In a major embarrassment to Robert Mugabe and his administration, the tribunal also orderedthe Zimbabwean Government to protect the occupation of those of the applicants who remain on their land and to pay compensation to those who have been evicted. If Zimbabwe does not comply with the order it will be in clear contravention of its international obligations to its Southern African neighbours.
Mugabe had gone to extreme lengths to try to prevent the tribunal from delivering judgment. Last June the original applicants, Ben Freeth and Michael Campbell, together with Campbell's wife, aged 75, were abducted from their farm north of Harare by a local militia with close links to Mugabe's administration (the farm, incidentally, is where many of the mangos on our supermarket shelves are grown).
The three were beaten to within an inch of their lives and were ordered to sign a declaration stating that they would withdraw their claim before the SADC tribunal. Mr Campbell was unable to sign the document because his fingers had been broken and Freeth had been beaten unconscious. Mrs Campbell signed the document only after a hot stick had been put down her throat and a gun was held to her head.
The only reason the three were not killed appears to be that, as Freeth had written exposés of the brutality of the Zanu (PF) party during last year's election campaign in The Times, Times journalists had been alerted to Freeth's abduction and were trying to track him down.
Despite being subjected to this brutality, Campbell and Freeth pushed on with the case. They were joined by 77 other white landowners.
The ruling of the SADC tribunal was its first substantive judgment. It is all the more extraordinary because the SADC treaty under which it is constituted is not a human rights treaty. It provides a framework for co-operation in matters as diverse as trade, science and diplomacy. It is focused particularly on economic development.
Three features of the treaty combine to explain and justify the approach of the tribunal.
The first is that the treaty expressly envisages not only economic and scientific development, but also cultural development through respect for human rights. Notably, the origins of SADC are to be found in the determination of a number of Southern African states in the 1980s to reduce their dependence on apartheid South Africa. The treaty, signed in 1992, makes a number of prominent references to human rights, including in the preamble. Most importantly, Article 4 provides that states shall act in accordance with principles of human rights, democracy and the rule of law and Article 6 includes an undertaking that states will not discriminate on grounds that include race and ethnic origin.
Secondly, the treaty expressly directs the SADC tribunal to develop its own community jurisprudence, and to do so having regard to, among other things general principles and rules of public international law. As the tribunal stated in its ruling, this settles the question of whether it is entitled to look to general international human rights principles to flesh out the bald references to human rights and the rule of law in the SADC treaty.
These two features of the SADC regime combine with a third to give the tribunal teeth as a regional human rights tribunal. This is that the tribunal has jurisdiction not only to determine disputes between signatory states but also to determine disputes between natural and legal persons and states. Without such a provision, the commitment to protect human rights would depend for its enforcement on the political will of the Southern African states to bring claims against each other. Freeth and Campbell would never have been able to bring their claim and almost certainly the tribunal would never have been asked to rule on the legality of Mugabe's land reform programme.
Even with such sure foundations, it required a bold and enlightened tribunal to uphold the applicants' claims. Yet the tribunal easily dismissed the Government's argument that the expropriation cannot be attributed to racism but circumstances brought about by colonial history, holding that, on the contrary, the impact on white farms was unjustifiable and disproportionate. There was no evidence that the lands acquired had been distributed to the poor, landless or marginalised. Moreover, it held that the seizure of land was based, primarily on considerations of race and was therefore directly discriminatory.
The tribunal also reasoned that a right of access to a court is a component of the rule of law and therefore protected by the SADC treaty. Since the Constitution of Zimbabwe ousts the jurisdiction of the Zimbabwe courts to consider the legality of the land reform programme, this was also a breach of the SADC treaty.
Jeffrey Jowell, QC, Professor of Law at University College London and a practising barrister, who was one of the counsel who represented the applicants before the SADC tribunal, stated that the ruling has gone, some way to rewarding those who have the courage to stand up to Mugabe's regime as repugnant to common values.
It is to be hoped that the political pressure that SADC can exert (with the ultimate sanction of expulsion) will be sufficient to ensure compliance with the judgment. There are already signs of defiance. In January, Zimbabwe's deputy chief justice at the official opening of the legal year, claimed that the SADC tribunal had lacked jurisdiction because the applicants had not exhausted their domestic remedies.
It is, then, the wider implications of the ruling that may yet prove the most significant. In this respect, the SADC tribunal has set out its stall as a regional human rights tribunal and has demonstrated a fearless independence in advancing human rights in Southern Africa.
Tom Hickman is a practising barrister at Blackstone Chambers, London
The Times
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