New Era

WINDHOEK - Emotions ran high with tearful embraces of relief flowing after a Southern African Development Community (SADC) Tribunal ruling in favour of Zimbabwe white farmers.

In an almost two-hour court session reading the full judgment, the five-member panel of judges, led by Judge President of the Tribunal, Justice Dr Luis Mondlane, ruled that the Zimbabwean government should not evict the farmers, or interfere with the peaceful residence of the relevant farms by Mike and William Campbell (first and second respondents) and 77 other white commercial farmers - with the exception of Christopher Mellish Jarret of Tengwe Estates and France Farm evicted from the farms in Zimbabwe in 2002.

The tribunal, however, directed the Zimbabwean government to pay fair compensation to Jarret and Farm, from whom farms were expropriated in 2002, on or before June 20, 2009.

The farmers brought an application to the tribunal last year to challenge the compulsory acquisitions of the farms under Zimbabwe's controversial land reform programme.

The tribunal directed the Zimbabwean government to "take all necessary measures, through its agents, to protect the possession, occupation and ownership of the lands" of the applicants.

The judges argued that the Zimbabwean government acted in breach of the SADC Treaty to enact and implement Amendment 17 of the Zimbabwean constitution.

Amendment 17 effectively vests ownership of agricultural lands compulsorily acquired in the Zimbabwean government, and ousts the jurisdiction of the courts to entertain any challenge concerning such
acquisitions.

The judges - Mondlane, Ariranga Govindasamy Pillay, Isaac Jamu Mtambo, Dr Rigoberto Kambovo, and Dr Onkemetse B Tshosa - ruled that the land acquisitions under Amendment 17 of the Zimbabwean constitution was unlawful since the minister who carried out the acquisitions failed to establish "reasonable and objective criteria" to satisfy himself that the lands acquired were "reasonably necessary for resettlement purposes" in conformity with the land reform programme there.

The judgment further read that the applicants were denied access to courts in Zimbabwe to challenge the legality of the land acquisitions, that they have suffered racial discrimination since they were the only ones whose lands have been acquired under Amendment 17, and that they were denied compensation for the lands so acquired.

In earlier submissions to the tribunal, the respondent (Zimbabwe government) argued that the tribunal has no authority to entertain this matter.

The tribunal, however, stated that it has such jurisdiction, stating that the applicants had exhausted local remedies.

On January 21, 2008, the Supreme Court in Zimbabwe ruled that the land acquisitions were both lawful and valid, and that Section 168 of the Zimbabwe constitution was not discriminatory to the applicants.

The respondent further stated that the land acquisitions were done in accordance with Zimbabwe's land reform programme, and said that these acquisitions could therefore not be attributed to racism, but to circumstances brought about by colonialism, adding that the government has equally acquired land from "some of the few black Zimbabweans who possessed large tracks of land".

"[The] increase in the demand for land resulted in the portions left with the applicants being needed for resettlement; the applicants will receive compensation under Amendment 17; the compulsory acquisition of lands belonging to applicants by the respondent in the context must be seen as a means of correcting colonially inherited land ownership inequalities; and the applicants have not been denied access to the courts," the Zimbabwean government had submitted.

Immediately after the tribunal judgment, Zimbabwean Ambassador to Namibia, Chipo Zindoga, read from a prepared statement her government's dismay over the ruling.

"In essence, the tribunal has ruled that all land acquired by the government of Zimbabwe pursuant to the provisions of Section 168 of our constitution was acquired contrary to the principles of the SADC Treaty and the obligations which Zimbabwe assumed under the provisions of the treaty," she read.

"For obvious reasons we cannot be happy about this decision as we feel that its implications will be far reaching in relation to the position on the ground in Zimbabwe," Zindoga continued.

She described the tribunal ruling as a mere "hitch or temporary impediment" to the land reform process in Zimbabwe, adding: "but the process cannot be stopped".

"It will, however, be up to my government to come up with the way forward to ensure that the interests of the public in Zimbabwe are given effect in the interests of peace, stability and good order in the country."

She claimed that the resettled Zimbabweans would be "perplexed, and even alarmed" by the tribunal's ruling, adding that the Zimbabwe government would in due course make an adequate response, and that this response would "no doubt take into account the government's own obligations to its people and the need to conform to the principles on which SADC was founded".

Before the ruling, a youth claiming to be of ZANU-PF and claiming to be a "third respondent'" in the court matter, Trust Mhaka, armed with a placard and a poster of President Robert Mugabe, remonstrated outside the court building that there would be "no return" of the land.

Mhaka claimed that he had come into Namibia at his own expense to witness the proceedings of the tribunal, and that he was representative of other youths of ZANU-PF.

He became embroiled in a discussion on the land reform process with Ben Freeth, one of the commercial farmers who challenged the land acquisitions.

The significance of the tribunal's ruling, said a Zimbabwean lawyer who was with the commercial farmers, Josephat Tshuma, was that the tribunal, in a political climate not conducive to democratic principles, had shown its strength to review the actions of executives in the SADC region.

Back to Top