Zimbabwe pulls out of SADC Tribunal
By Violet Gonda
2 September 2009
Zimbabwe has pulled out of the SADC Tribunal, claiming the regional court has not been properly constituted and that the country will no longer take part in, or respect, any decisions from the Tribunal. The withdrawal of Zimbabwe from the SADC jurisdiction is a major blow to 79 white commercial farmers who had won their cases in the regional court, blocking the government from acquiring their farms. The government now says any decisions that the Tribunal may have made, or may make in future about Zimbabwe are null and void.
The state controlled Herald newspaper carried a report on Wednesday saying: “Zimbabwe has formally withdrawn from any legal proceedings involving the SADC Tribunal until the establishment of the court is ratified by at least two-thirds of the bloc’s membership as per the requirements of rules and procedures governing the regional grouping.”
A letter written by Justice Minister Patrick Chinamasa early last month said: “The court did not exist by law and as such Zimbabwe would not appear before it anymore, and neither would Government be bound by any decisions already made or future ones emanating from there.”
The Minister said: "The purported application of the provisions of the Protocol on Zimbabwe is a serious violation of international law. There was never any basis upon which the Tribunal could seek or purport to found jurisdiction on Zimbabwe based on the Protocol which has not yet been ratified by two-thirds of the total membership of SADC.”
What ever the legal niceties, it’s widely believed the only reason the government is doing this is because they don't like the judgements which are coming out of the tribunal.
Arnold Tsunga, the Africa Director of the International Commission of Jurists, believes it’s the reaction of one component of the government, namely ZANU PF, which has a culture of not wanting effective checks and balances. “It is not surprisingly that they reacted adversely to the SADC Tribunal as a judicial organ, because of the fact that it has been able to render independent, impartial, fearless and fair decisions in disputes that have been brought before it that involve Zimbabwe.”
The rights lawyer also said that in terms of the law it is not supportable for the government of Zimbabwe to adopt this position, saying: “This is because of the fact that the SADC tribunal is a creature of the SADC treaty and, I think, in terms of Section 16 of the SADC treaty, the establishment of a SADC tribunal is actually provided for within the main SADC treaty itself, to which Zimbabwe is still a party.”
According to Tsunga ‘there is no way that Zimbabwe can pull out of the SADC tribunal without pulling out of the SADC treaty which creates the SADC community of states.’
He said it was surprising that the government was reacting in this way when it seconded a Zimbabwean Judge, Justice Guvava, to be one of the judges representing Zimbabwe within the SADC tribunal. “That process was not an accidental process, it was a very conscious public policy of the government of Zimbabwe to be wanting to belong to a Tribunal that they felt they owned. Furthermore, the government was represented by qualified lawyers who never raised these arguments that the Minister now wants to raise.”
Tsunga added: “It was only as a result of the fact that decisions were made that were seen to be inconsistent with the political direction and political interest of ZANU PF, so the Minister now has suddenly discovered that this institution is not a legitimate institution.”
Meanwhile, this latest development comes at a time when there is a renewed onslaught against the few remaining white commercial farmers. On Sunday, Chegutu farmer Ben Freeth had his farmhouse, the homes of some of his workers and an on-site factory for the farm produce, burned down in an arson attack. Three days later his father-in-law Mike Campbell’s home was also razed to the ground. Also this past weekend 75 year Sophie Hart, wife of a farmer who has been kicked off his land, was found bound and strangled to death at her Kadoma home. The lawlessness also continues in parts of Matabeleland and Mashonaland East.
Surprisingly, the MDC is conspicuous in it’s silence. Observers say this is the downside of the inclusive government, where the MDC is compromised and painted with the brush of complicity. The MDC has been coming under heavy criticism for not stating its true position on the latest developments.