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Mike Campbell (Pvt) Ltd et al v The Republic of Zimbabwe: Zimbabwe's Land Reform Programme Held in Breach of the SADC Treaty

Published online by Cambridge University Press:  18 September 2009

Gino J Naldi
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Abstract

In its first judgment the South African Development Community (SADC) Tribunal had to determine whether Zimbabwe's controversial programme of land redistribution for resettlement purposes was compatible with the SADC Treaty. The tribunal provided one of the few avenues of redress for farmers deprived of their property without compensation. It held that the land reform programme breached the treaty on the grounds that the property owners had been denied access to the domestic courts, that the applicants had been victims of racial discrimination, and that the state had failed to pay compensation for the lands compulsorily acquired. While the tribunal appears to have reached the right conclusions, its reasoning could have been more persuasive. Of wider significance is the fact that the tribunal has established itself as a forum that can provide relief for human rights violations. Its finding that human rights are justiciable under the treaty is notable.

Type
Case Note
Information
Journal of African Law , Volume 53 , Issue 2 , October 2009 , pp. 305 - 320
Copyright
Copyright © School of Oriental and African Studies 2009

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References

1 Zimbabwe suffers from hyperinflation. Among other dire economic indicators, the unemployment rate was estimated to have reached 80% in 2005. See Central Intelligence Agency “The world factbook – Zimbabwe”, available at: <https://www.cia.gov/library/publications/the-world-factbook/geos/zi.html> (last accessed 8 June 2009). However, Zimbabwe has sought to minimize the negative consequences of the land reform programme on the economy; see “Comments by the government of Zimbabwe to the report of the fact-finding mission” in Seventeenth Annual Activity Report of the African Commission on Human and Peoples' Rights (African Commission) (2003–04, African Commission) annex II at para 7.6, available at: <http://www.achpr.org/english/activity_reports/activity17_en.pdf> (last accessed 8 June 2009).

2 See, for example, Amnesty International Zimbabwe: Appeal to the European Union and the Commonwealth (AI Index: AFR 46/010/2001) at 7.

3 However, in Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development v Zimbabwe, the African Commission did not accept that the judges' resignation was due to victimization by the government, but found that the Zimbabwean judiciary was not under the influence of other institutions or persons and was fully independent. See comm no 293/2004: Twenty-fourth Annual Activity Report of the African Commission (2008, African Commission) at paras 140–41, available at: <http://www.achpr.org/english/activity_reports/23rd%20and%2024th%20Activity%20Reports.pdf> (last accessed 8 June 2009). This decision was reached notwithstanding the fact that the African Commission had earlier called upon the Zimbabwean government to uphold the principle of the independence of the judiciary; see res on the human rights situation in Zimbabwe: Nineteenth Annual Activity Report of the African Commission (2005, African Commission) at para 5, available at: <http://www.achpr.org/english/activity_reports/19th%20%20Activity%20Rpt.pdf> (last accessed 8 June 2009). Furthermore, the executive summary of the report of the fact-finding mission to Zimbabwe 24 to 28 June 2002 reported that the judiciary in Zimbabwe had come under pressure; see Seventeenth Annual Activity Report, above at note 1 at annex II. See further note 23 below.

4 SADC (T) case no 2/2007 (November 2008), available at: <http://www.saflii.org/sa/cases/SADCT/2008/2.pdf> (last accessed 14 June 2009).

5 Treaty on the Southern African Development Community 1992, as amended 2001, available at: <http://www.sadc.int> and reprinted in (1993) 32 International Legal Materials 116. SADC is a regional organization, formed in 1992 and composed of 14 southern African states, including Zimbabwe. SADC's objectives, as set out in art 5 of the Treaty, include the promotion of economic integration, the evolution of common political values that are democratic and legitimate, and the consolidation, defence and maintenance of peace and democracy. Particular emphasis is given to the promotion of peace and security in the region. In 2001, SADC adopted a Protocol on Politics, Defence and Security Co-operation, available at: <http://www.sadc.int>. Art 9 of the SADC Treaty provides that a tribunal be established under art 16(1) as one of SADC's organs. The Tribunal was established in accordance with the Protocol on Tribunal and the Rules and Procedure Thereof 2000 (the Protocol), available at: <http://www.sadc.int>. Under art 16(1) of the Protocol, the role of the Tribunal is to ensure adherence to the proper interpretation of the Treaty and other instruments. See generally Dugard, JInternational Law: A South African Perspective (2000, Juta & Co) at 358–59Google Scholar; Chigora, B “The SAD Community” (2000) 11 African Journal of International and Comparative Law 522Google Scholar.

6 See Amnesty International Zimbabwe: Power and Hunger Violations of the Right to Food (AI Index: AFR 46/026/2004), available at: <http://web.amnesty.org/library/Index/ENGAFR460262004> (last accessed 8 June 2009); A Meldrum “Century's fight to recover land” (9 April 2000) The Observer, available at: <http://www.guardian.co.uk/zimbabwe/article/0,2763,181162,00.html> (last accessed 8 June 2009). See further, Foreign and Commonwealth Office (FCO) “Zimbabwe: UK approach to land reform” (copy on file with the author).

7 4th periodic report of Zimbabwe submitted to the Committee on the Elimination of Racial Discrimination: UN doc CERD/C/329/Add.1, paras 21–26.

8 Constitution of Zimbabwe Amendment (No 11) Act 1990. See Naldi, GJ “Land reform in Zimbabwe: Some legal aspects” (1993) 31 Journal of Modern African Studies 585 at 587–89CrossRefGoogle Scholar.

9 For comment see Naldi, id at 589–600; Coldham, S “The Land Acquisition Act, 1992 of Zimbabwe” (1993) 37 Journal of African Law 82CrossRefGoogle Scholar.

10 Davies and Others v Minister of Lands, Agriculture and Water Development 1996 (1) ZLR 681 (SC); 1997 (1) SA 228 (ZS). For comment see Naldi, GJ “Constitutional challenge to land reform in Zimbabwe” (1998) 31 Comparative and International Law Journal of Southern Africa 78Google Scholar.

11 The government of Zimbabwe felt compelled to act in part as a result of what it claimed were spontaneous occupations of commercial farms by deprived rural peasants and war veterans; see “Comments by the government of Zimbabwe”, above at note 1 at para 6.7.

12 Zimbabwe maintains that the UK has failed to honour its commitment to fund the land reform programme; see “Comments by the government of Zimbabwe”, above at note 1 at paras 6.6–6.7. The UK countered this by claiming that, since 1980, it had provided millions of pounds to further land redistribution. However, aid was suspended when anarchy erupted in 2000. UK policy is that it remains committed to land reform if it is implemented in a fair, just, transparent and sustainable manner that alleviates poverty, and if the rule of law is respected: FCO “Zimbabwe: UK approach to land reform”, above at note 6.

13 Meldrum, AWhere We Have Hope (2004, John Murray) at 125–40Google Scholar. However, the Zimbabwean government has denied that there was any official policy encouraging the occupation of farms; see UN doc E/CN.4/2001/9/Add.1 at para 435. In a statement to the UN Committee on the Elimination of Racial Discrimination, Zimbabwe's Attorney General claimed that the government had moved slowly in the redistribution of land because of a lack of resources to pay compensation for the appropriated land and, as a result, “some ex-combatants of the liberation struggle had … taken the law into their own hands in an attempt to force the Government to act”: UN doc CERD/C/SR.1375 at para 5.

14 UN doc E/CN.4/2001/9/Add.1 at para 434. The government has denied that it was behind the campaign of violence; it has expressed regret and stated its commitment to dealing with the situation; see “Comments by the government of Zimbabwe”, above at note 1 at para 9.3.

15 Un doc, ibid.Meldrum, A and Bright, M “Lawless Zimbabwe ‘sliding into anarchy’” (22 April 2001) The ObserverGoogle Scholar.

16 Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others 2001 (2) SA 925 (ZS).

17 Id at 938.

18 Id at 940.

19 Id at 943.

20 Id at 944.

21 Statement by the Law Society of Zimbabwe on threats by some members of the war veterans association directed at the Supreme Court and High Court of Zimbabwe, issued November 2000, reproduced in (2001) 86 Newsletter of the Commonwealth Legal Education Association at 5, para 6.

22 Commercial Farmers Union, above at note 16 at 944.

23 Report on the State of Justice in Zimbabwe (2004, report to the International Council of Advocates and Barristers by five common law bars) at 43–51, available at: <http://austbar.asn.au/dmdocuments/The_State_of_Justice_in_Zimbabwe_-Final_Report_03_12_04.pdf> (last accessed 8 June 2009). A number of High Court judges were also persuaded into retirement, id at 51–56. See also: BBC news “Mugabe man named top judge” (9 March 2001), available at: <http://news.bbc.co.uk/1/hi/world/africa/1210807.stm> (last accessed 8 June 2009); BBC news “Zimbabwe judge free on bail” (18 February 2003), available at: <http://news.bbc.co.uk/1/hi/world/africa/2774105.stm> (last accessed 18 June 2009); Meldrum Where We Have Hope, above at note 13 at 190–91. See further above at note 3.

24 Report on the State of Justice in Zimbabwe, above at note 23 at 50; BBC news “Mugabe man named top judge”, above at note 23.

25 Minister of Lands, Agriculture and Rural Resettlement & Others v Commercial Farmers Union (SC 111/01).

26 Mike Campbell (Pvt) Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement & Others (SC 49/07).

27 Ibid.

28 Under art 15(1) of the Protocol, the Tribunal has jurisdiction over disputes brought by natural or legal persons against a member state.

29 Judgment, above at note 4 at 16–17.

30 Id at 19.

31 Ibid. On the practice of the African Commission, see Magliveras, KD and Naldi, GJThe African Union (2009, Kluwer Law International) at 209–12Google Scholar; on that of the European Court of Human Rights see Harris, DJ, O'Boyle, M and Warbrick, CLaw of the European Convention on Human Rights (2nd ed, 2009, Oxford University Press) at 767–74Google Scholar; on that of the Inter-American Court on Human Rights see Pasqualucci, JMThe Practice and Procedure of the Inter-American Court of Human Rights (2003, Cambridge University Press) at 131–35Google Scholar.

32 The African Commission has held that a domestic remedy should be a judicial one, see for example: Alfred B Cudjoe v Ghana, comm no 221/98, Twelfth Annual Activity Report of the African Commission (1998–99, African Commission) 83 at para 13, available at: <http://www.achpr.org/english/activity_reports/activity12_en.pdf> (last accessed 9 June 2009); Zimbabwe Human Rights NGO Forum v Zimbabwe, comm no 245/2002, Twenty-first Annual Activity Report of the African Commission (2005–06, African Commission) annex III at para 45, available at: <http://www.achpr.org/english/activity_reports/21%20Activity%20Report.pdf> (last accessed 9 June 2009). In Article 19 v Eritrea, comm no 275/2003, Twenty-second Annual Activity Report of the African Commission (2006–07, African Commission) annex II at para 47, available at: <http://www.achpr.org/english/activity_reports/activty22_eng.pdf> (last accessed 9 June 2009), the African Commission expanded on the necessary criteria: “(i) the existence of domestic procedures for dealing with the claim; (ii) the justiciability or otherwise, domestically, of the subject-matter of the complaint; (iii) the existence under the municipal legal order of provisions for redress of the type of wrong being complained of; and (iv) available effective local remedies, that is, remedies sufficient or capable of redressing the wrong complained of.” The African Commission's decisions on communications can be consulted at the following sources: the African Commission's website <http://www.achpr.org>, the website of the University of Pretoria's Centre for Human Rights <http://www.up.ac.za/chr/ahrdb/acomm_decisions.html> and the website of the University of Minnesota's Human Rights Library <http://www1.umn.edu/humanrts/africa>; International Human Rights Reports; Murray, R and Evans, M (eds) Documents of the African Commission on Human and Peoples' Rights (2001, Hart Publishing)Google Scholar and vol II (2008, Hart Publishing).

33 Mike Campbell (Pvt) Ltd et al v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).

34 Judgment, above at note 4 at 23. Given that the first substantive matter the Tribunal was to consider was the question of the ouster of the courts' jurisdiction, it is intriguing to note that the African Commission has established a nexus between the doctrine of domestic remedies and art 7 of the African Charter on Human and Peoples' Rights which guarantees the right to a fair trial: Amnesty International et al v Sudan, comm nos 48/90, 50/91, 52/91 and 89/93, Thirteenth Annual Activity Report of the African Commission (1999–2000, African Commission) addendum to annex V at para 31, available at: <http://www.achpr.org/english/activity_reports/activity13_en.pdf> (last accessed 9 June 2009).

35 Judgment, id at 23–24.

36 Id at 24.

37 Id at 24–25. Art 4(c) of the Treaty commits SADC and its member states to act in accordance with the principles of human rights, democracy and the rule of law.

38 In particular arts 1(3), 55 and 56 of the UN Charter. In the Namibia Case ICJ Reports 1971, 16 at 57, the International Court of Justice found that the UN Charter had imposed binding obligations on South Africa to promote and respect human rights in relation to Namibia. See further: Lauterpacht, H (ed) Oppenheim's International Law (8th ed, l967, Longmans) vol I at 738–44Google Scholar; Schwelb, E “The International Court of Justice and the human rights clause of the charter” (1972) 66 American Journal of International Law 337Google Scholar.

39 See for example: opinion 2/94 Re the Accession of the Community to the European Convention on Human Rights [1996] ECR I-1759; C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925.

40 See Revised Treaty on ECOWAS 1993, available at: <http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en> (last accessed 9 June 2009), reprinted in (1996) 35 International Legal Materials 660.

41 Judgment no ECW/CCJ/JUD/06/08 of 27 October 2008 at paras 41–42. The African Charter is the African Union's principal human rights treaty; adopted in June 1981, it entered into force in October 1986 and has been ratified by all of the African Union's 53 member states; available at: <http://www.africa-union.org/root/au/Documents/Treaties/Text/Banjul%20Charter.pdf> (last accessed 9 June 2009), reprinted in (1982) 21 International Legal Materials 58. See Magliveras and Naldi The African Union, above at note 31 at 154–99.

42 Judgment, above at note 4 at 25.

43 Reparation for Injuries Case ICJ Reports 1949 at 174; Certain Expenses of the United Nations Case ICJ Reports 1962 at 151.

44 For example, the Common Market for Eastern and Southern Africa (COMESA). See COMESA Treaty 1993, available at: <http://about.comesa.int/attachments/149_090505_COMESA_Treaty.pdf> (last accessed 9 June 2009), reprinted in (1994) 33 International Legal Materials 1067. The undertaking to the principles of human rights, democracy and the rule of law is stipulated in art 6(e), (g) and (h) of the COMESA Treaty.

45 See, for example, art 4(m) of the Constitutive Act, which includes respect for democratic principles, human rights, the rule of law and good governance among the principles of the Union; available at: <http://www.africa-union.org/root/au/AboutAU/Constitutive_Act_en.htm> (last accessed 9 June 2009).

46 Judgment, above at note 4 at 26.

47 Mike Campbell (Pvt) Ltd v Minister of National Security, above at note 26.

48 Judgment, above at note 4 at 26.

49 Id at 26–27.

50 Id at 27–37.

51 Id at 30–34. See Bissangou v Republic of Congo, comm no 253/2002, Twenty-first Annual Activity Report, above at note 32, annex II a at para 75.

52 In Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, comm nos 140/94, 141/94, 145/95, Thirteenth Annual Activity Report, above at note 34, annex V, 58 at para 29, the African Commission stated that ouster clauses “render local remedies non-existent, ineffective or illusory. They create a legal situation in which the judiciary can provide no check on the executive branch of government.” See also International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria, comm nos 137/94, 139/94, 154/96 and 161/97, Twelfth Annual Activity Report, above at note 32, 68 at para 76; Constitutional Rights Project and Civil Liberties Organisation v Nigeria, comm nos 143/95, 150/96, Thirteenth Annual Activity Report, above at note 34, annex V, 65 at paras 16–19.

53 Civil Liberties Organization v Nigeria, comm no 129/94, Ninth Annual Activity Report of the African Commission (1995–96, African Commission) at para 13 in Murray, R and Evans, M (eds) Documents of the African Commission on Human and Peoples' Rights (2001, Hart Publishing) vol I at 452Google Scholar. See also Lawyers for Human Rights v Swaziland, comm no 251/2002, Eighteenth Annual Activity Report of the African Commission (2002–03, African Commission) annex III, 12.

54 Civil Liberties Organisation v Nigeria, comm no 151/96, Thirteenth Annual Activity Report, above at note 34, annex V, 74 at para 17.

55 Zimbabwe Human Rights NGO Forum v Zimbabwe, above at note 32, annex III, 100 at para 213.

56 Ibid.

57 Id at para 215.

58 Judgment, above at note 4 at 37–38.

59 Id at 41.

60 Art 6(2) states, inter alia, that “Member States shall not discriminate against any person on grounds of … political views, race, ethnic origin”.

61 Judgment, above at note 4 at 41–44.

62 Id at 44–45.

63 Id at 45.

64 In Malawi African Association et al v Mauritania, comm nos 54/91, 61/91, 98/93, 164/97–196/97, 210/98, Thirteenth Annual Activity Report, above at note 34, annex V, 159 at para 131, the African Commission stated: “Article 2 of the Charter lays down a principle that is essential to the spirit of this convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings … it is apparent that international human rights law and the community of States accord a certain importance to the eradication of discrimination in all its guises.” The African Commission proceeded to describe discrimination on the basis of colour as an “unacceptable” attitude that violated the very spirit of the African Charter and of the letter of the provision.

65 See: Judge Tanaka's dissenting opinion in the South West Africa Cases (Second Phase) ICJ Reports 1966, 6 at 293; Judge Ammoun's separate opinion in the Namibia Case ICJ Reports 1971 at 78–81; Cassese, AInternational Law (2nd ed, 2005, Oxford University Press) at 268 and 394Google Scholar; Shaw, MInternational Law (6th ed, 2008, Cambridge University Press) at 286Google Scholar. The prohibition on racial discrimination is an obligation erga omnes [to the international community as a whole]: Barcelona Traction Case (Second Phase) ICJ Reports 1970, 3 at 32; and may be a jus cogens [peremptory norm]: “ILC draft articles on responsibility of states for internationally wrongful acts: Report of the 53rd session, 2001, commentary on article 40” in Harris, DJCases and Materials on International Law (6th ed, 2004, Sweet & Maxwell) at 547–48Google Scholar; Cassese International Law at 65-66, 199 and 203; Brownlie, IPrinciples of Public International Law (7th ed, 2008, Oxford University Press) at 511Google Scholar. According to the UN Human Rights Committee, non-discrimination constitutes “a basic and general principle in the protection of human rights”: general comment 18 HRI/GEN/1/Rev.7, 146 at para 1. See also general recommendation XIV of the UN Committee on the Elimination of Racial Discrimination HRI/GEN/1/Rev.7, 206 at para 1.

66 Judgment, above at note 4 at 49–51. In this context the Tribunal did not refer to the practice of the African Commission; however, it should be noted that, in Zimbabwe Human Rights NGO Forum v Zimbabwe, above at note 32 at para 170, the African Commission defined discrimination as “applying any distinction, exclusion, restriction or preference [based on grounds such as] race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms”. Accordingly, a “universal ‘composite concept of discrimination’ can contain the following [sic] elements, stipulates a difference in treatment, has a certain effect and is based on a certain prohibited ground”.

67 Judgment, id at 53. It is interesting to note that, in Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others 2001 (2) SA at 937, the Supreme Court of Zimbabwe had been of the view that a proper programme of land reform would not probably be discriminatory.

68 Commercial Farmers Union, id at 937–38.

69 Judgment, above at note 4 at 54. It is worthwhile noting that the discriminatory expropriation of foreign property is illegal under international law; see for example: Saudi Arabia v Aramco (1963) 27 International Law Reports 117; LIAMCO v Libya (1977) 62 International Law Reports 140.

70 Judgment, id at 55.

71 Ibid.

72 Id at 56–57.

73 Id at 56.

74 See, for example: Chorzow Factory Case Permanent Court of International Justice (PCIJ) (1927) series A, no 9; LIAMCO, above at note 69.

75 James v United Kingdom PCIJ (1986) series A, vol 98; Lithgow v United Kingdom PCIJ (1986) series A, vol 102.

76 Media Rights Agenda and Constitutional Rights Project v Nigeria, comm nos 105/93, 128/94, 130/94, 152/96, Twelfth Annual Activity Report, above at note 32, annex V, 59 at para 77. See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, above at note 52 at para 54.

77 Thirteenth Annual Activity Report, above at note 64 at para 128.

78 Merrills, JG and Robertson, AHHuman Rights in Europe (4th ed, 2001, Manchester University Press) at 238Google Scholar.

79 Lithgow, above at note 75 at para 54.

80 Ibid. See also Papastavrou v Greece 2003-IV at paras 37–38, where no compensation was available under municipal law.

81 The view has been expressed that the American convention provides a high degree of protection against arbitrary expropriation without compensation or illegal confiscation. See S Davidson “The civil and political rights protected in the inter-American human rights system” in Harris, DJ and Livingstone, S (eds) The Inter-American System of Human Rights (1998, Clarendon Press) 276Google Scholar.

82 The Movement for Democratic Change has stated that the farm invasions must cease in order for farm productivity to improve; see BBC News “Mugabe vows to seize more farms” (28 February 2009), available at: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/7916312.stm> (last accessed 9 June 2009).

83 Commercial Farmers Union, above at note 16 at 938–41.

84 BBC News “Zimbabwe ‘to arrest land thieves’” (27 March 2009), available at: <http://news.bbc.co.uk/nol/ukfs_news/hi/newsid_7960000/newsid_7968000/7968087.stm> (last accessed 9 June 2009).

85 The Protocol, art 16(5).

86 Id, art 32(3).

87 BBC News “Mugabe vows to seize more farms”, above at note 82.

88 The Protocol, art 32(5). The Summit, composed of all the heads of state or government of the member states, is SADC's ultimate policy-making body: art 10 of the Treaty.

89 The Treaty, art 10(9).

90 According to art 33(1)(a) of the Treaty, sanctions may be imposed for a persistent failure to fulfil obligations.