SADC Tribunal to rule on Zim farm seizures

A LANDMARK hearing next week, prior to a final ruling by a Southern African Development Community (Sadc) tribunal, might decide the future of Zimbabwe's programme of land reform, The Zimbabwe Guardian can reveal.
 

The ruling could, in addition, determine whether white commercial farmers - who bought farms after 1980 with the blessing of the government - can retain ownership or be compensated for their farms.
 
At the heart of the case is that land is being taken from white farmers solely on the criterion of race, and that an amendment in Zimbabwe's constitution made it legal for the government to expropriate land without compensation.
 
Last December the Sadc's Namibian-based tribunal prevented Zimbabwe President Robert Mugabe's government from evicting Chegutu farmer Michael Campbell, his 65 employees and their families from his Mount Carmell farm ─ one of the country's main exporters of mangoes and citrus fruits.
 
The interim ruling was made in accordance with the declaration and treaty that Harare and the SADC signed in August 1992 on regional trade agreements.
 
One of its main points states that the “SADC and member states shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture or disability.”
 
Campbell's counsel, Jeremy Gauntlett, Jeffrey Jowell and Adrian de Bourbon, in their heads of argument, will say that the regional court ought to find Harare in breach of its obligations under the treaty, after it signed into law Amendment 17 more than two years ago.

The amendment allows the seizure of white-owned farms, for distribution to landless blacks, without compensation. It also bars courts from hearing appeals from the dispossessed white farmers.
 
However the lawyers are arguing that, Amendment 17 plainly discriminates on racial grounds.
 
“Conversely it favours a class of beneficiaries on a basis of political connection and favour. It is thus wholly arbitrary as well as racially discriminatory," they will argue in court.
 
Despite the fact that the Sadc tribunal had given a favourable interim ruling, Land Reform Minister Didymus Mutasa said Mount Carmell would be handed to a black owner, and in January a full bench of judges in the Supreme Court of Zimbabwe dismissed a constitutional appeal by Campbell to try to avert the eviction.
 
Campbell bought the farm in 1974 after leaving South Africa. In 1999 he sold the farm to legal entity Mike Campbell (Private) Ltd of which he was the main beneficiary.
 
To do this he had to get a certificate of "No Interest" from the Zimbabwean government, which gave him an assurance that the farm was not earmarked for resettlement. This he duly received and the transfer took place 19 years after Zimbabwe's independence.
 
In November 1997, before the farm was transferred into a company name with the government's consent, a preliminary government notice to acquire the farm was issued, but then withdrawn. In July 2001, amid large-scale land invasions by "war veterans", Campbell received another notice in the Government Gazette, but it was declared invalid by the high court.
 
 In July 2004, a new notice of intent to acquire Mount Carmell was published in the gazette, but no acquisition notice was actually issued.
 
However, two months later, “persons purported to occupy the farm on behalf of Zanu PF spokesman Nathan Shamuyarira, claiming the former minister had been allocated the farm,” the court papers say.
 
After a further three preliminary notices to take the farm were published in 2004, Campbell applied to the high court for a protection order. It was granted.

Campbell launched proceedings in the court, challenging the validity of Amendment 17 in September 2005; 11 days after the challenge was filed, a notice of acquisition was published.
 
The SADC tribunal may be the Campbells' last resort.

According to court papers, the SADC treaty is not directed at economic goals alone, but relates to "human rights, democracy and the rule of law".
 
The papers also argue that “a failure by member states to uphold the principles of human rights, democracy and the rule of law” would cut across the range of commitments SADC states had entered into under the constitutive act of the African Union and African charter on human and people's rights.