Tribunal loopholes, blow to farmers

“He lost everything in the fire,” Campbell’s lawyer, David Drury, said this week.
Campbell is one of the 75 Zimbabwean commercial farmers who appro-ached the SADC Tribunal in March 2007 to seek an order to stop the government from repossessing their farms under its controversial land reforms.
They said local remedies had fallen through due to fierce political interference on the judiciary by the ZANU-PF government.
In its verdict, delivered in November last year, the Tribunal ruled that the take-over of the farms was illegal, arguing that it constituted racial discrimination, an infringement of the right of access to courts and an arbitrary take-over without adequate compensation.
Despite the ruling of the SADC Tribunal, it has been double tragedy for Cam-pbell.
Not only has the farmer lost property in the inferno, his continued stay at Mount Carmel farm is also hanging in the balance.
Justice Minister Patrick Chinamasa recently annou-nced that the country was withdrawing from the SADC Tribunal because its establishment was not ratified by at least two-thirds of the bloc’s membership as per its protocol’s requirements.
He said the Tribunal does not exist at law and as such Zimbabwe would not appear before it anymore, and neither would it be bound by the court’s decision or pending pronouncements.
In the meantime, Chi-namasa’s purported withdrawal from the Tribunal has stoked fierce debate in the legal fraternity.
Obert Gutu, the chairman of the Parliamentary Legal Committee (PLC), who is also the Movement for Democratic Change Chisipite Senator, desc-ribed the Minister’s assertions as legally incompetent, mischievous, null and void.
The Senator said SA-DC’s supreme policy-making organ, the Summit of the Heads of State or Government held in Bot-swana, on August 18 2005, appointed members of the SADC Tribunal in accordance with Article 4(4) of the Protocol and no misgivings were expressed at that time.
“Zimbabwe was represented at the highest level at the Gaborone summit and it logically follows that she is bound by the resolutions of the said summit. At this particular juncture Zimbabwe never challenged the legitimacy of the SADC Tribunal nor did she raise any objections and/or reservations about the manner in which the tribunal had been established,” said Gutu.
“Article 16(2) of the SADC treaty exempts the tribunal protocol from the provisions of Article 22 of the SADC treaty that provides that each protocol approved by the Summit of the Heads of State or Government shall become binding on member States 30 days after two thirds of the 15 SADC member states have ratified the instrument,” he added.
On Chinamasa’s arguments that Zimbabwe cannot be bound by the decisions of the SADC Tribunal because the country did not ratify the protocol establishing the Tribunal and that at least two thirds of the SADC member States have not yet ratified the protocol, Gutu said:
“This argument is legally sterile and is certainly dead in the water. It is an unsustainable argument at both domestic and international law since the provisions of Article 16(2) are clear and unequivocal.”
Article 16(2) of the treaty provides that the protocol constitutes an integral part of the treaty, rendering ratification thereof unnecessary.
“At any rate, by agreeing to appear before the SADC Tribunal in Windhoek some time ago, Zimbabwe tacitly and expressly showed that it recognises the legitimacy and jurisdiction of the Tribunal. Chinamasa’s letter to the SADC Tribunal purporting to state that Zimbabwe does not rec-ognise the le-gitimacy of the tribunal is, with due res-pect, legally incompetent, mischievous, null and void,” said the PLC chairman.
Sarah Hager, a volunteer leader at the United States chapter of Amnesty International who serves as chair of the Southern Africa Co-Group monitoring human rights in 12 countries including Zimb-abwe differed with Gutu’s interpretation of the protocol.
She said the differences in interpretation of the law emanates from the reason that SADC created a toothless bulldog through the use of contradictory language in setting up the Tribunal.
“The problem is contradictory language. The Zimbabwe NGO Forum argues (that) the SADC treaty states the tribunal is exempt from the requirement that all protocols be ratified by two-thirds of member States. Therefore, the Tribunal became a binding legal authority when the SADC treaty was ratified. However, the Protocol itself states that it requires two-thirds ratification to take effect,” the human rights advocate said in a posting on amnesty international website.
“So what does all this mean? It means Campbell was awarded a hollow victory. It means one more instance where Zimbabwe eludes the rule of law, although this time it’s due to sloppy language creating a loophole large enough to drive a legal train wreck through. It means future litigants have no recourse. It means SADC needs to step up and get its act together.”
Campbell’s lawyer be-fore the Tribunal, Jeremy Gauntlett, said it is not possible for Zimbabwe to pull out from the Tribunal and gave four reasons for his views: Zimbabwe is a signatory to the SADC treaty; the country is bound to the protocol despite not ratifying it; the country has conceded the SADC Tribunal’s jurisdiction and that the SADC Tribunal in its rulings has held that Zimbabwe is subject to its jurisdiction.
The defence lawyer said Zimbabwe has illustrated its acceptance of the protocol’s provisions by seconding a judge to the Tribunal.
Gauntlett added that during numerous stages in different proceedings bef-ore the Tribunal, the government formally conceded the Tribunal’s jurisdiction over it.
He said during the first hearing of the Campbell proceedings before the Tribunal, the country’s Deputy Attorney-General, Prince Machaya, formally conceded the Tribunal’s jurisdiction over the country.
The concession was repeated in an affidavit filed in the matter on behalf of the government and affirmed in the government’s continued appearances and submission of arguments as well as the attendance of the country’s embassy officials.
“For these reasons it is our view that there is no bona fide basis for the contention that the rulings by the Tribunal do not bind the government of Zimbabwe,” concluded Ca-mpbell’s lawyer.