SADC Tribunal Rights Watch supports Tribunal judges' call for compensation

SADC Tribunal Rights Watch supports the action taken by four SADC Tribunal judges to demand compensation following the illegal and arbitrary decisions taken by the SADC Council of Ministers and Summit Heads of State and Government on 20 May 2011 not to reappoint them or allow them to remain in office pending a further review in August 2012

The four judges, whose five-year term expired in August 2010, remained in office due to the "legitimate and reasonable expectation that, at the end of the initial independent review commissioned by the SADC Heads of State, their terms of office would be renewed."

This expectation was justifiable given that the consultants, WTI Advisors Ltd, Geneva, an affiliate of the World Trade Institute, confirmed in their review report of February 2011 that the Tribunal was properly established and that its protocol entered into force in accordance with international law.

Instead of upholding the review findings however, the SADC Summit took the decision on May 20 to dissolve the Tribunal, dealing a devastating blow to the rule of law in the region because it denies individual people access to justice when they have no legal recourse in their own countries.

The four judges seeking compensation are Justice Ariranga G Pillay (Mauritius), former president and member, Justice Rigoberto Kambovo (Angola), former member, Justice Onkemetse B Tshosa (Botswana), former member, and Justice Frederick Chomba (Zambia), former member.

As they point out in their letter to Dr Topaz Augusto Salamao, executive secretary of the SADC Secretariat, the wording of the communiqué issued after the Extraordinary Summit of Heads of State and Government of SADC demonstrates that the Tribunal has not only been suspended but dissolved altogether.

This decision, they note, is "clearly illegal and ultra vires (invalid) because the Summit has no power to restrict the jurisdiction of the Tribunal, not the least because it is itself subject to the Tribunal's jurisdiction."

While the judges recognise that the Summit does ultimately have the power to amend the SADC Treaty and Protocol with respect to the Tribunal, they stress that the proper procedures have not yet been followed.

In their letter, the judges find it inappropriate that the SADC Ministers of Justice / Attorneys Generals should express serious concern regarding the scope and jurisdiction of, and the law applied by the Tribunal instead of deciding about the appropriate action to take against Zimbabwe for non-compliance of the judgments of the Tribunal in 2008, 2009 and 2010.

The judgments referred to are Campbell and Another v Republic of Zimbabwe and Fick and Another v Republic of Zimbabwe.

The first case was lodged with the Tribunal by William Michael Campbell of Mount Carmel Farm in the Chegutu district of Zimbabwe.  Subsequently 77 additional white commercial farmers were authorised by the Tribunal to be joined to this landmark case.

In the second case, the four applicants were Louis Fick, vice president of the Commercial Farmers' Union of Zimbabwe, Mike Campbell, Richard Etheredge, the Commercial Farmers' Union and the Southern African Commercial Farmers' Alliance - Zimbabwe.

The Tribunal judges point out that the SADC Ministers of Justice/Attorneys General have "ducked and postponed a decision to take action against the Zimbabwe government - for reasons best known to themselves."

The Tribunal judges also express their frustration at being unable, since August 2010, to hear any of the pending cases "since (the Tribunal) was starved of funds and its requests for extra funding to the SADC Secretariat fell on deaf ears."

SADC Tribunal Rights Watch endorses the judges' statement that the drastic action taken at the expense of the Tribunal and its judges is "in breach of the principles of human rights, democracy and the rule of law" enshrined in the SADC Treaty.

Ironically, the SADC Council and Summit's disregard for the SADC Treaty and Protocol mirrors the actions of Ian Smith's post-UDI Rhodesian Government regarding the case of Stella Madzimbamuto v Lardner Burke (1966), an important and high profile human rights-based challenge.

Mrs Madzimbamuto's husband had been incarcerated under emergency powers for three months and was then kept behind bars while the constitution was changed to allow him to be held longer in custody.  It was the same legislation that had been used to detain Robert Mugabe without trial.

When Mrs Madzimbamuto's appeal failed in the Rhodesian courts, the case was led in the Privy Council of Britain, which declared the Rhodesian Constitution illegal.

The Summit of the Heads of State or Government of SADC, the presidents of the 15 countries, including President Mugabe, the Council of Ministers of SADC and the Zimbabwe Government face a further legal challenge.

In April, Jeremy Gauntlett, SC, a leading South African advocate, filed an urgent application asking for an order that ensures "the (SADC) Tribunal continues to function in all aspects as established by Article 16 of the SADC Treaty."

The applicants were two elderly, dispossessed Zimbabwean commercial farmers, both of whom ran highly successful farming enterprises and were model employers, William Michael Campbell of Mount Carmel farm, and Luke Tembani of Minverwag farm in the Nyazura district.  Shortly after signing the application, Mr Campbell passed away due to the severe injuries sustained during his abduction on 29 June 2008, where the Mugabe militia  tried to get him to withdraw the case.  Despite this, Mr Tembani's resolve has not wavered.

SADC Tribunal Rights Watch endorses the view of the Tribunal judges that the decisions taken by the SADC Council and Summit "send the worst possible signal not only to the SADC region but also to potential investors, donors and the international community at large: that the highest authorities of SADC at best pay only lip service to the principles of human rights, democracy and the rule of law and do not scrupulously adhere to them."

Statement issued by Ben Freeth, SADC Tribunal Rights Watch, Zimbabwe, June 24 2011

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