuza in his capacity as SADC chairperson.
There was a preliminary meeting at Ministerial level on 9th January.
Organ Summit
proceedings -The agenda of the meetings included the Eastern DRC,
Madagascar and Zimbabwe, with the emphasis on the first two. According
to its communiqué the Summit received a progress report on
the Neutral International Force [NIF] for the eastern DRC, noted
pledges by Malawi, Namibia, South Africa and Tanzania to contribute
to the deployment of NIF, and called on other SADC members who had
not made pledges “to do so as a matter of urgency” .
On Zimbabwe the communiqué
records the following:
“8.1. Summit commended
H.E. Jacob Zuma, President of the Republic of South Africa and the
SADC Facilitator on Zimbabwe Political Dialogue for his efforts
towards full implementation of GPA in Zimbabwe.
8.2 Summit urged the
political stakeholders in Zimbabwe to expedite the finalization
of the constitution making process on the outstanding issues in
order to pave the way for peaceful, credible, free, and fair elections
in the country.
8.3 Summit mandated the
SADC Facilitator to continue to engage the political stakeholders
in Zimbabwe.”
Veritas makes
every effort to ensure reliable information, but cannot take legal
responsibility for information supplied
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
TOP
|
