(Dec. 5, 2008) On November 28, 2008, a ten-member tribunal of the Southern Africa Development Community (SADC), which is headquartered in Gaborone, Botswana, and comprises 15 Member States, including Zimbabwe, issued a ruling in a landmark case involving a land dispute between the Government of Zimbabwe and 78 white farmers. The Namibia-based tribunal ruled in favor of the farmers, who had petitioned the court to issue an order barring the Government of Zimbabwe from taking over their farms without compensation. The judges held that the farmers, who are facing eviction, “can keep their farms because the land reform undermined the rule of law.” The panel also ruled that “fair compensation” should be given, “on or before June 30, 2009,” to farmers who had already been evicted from their farms before the judgment was handed down. (Zimbabwe: Govt Violated Rule of Law – SADC Tribunal, THE STANDARD, Nov. 29, 2008, available at http://allafrica.com/stories/200811300007.html; SADC Profile, SADC website, http://www.sadc.int (last visited Dec. 3, 2008.).)
Tribunal president Justice Luis Antonio Mondlane stated, “[w]e … hold that, in implementing Amendment 17, the Respondent has discriminated against the applicants on the basis of race and thereby violated its obligation under Article 6 (2) of the (SADC) Treaty.” Amendment 17 refers to the Constitution of Zimbabwe Amendment Act 17 of 2005, which gave the government the authority, under article 16B on “agricultural land acquired for resettlement and other purposes,” to acquire farms without compensation. The Tribunal further ruled that the Zimbabwe government “should ensure that no action is taken, pursuant to Amendment 17, directly or indirectly to evict from or interfere with the farmers.” In addition, the tribunal declared that Zimbabwe “could not use domestic laws like Amendment 17 to justify actions that were not in line with the terms of the SADC Treaty and conventional international law.” (Id.; Constitution of Zimbabwe (as amended at the 14 September, 2005 (up to and including Amendment No. 17)), http://www.parlzim.gov.zw/cms/UsefulResourses/ZimbabweConstitution.pdf (last visited Dec. 3, 2008).)
The farmer petitioners were led by William Michael Campbell, the first farmer to take Zimbabwe President Robert Mugabe to an international court. Campbell initially had his case heard before the new SADC body in March 2008. (Christina Lamb, Zimbabwe: White Farmer Mike Campbell Mounts Last Stand over Land Grab, TIMES ONLINE, Mar. 23, 2008, available at http://www.timesonline.co.uk/tol/news/world/africa/article3602711.ece; Violet Gonda, Zimbabwe: Country in Serious Breach of SADC Tribunal Ruling on Land, SW Radio Africa (London), Nov. 6, 2008, available at http://allafrica.com/stories/200811071058.html.)
According to Josephat Tshuma of the Law Society of Zimbabwe, the SADC judgment is binding, even though the SADC has no legal mechanism for its enforcement. In his view, “the ruling was still enforceable politically as failure to abide by it would repel investment.” (Zimbabwe: Govt Violated Rule of Law – SADC Tribunal, THE STANDARD, Nov. 29, 2008, available at http://allafrica.com/stories/200811300007.html; White Zim Farmers “Racially Discriminated Against” – SADC Tribunal, SADC Tribunal, Nov. 30, 2008 [Text of the ruling: In theSouthern African Development Community (SADC) Tribunal Windhoek, Namibia, SADC (T) Case No. 2/2007], available at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?
oid=111352&sn=Detail.) Nevertheless, the Zimbabwean government has rejected the ruling. According to Didymus Mutasa, Minister of State for National Security, Lands, Land Reform and Resettlement, the SADC tribunal is “day-dreaming because we are not going to reverse the land reform exercise. There is nothing special about the 75 farmers and we will take more farms.” He added, “[i]t's not discrimination against farmers, but correcting land imbalances.” (Brigitte Weidlich, Zim to Ignore Tribunal Ruling, NAMIBIAN, Dec. 2, 2008, available at http://www.namibian.com.na/2008/December/national/08413FC357.html.)
In another development, it was reported on November 27, 2008, that the Supreme Court of Zimbabwe had dismissed a constitutional suit brought against the government by Danish farmer Kim Bikertoft, who had challenged the acquisition of his farm under the government's land resettlement program. Bikertoft's defense attorney, Lewis Uriri, had argued that acquisition of the farm by a retired military officer would contravene the Bilateral Investment and Protection Agreement signed between Zimbabwe and Denmark in 1996. According to the treaty, “foreign land investments of Danes should not be expropriated except in the public interest, on the basis of non-discrimination, carried out under due process of law, and against prompt, adequate and effective compensation.” (Ruling on Land Threat to Foreign Investment – Lawyer, ZIMBABWE INDEPENDENT, Nov. 27, 2008, available at http://www.thezimbabweindependent.com/local/
21609-ruling-on-land-threat-to-foreign-investment–lawyer.html.) Commenting on the ruling, Uriri stated that the judgment “implied that foreign land investment in the country is not protected by the law… the state can expropriate the land.” Moreover, he said, this “was as a result of Section 16 B of the Constitution that was amended in 2005 to prohibit a person from challenging the acquisition of land by the state.” (Id.)