Tribunal lacks power to reverse land reforms: Zim lawyer
Posted: Saturday, July 19, 2008
Southern Times Writer in Windhoek
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July 20, 2008
The Southern Times
The Zimbabwean government said Wednesday that land reform in that country, in which about 4 000 white commercial farmers were forcibly removed from prime farming land, was inevitable given the skewed land ownership pattern inherited when the country attained independence in 1980.
In court submissions at the SADC Tribunal landmark farm case which opened in the Namibian capital Wednesday, Zimbabwean lawyers also argued that the SADC Tribunal could not legislate for member states and had no legal mandate to nullify laws made in member states.
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.
About 77 white commercial farmers in Zimbabwe lodged a complaint at the regional court seeking to halt farm expropriations in Zimbabwe.
Machaya, who is Zimbabwe's deputy attorney-general, told the regional court that the SADC Treaty was a set of "guidelines" for member states.
The commercial farmers, who are represented in the case by Advocates Jeremy Gauntlett and Adrian de Bourbon, accused the Zimbabwean government of instituting a racially-based land reform programme and of refusing to compensate white farmers of the expropriated land.
Gauntlett said that farmers took the case to the regional court after the Zimbabwean government effected constitutional legislation, Amendment 17, which effectively shut out an legal challenges in Zimbabwean courts against land expropriation.
But Machaya defended the country's land reform programme saying it was unavoidable that only whites would be targeted by landless blacks since they are 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, Machaya argued, the Tribunal does not have jurisdiction to force the Zimbabwean government to reverse its laws.
"SADC Treaty merely outlines and sets out frameworks within which binding obligations can then be created for purposes of their being enforced," Machaya said.
"Ouster of right to approach the Zimbabwean courts effected by Amendment 17 is not a contravention of the SADC Treaty and orders of this nature are not competent for the Tribunal to make..Tribunal should refer the matter to the summit..it cannot legislate on the government to nullify such legislation," Machaya said.
He added: "Land reform was inevitable: 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."
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 expropriated for selfish reasons.
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".
"But what the Zimbabwean government did was to simply publish lists of the names of farms and took the farms away the next day, giving them to government officials, not even deserving black farmers," Gauntlett said.
Meanwhile, Zimbabwe's legal team withdrew from the SADC Tribunal hearing Thursday morning after the applicants 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 expropriation of their farms by the Zimbabwean government filed the application seeking the Tribunal to hold Harare in contempt of court after three commercial farmers were beaten and harassed by what the Zimbabwe government says are thugs and common criminals.
Last December, the Tribunal ordered the Zimbabwean government not to expropriate farms belonging to the applicants pending the outcome of the court case.
The three farmers were beaten in the aftermath of the June 27 run-off election in which president Robert Mugabe was re-elected .
On the second day of the hearing at the SADC Tribunal in Windhoek, head of the five-panel judge, Louis Mondhlane ordered the applicants to proceed with their urgent application.
But the Zimbabwean legal team, headed by Prince Machaya, opposed the urgent application and after consultations with his legal advisers, 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," Machaya told the court.
There had been arrests of persons concerning the disturbances and pending prosecutions, and 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," Machaya said.
He added that he would not make a submission on the basis of previous evidence.
After Mondhlane said that the court would proceed with the urgent application since the respondent had been given ample time to make a response, Machaya asked to be excused from the proceedings regarding the urgent 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," Machaya said.
The five-panel judge, however, did not accent to Machaya's request to be excused and Judge Mondhlane ordered the applicants to proceed, and Machaya and his legal team walked out of the court room.
Jeremy Gauntlett, who is representing the applicants in the case, proceeded with the urgent application in which he told the court how the farmers and their family members were attacked, alleging failure by the Zimbabwean police to respond to the case.
Gauntlett also asked the court to refer the matter of contempt of court to heads of state at the SADC Summit, which is on this coming August.
Judgement in the main case, in which about 79 white commercial farmers are challenging expropriation of their farms, will be delivered in due course, Mondhlane said.
In a related matter, the Zimbabwean Embassy later denied that Zimbabwe had walked out saying their legal team had sought to be excused after finding out that the Tribunal was "disposed to proceed in an unusual manner".
Zimbabwean ambassador to Namibia Chipo Zindoga said that the white commercial farmers were victims of criminal activities by a gang of about 30 people who have since been apprehended.
"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," Zindoga said.
"It appears there are no more common criminals in Zimbabwe...all criminals belong to either government or Zanu- PF," she added.
Zindoga also said that 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," Zindoga 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," Zindoga said.
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