After some other earlier allocations to himself and his spouse, Chinamasa acquired interests in Lawrencedale 3 and part of Lawrencedale 4 a total of 609 hectares via an allocation on July 15, 2003 and moved there. The registered owners were summarily evicted.
After proposing this unprecedented legislation prohibiting his courts from hearing any listed farmers cases, Chinamasa voted personally in favour of it, thus also making himself a judge in his own cause.
Chinamasa should, argues Jarvis, have declared his interests so that people could weigh them with his arguments, rather than merely depicting himself as a public official.
Because of his 17th amendment, each registered owner of land that Chinamasa was allocated in 2003 is barred from any hearing in the administrative court, while he can enjoy its use.
There would seem to be a clear risk of conflict of interest in this situation between Chinamasas public and personal roles.
The essential facts
Patrick Chinamasa ought to know what hes talking about when it comes to the SADC tribunal. He was involved first as attorney-general, then as minister in all four regional agreements on its establishment.
That is why his earlier acceptance of the tribunal and its legality are significant. That is also why the important omissions from his long adverts, ostensibly published to help the public assess his new issue correctly, cannot be attributed to innocent ignorance, says Jarvis. Without the missing pieces, his lengthy arguments may seem convincing to many.
With them, his whole new thesis falls apart.
So here are some of those missing pieces.
- The 1992 SADC treaty created the tribunal as a foundational SADC institution together with its summit.
- Chinamasa cites Section 111B in Zimbabwes constitution, requiring parliamentary approval for treaties, He failed to say it was only added to Zimbabwean law in 1993 after the SADC treaty was already in force.
- All agree the SADC treaty was signed by the President of Zimbabwe in August 1992, ratified by its parliament in November 1992, and came into force, after enough other signatory states ratified it, on September 30, 1993.
- Article 16 in the 1992 treaty stated the tribunal would be constituted to ensure adherence to it; and its composition, powers, and so on would be prescribed in a protocol to be adopted by the summit.
- The 1992 treaty also specified that a protocol is an instrument for implementation of the treaty with the same legal force as the treaty.
- Article 36 authorised the SADC summit in future to amend the SADC treaty. A proposal to amend could be made on three months notice to the Council of Ministers. Any amendments could be adopted by a decision of three-quarters of all members at a summit.
- Such a delegation of powers is valid, and when a treaty that provides for this has been duly ratified, all the ratifying bodies are taken to have dispensed with any need for future ratifications.
- Two-thirds of members do NOT have to ratify a protocol before it comes into force. As Chinamasa said, the exemption for the tribunals protocol under Article 16 was only introduced in 2001 by the treaty amendment; but he failed to disclose that the exemption was introduced at the same time as the two-thirds requirement itself, which did not exist in the SADC treaty until that 2001 amendment.
- In an opinion, Chinamasa recently gave to SADC ministers of justice, purporting to be the opinion of the Zimbabwe government (though without its authority), he sought to argue that a two-thirds requirement was a rule of customary international law that should be implied in the SADC treaty before any new SADC agreement came into force. In effect, he wanted to put an alleged unwritten international rule above rules written by sovereign members.
- At no time has the SADC treaty had a two-thirds rule without exempting its tribunal from the rule.
- The 2001 treaty amendment began being implemented by all member states, including Zimbabwe, right after its Summit acceptance.
- In 2002, to avoid any risk of conflict or confusion, the summit also accepted an amendment to its 2000 tribunal protocol to specifically remove its requirements for ratification by member states.
- Mention of SADCs secretariat holding ratifications was left in, as Chinamasa says, but this was no more than an administrative arrangement.
- His claim that this little reference meant ratification was still required does not tie in with the 2002 summit deliberately deleting both the requirements for ratification from its 2000 tribunal protocol, the only place where it had ever existed.
- The ten tribunal members were appointed by the 2005 summit and included a Zimbabwean judge. Chinamasa almost certainly helped in her nomination and perhaps in vetting other judges. All were sworn in.
- Justice Guvava is not on the tribunal as a Zimbabwean government delegate, but as an independent judge in an independent regional tribunal. Chinamasa is wrong if he believes he or the government can give any direction to her about her role.
- In addition, Article 17.2 of the SADC treaty has from the start expressly stated that the members of the tribunal shall not seek or receive any instructions from any member states.