Wednesday, December 10, 2008
Farmers’ position on land ruling
By David Peter Drury
THE Sadc Tribunal’s ruling on Zimbabwe’s land reforms has stirred a lot of debate on the role of the State, citizens and the region in correcting the historical imbalances that, up until 2000, saw some 4 500 whites owning the vast majority of the country’s arable land. Below, The Herald reproduces the position of the farmers, as stated by their lawyers, who approached the tribunal that is based in Windhoek, Namibia.
APPLICANTS before Sadc’s Tribunal, utilising their statutory right of reply to the statement by Cde Mutasa (The Minister of State for National Security, Lands, Land Reform and Resettlement Cde Didymus Mutasa) published on Monday 1 December, 2008, wish to inform readers as follows:
Perhaps Cde Mutasa had not seen the Sadc Tribunal judgment in full before he dismissed it as daydreaming, while suggesting the Tribunal seeks to reverse land reform here.
The Tribunal did not try to unscramble that totally scrambled egg.
Instead, it ordered Zimbabwe not to interfere with any applicant still on the land or in possession of it when they applied for relief, and not let anyone do that, and it ordered Zimbabwe to pay fair compensation by 30 June to three applicants already dispossessed.
That decision cannot be ignored, as its authority is based on the Sadc Treaty.
The Sadc Tribunal was created and given its jurisdiction by Zimbabwe (freely represented when signing all the regional agreements by President Mugabe) and by the other Sadc Member States.
In its ruling on Friday 28 November, 2008, in its first case, on certainly a complex issue, the Tribunal confirmed it has jurisdiction in any dispute concerning human rights, democracy and the rule of law.
Our clients’ applicants were based on the rule of law and human rights, including the universal right of access to justice, the universal prohibition on unfair racial discrimination, and to the payment of fair and adequate compensation for expropriated properties.
The Tribunal found that these rights had been violated.
It held "the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to a fair hearing before an individual is deprived of the right, interest or legitimate expectation".
It unanimously held that by barring titleholders from being heard in Zimbabwe’s courts, as lawmakers did in the 17th Constitutional Amendment, Zimbabwe violated its undertaking of Sadc to uphold the rule of law.
That is unarguable, as lawmakers had abandoned the courts after Cde Mutasa and earlier Ministers had repeatedly sworn they needed certain areas for their purposes, then ignored their researched targets to pursue instead a total elimination of white farmers.
Sadly Cde Mutasa states that he still wants to do that, disregarding the Tribunal Order, as well as the large areas of land taken over already but not in use yet.
Treating farmers as criminals violates many international laws.
The right to correct past wrongs to achieve equality has never been disputed, but no past wrong can be replaced with a new wrong.
The International Convention for the Elimination of Racial Discrimination and the African Charter on Human Rights, each cited by the Tribunal, set clear limits to be observed if any State is not to be found guilty now of the institutionalised racism that the international community has rejected and outlawed as a crime against humanity.
Zimbabwe, through its President, also elected to be bound by both these international agreements.
The Tribunal especially noted that: "The aim of (Zimbabwe) in adopting and implementing the land reform programme might be legitimate if and when all lands under the programme were indeed distributed to poor, landless and other disadvantaged and marginalised individuals orgroups."
It warned: "There can be no doubt that is unfair discrimination to award the spoils of expropriation primarily to ruling party adherents."
It found too "implementing Amendment 17, (Zimbabwe) has discriminated against the Applicants on the basis of race and thereby violated its obligation under article 6 (2) of the Treaty".
One part of is judgment requires particular attention now:
"We wish to observe here that if:
a) the criteria adopted by the respondent in relation to the Land Reform Programme had not been arbitrary but reasonable and objective;
b) fair compensation was paid in respect of the expropriated lands; and
c) The lands expropriated were indeed distributed to poor, landless and other disadvantaged and marginalised individuals or groups, rendering the purpose of the programme legitimate, the differential treatment afforded to the Applicants would not constitute racial discrimination."
It is clear that the Tribunal has not ordered Zimbabwe to abandon land reform; only to do that properly, in full compliance with its international agreements.
The Sadc Treaty is just one of those binding agreements.
In September’s Sadc-brokered (and guaranteed) agreement on resolving the challenges facing Zimbabwe, all parties agreed on openness, transparency and a full land audit.
Cde Mutasa can accelerate this, and so help to deal with Tribunal concerns.
Choosing to disregard its ruling and evict the few remaining white farmers instead will result in immediate referral of the issue to a Sadc Summit.
Authorities admit corruption has severely tainted land redistribution.
New offer letters were often given to people, who had taken over productive farms before, stripped these, then wanted to move on.
Until the audit and openness needs of the September Agreement are fully complied with, the risk continues of that taking place again,
and violating the Sadc Treaty and principles afresh.
After the judgment, our Embassy in Windhoek stated that Zimbabwe’s response will be considered, and it will take into account the obligations to the people and the need to conform to the principles on which Sadc was founded.
In our opinion that can be done, and we trust authorities will be so guided in the interest of all involved, rather than persist in further violation of the Sadc Treaty.
We look forward to reading this response and trust that this request will not be unduly warehoused or simply ignored.
All rights in accordance with law are asserted.