A Quagmire Of One’s Own Making?

If Harare can’t convince the South African Constitutional Court that it was within its rights to confiscate white-owned farms in Zimbabwe, its own properties in South Africa will be seized and auctioned off. 

In September this year the South African Supreme Court of Appeal confirmed an earlier ruling by the Southern African Development Community (SADC) Tribunal against Zimbabwe for violating certain SADC Treaty obligations.

“The obligations in question concern the protection of basic human and democratic rights,” says Gerhard Erasmus, an associate at the Southern African Trade Law Centre (Tralac). The issue stems from the seizure and confiscation without compensation of white-owned agricultural properties in Zimbabwe, a process that started in 2000 and has continued ever since. The case had come before the South African Supreme Court of Appeal because Zimbabwe had appealed a writ of execution, requested in the Pretoria High Court by the owners of the confiscated property in Zimbabwe. The writ authorised the sheriff for the district of Cape Town to attach immovable properties belonging to the government of Zimbabwe and to sell them in execution.

“The Zimbabwean appeal has now failed and unless it can convince the South African Constitutional Court to rule in its favour on the basis of a constitutional complaint, it will have exhausted all remedies available from the South African judiciary,” says Erasmus.

“The judgment has also uncovered and explained a number of fundamental legal issues vital to the future of SADC,” he adds. And now if Zimbabwe wants to retain ownership of its various, and valuable, properties in South Africa, it has final recourse to the South African Constitutional Court, the highest seat of jurisprudence in the land. Should that also fail, the properties will be seized and auctioned off by the Sheriff of the Court.

Powerful and well-funded South African NGO, AfriForum, an independent and non-profit organisation committed to the protection and expansion of civil rights for southern Africa’s minorities, says its legal team “is ready to oppose the Zimbabwean government’s appeal in the South African Constitutional Court”.

Zimbabwe’s attorney general, Johannes Tomana, confirmed in late October that the Zimbabwe government would contest the matter in the Constitutional Court on the grounds that it believes the SADC Tribunal was irregularly registered when it cleared the way for an auction of Zimbabwe’s South African property to satisfy a debt owed to former owners of farms in Zimbabwe.

AfriForum’s legal representative, Willie Spies, said in response that its legal team is all set to defend the case in the Constitutional Court, and will ask the Court to hear the application “on an urgent basis, to obtain legal certainty of the matter before the end of the year”.

Unexpected resolution?

An end to this issue might come sooner than expected and its resolution might have nothing to do with the courts, depending on how soon the case is heard.

Zimbabwe’s new constitution, a step that will determine the timing of the country’s general and presidential elections, has been issued as a first draft for public scrutiny. Its priority would seem to centre on human rights, singularly absent in the country’s present constitution. It also strips away much of the president’s autocratic powers, leaving him with much reduced authority. A new constitution was deemed necessary by the parties to the Global Political Agreement because the present one, drawn up largely by the British government for the handover of political power in 1980, was at the heart of much of Zimbabwe’s current travail.

Will the proposed document properly and finally address the major constitutional issues at the centre of the Zimbabwe governance crisis – especially the absence of a legal framework around the observance of human rights, ineffective separation of powers, excessive and unchecked presidential authority, overcentralisation of power and the absence of free and fair elections? At best, the answer to those questions is ‘almost, but not completely’.

Lead researcher Justice Alfred Mavedzenge says the draft constitution introduces a new era where the President no longer enjoys any unwritten powers but will only exercise those powers that are given by the constitution and legislation. “This creates certainty as to what exactly is the limitation of presidential powers in Zimbabwe,” he observes. Almost, but not entirely.

Most importantly, the President will continue to enjoy unchecked powers in the process of dismissing judges, while the parliament will not have an effective role in the process of appointing judges. This threatens the security of tenure of the judiciary and can be used to undermine its independence, but it appears an encumbrance the parties can live with in the interests of moving the process forward.

It is the provision for human rights long-suffering Zimbabweans were most anxious to examine, and they found a “huge improvement from the current national law which does not provide for socio, economic and cultural rights and which allows human rights limitation to be justified on the basis of a vague (and often abused) concept of ‘maintaining public security’,” says Mavedzenge. The draft constitution places human rights at the centre of the interpretation of the new constitution and obliges state institutions, including the security sector, to respect fundamental rights.

White Zimbabwean Cathy Buckle, farmer, researcher and journalist, finds it hard to agree with that assertion, however, and points out that “all the rights accorded to me thus far in the new draft are taken away in Chapter 4 section 29, which states: ‘Where agricultural land, or any right or interest in such land, is compulsorily acquired (c) the acquisition may not be challenged on the ground that it was discriminatory in contravention of section 4.13’.”

Despite widespread condemnation of the amendment to the existing constitution relating to the responsibility for paying compensation, nothing appears to have changed in the new draft.

“For anyone currently on a farm,” says Buckle, “the most frightening clause in the draft is section 16.4, which gives rights of continued occupation to people on those farms at the time the new constitution takes effect. Another national land grab frenzy seems inevitable.”

History in the making

South Africa’s 12th September Supreme Court ruling that enforces the seizure and sale of Zimbabwe government property in South Africa in order to compensate the farmers has made history.

“This is believed to be the first sale of property belonging to a state that has committed human rights violations in another state,” reports Merran Hulse of Radboud University, Holland. “Furthermore, the decision by the Summit to restrict the jurisdiction of the Tribunal could be challenged in the African Court on Human and People’s Rights, a regional court created to make judgments on African Union states’ compliance with the African Charter on Human and People’s Rights. It came into being in January 2004.”

The African Commission has agreed to consider bringing a case on behalf of two Zimbabwean farmers against the SADC Summit, challenging the legality of their decision to restrict the Tribunal’s jurisdiction.

If this happens it would be the first time in legal history that multiple heads of state are cited as respondents in an international court.