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Mike Campbell (Pvt) Ltd et al v The Republic of Zimbabwe: Zimbabwe's Land Reform Programme Held in Breach of the SADC Treaty

Published online by Cambridge University Press:  18 September 2009

Gino J Naldi
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Abstract

In its first judgment the South African Development Community (SADC) Tribunal had to determine whether Zimbabwe's controversial programme of land redistribution for resettlement purposes was compatible with the SADC Treaty. The tribunal provided one of the few avenues of redress for farmers deprived of their property without compensation. It held that the land reform programme breached the treaty on the grounds that the property owners had been denied access to the domestic courts, that the applicants had been victims of racial discrimination, and that the state had failed to pay compensation for the lands compulsorily acquired. While the tribunal appears to have reached the right conclusions, its reasoning could have been more persuasive. Of wider significance is the fact that the tribunal has established itself as a forum that can provide relief for human rights violations. Its finding that human rights are justiciable under the treaty is notable.

Information

Type
Case Note
Information
Journal of African Law , Volume 53 , Issue 2 , October 2009, pp. 305 - 320
Copyright
Copyright © School of Oriental and African Studies 2009

INTRODUCTION

To assert that the issue of agrarian reform in Zimbabwe has been highly controversial seems an understatement. The policy of land redistribution pursued by the Zimbabwean government in recent years has proven disastrous. Arguably the violent, arbitrary, capricious and vindictive way in which the land reform programme has been implemented has been one of the prime causes of Zimbabwe's economic and social collapse.Footnote 1 This sorry turn of events has been accompanied by a pronounced and wilful disregard for pluralist politics and the rule of law. The invasion of the largely white-owned farms, accompanied by violent evictions and wholesale and wanton destruction and looting beginning in 2000,Footnote 2 led to a crisis between the judiciary and the executive that resulted in most of the judiciary being forced out of office.Footnote 3 The land invasions continue to this day. In the case of Mike Campbell (Pvt) Ltd et al v The Republic of Zimbabwe Footnote 4 the Tribunal of the Southern African Development Community (SADC), in its first judgment, held by a majority of four to one that Zimbabwe's land reform programme was in breach of the SADC treaty (the Treaty).Footnote 5

BACKGROUND: LAND REFORM IN ZIMBABWE

Since independence in 1980, the government of Zimbabwe had embarked on a programme of agrarian reform with the aim of redressing the socio-economic imbalances created during colonial times.Footnote 6 This policy of social justice took the form of redistributing agricultural land from commercial farmers, overwhelmingly belonging to the white minority, for resettlement by black subsistence farmers.Footnote 7 The initial policy was based on a willing buyer and willing seller basis, but a perceived lack of progress led to the adoption of a series of legal measures to expedite the implementation of this process. Thus in 1990 the right to property, guaranteed by section 16 of the constitution, was amended to facilitate the expropriation of land.Footnote 8 Further, the Land Acquisition Act 1992 authorized the acquisition of land for resettlement purposes.Footnote 9 In 1996 the Supreme Court held that the acquisition of land for the purpose of social equity in accordance with the Land Acquisition Act 1992 was legitimate in the public interest and therefore constitutional.Footnote 10

Notwithstanding these developments, the land reform programme was slow and limited. The government therefore resolved to accelerate the pace of land acquisition and resettlement.Footnote 11 The Constitution of Zimbabwe Amendment Act (No 2) of 2000, which introduced section 16A of the constitution, required the government to pay full compensation for improvements on or to land compulsorily acquired for resettlement through a fund specifically established for that purpose; however, it placed responsibility for paying for the actual land on the United Kingdom, the former colonial power. If the UK did not provide the necessary funds, the government considered itself under no obligation to pay compensation.Footnote 12

The Land Acquisition Amendment Act 2000 replaced the requirement for prompt and full payment of compensation with payment by other means over a period of five years. It also provided for the Fast Track Resettlement Phase, designed to accelerate the process of acquisition and resettlement. The act nevertheless contained certain safeguards for property owners. Consequently, the acquiring authority had to give the owner preliminary notice of the intention to acquire the land, and the owner could submit written objections. The acquiring authority had to demonstrate that the acquisition of the land was reasonably necessary for resettlement purposes. The acquiring authority also had to apply to the Administrative Court for an order confirming the acquisition.

However, the Zimbabwean government was either unable or unwilling to abide by its own laws and follow proper procedures, permitting or instigating the infamous violent farm invasions by violent gangs of so-called “war veterans”.Footnote 13 Rather than proceed with the land resettlement programme in a measured, orderly and deliberate way, the government ignored the law and incited the seizure of farms, accompanied by alarming lawlessness occasioning widespread destruction of property, serious assaults and even murder.Footnote 14 The forces of law and order did not intervene to enforce the law in any meaningful way.Footnote 15 This anarchical situation was condemned by the courts, including the Supreme Court, which found that resettlement in such circumstances was unconstitutional, being incompatible with the right to property and the protection from arbitrary search or entry.Footnote 16 Whilst acknowledging that a programme of land reform was both necessary and essentialFootnote 17 the Supreme Court observed that the government had failed to obey its own laws and that the courts were simply insisting that the law be obeyed.Footnote 18 The Supreme Court condemned the land invasions in the strongest terms, stating, “[i]t is overwhelmingly obvious that the farm invasions are, have been, and continue to be, unlawful … Wicked things have been done and continue to be done … Common law crimes have been, and are being, committed with impunity. Laws made by Parliament have been flouted by the Government.”Footnote 19 It therefore held that the rule of law had been persistently violated.Footnote 20

It is hard to see how the Supreme Court could have reached any other conclusion in the circumstances, in light of the authorities' brazen disregard for the due process of law. As the Law Society of Zimbabwe observed, “[t]he [court] order was not meant to prevent the Government from pursuing land resettlement. Its effect was that land resettlement should be carried out within the framework of the Zimbabwean Constitution and the Land Acquisition Act and not by unlawful invasion. The order was, accordingly, aimed at promoting a climate of legality in the resettlement programme.”Footnote 21 Significantly, the Supreme Court further held that no programme of land reform was then in existence and it required the respondents to produce a workable programme of land reform in the near future.Footnote 22 The government's response was to facilitate and launch attacks on the judiciary to secure their removal.Footnote 23 Having accomplished this objective, a reconstituted, and compliant, Supreme CourtFootnote 24 subsequently upheld the constitutionality of the land resettlement programme, holding, on no meaningful basis, that the government had indeed complied with the Supreme Court's earlier conditions.Footnote 25

The policy of dispossessing the farmers, effectively amounting to confiscation of property, was reinforced through the Constitution of Zimbabwe Amendment Act (No 17) of 2005, which had retroactive effect to 2000. This act put an end to obstructive litigation by property owners in the Administrative Court, which the state considered an abuse of process.Footnote 26 The newly inserted section 16B of the constitution revoked the safeguards contained in the Land Acquisition Amendment Act 2000. Specifically the right of land owners to challenge the acquisitions in a court of law was removed. The Supreme Court rejected a claim that the Constitution of Zimbabwe Amendment Act (No 17) was unconstitutional in 2008.Footnote 27

The applicants, 79 in total, challenged the compulsory acquisition of their agricultural lands by the state on various grounds under the TreatyFootnote 28 and the SADC Tribunal (the Tribunal) decided that three substantive questions had to be considered. First, had the applicants been denied access to the courts? Secondly, had the applicants been discriminated against on the basis of race regarding ownership of land? Thirdly, was compensation payable for the lands compulsorily acquired by the state?Footnote 29 However, before addressing these questions the Tribunal had to deal with the preliminary question as to whether it had jurisdiction to rule on the case.

JURISDICTION

The first objection to its jurisdiction the Tribunal had to consider was whether domestic remedies had been exhausted in accordance with article 15(2) of the Protocol.Footnote 30 The Tribunal observed that this doctrine was one it shared with other regional international conventions.Footnote 31 However, the doctrine maintains that a domestic remedy must be available and effective. Where domestic remedies are non-existent, ineffective, unduly prolonged or meaningless, an international tribunal can be approached.Footnote 32 In this instance the applicants' attempts to seek relief in the Zimbabwean courts had been dismissed conclusively by the Supreme Court.Footnote 33 This condition had therefore been satisfied.Footnote 34

Another issue the Tribunal had to evaluate was whether the Treaty conferred upon it jurisdiction to entertain the case. The respondent argued that the Tribunal lacked jurisdiction on the grounds that: the Treaty simply set out the general principles and objectives of the SADC, but did not put in place defined and specific standards against which the actions of member states could be judged; and the Tribunal would effectively be legislating for member states if it invoked precedents from other jurisdictions. Furthermore, the respondent indicated that human rights issues were outside SADC's scope as no human rights treaties had been adopted under its auspices.Footnote 35

The Tribunal dismissed these objections and held that it possessed the necessary jurisdiction. The Tribunal first relied upon article 21(1)(b) of the Protocol which instructs the Tribunal to develop its own jurisprudence having regard to, inter alia, applicable treaties, general principles and the rules of public international law. This enabled it to draw inspiration from other sources where the Treaty was silent.Footnote 36 The Tribunal therefore had little difficulty in finding that it was competent to hear disputes concerning human rights, democracy and the rule of law based on article 4(c) of the Treaty.Footnote 37 While it is true that the reference to human rights in the Treaty is set out in general terms and lacks precise definition, it is now settled law that legal obligations may arise from such broadly worded provisions. Such has been the case with the brief references to human rights in the Charter of the United Nations.Footnote 38 While article 6 of the 1992 Treaty on the European Union (EU) sets out the EU's commitment to human and fundamental rights in more exact language, it too avoids specific content. Nevertheless, the European Court of Justice has repeatedly stated in its jurisprudence that fundamental rights, as set out in international treaties such as the European Convention on Human Rights, form part of the general principles of EU law.Footnote 39 Of particular interest, because of the similarity, is the experience of another African regional organization, the Economic Community for West African States (ECOWAS).Footnote 40 Article 4(g) of the ECOWAS treaty recognizes the protection of human rights as a fundamental principle, again in broad terms. In the case of Hadijatou Mani Koraou v Republic of Niger, the ECOWAS Community Court of Justice stated that it was charged with protecting human rights, including those enshrined in the African Charter on Human and Peoples' Rights (African Charter).Footnote 41 The Tribunal then reminded Zimbabwe that it could not rely on its national law to evade its international obligations in keeping with the principle set out in article 27 of the Vienna Convention on the Law of Treaties.Footnote 42

The Tribunal's rulings on the first two grounds are significant. In keeping with the rule of effectiveness or the teleological approach appropriate to the law of international institutions,Footnote 43 it establishes that the principles and objectives of the Treaty are justiciable and are capable of being made effective. It sets an example for other African sub-regional organizations,Footnote 44 or even the African Union,Footnote 45 to follow.

ACCESS TO THE COURTS

The applicants additionally argued that they had been denied access to the courts and deprived of the right to a fair hearing.Footnote 46 They challenged the legality of section 16B(3)(a) of the Constitution of Zimbabwe Amendment Act (No 17), which states that a person having any right or interest in expropriated land “shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge”. It can therefore be seen that the jurisdiction of the municipal courts is ousted in clear and explicit terms, as the Supreme Court of Zimbabwe itself concluded,Footnote 47 giving rise to the situation that people are denied a legal remedy to challenge the expropriation of their property by the state.

According to the Tribunal, the rule of law includes a right of access to the courts and the right to a fair hearing, before an individual is deprived of a right, interest or legitimate expectation.Footnote 48 Article 4(c) of the Treaty, which, as noted above, guarantees the rule of law, committed member states to securing those rights.Footnote 49 The Tribunal examined authorities from various national and international jurisdictions, including the European Court of Human Rights and the Inter-American Court on Human Rights, to provide support for the fundamental importance of these two related rights. Human rights law stipulates that effective judicial remedies must be provided. It also provides for a right of access to the courts which, while not absolute, cannot be curbed to the extent that “the very essence of the right is impaired”.Footnote 50

Concerning the latter right, the Tribunal relied in particular on the jurisprudence of the African Commission on Human and Peoples' Rights (African Commission) in relation to article 7(1)(a) of the African Charter, which enshrines the right to a fair trial and the right to be heard.Footnote 51 It observed that the African Commission has condemned ouster clauses.Footnote 52 The African Commission has been outspoken in its criticism of ouster clauses, describing them as “an attack of incalculable proportions on article 7 … An attack of this sort on the jurisdiction of the courts is especially invidious, because while it is a violation of human rights itself, it permits other violations of rights to go unredressed”.Footnote 53 In fact, the African Commission has recommended an end to their use.Footnote 54 In a similar vein, the African Commission has stated that article 7 “encompasses the right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate relief”.Footnote 55 Furthermore, that the “right of access to judicial protection to ensure respect for a legal right requires available and effective recourse for the violation of a right protected under the Charter or the Constitution of the country concerned”.Footnote 56 To exclude access to any remedy that might be available to the victims to vindicate their rights, without putting in place alternative adequate legislative or institutional mechanisms to ensure avenues to seek an effective remedy, violates article 7(1).Footnote 57

Examining the relevant terms of the Constitution of Zimbabwe Amendment Act (No 17), the Tribunal found that it was impossible for the applicants to challenge before the courts in Zimbabwe an acquisition, or purported acquisition, that complied with the requirements of the act.Footnote 58 Consequently the Tribunal held that the applicants had been deprived of their property while at the same time being denied the right of access to the courts and the right to a fair hearing.Footnote 59

RACIAL DISCRIMINATION

The applicants argued that the land reform programme discriminated on the basis of race or colour, contrary to article 6(2) of the Treaty,Footnote 60 since it was aimed at white farmers only. While it was accepted that the Constitution of Zimbabwe Amendment Act (No 17) made no mention of race, it was manifestly intended to target white farmers only.Footnote 61 The respondent argued that the farms identified for resettlement happened to be largely owned by whites because of historical circumstances and that the programme was in fact race neutral.Footnote 62

The Tribunal observed that discrimination on the basis of race was prohibited by international law.Footnote 63 It invoked various multilateral treaties, including the UN Charter, the International Convention on the Elimination of All Forms of Racial Discrimination 1965, article 2(1) of the International Covenant on Civil and Political Rights 1966, and article 2 of the African Charter,Footnote 64 all treaties to which Zimbabwe was a party. The Tribunal could have added that the principle of non-discrimination on the grounds of race has now acquired, at the very least, the status of customary international law.Footnote 65 The Tribunal considered the definition of discrimination in international law and pointed out that the principle of non-discrimination extends to discrimination in fact or in its effect, and that it encompasses substantive equality.Footnote 66 The question to be addressed was whether the Constitution of Zimbabwe Amendment Act (No 17) was racially discriminatory. Although the act appeared prima facie neutral, in that there was no explicit reference to race or ethnic origin, the Tribunal was of the view that the legislation did discriminate, indirectly but substantively, because its effect applied exclusively to whites. The Tribunal found that the act affected disproportionately and unjustifiably a large number of a particular racial group.Footnote 67 The illegal nature of the discrimination was compounded by the fact that the differentiation was not based on rational and objective grounds, proportionate to the legitimate aim pursued. In a particularly damning statement which reinforces the criticisms of the way in which the policy of land redistribution has been carried out, the Tribunal stated that the land reform programme might have been deemed a legitimate public purpose if it had indeed been implemented equitably with a view to furthering social justice but, relying on the condemnation of the Supreme Court of Zimbabwe itself,Footnote 68 it could not be justified simply to reward the supporters of the ruling regime.Footnote 69

COMPENSATION

The Tribunal's reasoning on the issue of compensation leaves something to be desired because of the lack of persuasive argument. The applicants had submitted that the state's failure to pay compensation was contrary to international law.Footnote 70 The respondent argued that responsibility for the payment of compensation lay with the UK. This assertion by Zimbabwe was reiterated in section 16B (7) of the constitution, as amended.Footnote 71 The Tribunal rejected this argument, stating that, in international law, it is the expropriating state that has the obligation to pay compensation and that the respondent could not rely on its national law, in this instance, the Amendment Act (No 17), to avoid this obligation.Footnote 72 However, the Tribunal took notice of the fact that section 16B(2)(b) of the constitution provided that no compensation would be payable for agricultural land for resettlement purposes and expressed the view that, “[i]t is difficult for us to understand the rationale behind excluding compensation for such land, given the clear legal position in international law”.Footnote 73 The Tribunal made this assertion without relying on any authorities whatsoever, judicial or otherwise. The Tribunal's failure to provide any reasoned explanation for this conclusion is regrettable given that the importance of the issue under consideration seemed to call for careful analysis and exposition.

International law draws a distinction between property belonging to foreign nationals, or aliens, and property belonging to nationals. While it is certainly the case that the seizure of property without compensation belonging to a foreign national is prima facie a breach of international law, the situation with regard to nationals is more subtle, and the Tribunal did not clarify whether all or some of the applicants were Zimbabwean nationals or of another nationality. Traditional international lawFootnote 74 does not concern itself with the expropriation by a state of property belonging to nationals.Footnote 75

Evolving international human rights law, however, now also has a bearing on this question. Of particular relevance is the African Charter, article 14 of which guarantees the right to property. According to the African Commission, the effective benefit of this right “necessarily includes … the right not for one's property to be removed”.Footnote 76 However, it is important to note that the African Charter makes no express reference regarding the appropriate level of compensation for the expropriation of property. Notwithstanding this omission, the African Commission found a violation of this provision in Malawi African Association et al v Mauritania where, in a situation not without its similarities to that obtaining in Zimbabwe, the property of black Mauritanians had been looted and confiscated as part of a campaign of harassment.Footnote 77 Article 1 of the First Protocol to the European Convention on Human Rights is similar in that it makes no explicit provision for compensation but “it is clear that if a deprivation of property is to be regarded as ‘in the public interest’, compensation will normally be an essential requirement”.Footnote 78 Consequently, “compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake”.Footnote 79 Hence the European Court of Human Rights has declared that “the taking of property without payment of an amount reasonably related to its value would normally constitute disproportionate interference which could not be justified under article 1 of the First Protocol”.Footnote 80 Article 21(2) of the American Convention on Human Rights requires the payment of just compensation for the deprivation of property.Footnote 81 It therefore seems safe to conclude that a consensus exists in international human rights law that some compensation should be payable to nationals for the expropriation of their property by the state. So, while the Tribunal appears to have arrived at the right conclusion, it should have done so in a more convincing manner.

CONCLUSION

This case is significant because it is the Tribunal's first judgment and involved a high profile controversy: Zimbabwe's policy of agricultural land redistribution for resettlement purposes. There can be little doubt that the means by which this policy has been executed have undermined the rule of law in Zimbabwe. It has been a malignancy that has infected Zimbabwean society from top to bottom and has contributed to a social, political, legal and economic collapse on a massive scale.Footnote 82 The then independent Supreme Court of Zimbabwe had perceptively stated that no “programme” of land reform was actually being implemented.Footnote 83 It must be made clear that there is little opposition to a sound, equitable and properly designed and implemented policy that delivers social justice without undermining one of the country's essential economic foundations. Zimbabwe has however become a kleptocracy because what has in fact transpired has been, as Prime Minister Tsvangirai declared, a policy of barely disguised theft.Footnote 84 The Tribunal provided one of the few avenues where property owners could seek redress, given that domestic remedies had become unavailable. Its ruling therefore had added significance.

Its importance extends however beyond the narrower confines of the judgment itself. It establishes the Tribunal as a forum of justice that can provide relief for human rights violations. The Tribunal's finding that human rights are justiciable under the Treaty is perhaps the most notable aspect of this case. However, if the Tribunal is to become a leading feature of international judicial institutions, it needs to make its judgments in future more persuasive and definite. The findings of the Tribunal appear to be correct in all essential respects; it must be remembered that events in Zimbabwe have been incompatible with the most elementary principles of the rule of law, have amounted to an abuse of power and have failed to serve the public interest. Nevertheless, some uneasiness remains because the Tribunal fails to convince readily. Its reasoning is not always as tightly argued and cogent as it should be, on occasion lapsing into generalities and neglecting to invoke authorities. To make sweeping statements on occasion without supporting evidence appears ill-advised.

It is important to note that the decisions of the Tribunal are final and binding upon the partiesFootnote 85 and, significantly, enforceable within the territory of the member state in question.Footnote 86 However, President Mugabe has dismissed the ruling of the Tribunal; he has indicated that there will be no reversal of the resettlement programme and that confiscated farms will not be returned to their former owners.Footnote 87 The question arises as to the options available to the applicants to seek further redress for Zimbabwe's apparent contempt. Under article 32(4) of the Protocol, a member state's failure to comply with a ruling may be referred to the Tribunal. If that failure is established, the Tribunal reports its finding to the Summit for appropriate action.Footnote 88 The Summit has the power to adopt binding decisions,Footnote 89 including the imposition of sanctions.Footnote 90 Whether the political willingness to do so exists must be open to question. SADC's failure to adopt a resolute approach to President Mugabe's blatant manipulation of the presidential elections held in 2008 does not suggest that his defiance of the Tribunal's ruling will result in any censure.

Footnotes

ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.

References

1 Zimbabwe suffers from hyperinflation. Among other dire economic indicators, the unemployment rate was estimated to have reached 80% in 2005. See Central Intelligence Agency “The world factbook – Zimbabwe”, available at: <https://www.cia.gov/library/publications/the-world-factbook/geos/zi.html> (last accessed 8 June 2009). However, Zimbabwe has sought to minimize the negative consequences of the land reform programme on the economy; see “Comments by the government of Zimbabwe to the report of the fact-finding mission” in Seventeenth Annual Activity Report of the African Commission on Human and Peoples' Rights (African Commission) (2003–04, African Commission) annex II at para 7.6, available at: <http://www.achpr.org/english/activity_reports/activity17_en.pdf> (last accessed 8 June 2009).

2 See, for example, Amnesty International Zimbabwe: Appeal to the European Union and the Commonwealth (AI Index: AFR 46/010/2001) at 7.

3 However, in Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development v Zimbabwe, the African Commission did not accept that the judges' resignation was due to victimization by the government, but found that the Zimbabwean judiciary was not under the influence of other institutions or persons and was fully independent. See comm no 293/2004: Twenty-fourth Annual Activity Report of the African Commission (2008, African Commission) at paras 140–41, available at: <http://www.achpr.org/english/activity_reports/23rd%20and%2024th%20Activity%20Reports.pdf> (last accessed 8 June 2009). This decision was reached notwithstanding the fact that the African Commission had earlier called upon the Zimbabwean government to uphold the principle of the independence of the judiciary; see res on the human rights situation in Zimbabwe: Nineteenth Annual Activity Report of the African Commission (2005, African Commission) at para 5, available at: <http://www.achpr.org/english/activity_reports/19th%20%20Activity%20Rpt.pdf> (last accessed 8 June 2009). Furthermore, the executive summary of the report of the fact-finding mission to Zimbabwe 24 to 28 June 2002 reported that the judiciary in Zimbabwe had come under pressure; see Seventeenth Annual Activity Report, above at note 1 at annex II. See further note 23 below.

4 SADC (T) case no 2/2007 (November 2008), available at: <http://www.saflii.org/sa/cases/SADCT/2008/2.pdf> (last accessed 14 June 2009).

5 Treaty on the Southern African Development Community 1992, as amended 2001, available at: <http://www.sadc.int> and reprinted in (1993) 32 International Legal Materials 116. SADC is a regional organization, formed in 1992 and composed of 14 southern African states, including Zimbabwe. SADC's objectives, as set out in art 5 of the Treaty, include the promotion of economic integration, the evolution of common political values that are democratic and legitimate, and the consolidation, defence and maintenance of peace and democracy. Particular emphasis is given to the promotion of peace and security in the region. In 2001, SADC adopted a Protocol on Politics, Defence and Security Co-operation, available at: <http://www.sadc.int>. Art 9 of the SADC Treaty provides that a tribunal be established under art 16(1) as one of SADC's organs. The Tribunal was established in accordance with the Protocol on Tribunal and the Rules and Procedure Thereof 2000 (the Protocol), available at: <http://www.sadc.int>. Under art 16(1) of the Protocol, the role of the Tribunal is to ensure adherence to the proper interpretation of the Treaty and other instruments. See generally Dugard, JInternational Law: A South African Perspective (2000, Juta & Co) at 358–59Google Scholar; Chigora, B “The SAD Community” (2000) 11 African Journal of International and Comparative Law 522Google Scholar.

6 See Amnesty International Zimbabwe: Power and Hunger Violations of the Right to Food (AI Index: AFR 46/026/2004), available at: <http://web.amnesty.org/library/Index/ENGAFR460262004> (last accessed 8 June 2009); A Meldrum “Century's fight to recover land” (9 April 2000) The Observer, available at: <http://www.guardian.co.uk/zimbabwe/article/0,2763,181162,00.html> (last accessed 8 June 2009). See further, Foreign and Commonwealth Office (FCO) “Zimbabwe: UK approach to land reform” (copy on file with the author).

7 4th periodic report of Zimbabwe submitted to the Committee on the Elimination of Racial Discrimination: UN doc CERD/C/329/Add.1, paras 21–26.

8 Constitution of Zimbabwe Amendment (No 11) Act 1990. See Naldi, GJ “Land reform in Zimbabwe: Some legal aspects” (1993) 31 Journal of Modern African Studies 585 at 587–89CrossRefGoogle Scholar.

9 For comment see Naldi, id at 589–600; Coldham, S “The Land Acquisition Act, 1992 of Zimbabwe” (1993) 37 Journal of African Law 82CrossRefGoogle Scholar.

10 Davies and Others v Minister of Lands, Agriculture and Water Development 1996 (1) ZLR 681 (SC); 1997 (1) SA 228 (ZS). For comment see Naldi, GJ “Constitutional challenge to land reform in Zimbabwe” (1998) 31 Comparative and International Law Journal of Southern Africa 78Google Scholar.

11 The government of Zimbabwe felt compelled to act in part as a result of what it claimed were spontaneous occupations of commercial farms by deprived rural peasants and war veterans; see “Comments by the government of Zimbabwe”, above at note 1 at para 6.7.

12 Zimbabwe maintains that the UK has failed to honour its commitment to fund the land reform programme; see “Comments by the government of Zimbabwe”, above at note 1 at paras 6.6–6.7. The UK countered this by claiming that, since 1980, it had provided millions of pounds to further land redistribution. However, aid was suspended when anarchy erupted in 2000. UK policy is that it remains committed to land reform if it is implemented in a fair, just, transparent and sustainable manner that alleviates poverty, and if the rule of law is respected: FCO “Zimbabwe: UK approach to land reform”, above at note 6.

13 Meldrum, AWhere We Have Hope (2004, John Murray) at 125–40Google Scholar. However, the Zimbabwean government has denied that there was any official policy encouraging the occupation of farms; see UN doc E/CN.4/2001/9/Add.1 at para 435. In a statement to the UN Committee on the Elimination of Racial Discrimination, Zimbabwe's Attorney General claimed that the government had moved slowly in the redistribution of land because of a lack of resources to pay compensation for the appropriated land and, as a result, “some ex-combatants of the liberation struggle had … taken the law into their own hands in an attempt to force the Government to act”: UN doc CERD/C/SR.1375 at para 5.

14 UN doc E/CN.4/2001/9/Add.1 at para 434. The government has denied that it was behind the campaign of violence; it has expressed regret and stated its commitment to dealing with the situation; see “Comments by the government of Zimbabwe”, above at note 1 at para 9.3.

15 Un doc, ibid.Meldrum, A and Bright, M “Lawless Zimbabwe ‘sliding into anarchy’” (22 April 2001) The ObserverGoogle Scholar.

16 Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others 2001 (2) SA 925 (ZS).

17 Id at 938.

18 Id at 940.

19 Id at 943.

20 Id at 944.

21 Statement by the Law Society of Zimbabwe on threats by some members of the war veterans association directed at the Supreme Court and High Court of Zimbabwe, issued November 2000, reproduced in (2001) 86 Newsletter of the Commonwealth Legal Education Association at 5, para 6.

22 Commercial Farmers Union, above at note 16 at 944.

23 Report on the State of Justice in Zimbabwe (2004, report to the International Council of Advocates and Barristers by five common law bars) at 43–51, available at: <http://austbar.asn.au/dmdocuments/The_State_of_Justice_in_Zimbabwe_-Final_Report_03_12_04.pdf> (last accessed 8 June 2009). A number of High Court judges were also persuaded into retirement, id at 51–56. See also: BBC news “Mugabe man named top judge” (9 March 2001), available at: <http://news.bbc.co.uk/1/hi/world/africa/1210807.stm> (last accessed 8 June 2009); BBC news “Zimbabwe judge free on bail” (18 February 2003), available at: <http://news.bbc.co.uk/1/hi/world/africa/2774105.stm> (last accessed 18 June 2009); Meldrum Where We Have Hope, above at note 13 at 190–91. See further above at note 3.

24 Report on the State of Justice in Zimbabwe, above at note 23 at 50; BBC news “Mugabe man named top judge”, above at note 23.

25 Minister of Lands, Agriculture and Rural Resettlement & Others v Commercial Farmers Union (SC 111/01).

26 Mike Campbell (Pvt) Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement & Others (SC 49/07).

27 Ibid.

28 Under art 15(1) of the Protocol, the Tribunal has jurisdiction over disputes brought by natural or legal persons against a member state.

29 Judgment, above at note 4 at 16–17.

30 Id at 19.

31 Ibid. On the practice of the African Commission, see Magliveras, KD and Naldi, GJThe African Union (2009, Kluwer Law International) at 209–12Google Scholar; on that of the European Court of Human Rights see Harris, DJ, O'Boyle, M and Warbrick, CLaw of the European Convention on Human Rights (2nd ed, 2009, Oxford University Press) at 767–74Google Scholar; on that of the Inter-American Court on Human Rights see Pasqualucci, JMThe Practice and Procedure of the Inter-American Court of Human Rights (2003, Cambridge University Press) at 131–35Google Scholar.

32 The African Commission has held that a domestic remedy should be a judicial one, see for example: Alfred B Cudjoe v Ghana, comm no 221/98, Twelfth Annual Activity Report of the African Commission (1998–99, African Commission) 83 at para 13, available at: <http://www.achpr.org/english/activity_reports/activity12_en.pdf> (last accessed 9 June 2009); Zimbabwe Human Rights NGO Forum v Zimbabwe, comm no 245/2002, Twenty-first Annual Activity Report of the African Commission (2005–06, African Commission) annex III at para 45, available at: <http://www.achpr.org/english/activity_reports/21%20Activity%20Report.pdf> (last accessed 9 June 2009). In Article 19 v Eritrea, comm no 275/2003, Twenty-second Annual Activity Report of the African Commission (2006–07, African Commission) annex II at para 47, available at: <http://www.achpr.org/english/activity_reports/activty22_eng.pdf> (last accessed 9 June 2009), the African Commission expanded on the necessary criteria: “(i) the existence of domestic procedures for dealing with the claim; (ii) the justiciability or otherwise, domestically, of the subject-matter of the complaint; (iii) the existence under the municipal legal order of provisions for redress of the type of wrong being complained of; and (iv) available effective local remedies, that is, remedies sufficient or capable of redressing the wrong complained of.” The African Commission's decisions on communications can be consulted at the following sources: the African Commission's website <http://www.achpr.org>, the website of the University of Pretoria's Centre for Human Rights <http://www.up.ac.za/chr/ahrdb/acomm_decisions.html> and the website of the University of Minnesota's Human Rights Library <http://www1.umn.edu/humanrts/africa>; International Human Rights Reports; Murray, R and Evans, M (eds) Documents of the African Commission on Human and Peoples' Rights (2001, Hart Publishing)Google Scholar and vol II (2008, Hart Publishing).

33 Mike Campbell (Pvt) Ltd et al v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).

34 Judgment, above at note 4 at 23. Given that the first substantive matter the Tribunal was to consider was the question of the ouster of the courts' jurisdiction, it is intriguing to note that the African Commission has established a nexus between the doctrine of domestic remedies and art 7 of the African Charter on Human and Peoples' Rights which guarantees the right to a fair trial: Amnesty International et al v Sudan, comm nos 48/90, 50/91, 52/91 and 89/93, Thirteenth Annual Activity Report of the African Commission (1999–2000, African Commission) addendum to annex V at para 31, available at: <http://www.achpr.org/english/activity_reports/activity13_en.pdf> (last accessed 9 June 2009).

35 Judgment, id at 23–24.

36 Id at 24.

37 Id at 24–25. Art 4(c) of the Treaty commits SADC and its member states to act in accordance with the principles of human rights, democracy and the rule of law.

38 In particular arts 1(3), 55 and 56 of the UN Charter. In the Namibia Case ICJ Reports 1971, 16 at 57, the International Court of Justice found that the UN Charter had imposed binding obligations on South Africa to promote and respect human rights in relation to Namibia. See further: Lauterpacht, H (ed) Oppenheim's International Law (8th ed, l967, Longmans) vol I at 738–44Google Scholar; Schwelb, E “The International Court of Justice and the human rights clause of the charter” (1972) 66 American Journal of International Law 337Google Scholar.

39 See for example: opinion 2/94 Re the Accession of the Community to the European Convention on Human Rights [1996] ECR I-1759; C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925.

40 See Revised Treaty on ECOWAS 1993, available at: <http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en> (last accessed 9 June 2009), reprinted in (1996) 35 International Legal Materials 660.

41 Judgment no ECW/CCJ/JUD/06/08 of 27 October 2008 at paras 41–42. The African Charter is the African Union's principal human rights treaty; adopted in June 1981, it entered into force in October 1986 and has been ratified by all of the African Union's 53 member states; available at: <http://www.africa-union.org/root/au/Documents/Treaties/Text/Banjul%20Charter.pdf> (last accessed 9 June 2009), reprinted in (1982) 21 International Legal Materials 58. See Magliveras and Naldi The African Union, above at note 31 at 154–99.

42 Judgment, above at note 4 at 25.

43 Reparation for Injuries Case ICJ Reports 1949 at 174; Certain Expenses of the United Nations Case ICJ Reports 1962 at 151.

44 For example, the Common Market for Eastern and Southern Africa (COMESA). See COMESA Treaty 1993, available at: <http://about.comesa.int/attachments/149_090505_COMESA_Treaty.pdf> (last accessed 9 June 2009), reprinted in (1994) 33 International Legal Materials 1067. The undertaking to the principles of human rights, democracy and the rule of law is stipulated in art 6(e), (g) and (h) of the COMESA Treaty.

45 See, for example, art 4(m) of the Constitutive Act, which includes respect for democratic principles, human rights, the rule of law and good governance among the principles of the Union; available at: <http://www.africa-union.org/root/au/AboutAU/Constitutive_Act_en.htm> (last accessed 9 June 2009).

46 Judgment, above at note 4 at 26.

47 Mike Campbell (Pvt) Ltd v Minister of National Security, above at note 26.

48 Judgment, above at note 4 at 26.

49 Id at 26–27.

50 Id at 27–37.

51 Id at 30–34. See Bissangou v Republic of Congo, comm no 253/2002, Twenty-first Annual Activity Report, above at note 32, annex II a at para 75.

52 In Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, comm nos 140/94, 141/94, 145/95, Thirteenth Annual Activity Report, above at note 34, annex V, 58 at para 29, the African Commission stated that ouster clauses “render local remedies non-existent, ineffective or illusory. They create a legal situation in which the judiciary can provide no check on the executive branch of government.” See also International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria, comm nos 137/94, 139/94, 154/96 and 161/97, Twelfth Annual Activity Report, above at note 32, 68 at para 76; Constitutional Rights Project and Civil Liberties Organisation v Nigeria, comm nos 143/95, 150/96, Thirteenth Annual Activity Report, above at note 34, annex V, 65 at paras 16–19.

53 Civil Liberties Organization v Nigeria, comm no 129/94, Ninth Annual Activity Report of the African Commission (1995–96, African Commission) at para 13 in Murray, R and Evans, M (eds) Documents of the African Commission on Human and Peoples' Rights (2001, Hart Publishing) vol I at 452Google Scholar. See also Lawyers for Human Rights v Swaziland, comm no 251/2002, Eighteenth Annual Activity Report of the African Commission (2002–03, African Commission) annex III, 12.

54 Civil Liberties Organisation v Nigeria, comm no 151/96, Thirteenth Annual Activity Report, above at note 34, annex V, 74 at para 17.

55 Zimbabwe Human Rights NGO Forum v Zimbabwe, above at note 32, annex III, 100 at para 213.

56 Ibid.

57 Id at para 215.

58 Judgment, above at note 4 at 37–38.

59 Id at 41.

60 Art 6(2) states, inter alia, that “Member States shall not discriminate against any person on grounds of … political views, race, ethnic origin”.

61 Judgment, above at note 4 at 41–44.

62 Id at 44–45.

63 Id at 45.

64 In Malawi African Association et al v Mauritania, comm nos 54/91, 61/91, 98/93, 164/97–196/97, 210/98, Thirteenth Annual Activity Report, above at note 34, annex V, 159 at para 131, the African Commission stated: “Article 2 of the Charter lays down a principle that is essential to the spirit of this convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings … it is apparent that international human rights law and the community of States accord a certain importance to the eradication of discrimination in all its guises.” The African Commission proceeded to describe discrimination on the basis of colour as an “unacceptable” attitude that violated the very spirit of the African Charter and of the letter of the provision.

65 See: Judge Tanaka's dissenting opinion in the South West Africa Cases (Second Phase) ICJ Reports 1966, 6 at 293; Judge Ammoun's separate opinion in the Namibia Case ICJ Reports 1971 at 78–81; Cassese, AInternational Law (2nd ed, 2005, Oxford University Press) at 268 and 394Google Scholar; Shaw, MInternational Law (6th ed, 2008, Cambridge University Press) at 286Google Scholar. The prohibition on racial discrimination is an obligation erga omnes [to the international community as a whole]: Barcelona Traction Case (Second Phase) ICJ Reports 1970, 3 at 32; and may be a jus cogens [peremptory norm]: “ILC draft articles on responsibility of states for internationally wrongful acts: Report of the 53rd session, 2001, commentary on article 40” in Harris, DJCases and Materials on International Law (6th ed, 2004, Sweet & Maxwell) at 547–48Google Scholar; Cassese International Law at 65-66, 199 and 203; Brownlie, IPrinciples of Public International Law (7th ed, 2008, Oxford University Press) at 511Google Scholar. According to the UN Human Rights Committee, non-discrimination constitutes “a basic and general principle in the protection of human rights”: general comment 18 HRI/GEN/1/Rev.7, 146 at para 1. See also general recommendation XIV of the UN Committee on the Elimination of Racial Discrimination HRI/GEN/1/Rev.7, 206 at para 1.

66 Judgment, above at note 4 at 49–51. In this context the Tribunal did not refer to the practice of the African Commission; however, it should be noted that, in Zimbabwe Human Rights NGO Forum v Zimbabwe, above at note 32 at para 170, the African Commission defined discrimination as “applying any distinction, exclusion, restriction or preference [based on grounds such as] race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms”. Accordingly, a “universal ‘composite concept of discrimination’ can contain the following [sic] elements, stipulates a difference in treatment, has a certain effect and is based on a certain prohibited ground”.

67 Judgment, id at 53. It is interesting to note that, in Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others 2001 (2) SA at 937, the Supreme Court of Zimbabwe had been of the view that a proper programme of land reform would not probably be discriminatory.

68 Commercial Farmers Union, id at 937–38.

69 Judgment, above at note 4 at 54. It is worthwhile noting that the discriminatory expropriation of foreign property is illegal under international law; see for example: Saudi Arabia v Aramco (1963) 27 International Law Reports 117; LIAMCO v Libya (1977) 62 International Law Reports 140.

70 Judgment, id at 55.

71 Ibid.

72 Id at 56–57.

73 Id at 56.

74 See, for example: Chorzow Factory Case Permanent Court of International Justice (PCIJ) (1927) series A, no 9; LIAMCO, above at note 69.

75 James v United Kingdom PCIJ (1986) series A, vol 98; Lithgow v United Kingdom PCIJ (1986) series A, vol 102.

76 Media Rights Agenda and Constitutional Rights Project v Nigeria, comm nos 105/93, 128/94, 130/94, 152/96, Twelfth Annual Activity Report, above at note 32, annex V, 59 at para 77. See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, above at note 52 at para 54.

77 Thirteenth Annual Activity Report, above at note 64 at para 128.

78 Merrills, JG and Robertson, AHHuman Rights in Europe (4th ed, 2001, Manchester University Press) at 238Google Scholar.

79 Lithgow, above at note 75 at para 54.

80 Ibid. See also Papastavrou v Greece 2003-IV at paras 37–38, where no compensation was available under municipal law.

81 The view has been expressed that the American convention provides a high degree of protection against arbitrary expropriation without compensation or illegal confiscation. See S Davidson “The civil and political rights protected in the inter-American human rights system” in Harris, DJ and Livingstone, S (eds) The Inter-American System of Human Rights (1998, Clarendon Press) 276Google Scholar.

82 The Movement for Democratic Change has stated that the farm invasions must cease in order for farm productivity to improve; see BBC News “Mugabe vows to seize more farms” (28 February 2009), available at: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/7916312.stm> (last accessed 9 June 2009).

83 Commercial Farmers Union, above at note 16 at 938–41.

84 BBC News “Zimbabwe ‘to arrest land thieves’” (27 March 2009), available at: <http://news.bbc.co.uk/nol/ukfs_news/hi/newsid_7960000/newsid_7968000/7968087.stm> (last accessed 9 June 2009).

85 The Protocol, art 16(5).

86 Id, art 32(3).

87 BBC News “Mugabe vows to seize more farms”, above at note 82.

88 The Protocol, art 32(5). The Summit, composed of all the heads of state or government of the member states, is SADC's ultimate policy-making body: art 10 of the Treaty.

89 The Treaty, art 10(9).

90 According to art 33(1)(a) of the Treaty, sanctions may be imposed for a persistent failure to fulfil obligations.