Bob Fights Back: Robert Mugabe and the SADC Tribunal

2013-07-11 15:43

The Southern African Development Community Tribunal (SADC Tribunal) was in the media quite a lot earlier this year, and for good reason. The only regional institution which seemed unafraid to speak openly about the abomination that has been Zimbabwe’s land reform policies was summarily shut down.

Background

The Helen Suzman Foundation wrote of the disbanded entity as follows:

“(The Tribunal) ruled in 2007 and 2008 that Zimbabwe’s … Land Reform Programme was racist and violated property rights and the right of access to justice… The SADC Tribunal pronounced that Zimbabwe had to pay compensation… Mugabe… simply ignored the Tribunal, later launching a campaign … to further a stance amounting to non-compliance (with) enforceable rulings on human rights violations.”

The SADC Tribunal was established as far back as 1992, but only became operational in 2005.

Whilst the SADC Tribunal may be largely unknown to the people of the region, the Tribunal has proved to be a boon to the efforts of dispossessed Zimbabwean farmers, who have utilised its dispute mechanisms to keep the Mugabe regime accountable. Notably given the racial politics in Zimbabwe, both black and white farmers have sought to use the Tribunal to protect themselves from the state-sanctioned pilfering.

The unique feature of the Tribunal is that it was not state-based. Individuals living in any country that was a signatory to the Protocol establishing the Tribunal and/or the SADC Treaty (the document that brought the regional bloc into being), could utilise it to defend themselves when their governments and their domestic courts failed to do so.

It was this unique feature of the Tribunal that made it the single greatest threat to the Mugabe regime. With regional powerhouse South Africa dithering with quiet diplomacy under President Mbeki and then changing tack to whispered negotiation under President Zuma, Mugabe and his cronies continued to destroy the fabric of Zimbabwean society without much concern. Noone that was anyone was doing anything to stop them – the West being too far removed to use sanctions effectively, and such being made even more difficult with cash-laden China, willing to pick up the tab.

That was none other than the Tribunal.

Zimbabwe Fights Back

Following the decisions in 2007 and 2008 the Mugabe regime led a dedicated campaign to have it shut down. Regrettably, this campaign, coupled with the capitulation and acquiescence of other SADC Heads of State, the SADC Summit ordered a review of its functions in 2010, suspended its activities in 2011 and completely disbanded it in 2012.

An example of the SADC Summit’s defanging of the Tribunal, before it was completely shut down, was disallowing individual claims to be brought before it. In other words, disputes could only be handled between state parties.

The implication of this cannot be underplayed. Countries hardly ever refer their disputes to regional courts and prefer to settle things diplomatically. Further still, it is hardly likely that any signatory to the SADC Treaty would have brought a case before the Tribunal about the lawfulness of the domestic policy of another. Big-Men-Of-Africa Syndrome and Liberation-Movement-History aside, there is no precedent anywhere in the world for this to happen. Not to mention that even if it got this far, the can of worms that such a move would have opened would have been disincentive enough: noone will bring a complaint about an obviously questionable policy when you could be subjected to the same kind of interference and intervention when you are trying to get things going on your own home soil.

Removing the right of individuals to bring their complaints before the Tribunal then is a double blow. Not only does it mean that you have to rely on domestic courts, which as in the case of Zimbabwe, prove to be ineffective. It also means that you cannot rely on any other actor in the region to assist you as the fear of reprisals in the form of counter-suits loom large in the mind of those whom you would turn to.

Lack of Opposition

The great tragedy of the SADC Tribunal is that two countries that could have been relied on to act, South Africa and Botswana, did absolutely nothing.

South Africa’s lack of opposition to the Tribunal’s foreclosure is even starker when it is contrasted with the country’s progressive constitution and its commitment to the rule of law and human rights. Given that the modern country was borne out of a struggle against tyranny and oppression, surely the South Africans would have been the most opposed to allowing the Tribunal being shut down? After all, had such a Tribunal existed during the time prior to 1994, millions of black people who were denied justice by the Apartheid regime could have at least accessed it at a regional level. Unfortunately, despite many of SA’s leaders themselves having served prison sentences for their political beliefs, the guaranteeing of justice was not a primary concern.

Rather, many believe that South Africa’s lack of opposition was, in large-part, owing to political considerations. It was at that time that then Home Affairs Minister, Nkosazana Dlamini-Zuma was making a second attempt to win the AU Chairmanship, after having failed to win outright on the first ballot. The Zuma administration, in need of securing a major foreign policy victory, could not afford to isolate essential support from Zimbabwe and others within the region. Keeping mum then became a political necessity.

Botswana is also an exercise in duplicity at its best. Botswana had previously blasted its African Union counterparts for taking a decision to ignore the International Criminal Court warrant that was issued for the arrest of Sudanese President Omar Al Bashir.

The Botswana Government is reported to have said that:

“The government of Botswana does not agree with this decision and wishes to reaffirm its position that as a state party to the Rome Statute on the International Criminal Court (ICC) it has treaty obligations to fully cooperate with the ICC in the arrest and transfer of the president of Sudan to the ICC,” Foreign Minister Phandu Skelemani said in a statement.

Why then the Government of Botswana suffered from amnesia when it came to this decision is unknown. One is capable of replacing “Rome Statute,” “ICC” and “Bashir” with the facts of this situation and a consistent result should have been reached.

Botswana’s reliance on national sovereignty in this case is even more hypocritical when it was willing to overlook those grounds when it came to the arrest of the Sudanese President.

Whatever the true motivation then for the lack of opposition on the part of South Africa, Botswana, and the other SADC member-states – probably the desire to avert being held accountable for government failure – the result is that the access to justice for ordinary SADC citizens is made that much harder.

Status of Tribunal Findings

The decision to shut down the SADC Tribunal raised a fundamental question as to whether its findings continued to be binding and enforceable against SADC member-states.

Government of Zimbabwe v Fick

This question was settled before South Africa’s Constitutional Court (CC) in its seminal finding handed down on 27 June 2013.

The matter came before the CC as an appeal against a decision of the Supreme Court of Appeal (SCA) which dismissed an appeal against a ruling of the North Gauteng High Court (High Court).

The High Court was approached by certain dispossessed farmers for the registration and enforcement of the costs order, in South Africa, previously given by the Tribunal against Zimbabwe, for its persistent non-compliance with the Tribunal’s previous orders pertaining to land reform. The High Court found in the farmer’s favour and issued a writ of execution against Zimbabwe’s immoveable property.

Zimbabwe unsuccessfully applied to the High Court for the rescission of the order, which application was dismissed. Zimbabwe appealed further, unsuccessfully, to the SCA.

In the Constitutional Court, Mogoeng CJ (with Moseneke DCJ, Froneman J, Khampepe J, Mhlantla AJ, Nkabinde J, Skweyiya J, van der Westhuizen J concurring), writing for the majority, granted leave to appeal on the basis that this case raised important constitutional issues pertaining to access to courts and our own commitment to upholding and enforcing multilateral treaties to their full extent.

In dismissing the appeal with costs, Mogoeng CJ held that the duty to develop and apply our own common law, so as to allow the enforcement of foreign judgments within South Africa, was a constitutional duty created post-1994, notwithstanding the injunctions created by the SADC Treaty to enforce judgments of the Tribunal.

Mogoeng CJ also found that the objections raised by Zimbabwe with respect to the Tribunal’s lack of jurisdiction to hear the matter, and pronounce upon it in the first place, as being without merit, given that the Tribunal’s establishing Treaty was properly adopted internationally and within South Africa and, further, that Zimbabwe had submitted to the Tribunal’s jurisdiction.

In a concurring minority judgment, Zondo J agreed with the majority save for the fact that he disagreed with their reasoning that where a litigant has chosen specific grounds for impugning the jurisdiction of a court, it may not in later proceedings attack the jurisdiction of the first court on new or fresh grounds, which he held is too widely stated in the main judgment.

In a dissenting minority judgment, Jafta J held that he would have dismissed the application for leave to appeal on the basis that it is not in the interests of justice. He further differed with the main judgment on the need to develop the common law since, in his view, the Supreme Court of Appeal had already done and dealt with the matter satisfactorily. In his view, the prospects of success for the CC to rule differently to the SCA were non-existent.

The effect of the CC judgment is that whilst the Tribunal may no longer exist, its decisions are legal and binding and can be enforced within South Africa. To the disposed farmers it meant that something may now be done to restore their dignity as the Zimbabwean Government is finally held accountable under the rule of law.

Zimbabwe Thwarts SA Constitutional Court

If reports are to be believed however, the Zimbabwean Government will go to whatever lengths it takes to avoid compliance with the Tribunal and CC order.

Emanating out of the CC decision of a few weeks ago, Zimbabwe has conferred diplomatic status onto the buildings which would have otherwise been sold to recover costs and pay out the dispossessed farmers.

The Mail & Guardian reported that the buildings in question were residential buildings. The paper failed to indicate whether these buildings had any diplomatic purpose. The house, located at 28 Salisbury Road, Kenilworth, Cape Town was purchased by the Zimbabwean Government in 1994 for R525000. The MG indicates that the Zimbabwean authorities own up to 3 more properties in Zonnebloem and Wynberg.

The effect of declaring these buildings to have diplomatic immunity means that they are protected by the Vienna Convention. This Convention is the internationally agreed to instrument which protects diplomats and government property in foreign lands. It confers immunity from domestic law and order procedures and allows those granted such immunity to only be held accountable in very limited circumstances, such as in cases where debt is accrued in a personal business deal.

In South Africa, the effects of the Convention are binding. We even have our own statute, the Diplomatic Immunities and Privileges Act 37 of 2001, which not only incorporates the Convention into our domestic law with full force and effect, but also goes further in some ways, tailoring the Convention’s applications to South Africa. For example, section 15 of our Act makes it a criminal offence for any person to initiate legal proceedings against any person granted immunity.

Whilst the Act does make provision that any loss suffered can be made payable in limited circumstances (to municipalities, public utilities and insurance, the former two costs being borne by the South African government), the Act makes no provision for the enforcement of a court order against the offending foreign state by an individual person. Indeed, the Act does not even allow an individual or entity to bring an action against our own government even though it can be held liable vicariously in other instances.

The effect of this move by the Zimbabweans is that notwithstanding the order of the Tribunal and our Constitutional Court, the dispossessed farmers are once again left wanting.

No Exceptions

Regrettably, unlike in the United Kingdom, South Africa does not have any limitations to its Diplomatic Immunities and Privileges Act.

When Julian Assange fled arrest and took refuge in the Ecuadorian Embassy, even before he was granted asylum, the British Government indicated that, if needed, it would be willing, in terms of British legislation, to violate the immunity of the Embassy, notwithstanding the  provisions of the Convention, in order to arrest Assange.

Even though the British have, as of yet, not done this, the mere existence of a legal avenue to do so acts as a sufficient check and balance against the decision of any foreign government to abuse its immunity for the purpose of frustrating  legitimate, legal processes that have been concluded against it.

It remains to be seen whether, following the ruling in Fick, the Constitutional Court can be petitioned to make the Government amend the law, so that SA can give effect to its international law obligations, something the Court placed high emphasis on in Fick and Glenister before it. Alternatively, petitioning the Government of South Africa to mediate is a possibility, but that has as much chance of succeeding as attempting to enforce the judgment of the CC against the property on the grounds that it was delivered before immunity could be granted: none.

Had the South African Government resisted the attempts by Mugabe and his ilk to undercut justice and the rule of law as they ended up successfully doing, this situation may have been averted in the first place. Regrettably, due to the pragmatism of politics, the principles of justice and the rule of law have been sacrificed and yet again those in need of it, the dispossessed farmers of Zimbabwe, are left in the wilderness.

AfriForum Challenge before the African Union

However, another challenge offers dispossessed farmers a possible glimmer of hope, by focusing on the legality of the decision to shut down the SADC Tribunal in the first place.

AfriForum, acting on behalf of disposed farmers Luke Tembani and Ben Freeth seek to challenge the decision before the African Commission and if needs be, before the African Court of Human Rights. Whilst this application was originally opposed by the South African Government, AfriForum reports that our government will no longer do so.

This means that the AfriForum challenge now faces one less hurdle in its attempt to re-establish the Tribunal. The outcome must be carefully monitored as it will be instructive of the political will that exists among African leaders to give effect to institutions that support  the rule of law.

Conclusion

The disposed farmers scored a partial victory before the CC and alas, a few weeks later, what little their victory meant was erased permanently. The Zimbabwean authority’s reclassification of their property exempting it from being to recover costs, the lack of compensation, the continued defiance of Zimbabwe and the capitulation of SADC leaders in allowing the Tribunal to be shut down, are still grave concerns. To paraphrase Mogoeng CJ, Africa will continue to be thought of as a dark continent with little regard for human rights if our leaders make commitments to human rights which they conveniently forget when it becomes politically convenient. One hopes that with the remaining challenges concerning the Tribunal’s closure, and with adequate pressure from South Africa and others in the case of Zimbabwe, the rule of law will be given real meaning and that the institutions that were put in place to protect it, will be given the means and ability to do so.

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