Did rulings in favor of white Zim farmers kill off the SADC Tribunal?

Aug 25, 2011

After finding little joy in the Zimbabwean courts, a group of the country's dispossessed white farmers went to the Namibia-based SADC Tribunal, which ruled in their favor. The outraged Mugabe government vowed to ignore the ruling and further argued that the tribunal was never properly ratified by all member states. When the tribunal was killed off in May this year, some thought it was to a large extent because of Zimbabwean pressure over arguments of interfering with the country's legal 'sovereignty.' An interview with the chief justice of the short-lived regional court makes it clear that member states other than Zimbabwe had their own misgivings about the court's role and jurisdiction.

In July 2008 the tribunal ruled that Zimbabwe's land reform was racist and discriminatory against the 78 white farmers who had petitioned it and that they should be allowed to keep their farms. The Zimbabwean government was incensed at this. Having frustrated the efforts of the farmers to seek relief in the country's courts, there was no way the Mugabe government was going to obey the ruling of a non-Zimbabwean court. This was despite the fact that the SADC states had agreed that the tribunal's rulings would be binding. 

Not long after this the SADC head of states decided to suspend the tribunal, pending a review of its terms of reference by the states' ministers of justice. Zimbabwe maintained that the tribunal had not been ratified by two thirds of SADC member states as required, but by only five of the 15, and that therefore the country would not recognize any of the court's rulings as binding. It appeared obvious that Zimbabwe's angry rejection of the legitimacy of the court had caused the suspension.

After suspending the tribunal the SADC leaders then said a new tribunal with different marching orders would be constituted in 2012. The old tribunal formally continued to exist but judges whose terms expired did not have them renewed. It became an empty shell, effectively existing in name only.

It seemed odd that the objections of just one country to one ruling of the tribunal could be responsible for such a drastic reaction by the SADC leaders. It seemed strange that Zimbabwe could be this influential and powerful, but it was taken for granted that the other SADC leaders were 'covering up for Mugabe.'

An interview with tribunal chief justice Ariranga Pillay of Mauritius by the Mail and Guardian sheds more light on what happened.

Pillay ''pointed out that as cancerous as the Zimbabwe issue has been, he personally began to experience a cooling of relations with the other organs of SADC following the tribunal's findings in favor of two summarily dismissed SADC employees. In January and February 2010 the tribunal quashed the decisions of the SADC council of ministers and of the summit not to renew the contracts of two high-level officials of the SADC.''

He believes the SADC leaders did not fully understand the implications of bringing the tribunal into being. At one point the ministers of justice hired a University of Cambridge legal consultant, Lorend Bartels, '' to review the tribunal's role, responsibilities and terms of reference.''

Pillay says Bartels explained to SADC member states that the rulings of the tribunal they had signed to was effectively supreme over their national laws. Although it is hard to see how they could not have understood this at the time of signing, Pillay claims Bartels' explanation 'gave them a fright and they started backtracking.'

Elsewhere it is mentioned that Tanzanian president Jakaya Kikwete, widely seen as a 'new democrat' versus 'old autocrats' like Zimbabwe's Robert Mugabe, at one point said, "We have created a monster that will devour us all" in regards to the tribunal.

From what can be considered the horse's mouth, it seems clear now that several SADC member states began to have many doubts about what they had done in creating the tribunal in the form that it had. The Zimbabwe land reform issue might thave been the most high profile issue the tribunal had dealt with, but governments other than Zimbabwe's had their own reasons for wanting to revisit their initial support for the body. Pillay gives some further examples of why some of the other governments might have been worried about intractable issues in their countries that might have been brought before the court to their embarrassment.

Significantly, one of the tribunal provisions the SADC leaders did away with was the right of individuals to make representations before the court. This significantly reduced its direct significance to citizens of the region while further shielding governments from being brought to account in a court they might not have been able to intimidate and influence like their national courts.

Although there is a lot of talk about the importance of regional integration in various ways, it is also obvious that none of the SADC leaders are willing to give up any of their national political hegemony to an even slightly independent regional body. In the shocked aftermath of the judgments in favor of the white farmers, there begun to appear suggestions in the Zim state media that the SADC tribunal was vaguely a 'plot' by the European Union that was going to fund it to compromise the sovereignty of member states. They didn't mind EU funding for the court when they thought it was harmless but as soon as it showed signs of having teeth that EU funding became a nefarious plot!

Apart from providing very valuable insights into the role first envisioned for the tribunal and the problems it ran into, the Mail and Guardian interview also suggests Pillay is quite bitter at what he perceives as his personal humiliation. He went from being effective chief justice of SADC to being jobless, and unceremoniously so. He understandably feels deeply slighted.

Several of the SADC countries did not take kindly to the idea that the tribunal should be an appeal court instead of or above the apellette courts of member states.

Said Pillay in the interview: "There are those officials who point to the fact that in terms of recourse, there is a constitutional court in Zimbabwe, but the court is rubbish, my God!"

Which brings up the point that with that sort of lack of tact, perhaps that is another reason the SADC head of states who were/are his ultimate bosses were happy to pull out the rug from under Pillay and the tribunal in the most humiliating manner. None of the SADC head of states would have been prepared to countenance a tribunal and its functionaries that was in any way equal to them , let alone superior to them. There is also something about the very idea of a regional court with sweeping powers above national judiciaries that was deeply naive and divorced from current southern African political reality.

The ruling in favor of the white farmers definitely turned Zimbabwe bitterly against the court. But the fascinating interview of Ariranga Pillay, the chief justice without a court, makes it clear that the SADC Tribunal in its original form was doomed for many other less well known reasons that had nothing to do with Zimbabwe.   


Anonymous said...

Criticizing Chief Justice Pillay for lack of tact regarding the ZIM Constitutional Court seems quite exaggerated, seen the fact that all but one of the constitutional judges ruling in the Campbell case (on the expropriation of white ZIM farmers) had personnally been awarded former white farms! They had thus knowingly benefitted from a law (the 2000 fast-track land reform program) that allows for expropriation without any compensation (which is a clear violation of any international law)!

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