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'Sadc Tribunal has no legal mandate to nullify member states laws'
Posted: Saturday, July 19, 2008

Southern Times
July 19, 2008

THE Sadc Tribunal which is hearing a case filed by white farmers opposing Zimbabwe's land reform programme, cannot legislate for member states and has no legal mandate to nullify laws made in member states, the Zimbabwean Government has said.

In court submissions at the Sadc Tribunal in the land case which opened in the Namibian capital on Wednesday, Deputy Attorney General Advocate Prince Machaya, who is representing the Zimbabwean Government, argued that Sadc heads of state are the only ones who could "arrogate penalties" against member states should a member fail to conform to set rules and regulations.

He said the land reform, in which white commercial farmers' land was compulsorily acquired for resettlement of the landless, was inevitable given the skewed land ownership pattern inherited when the country attained independence in 1980.

About 77 white commercial farmers in Zimbabwe have lodged a complaint at the tribunal seeking to halt the land reform programme.

Adv Machaya told the tribunal the Sadc Treaty was a set of "guidelines" for member states.

The white commercial farmers, who are represented in the case by advocates Jeremy Gauntlett and Adrian de Bourbon, further accused the Zimbabwean Government of instituting a racially-based land reform programme and of refusing to compensate white farmers for the expropriated land.

Adv Gauntlett said that farmers took the case to the regional court after the Zimbabwean Government effected constitutional legislation, Amendment 17, which effectively shut out any legal challenges in Zimbabwean courts against land reform.

But Adv Machaya defended the country's land reform programme, saying it was unavoidable that only whites would be targeted by landless blacks since they were the only ones who occupied lush farming land and have been living in an "island of prosperity" while the majority blacks were wallowing in abject poverty.

But above all, Adv Machaya argued, the tribunal does not have jurisdiction to force the Zimbabwean Government to reverse its laws.

"(The) Sadc Treaty merely outlines and sets out frameworks within which binding obligations can then be created for purposes of their being enforced," Adv Machaya said.

"Ouster of right to approach the Zimbabwean courts effected by (Constitutional) Amendment 17 is not a contravention of the Sadc Treaty and orders of this nature are not competent for the Tribunal to make. (The) Tribunal should refer the matter to the (Sadc) summit. It cannot legislate on the government to nullify such legislation," Adv Machaya said.

He added: "Land reform was inevitable: the white farming community occupied just under 50 percent of all the fertile farming land while the rest of the land was occupied by the indigenous in areas of low rainfall and poor soils."

Adv Machaya also said that a section of Amendment 17 provides for challenges to land reform through judicial review if an aggrieved party felt that the land was being acquired for selfish reasons.

Adv Gauntlett argued that the Zimbabwean Government violated the Sadc Treaty, alleging that the land reform programme was unconstitutional and discriminatory.

"The treaty says that Sadc member states shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill-health or disability."

He added that the complainants in the case were not against the land reform programme in Zimbabwe "if done according to the law".

Zimbabwe's legal team withdrew from the Sadc Tribunal hearing on Thursday morning after the plaintiffs in the watershed case filed an urgent application asking the tribunal to hold the Zimbabwean Government in contempt of court for non-compliance on orders issued last December.

White commercial farmers who are challenging compulsory acquisition of their farms by the Zimbabwean Government filed the application seeking the tribunal to hold Harare in contempt of court after three commercial farmers claimed they were beaten and harassed by what the Government says were thugs and common criminals.

Last December, the tribunal ordered the Zimbabwean Government not to acquire farms belonging to the applicants pending the outcome of the court case.

On the second day of the hearing at the Sadc Tribunal in Windhoek, the head of the five-panel bench, Judge Louis Mondhlane, ordered the applicants to proceed with their urgent application.

But the Zimbabwean legal team, headed by Adv Machaya, opposed the granting of the application and after consultations, told the court that if it was willing to proceed with the urgent application, they would not be part of it.

"After consultations with my advisors, I have received specific instructions to the effect that the Government of Zimbabwe takes this application very seriously in so far as the outcome may have an impact on the Government of Zimbabwe.

"There have been developments in Zimbabwe and Government feels it is necessary that the defence that we give be supplemented with additional material evidence," Adv Machaya told the court.

He said that there had been arrests of persons concerning the disturbances and pending prosecutions, adding that it would strengthen the respondent's case should the Zimbabwean police, army and Attornery-General's Office be called to the witness stand.

"The police, army and others should have an opportunity to place evidence with a view to answering the allegations raised . . . the Tribunal should get all the relevant evidence," Adv Machaya said.

He added that he would not make a submission on the basis of previous evidence.

After Judge Mondhlane said that the court would proceed with the urgent application since the respondent had been given ample time to make a response, Adv Machaya asked to be excused from the proceedings regarding the application.

"If the Tribunal decides to proceed, I would beg leave to be excused from the hearing of this application as I have received specific instructions from my Government," Adv Machaya said.

The five-judge panel, however, did not assent to Adv Machaya's request to be excused and Judge Mondhlane allowed the applicants to proceed, resulting in Adv Machaya and his team walking out of the courtroom.

Adv Gauntlett proceeded with the urgent application in which he claimed his clients were beaten up.

He asked the court to refer the matter of contempt of court to heads of state at the Sadc summit next month.

Judgment in the main case, in which about 79 white commercial farmers are challenging expropriation of their farms, will be delivered in due course, Judge Mondhlane said.

In a related matter, the Zimbabwean Embassy later denied that Zimbabwe's legal team had walked out, saying the team had sought to be excused after finding out that the tribunal was "disposed to proceed in an unusual manner".

Zimbabwean Ambassador to Namibia Cde Chipo Zindoga said the white commercial farmers were victims of criminal activities by a gang of about 30 people who have since been arrested.

"If the Zimbabwean Government did not respect the rule of law, the white commercial farmers who have dragged the Government to court, would not have been at the contested farms as we speak. The criminal elements who acted on their own accord, and assaulted the Campbells, have been apprehended," Cde Zindoga said.

"It appears there are no more common criminals in Zimbabwe . . . all criminals belong to either Government or Zanu-PF," she added.

Cde Zindoga also said the legal team did not walk but asked to be excused.

"We are members of the Tribunal, so we cannot walk out from our own organ," she said.

"Zimbabwe, as a member of Sadc, was instrumental in the formation of the Tribunal. Our legal team appeared at the Sadc Tribunal in good faith.

"We are aware that the white commercial farmers are working in cahoots with their kith and kin to politicise the Sadc Tribunal. They are using their case to injure the sovereign interests of Zimbabwe, to push the illegal regime change agenda on Zimbabwe, to the United Nations Security Council through the backdoor," Cde Zindoga said.

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