Seventeen years after a landmark ruling by the Southern African Development Community (SADC) Tribunal condemned the Zimbabwean government’s land reform programme as illegal and racially discriminatory, the regional court remains suspended, denying justice to million SADC citizens, activists have lamented.
Spokesperson for SADC Tribunal Rights Watch, Ben Freeth, also the Executive Director of the Mike Campbell Foundation, lamented that the Tribunal has been non-operational since 2011, crippling the region’s primary mechanism for justice and court of last resort for SADC citizens.
Marking the 28 November anniversary where the Tribunal’s 2008 ruling in Mike Campbell and Others v. the government of Zimbabwe, was made, Freeth said the judgment remains the highest and final judicial decision in southern Africa and legally binding on Zimbabwe.
He said the Tribunal’s continued suspension represents a deep regional failure in upholding human rights, rule of law and treaty obligations, since the ruling cannot be appealed or overturned.
“The judgment is final and binding from the highest judicial authority in southern Africa. Courts can be emasculated, closed down, or stopped from continuing to hear cases, but when a final and binding judgment is given, it stands. It cannot be changed,” he said.
“There is nowhere else for the Zimbabwe government to appeal. This judgment will continue to stand as an important human rights judgment that needs to be complied with.”
Freeth detailed how efforts to enforce the judgment were derailed by political interference.
“Further to the 28 November 2008 judgement, a case for compensation was launched after the Zimbabwe government failed to pay. (The late) President Mugabe and others managed to stop this case getting heard by unilaterally removing the judges and ensuring that the tribunal thereby became dysfunctional,” he said.
This dissolution was politically motivated and a direct assault on justice, Freeth said.
“The Tribunal has been in a state of suspension since 2011, but it only requires the appointment of new judges by the SADC member states for it to be operational once again.”
Freeth outlined the three central findings of the tribunal, starting with the illegality of Zimbabwe’s land seizures.
“Firstly, it says the process of taking land from the Zimbabwean farmers by the government was done without legal process and was therefore illegal. The government cannot simply list a property in the newspaper and then, without any court process, declare it now belongs to the government and the owner is now a criminal for living in his own home and producing food for the nation,” he said.
Such conduct is globally unacceptable, Freeth said.
“Nowhere in the world can such a process be deemed to be fair or right or reasonable.”
Secondly, the Tribunal found that the land seizures were racially discriminatory.
“Such discrimination was deemed to be against the SADC Treaty of 1992, and all other human rights charters that Zimbabwe has signed up to,” Freeth said.
Thirdly, the Tribunal ruled unequivocally that the government must pay compensation.
“Compensation needed to be paid to those applicants who were, by that stage, off their properties and that compensation was to be full and fair, and paid by June 2009. The ruling for ‘fair compensation’ encompasses the full value of the land, as well as any structures and improvements,” he said
Yet, Freeth noted, the victims remain uncompensated.
“Those applicants have yet to receive a single cent of compensation, 16-and-a-half years after it was due.”
Freeth also reflected on his 2023 to 2024 horse ride across southern Africa to highlight the Tribunal’s closure.
“On this day two years ago, I set off on a horse called Tsedeq (which means ‘justice and righteousness’ in Hebrew) from Mike Campbell’s Mount Carmel farm gate to bring attention to the fact that the court remains closed and none of the 400 million people in SADC are able to access it when justice fails them in their own countries,” he said.
After travelling more than 2 000km, Freeth reached the Tribunal’s former seat in Windhoek, Namibia on 18 March last year.
“My prayer … remains fixed to that door,” he said.
Freeth also criticised the lack of progress following the last SADC Summit in August this year, noting moves were supposed to be made to rectify the situation.
“But at this stage it appears nothing has been done,” he said, warning Zimbabwe remains in breach of international obligations.
“Zimbabwe is obligated under the SADC Treaty and international law to comply with all judgments. The United States government’s Zimbabwe Democracy and Economic Recovery Act (ZDERA) of 2018 also states that there has to be adherence to the SADC Tribunal award in the Campbell case.”
“Currently Zimbabwe is found severely wanting. Zimbabwe is in breach of treaty law and thereby the rule of law itself is in abeyance.”
Freeth called on the Zimbabwe government to comply with the tribunal judgment and expressed hope for a future where law and justice prevail.
“We look forward to the day when this is rectified and the rule of law is restored and respected so that all people in the 16 SADC member states can be protected, and all can thrive,” he said, pressing the SADC Secretariat to act without further delay.
“We continue to call on the SADC Secretariat, based in Gaborone, Botswana, to appoint judges so that the ‘house of justice’ for the region can once again function.”
Freeth concluded with a warning about the consequences of inaction.
“Without justice and adherence to the rule of law, oppression and fear will prevail,” he said.
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