Top African court ‘powerless’ to reinstate SADC Tribunal

African Commission on Human and People’s Rights

 

By Alex Bell
SW Radio Africa
05 March 2014

The African Commission on Human and People’s Rights has said it has no authority in the fight to fully reinstate the Southern African human rights Tribunal, which was suspended after ruling against Robert Mugabe.

The Commission decided last year to reject a landmark challenge filed by Zimbabwean farmers and victims of the Mugabe led land grab campaign, who cited all 14 Southern African Development Community (SADC) leaders in its application to have the Tribunal restored. It was the first time in legal history that a group of heads of state was cited by individuals as the respondent in an application to an international body.

The Tribunal was suspended in 2011 by SADC leaders, who chose to hobble the work of the court rather than take action against Mugabe. This was after the Tribunal ruled against Mugabe in 2008 in an historic case that pitted dispossessed Zim commercial farmers against the now 90 year old despot. The human rights court ruled that Mugabe’s land grab was unlawful and inherently racist, a ruling that ZANU PF and its leader actively ignored.

SADC leaders then went on to suspend the court and have since deliberately hamstrung the Tribunal’s future, with SADC deciding that the court will only be allowed to continue its work if individual access to it is stopped. This means that the court cannot fulfil its chief mandate, which is to uphold the human rights of all 250 million SADC citizens.

But despite this grave threat to the human rights of African citizens, the African Commission has said it is powerless to do anything and has rejected the challenge filed by Zimbabwean farmers Ben Freeth and Luke Tembani. The Commission, whose decision was only communicated over the weekend, criticised SADC for its handling of the Tribunal situation, but maintained that it cannot do anything further.

Lawyer Willie Spies, who submitted the application on behalf of Freeth and Tembani, told SW Radio Africa on Wednesday that the Commission’s decision is based on a ‘technicality’. He explained that the original complaint was based on two articles within the African Human Rights Charter, the guiding text of the Commission, “which state that African Union member states are not allowed to prevent individuals within their countries to having access to courts within their territories.”

“We said that in 2011, when SADC leaders got together and Robert Mugabe managed to convince them to suspend the operations of the Tribunal, those 14 heads of state contravened the African Human Rights charter,” Spies said.

He continued: “But after a process drawn out for over two and a half years, the Commission has now said that the articles (which the complaint was based on) say nothing about regional courts. And since the Tribunal is a regional human rights court, it is not covered by the (charter).”

Former Chegutu farmer Freeth, who is also the spokesperson of the SADC Tribunal Rights Watch group, said in a statement that the Commission’s “reasoning that the African Charter does not include within its protection courts not known at the time the African Union was formed, cannot be accepted.”

“When we are barred by Zimbabwe law to access the Zimbabwe courts or the Zimbabwe courts fail us, is it not guaranteed by the African Charter that we should have access to justice? We have to question the role and purpose of the African Charter and the African Commission on Human and People’s Rights if this fundamental human right is not guaranteed,” said Freeth.

His co-complainant Tembani meanwhile also said in a statement that the decision by the Commission is “a great injustice for Africans.”

“We ask the world and anyone who cares about human rights, justice, the rule of law and property rights in Africa, to help protect Africans from this injustice which threatens the development of the region. The African Union through the African Commission has made me despair that justice will come – so that Africans can take their rightful place in our world and stop us from being beggars on our resource-rich continent,” Tembani said.

Spies meanwhile said the Commission’s decision is a major blow to the efforts to reinstate the Tribunal, a legal fight he said has now reached the end of the road.

“The problem was created by politicians and the problem will need to be solved by politicians. It’s only a political interference by SADC leaders, a political change in Zimbabwe and a political solution to this situation that can resolve the issue. Legally we have come to the end of the road,” Spies said.

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28 Responsesto “Top African court ‘powerless’ to reinstate SADC Tribunal”

  1. mafirakurewa says:

    That’s why we need the ICC for these black leader criminals. The bloody idiots commit crime with impunity.There is no justice for the poor and downtrodden in Africa.

    • Ludovick Simon says:

      I can’t agree with you more.

      • Chimbwido Warvet says:

        It explains how foolish and ill informed you are about the role of the International Criminal Court (ICC). You all need to read and understand a simplified version of the Rome Statute of 2002 which captures the functions of the international court. You will then begin to under the circumstances under which the ICC can be asked to play a role in the legal affairs of a sovereign and independent state. If it was that easy as you guys want us to believe, the United States and the United Kingdom political leaders who got us involved in Iraq and Afghanistan wars could have been incarcerated at the Hargue right now.
        The ICC only gets involved in the legal affairs of a sovereign and independent state when it is invited by that country. In most case the judiciary of that will have completely broken down like was the case in Rwanda, Burundi, and former Yugoslavia. That explains why the ICC played a meaningful role in prosecuting war criminals in these countries. But Zimbabwe has a functional judiciary and will not need the ICC to come to its assistance. Its courts are run by competent justices of the courts.

        You do not need to read the full document of the Rome Statute of 2002 that governs the role of the ICC. I suggest ony sections 1 – 5 of this important document will be helpful and will ensure you do not raise legal issues you know too little about.

        • Ludovick Simon says:

          Thank you. I will. However, the point of contention is the constitution which was amended in 1991 (amendment No 11) which allows no appeal to courts by farmers whose land is taken over by the government. When people are barred by Zimbabwe law access to the Zimbabwe courts and the southern African human rights tribunal suspended, then it is clear that in Zimbabwe there is no law higher than the state. This means, inter alia, no one can appeal against the state. Inevitably, this latter factor will compel ordinary Zimbabweans to turn to international institutions like the international Criminal Court (ICC) or, in a much broader sense, the international community, which, as part of the function imposed on it by international law, would have to reign in a dictator’s actions.

          • Chimbwido Warvet says:

            Unfortunately the 1991 laws have now been superseded by the the 2013 constitution. I am sure you have read its provisions on land that has been acquired by the state to resettle the previously dispossessed of their land by white settlers. You must also be aware if you are Zimbabwean that all land that was owned and occupied by the so-called white commercial farmers was not bought from any of the indigenous people but was grabbed or invaded through the barrel of the gun. Why in heaven’s name can any reasonable person say the indigenous people are ‘invading or grabbing’ white commercials farms when these farms were not acquired through legal means? Is it not a misuse of the English terms here? Well, the truth of the matter is no land can be invaded or grabbed by its rightful owners. It is irrational, illogical and irresponsible for any Zimbabwean who should know better to hold such foolish ideas. The war of liberation was waged by the freedom fighters of this country for the people of this country to get back their stolen land and to enjoy the fruits of their sovereignty and independence that were enjoyed by foreigners only in their own country.
            It is for these reasons the African Union and SADC are fully behind the Mugabe government and totally opposed to the position taken by the SADC tribunal that has been suspended. I hope I have explained why a tribunal that does not serve our interests has no future in the subregion.

          • Ludovick Simon says:

            No, I’m not a Zimbabwean. And although I believe land reform was necessary in Zimbabwe, I don’t think the way to reform was by grabbing land which the white farmers’ forbears had reclaimed from the bush and worked for a century. Additionally, Mr Mugabe has given most of the land he repossessed from commercial farmers not to landless Zimbabweans but to his political cronies, who strangely have been promised lavish pensions and other perks. No one expects corrupt African rulers to uphold the principles of natural justice upon which the liberty of each individual depends. After all, is it not the same rulers who recently attempted, albeit in vain, to skirt the International Criminal Court (ICC)? A generation of Africans, in the so-called frontline states, endured debilitating social decline and economic stagnation due to the frontline states’ unshakable support for their South African brethren in their struggle against apartheid. Today, Zimbabweans are trapped under an oppression of the most evil type, albeit perpetrated by one of their own kind. Suddenly, the voices of our black African leaders are muted. Why? It is a shame that the aspirations of black Africans resulted in active oppression and brutal tyranny.

          • Chimbwido Warvet says:

            My friend, if you do not know the political history as what appears to be case here, you need to ask or to do a bit of research. In the present computer age, all information dating from the Berlin Conference of 1894, the forced removal of the indigenous people from their land to create farms and settlements for the white settlers, the last of such forced removal I personally witnessed was in 1960′s when my people were driven to the tsetse-fly infested Gokwe region. There was a lot of disgruntlement and resentment from the indigenous people of this country who were driven away from their land with view to creating white commercial farms. It this is what you claim to be land white commercial farmers ‘reclaimed from the bush and worked for a century’, you clearly show a misunderstanding of the political history of Zimbabwe. We know the history of our country better than you mate. You therefore have no moral authority to lecture to us on Zimbabwean political issues. Our land that was stolen by white settlers should simply be taken back by its rightful owners, the indigenous people of this country.

          • Ludovick Simon says:

            So, your land ”should simply be taken back by its rightful owners, the indigenous people” of Zimbabwe through murder, rape and what have you! Is this the way disputes are resolved in a modern-day human society? Do you expect fellow Africans who made hard sacrifices in support of your ”chimurenga” to remain silent when you do this? Are black Africans civilised human beings, who believe in the rule of law, or merely biological beings with no regard for human life and values? Zimbabwe will only be at peace with itself only when it learns to uphold the law in a fair manner.

          • Chimbwido Warvet says:

            We were the first to talk about reconciliation and conciliation to our white folks but they considered we were too foolish and stupid. Instead of reciprocating to the call by government for peace to prevail in the country, most of them behaved in ways that were ridiculous. They refused to share land with the indigenous people of Zimbabwe although they were fully aware the land question was the precursor or catalyst for the armed struggle. They were not supportive of government efforts to part with some of their land to resettle the indigenous people, the white commercial farmers had earlier dispossessed of their land.
            What rule of law allowed the white settlers to drive away the indigenous people of this country from their land with view to creating their farms and settlements in a country that was not theirs. When the white settlers came to Zimbabwe soon after the Berlin Conference of 1884, they found the indigenous people of this country working on their land. The country was not a jungle with wild animals without human existence. I guess, if you do not know our political history, you should not get involved in matters that do not concern you. You already told us that you are not Zimbabwean and as such you can not be an authoritarian on our domestic issues. That you talk like a Rhodie does not surprise us as we already have black Zimbabweans working for a pirate radio station in London.
            Zimbabweans who are taking back their land have a genuine cause and civilised human beings who uphold the values and virtues of law. They are taking what rightly belongs to them. They have not gone to a foreign land and invaded or grabbed what is not theirs. My people have been victims of British colonialism who were dispossessed of their land by white settlers and deserve a sympathetic ear from the international community. They are not warmongers or blood-thirsty people who go about killing people for no reason

          • Ludovick Simon says:

            What you are saying does not justify the atrocious crimes which the Mugabe regime has perpetrated against its people. You were able to win your ”chimurenga” because of the hard sacrifices others made in support of your cause. My country’s troops fought alongside your fighters (whom we trained and armed) although, regrettably, some returned home permanently maimed and others in body bags. We supported you because we believed you were fighting for equality, democracy and social justice. Now that you have turned out to be nothing but murderous goons, do you expect us to remain silent just because we are not Zimbabweans? The ”Rhodies” were better. At least their leader, Mr Ian Smith, did not build himself a 25-bedroomed villa complete with Italian marble bathrooms and roof tiles from Shanghai.

          • Chimbwido Warvet says:

            Which African country do you come from? In addition, can you tell us how many Zimbabweans perished during their war to liberate themselves from foreign domination and control? I can tell you that less than twenty white farmers died when they resisted government call to vacate land it had taken to resettle the indigenous people of this country. Of course, the killing of any human being to achieve a political objective is unacceptable. But if the white commercial farmers had taken time to think and let reason be their guiding principle, no loss of human life could have taken place in this country. They resisted a legitimate takeover of their farms they had acquired illegally from the indigenous people of this country thereby creating unnecessary problems for themselves
            ‘…the Rhodies were better. At least their leader Mr Ian Smith, did not build himself a 25-bedroomed villa complete with Italian marble bathrooms and roof tiles from Shanghai’. Is this statement a fact or opinion? What we know as Zimbabweans is a villa which has been portrayed by the western media as Mugabe’s property which has proven to be falsehoods or the usual smear campaigns by the western press to discredit his name. Mugabe does not own such property in Zimbabwe.
            Your admiration of Rhodies and Ian Smith is disgusting to say the least and makes me want to throw up. It makes me wonder whether or not the black people will ever learn from history. It is a sham that you are a black man whose mannerisms are no different from rhodies who have been fighting Mugabe over properties that have never been theirs but which they acquired through the barrel of the gun.

          • Ludovick Simon says:

            ”Indigenisation” laws require all foreign-owned firms to cede a 51 per cent share (during the last election campaign Mr Mugabe indicated it will be ”100 per cent” in the future) to locals. How are these laws related to land reform? In your earlier posting (supra) you contend that white farmers took land from ”indigenous” Zimbabweans after the Berlin conference in 1884/5. Why then did the Mugabe regime seize Gwenoro which Mr Ian smith bought in 1948? And who is an ”indigenous” African anyway? About two hundred years ago Shaka’s harsh rule forced scores of his subjects into exile in almost all countries of the region. There, they settled and established themselves as a distinctive tribe, retaining their linguistic, cultural and other social values of the homeland they fled. With this in mind, could members of Zulu community in the region be considered ”indigenous”? Could they be afforded equal rights? Mr Mugabe is unquestionably a very wicked despot who espouses fascist beliefs. He has no regard for ordinary human values let alone governing his fief in accordance with internationally acceptable standards.

          • Chimbwido Warvet says:

            If our plans go according to schedule the African continent will be renamed the United States of Africa. Most African countries do not accept the boundaries/borders that were created for us by the only 14 European despots who parcelled out among themselves the African continent in terms of their spheres of influence.
            As far as we are concerned, the artificial boarders/boundaries that were created for us by Europeans after the Berlin Conference without our consultation and participation should be obliterated and a United States of Africa allowed to take their place. Africans should then be allowed to move from The Cape in South Africa to Cairo in Egypt without the need for visas but travel documents only. That is the plan which I hope to see happening during my life time buddy. Africans see themselves as brothers and sisters. Racism or discrimination is not in their menu or vocabulary.
            Who did Ian Smith give the money for his so-called farm at Gwenoro in 1948?

          • Ludovick Simon says:

            You have parried. Were we not talking about land grab rather than Africa’s artificial boundaries? Would you say Mr Mugabe’s policies are not actuated by his own racist beliefs? What is the real aim of the so-called indigenisation laws which specifically target foreign-owned firms? How are these laws related to the issue of land? How do you quantify an ”indigenous” African? You say that you, and your cohorts, are opposed to the boundaries bequeathed to us by departing colonial authorities. Have you looked carefully at uti possidetis juris? The fact that you have been committing unconscionable crimes against your own people with utter impunity does not preclude you from being held accountable should you dare to infringe customary international law.

          • Chimbwido Warvet says:

            ‘…And who is an ”indigenous” African anyway? About two hundred years ago Shaka’s harsh rule forced scores of his subjects into exile in almost all countries of the region. There, they settled and established themselves as a distinctive tribe, retaining their linguistic, cultural and other social values of the homeland they fled. With this in mind, could members of Zulu community in the region be considered ”indigenous”? Could they be afforded equal rights’? Do you remember asking this question? If you still remember, this is precisely the reason the artificial boarders/boundaries were brought into this argument or discourse.
            You continue to raise the question of the so-called land ‘grab’ in Zimbabwe that I have fully addressed before. You will not get another answer that is different from the one I have given you before. The only land grab that we know is one that took place after the Berlin Conference of 1884/5 when white settlers stole our land through the barrel of the gun. Right now, our people are taking back their land and doing it legally. Laws have been put in place to take back our land. We do not apologize to you or anybody about this as we have never invaded a foreign country.
            And by the way which African country do you come from? In addition, can you tell the readership the amount paid by the late Ian Smith for his so-called farm at Gwenoro and who was paid the money in 1948? If I do not get any answer for these two questions I have posed in the past and you deliberately avoided to answer them, then I will not be interested to engage you in any future discourse. You have a choice to make here buddy as you can not continue to be a parasite.

          • Ludovick Simon says:

            Thank you for your kind words. Good luck with your venture. I wonder though where you will derive the competence to manage the United States of Africa when today Zimbabwe is running one of the world’s most disastrous economies. It seems to me dictators can spawn sycophants and use poorly educated people, with a seemingly dependent mind-set, to enforce conditions of oppression.

          • Chimbwido Warvet says:

            Nobody knows the outcome but that is the plan. The African continent has an abundance of natural and human resources that can be tapped for its economic development. It is known there is no other continent which has an abundance of natural resources than the African continent. Let us talk about dictators or poorly educated people when this happens. I hope this does not occur but if it does, that will be unfortunate for the United States of Africa.
            I am not a prophet of doom but a realist. Seeing that you have not answered any of the question I have posed, it is time for us to close this debate which has proved to be a waste of my time and probably yours too. We both have not benefitted from this discourse, I want to believe.

          • Ludovick Simon says:

            The point is, I never allow people to patronise me regardless of whether they wear a Hitler-type moustache. Apologies if I sound rude.

          • Chimbwido Warvet says:

            Not at all my friend. We only have different views and opinions. I do not want to think I have patronise you and neither can I say you have done that to me. Let us agree to disagree and remain friendly to each other. I have taken note of your views though

          • Ludovick Simon says:

            Agreed. Thanks and stay well. Cheers mate.

  2. Chimbwido Warvet says:

    Any tribunal on the African continent should be seen as serving the interests of the African people. It should not be seen as protecting or serving the myopic views and interests of the so-called white commercial farmers (thieves) who have been fighting the Mugabe government to get back the farms they had stolen from the indigenous people of Zimbabwe. Consequently, any tribunal that purports, attempts or seen as serving the vested interests of foreigners who had robbed the indigenous people of their way of life on their land that had been stolen, has no future on the African continent or in the Sub-Saharan Africa. A tribunal on the SADC region should serve the interests of the subregion, anything that contradicts this well held principle by the regional grouping, automatically excludes itself from the region.
    Can anyone intelligent enough out there tell me the justification for African continent or the SADC region for that matter to finance a tribunal that does work in the interests of the Zimbabwean people who were subjugated, robbed of their land and country by foreigners. It is like shooting oneself in the foot, mabaranzi. Hazviitike zvakadaro, matuzvi ambuya vana blaz. Hakuna kwazvakamboitwa pasirino madofo evanhu, vasingafungi. Madodi chaiwo aya. Kana sekuru vangu Dumbu havafungi seizvi.
    Vana Mafirakureva havaoni chinhu apa. Hanzi takaenda kuchikoro, zvino chii chamakabura kana musingaone zviripachena kunge nyina yemombe kana mbudzi? Hudofo chete uhu blaz

  3. Ludovick Simon says:

    The suspension of Southern African human rights Tribunal should not have happened in the first instance. This is because, unlike freedoms which are established by domestic law, i.e. civil liberties, human rights are freedoms which are established by custom or international agreements which impose standards of conduct on all nations. Article 27 of the Vienna Convention on the Law of Treaties (VCLT) stipulates that ” A party may not invoke provisions of its internal law as justification for its failure to perform a treaty”. Blocking individual access to the court was a clear violation of international law. More tellingly, we live in a world which is regulated by international consensus. Thus, it is the moral and legal duty of SADC leaders to demonstrate, inter alia, their firm commitment to democracy, its precepts, and adherence to the rule of law. Furthermore, they should rescind their earlier decision to deny individual access to the referral court. Should they fail to do this, they will invalidate their right to deprecate the implied actions of foreign forces who have been accused of transgression against black people.

    • Chimbwido Warvet says:

      Which international law allows a foreign government to impose its will in the domestic affairs of a sovereign and independent state? And how/why/which foreign forces been accused of transgression against black people? If you answer these questions satisfactorily, I will be too pleased to engage you on another level.

      • Ludovick Simon says:

        Human rights are basic rights which inherently belong to each human person. They are an international onus and inviolable. They include, inter alia, the right to freedom of thought, to personal liberty, due process, freedom from discrimination on the basis of race, language and age. Significantly, they also include the right to own property. A foreign government can’t ”impose” its will on a ”sovereign and independent state”. However, the international community has the moral and legal duty to impose accountability measures on states that pigheadedly refuse to observe obligatory rules of conduct. Such measures are often consistent with the crimes committed. Mr Robert Mugabe’s deplorable policy of land grab and criminal abuse of public governmental power must be condemned by world governments, much as they did whenever the whites violated the rights of black majority in South Africa. The Rhodesians under Mr Ian Smith could be accused of looking down on black Zimbabweans. However, Mr Mugabe not only looks down upon his own people, but rules them with an iron fist and reduces their once prosperous country to abject mendicancy. Is this the potentate you are trying to defend?

        • Chimbwido Warvet says:

          My friend, politicians are good at telling you that you have human rights. They are even capable of ensuring that a documents that chronicles all the human rights you are expected to enjoy. However, these rights are purely artificial or superficial if you like as they can easily be taken away from you whenever it suits the interests of politicians and the rich and powerful who control the world. By the looks of things, you do not fall in this grouping that controls and owns all of us.

          The terms ‘human rights’ are high sounding words which differ from country to country. If all countries enjoyed human rights and were governed along the lines you have argued above, this world would have been close to heaven. Unfortunately, your views are highly utopian as ‘human rights’ are not international obligations as they differ from country to country. I need to support this claim. The United Kingdom has only 10 stipulations in its Bill of Rights, Germany has 29 stipulations on its Bill of Rights, Sweden has only 4 stipulations in its Bill of rights while there are a number of countries without a bill of rights at all. Besides, if ‘human rights’ were international obligations, racisms could have been wiped out on Mother Earth and the 21 million people who are still slaves world over in this 21st century would have been emancipated.

          • Ludovick Simon says:

            I thought we were talking about Zimbabwe. The countries which you name were not involved in the commission of atrocious crimes in Matabeleland by the 5th Brigade. Neither are they behind Mr Mugabe’s on-going controversial policy of land grab. Indeed, in those countries people are never dispossessed of what they rightfully own on the basis of their skin colour. In 2011, SADC leaders suspended the Southern African human rights Tribunal after it had ruled in favour of commercial farmers. But in the referral nations courts are never suspended simply because they ruled against government. If in your opinion such salient issues are nothing but machinations of the ”rich and powerful who control the world”, then let it be so.

  4. whichfool? says:

    Ben Freath is an African born and bred in Kent, England…he became a farmer by marriage?

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