SADC application makes legal history

HARARE – Jeremy Gauntlett, a leading South African advocate, filed the urgent application on behalf of two dispossessed Zimbabwean commercial farmers, Michael Campbell of Mount Carmel farm in the Chegutu district of Mashonaland West and Luke Tembani of the Remainder of Minverwag farm at Clare Estate Ranch in the Nyazura district of Manicaland province.

The first respondent is the Summit of the Heads of State or Government of SADC and the Presidents of 15 countries, including Zimbabwes President Robert Mugabe.

The second respondent is the Council of Ministers of SADC and the third is the Republic of Zimbabwe.

The application is calling for an order that forces the SADC Tribunal to be accountable to its function as outlined in the Treaty of SADC which allows individuals to bring cases to the court when they are unable to proceed under domestic jurisdiction.

Despite this commitment, in August last year at the two-day SADC Summit in Windhoek, the SADC heads of state decided that a review of the role functions and terms of reference of the SADC Tribunal should be undertaken and concluded within six months.

The terms of the judges presiding over the SADC Tribunal were not renewed and the Tribunal was effectively disbanded pending the outcome of the review.

Responding to widespread criticism, SADC executive secretary Tomaz Salamao claimed that the Tribunal had not been suspended and that it could deal with those cases at hand although it could not entertain any new cases.

For the Mugabe government, the decision was of major significance as the Tribunal would no longer be able to hear controversial cases regarding Zimbabwes conduct with respect to human rights abuses and the disastrous land reform programme which the Tribunal had judged to be unlawful.

The Campbell case

In October 2007, after exhausting all legal remedies under domestic jurisdiction, 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.

Eight months 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.

The Luke Tembani case

Luke Tembani, 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 Tembanis 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 judges ruled that he should remain on the farm.

In defiance of the Tribunal ruling, Tembani and his family were evicted two months later and Tembanis two primary school-going children were forced out of the school he had built personally on the farm at significant cost for children in the area.

Daily fear of attack

In the Founding Affidavit for this new case, Campbell stated that the application was being brought on behalf of the commercial farmers who joined his case in March 2008 and their employees and their families.

Many have been forced from their farms and are scattered around Zimbabwe.. With us they have suffered evictions, destruction of their homes and possessions, assaults, torture and other gross human rights violations, Campbell said.

He said it had also not been possible to join hundreds of thousands of similarly affected farm workers, or to obtain separate affidavits from them.

They live in daily fear of further attacks and dispossession, and of reprisals. Many now live hand-to-mouth, scattered near relief centres and across the country.

Campbells son-in-law, Ben Freeth, who has supported him in his quest to gain justice through the SADC Tribunal, was also abducted and tortured with Campbell and his wife immediately after the Presidential run-off election in June 2008. They were forced to sign a paper stating they would withdraw their case, which was due to be heard by the Tribunal the following month.

A quivering hand

Although Freeth has recovered fully from his injuries, which resulted in major brain surgery, the serious head injuries Campbell sustained have left him severely incapacitated.

Despite this, Mike remains resolute and was able to sign the application – which will have far reaching implications for the sub-continent – with a quivering hand, said Freeth.

African leaders must acknowledge that they have a responsibility to their people, Freeth stressed. If they unilaterally decide to abandon them to a continent devoid of institutions through which justice can be sought, injustice and evil will continue to prevail, ordinary people will continue to suffer and the continent will regress.

Zambian President Rupiah Banda, who chaired the SADC double troika summit in Livingstone on Friday, said: If there is anything that we must learn from the upheavals going on in the northern part of our continent, it is that the legitimate expectations of the citizens of our countries cannot be taken for granted.