Maravi

(NEWZIMBABWE) SADC tribunal on trial at summit

COMMENT - More crocodile tears for the 'rule of law' in protection of stolen land, and the stealing of natural resources, from the 'Inter Press Service'.

SADC tribunal on trial at summit
by Inter Press Service
17/05/2011 00:00:00

THE Southern African Development Community (SADC) faces several awkward problems at the Extraordinary Summit of Heads of State scheduled for May 20-21.

Mediating between parties in Zimbabwe over a workable plan for elections and power-sharing in Madagascar may be the headlines, but long-delayed action on the decisions of the SADC Tribunal could also have long-lasting consequences for human rights and the rule of law in the region.

Since 2008, the SADC Tribunal has handed down a series of decisions on cases of expropriation of farms in Zimbabwe. While the rulings were all in favour of the evicted farmers, Zimbawe flatly refused to recognise the court's authority to order compensation for the land seized. The Tribunal referred the matter to the SADC heads of state for a decision.

Unable to face the political consequences of ejecting or suspending Zimbabwe from the regional bloc, SADC leaders instead suspended the Tribunal at their August 2010 summit, pending a "review" of its functions.

This review - conducted by a team of University of Cambridge consultants and completed on February 14 - not unexpectedly confirmed the Tribunal had acted properly and within its powers on the farmers’ affair. The list of 34 recommendations in the confidential report suggested a strengthening of the regional court to avoid the kind of manoeuvring that has delayed relief for the farmers.

Lawyer Norman Tjombe, who argued some of the cases in question said: "The report was rather positive on the Tribunal, supporting its rulings on Zimbabwe and recommending strengthening of its functions. It made Zimbabwe very angry."

[Did it make the MDC 'very angry' too, considernig they are now part of the government? - MrK]

The first indications that the recommendations were not exactly what SADC was hoping for came as the SADC Council of Ministers met to consider the review in Swakopmund, Namibia, from April 11-15.

The Namibian chairing the review, Minister of Justice Pendukeni Ivula-Ithana, opened the meeting saying: "[It] is us, the people of SADC who can own our instruments as they address our identified concerns and are compatible with our national legal systems."

She went on: "This Tribunal is ours and we have received the advice contained in the final report of the consultant. Ours is to take out of it what we deem appropriate and suggest to the Presidents and Heads of States for their decision."

Zimbabwe already appears firmly set on ensuring the Tribunal’s past rulings are nullified, with Justice Minister Patrick Chinamasa insisting that the forthcoming summit will “interrogate the constitutionality of the SADC Tribunal itself, its legality and validity”.

“It's not about the land or the judgments of the tribunal, it's not a summit on the decision of the tribunal,” he insisted.

Chinamasa said the ministers agreed that the protocols setting up the tribunal had not been ratified by two-thirds of the SADC countries.

As currently constituted, the tribunal – which was ratified by only five of SADC’s 15 members – was a legal nullity.

To be operational, it needs ratification by 10 member states, he insisted.

[Insisted? Why are Minister Chinamasa's characterized as 'insisted'? - MrK]

“The treaty provided for a SADC tribunal to be operational through protocols that would set up its jurisdiction and mandates. The protocols were negotiated in 2000 and all the countries signed. They, however, waited for two-thirds of the countries to ratify the protocols,” he said.

Two countries only ratified the protocols then while three more countries have appended their signatures.

The evicted Zimbabwean farmers are not the only ones waiting on SADC leaders' next move. Lesotho, South Africa and Zimbabwe face a R4 billion (US$570 million) claim from South African-based mining group Swissbourgh for expropriation of its minerals rights to pave the way for the Lesotho Water Highlands Project in 1991.

According to Josias van Zyl, Managing Director of Swissbourgh, the three countries conspired to suspend the SADC Tribunal last August, just a week before the case was supposed to be heard.

Swissbourgh filed an application with the Tribunal challenging SADC leaders' legal authority to suspend its operations. Tjombe lodged a similar application on March 28, arguing the SADC Summit’s August decision "does not in law have the effect of suspending [the tribunal’s] operations and function".

"So far we have heard nothing from the court, not a peep," said Tjombe.

The delays already mean one of the plaintiffs will never see the end of his struggle to regain his land – farmer Mike Campbell died in early April.

Van Zyl said that Swissbourgh has threatened to sue SADC in Gaborone, Botswana (where it is headquartered), as well as individual states in their own countries should "they strip SADC of its Tribunal, or continue to interfere with our right to access to justice".

"The comments of the Namibian Justice Minister seem to indicate a move in that direction," he said.

Swissbourgh asserts in a May 13 letter to the heads of state that is aware that the outcome of the Swakopmund deliberation was a proposal that the Tribunal's scope of action be amended to allow only inter-state disputes, ruling out access for individuals to the regional court.

Swissbourgh says that any weakening of the Tribunal would be "in bad faith" and a "violation of international law generally and various international human rights instruments".

But Norman Tjombe is sceptical of the pressure the litigants can exercise on the leaders.

"They will just ignore the report and likely postpone a decision," he said. "It’s a sad day for the rule of law.

"The widespread practice in member states of ignoring court rulings, or replacing critical judges with ones favourable to the regime is now repeated on a SADC level. The establishment of the SADC Tribunal as a liberal and accessible court was a leap forward. Now the court is in danger of being strangled and killed."

Labels: AFRIFORUM, LAND REFORM, NEOCOLONIALISM, SADC

posted by MrK @ 3:31 PM