Monday, April 25, 2011

(TALKZIMBABWE) SA High Court should respect Zimbabwe's immunity, says gvt

SA High Court should respect Zimbabwe's immunity, says gvt
By: Ralph Mutema
Posted: Sunday, April 24, 2011 7:16 am

THE inclusive Government of Zimbabwe says it hopes the South African High Court will take into consideration its diplomatic immunity in a case involving the government and three commercial farmers.

The white commercial farmers, have taken on the Zimbabwe government with the help of South African lobby group Afriforum.

Zimbabwe argues that South African courts have to take into consideration that they do not have jurisdiction to register a Southern African Development Community (Sadc) ruling, on the basis of sovereignty, and in terms of the Foreign States Immunity Act (Fisa).

Fisa is a law that establishes the limitations of whether a sovereign nation can be sued in a foreign court.

It also establishes procedures for the attachment of property against a foreign state.

Zimbabwe's legal team, led by Patric Mtshaulana, said they would not take the ruling lying down if it is not in their favour.

They also argue that the land reform programme was necessary to redistribute land stolen white white colonists before independence.

Five percent of the white population owned 95 percent of the arable land prior to independence.

Former black owners of the land were driven off and kettled into what were called "keeps" and tribal trust lands where curfews and other forms of restriction of movement were imposed.

The farmers - Louis Fick, Richard Etheredge and Michael Campbell, who died recently - took their fight to the Zimbabwean government with the help of pro-white right wing group Afriforum, which in its press statement said it wanted to show that "Mugabe was not untouchable".

Afriforum has completely ignore the skewed land tenure structure in Zimbabwe and wants to restore the land ownership structure of precolonial days.

Zimbabwe's liberation wars, the two Chimurengas, were fought over the issue of land ownership.

Zimbabwean farmer Harry Hales said if the farmers received compensation it would be a landmark victory for all commercial farmers who were "displaced and persecuted".

They, however, fail to mention the displacement and persecution of the thousands of black Zimbabweans some of them, like the Tangwena people, being displaced from their ancestral lands as late as 1979.

"Justice should prevail thanks to the Sadc Tribunal. A lot of productive farmers were affected by the land invasions and they continue to suffer at the hands of Zanu-PF," he said.

The Sadc Tribunal, however, has no mandate over commercial cases in a sovereign country.

It was established to adjudicate over inter-state commercial and trade cases. The government of Zimbabwe argues that the Tribunal is going beyond its mandate, by adjudicating over internal issues of Zimbabwe.

The Tribunal cannot hear a matter brought by a natural or legal person against the Member State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.

The highest appellate court in Zimbabwe, the Supreme Court, has said that the land reform programme was lawful as it sought to remedy age-old land ownership problems in the country.

The Sadc Tribunal is currently suspended and has no adjudication powers until it is reinstated by a Sadc Summit of Heads of State and Government.

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On the Tangwena case:

The Tangwena case

Since 1964, at Gaeresi Ranch, the Rhodesian Front authorities have been trying
to remove the Tangwena people and their chief Rekayi. The Tangewena country;
in the mountains of Inyanga, is rich agricultural land, and not surprisingly
250,000 acres of it was ‘sold’ in 1905 (without the knowledge of the inhabitants)
by the BSAC to the Anglo-French Matabeleland Company. The latter ceded
part to the Gaeresi Ranch Company.

The Tangwena were not made aware of this alienation until 1965, when the manager of the ranch decided in the interests of economic farming to extend his fencing to encompass them. This coincided with the death of the Tangwena chief and the election of Rekayi as his successor.

The white farmer wished to ‘rationalize’b y reducing the African population now included, and offered labour contracts to some Tangwena, expecting the rest to move to whichever ‘reserve’ the District Commissioner prescribed. Here, however, something exceptional happened : Rekayi and his people would not move. Many Africans have protested at similar moves, none with such dignity and determination.

After legitimate but vigorous protest to the authorities-even as far as the Secretary for Internal Affairs-Rekayi was given the standard treatment afforded to African chiefs who assert their people’s rights : he was dismissed. Neither he nor his people accepted this. They physically resisted eviction. They challenged its legality successfully in the law courts on the grounds that, under the Land Apportionment Act, Africans who had lived upon Crown land before its alienation are protected ‘squatters’, and could be removed only by a governmental decision in the form of a proclamation.

The Rhodesian Appelate Division underlined that the Crown’s argument on the law ‘would lead not only to absurdity but to manifest injustice’. The case had by then (June 1968) become notorious and even the white press (the Rhodesian Herakl) pleaded that the authorities (by now the illegal Smith régime) should follow ‘the humane course . . . and accept a suggestion’ (made originally by Rekayi) that they buy the land and incorporate it into the adjacent Tribal Trust lands-giving the tribe its land and the company its money.

Following instead the tradition of white governmental dealings with African land, the authorities issued a proclamation in 1969 ordering the Tangwena to leave. Legal action was followed by bulldozers, and eventually by police and soldiers. In a quite extraordinary manner the Tangwena have, however, maintained their stand and, when moved, return. By every peaceful means, Rekayi and his people continue to confront the authorities on this absolutely basic issue. It is a historic episode in the greater process of liberation.

This may be confirmed by the unaccustomed degree of restraint exercised by the régime.

There is still no compromise on the supremacy of white economic interest, whatever the consequences may be in terms of human misery, but the régime hesitates to use the full panoply of its destructive and restrictive powers. This may be due to its awareness of world attention focused upon it, or partly perhaps to a grudging admiration of the overwhelming moral effect produced by this African leader in rags. Equally, however, it may be attributed to a more Machiavellian and merely tactical move to deal relatively mildly (if the eviction of over 250 families, the destruction of their houses and crops, and the virtual kidnapping of their children can be so described) with this symbolic yet peripheral opposition, at a time when Rhodesian leaders are seeking a settlement with Britain and international recognition by the Western world at least.

The confrontation is fully described in The Ousting of the Tangwena, published by the International Defence and Aid Fund. If the statistics of distribution are the bones of the land problem in Rhodesia, the Tangwena may be seen as illustrating its flesh-and-blood reality.


Also read this obituary on the ZANU-PF website.

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