EX PARTE: COMMERCIAL FARMERS UNION

IN RE: RESPONSE BY THE MINISTER OF JUSTICE, ZIMBABWE, TO OPINIONS ON THE STATUS OF RULINGS BY THE SOUTH AFRICAN DEVELOPMENT COMMUNITY (SADC) TRIBUNAL VIS-À-VIS THE GOVERNMENT OF ZIMBABWE

OPINION

J.J. GAUNTLETT SC

F.B. PELSER

Chambers

Cape Town

18 September 2009

A. INTRODUCTION

1. Our Consultant is the Commercial Farmers Union.

2. We have been asked to consider the response by the Minister of Justice and Legal Affairs of Zimbabwe to three separate legal opinions. The opinions were prepared by the Zimbabwe Human Rights NGO Forum, Zimbabwe Lawyers for Human Rights and us. In those opinions statements made by the Minister were evaluated and the conclusions, reached independently, were unanimously that the Minister's statements were wholly unmeritorious. His statements were to the effect that the South African Development Community (SADC) Tribunal did not have jurisdiction over the Government of Zimbabwe, because Zimbabwe did not ratify the Protocol on the Tribunal.

3. In his response the Minister now purports to invoke what he considers to be the dormancy of a 2001 amendment to the SADC Treaty. However, for reasons discussed below, his assumption is neither correct nor does it provide support for his contention.

4. Accordingly we consider also the Minister's most recent construct misconceived, and note that numerous imminent and disinterested professional bodies have concluded likewise.[1] It is to be trusted that they are not to be the subjects of the (notably defensive) personal remarks the Minister found appropriate to direct at us.

B. BACKGROUND TO THIS OPINION

5. As mentioned in our previous opinion, over the past two years we have been engaged in litigation in the SADC Tribunal on behalf of members of our Consultant. During the same period we have also appeared in other matters against the Government of Zimbabwe before the Tribunal. One of these concerned twelve Zimbabwean torture victims who were members of the official opposition political party. Another matter concerned the extra-judicial execution against the farmland of one of the first indigenous commercial farmers in Zimbabwe. All of these matters required extensive litigation before the Tribunal, because the Government of Zimbabwe invoked numerous procedural objections under the Protocol.

6. It was in the light of our engagement in litigation before the Tribunal against the Government of Zimbabwe that we considered the legal validity of the Minister's statements. For our conclusion that the Minister's statements lacked any validity, we provided four independent reasons, which we briefly repeat. We do so in view of the striking inability of the Minister to offer any considered answer to them.

7. Firstly, we pointed out that Zimbabwe was, and still is, a signatory to the SADC Treaty and therefore has submitted to the Tribunal's jurisdiction as State Member. It is a trite principle both in international law and all domestic legal systems with which we are familiar - including that of Zimbabwe - that once jurisdiction is established in a matter, it cannot be lost - least of all on a belated, unilateral disavowal, as is here the case. It is clear that article 16 the Treaty, also before the 2001 amendment,[2] constitutes the source of the Tribunal's jurisdiction. Accordingly this basis of jurisdiction is not challenged by the Minister, but indeed confirmed, as we shall show below.

8. Secondly, we noted that Zimbabwe was, and still is, bound to the Protocol despite not ratifying it. This conclusion was based not only on article 16(2) of the Treaty subsequent to its amendment,[3] but also affirmed by Zimbabwe's acceptance of the Protocol. It accepted the protocol by signing it, proceeding under it, actively invoking it and by seconding a judge to the Tribunal under it.

9. Thirdly, we referred to yet another independent basis of jurisdiction. Quite apart from jurisdiction conferred by either the Treaty or the Protocol, Zimbabwe has itself conferred competency upon the Tribunal by submitting to its jurisdiction at numerous instances during separate proceedings. We noted that it was well established that such submission irretrievably conferred jurisdiction on the Tribunal even if none existed otherwise.

10. Finally, we added that the SADC Tribunal was, and still is, the designated body to decide whether it had jurisdiction over the government of Zimbabwe. That body had meticulously considered the very question and answered it in the affirmative. The Tribunal's determination of the issue is conclusive,[4] and its finding has long since been accepted, under oath, as correct by the country's two most senior lawyers, the Attorney-General and Deputy Attorney-General.

11. We stand by all of the above reasons, and note that independent and reputable lawyers' associations throughout the continent have based their deprecation of Mr Chinamasa's comments on similar reasons. Nevertheless, we proceed to engage with the Minister's criticism.

C. BASIS OF ATTACK ON PREVIOUS OPINION

12. The Minister attacks our opinion on all four of the above bases. Before dealing with each in turn, the Minister's contention that "the Tribunal exercised jurisdiction over Zimbabwe on the basis of the principles enunciated in the Treaty when in fact these principles do not create legally enforceable obligations" requires comment.

(a) Whether the Treaty creates legally enforceable obligations

13. The question whether the SADC Treaty establishes justiciable and enforceable legal obligations has been determined conclusively by the Tribunal in the Campbell matter. The Tribunal forcefully rejected this contention, holding that in terms of both article 4(c) of the Treaty and article 21(b) of the Protocol the Tribunal is competent to adjudicate and enforce human rights, and authorised to draw on applicable treaties, general legal principles and rules of international law.[5]

14. Further, article 4 of the Treaty, which tables its governing principles, emphatically imposes a duty on member States to adhere to inter alia human rights and the rule of law. It peremptorily states that "SADC and its Member States shall act in accordance with" [emphasis added] the stated principles. This too establishes that human rights are justiciable and enforceable under the Treaty. Also article 6 of the Treaty clearly provides that the objectives of SADC, contained in article 5 of the Treaty, constitute enforceable legal obligations.

15. Therefore there undeniably are legally enforceable obligations under the SADC Treaty on Member States. Those obligations include the duty to refrain from implementing racially discriminatory policies, expropriating land arbitrarily and without compensation, and ousting courts' jurisdiction to adjudicate on human rights infringements;[6] to refrain from adopting and maintaining measures to facilitate the extra-judicial execution upon fixed property;[7] and to refrain from torturing political dissidents, and subsequently to disregard contemptuously court orders to pay compensation to the victims.[8] It is atrocities like these that the Minister contends Zimbabwe is at large to perpetrate because the Treaty does not censor it. The contention is as devoid of legal substance as it is of moral principle.

16. Indeed, so baseless this contention is that at the hearing of the Tembani matter counsel for the Government of Zimbabwe disavowed any reliance thereon, despite the fact that its procedural objection in terms of the Protocol was premised on it. Accordingly, contrary to the Minister's contention, under the SADC Treaty there can be no impunity for infringing human rights on this basis. And, for reasons we now turn to, these atrocities cannot be palliated by invoking any of the other bases on which the Minister seeks to rely.

(b) Whether the Minister's criticism is meritorious

17. In our view an individual inquiry into each of the Minister's "responses" indicates that his criticism lacks merit.

(i) First response: Status of Treaty

18. The Minister's first critique is that the Tribunal does not have any jurisdiction because the Protocol "has not yet entered into force" and because Zimbabwe has not yet ratified the Protocol. This contention is wholly unsupportable, for it is the Treaty (and not the Protocol) that constitutes the primary source of jurisdiction of the Tribunal. This is confirmed by article 16 of the Treaty and the Tribunal's judgment in the Campbell matter.

19. Under this ground of critique the Minister accepted, as he had to, the Treaty's validity and that Zimbabwe is bound by it. Accordingly he must acknowledge that there can be no supportable basis for challenging either the Tribunal's jurisdiction or the binding effect of its judgments as provided for by the Treaty. On this basis alone the Minister's repudiation of the Government's duty to comply with the Tribunal's orders is unsustainable.

20. Accordingly, even if the Minister's contentions regarding the Protocol's operation were supportable, they do not detract from the Tribunal's jurisdiction. But those contentions fall to be rejected too, as demonstrated next.

(ii) Second response: Status of Protocol

21. In furtherance of his contention with regard to the status of the Treaty, the Minister goes on to contend that the 2001 amendment to the Treaty does not bind Zimbabwe. This is allegedly because Zimbabwe did not ratify the 2001 amendment.

22. In order to evaluate the merits of this contention it is necessary to provide a brief background to the amendment. The amendment inserted that part of the text into article 16(2) of the Treaty which renders the Protocol "an integral part of th[e] Treaty" "notwithstanding the provisions of Article 22" thereof.[9] Article 22, in turn, provides for the conclusion of protocols, as necessary, "in each area of co-operation". Sub-article (3) renders such protocols open to signature and ratification, and sub-article (4) regulates protocols' entering into force. The latter occurs thirty days after the deposit of the instruments of ratification by two-thirds of Member States. It is against this background that the Minister's criticism is to be viewed. He alleges that because it was ratified by neither a two-thirds majority nor by Zimbabwe, and because ratification of the Protocol was required (which contention he bases on the allegation that the 2001 never entered into force), the Protocol does not bind the Government of Zimbabwe.

23. This contention is not only convoluted. It is also utterly unsupportable. So much so that the Government's legal representatives have not once attempted to invoke it in any of the many proceedings before the Tribunal. This in itself, it may be noted, provides sufficient reason to reject the contention without more, because it is for the Tribunal to determine any disputes regarding the status, validity, interpretation and provisions of the Treaty and its protocols.[10] For an unsuccessful State litigant subsequently to dispute the Tribunal's jurisdiction on a ground not advanced before it is a severe affront to the rule of law, as pointed out in the Arusha Communique.[11] But the contention is not only bad for the rule of law, it is also bad in law. This the following reasons show.

(aa) Article 22 never applied to article 16

24. It is apparent from the Treaty's text as it stood before amendment that article 22 of the Treaty did not apply to it. Article 22 only applied, as it still does, to protocols adopted to facilitate co-operation in specified areas. This is borne out by the text of and context to article 22; the nature of the Protocol; and subsequent conduct of its signatories.

25. Firstly, article 22(1), which is unaffected by the 2001 amendment, provides:

"Member States shall conclude such Protocols as may be necessary in each area of co-operation, which shall spell out the objectives and scope of, and institutional mechanisms for, co-operation and integration" [emphasis added].

26. Its text and context show that article 22 does not apply to article 16. Article 22 forms part of Chapter Seven of the Treaty, which comprises articles 21-23, and applies to protocols governing co-operation between State Members. Article 21 provides for eight distinct areas of co-operation, none of which involves dispute resolution. Article 16, however, forms part of a distinct chapter dealing with SADC institutions. It is thus schematically divorced from, and semantically absolved from, the provisions governing the entry into force of protocols adopted in furtherance of co-operation in the designated areas as envisaged in Chapter Seven.

27. This is, secondly, confirmed by the nature of the Protocol on the Tribunal. The Protocol does not impose additional substantive duties not already conferred by the Treaty on State Members. It substantially provides for the conduct of proceedings before the Tribunal. For this reason it was the intention of Treaty signatories that the Protocol should enter into force upon assent by the Heads of State.[12] To clarify this, it was specifically amended in 2002. The position is similar under national law, where rules of court and procedures governing litigation are not the stuff of parliamentary enactment.

28. Thirdly, the subsequent conduct by State signatories confirms that the Protocol is indeed already legally operative. For example, State Members have implemented the Protocol on the Tribunal by appointing judges to staff it, and a comprehensive infrastructure was established pursuant to the Protocol. Further, on 3 October 2002 State Members amended the Protocol on the Tribunal, recording emphatically that the Protocol entered into force on 14 August 2001. Zimbabwe signed this unanimous recognition and, on the most basic of legal principles, is bound to it even if only by so signing.

29. In addition, the Government of Zimbabwe's own extensive reliance on the Protocol in all Tribunal proceedings involving it makes short shrift of the Minster's contention that the Protocol never entered into force. We note, however, that the relevance of Zimbabwe's reliance on the Protocol goes beyond merely exposing the Minister's contention as both humbug and a contrivance. Invoking the Protocol before the Tribunal constitutes an additional independent legal basis on which Zimbabwe is bound to the Protocol.

(bb) Provisions governing amendments to the Treaty

30. The above analysis already demonstrates that the Minister's criticism is incorrect. However, on the assumption that article 16(2) did require amendment to render the Protocol operative (as the Minister would have it), we consider his subsequent contention. It is based on article 32 of the Agreement Amending the Treaty.

31. Article 32 provides that the Agreement shall enter into force "on the date of its adoption by three-quarters of all Members of the Summit" [emphasis added]. It follows the wording of article 36 of the Treaty, which deals with amendments to the Treaty. The wording is significant.

32. The designation "Members of the Summit" refers to Heads of State, not to governments of Member States. Accordingly the Agreement provides for its adoption by a special majority of the Heads of State only, upon which it enters into force. Moreover the Heads of State unanimously adopted the Agreement by expressly agreeing thereto and signing it.[13]

33. If this is not enough, also subsequent events provide evidence that Members of the Summit indeed intended the Agreement's operation prior to ratification. The events show that Summit Members, and their governments, have implemented the Agreement in various ways. So has Zimbabwe. For example, Zimbabwe was invited to and attended the meeting of the SADC Ministerial Troika of the Organ on Politics, Defence and Security Cooperation in Dar-es-Salaam.[14] Both this organ and the innovation of Troikas to head certain SADC institutions were introduced by the Agreement.[15] This clearly demonstrates that, like all other State Members, Zimbabwe intended the Agreement to operate prior to ratification and have bound itself to that Agreement.

34. Accordingly the amended article 16(2) did enter into force without the need for ratification. State parties are, of course, perfectly competent to agree to amendment treaties without the need for ratification.[16] They are accordingly bound by amendments so effected. Accordingly the Minister's erroneous contention that "[b]efore the 2001 Agreement can enter into force, it must be ratified by two-thirds of the Member States" [emphasis added] is a gross misrepresentation of the legal position. It unravels the flimsy fabric of the Minister's fallacy.

(cc) Contention in any event untenable

35. But the Minister's contentions are not only self-destructive on the bases on which he seeks to rely. It is also untenable for other reasons.

36. Even had the Protocol required ratification for its entry into force or for Zimbabwe to be bound by the Tribunal's orders, Zimbabwe's failure to ratify it cannot be invoked by it. For, firstly, non-ratification of a Protocol - if the Protocol has been consented to by the Head of State, as has been done by Mr Mugabe, and if the Protocol requires ratification, as is not the case - constitutes a breach of article 5 of the Treaty. A Member State cannot invoke its own breach to sever it from liability under the Treaty.

37. Secondly, it is a general principle of international law that a State may not act contrary to a treaty it has consented to but has not formally ratified.[17] So doing is also contrary to the fundamental principle in treaty law that treaties are binding on State parties and must be performed in good faith.[18]

38. Thirdly, to now repudiate the Protocol also constitutes a violation of national law. By signing the Treaty, its amendment and the Protocol and its amendment the Government of Zimbabwe created an enforceable legitimate expectation that it would give effect to those instruments and thus adhere to orders against it by the Tribunal.[19] The Minister's attempt to escape the operation of SADC Tribunal orders in Zimbabwe by belatedly challenging the Tribunal's jurisdiction is inept as well as without principle: his Government's actions have already made the orders enforceable as a matter of domestic law.

(iii) Third response: No Protocol, no power

39. Next Mr Chinamasa contends that if there is no Protocol, the Tribunal is shorn of all power. He bases this contention on his first two grounds of criticism. Accordingly, this contention stands or falls by the correctness of the first two. Since the reasoning above shows that both bases for the Minister's premise are misconceived, the third ground of criticism is equally unmeritorious. In short, the Tribunal derives its jurisdiction from the Treaty and the Protocol binds Zimbabwe without ratification. Accordingly the Tribunal has jurisdiction and wields the panoply of powers provided for in the Protocol.

40. Before proceeding to the final point, an observation must be recorded. The Minister's response to our advice on the third issue is an exercise in cynicism. He insinuates that our opinion inaccurately represents the correct legal position. He does so by omitting in his quotation of the relevant paragraph of our opinion the case-law cited as authority for the established legal rule there referred to. This provides the impression to a lay audience that the rule referred to is a mere figment of our imagination. The impression is intentionally created, and sought to be affirmed by labelling our articulation of the legal position "wishful thinking". Such tactics are not merely disreputable, but also adversely impact on the rule of law. Where a Minister of Justice distorts a legal opinion that exposes his abuse of the law, the rule of law itself is compromised.

(iv) Fourth response: Zimbabwe a law unto itself

41. Finally the Minister positively repudiates the rule of law by insisting that Zimbabwe is at large to decide whether it is bound by the Tribunal's rulings or not. He avers that a State may invoke its own constitutional provisions to renounce an international legal obligation.

42. This is yet another example of the Minister misstating a clear and fundamental principle of international law. The correct legal position is the opposite: a State may not invoke its internal law, including its constitution, as excuse to dishonour a treaty obligation.[20] Were this not so, a State could shelter behind its own legislation permitting any infringement of human rights, even genocide. That is the terminus of the Minister's reasoning.

43. As to the Minister's contention that the Tribunal has not yet considered his Government's newly-contrived stance on jurisdiction, the following. The discussion on the second ground of attack shows that the point now taken is utterly unsupportable. Presumably it is for this reason that not even Zimbabwe's own lawyers would present it to the Tribunal. Had the Tribunal have had occasion to consider this contention, it would no doubt have rejected it categorically and rebuked Zimbabwe with another punitive costs order for invoking such frivolous and vexatious constructs.

E. CONCLUSION

44. For these reasons then it remains our view that there is still no bona fide basis for the contention that rulings by the Tribunal do not bind the Government of Zimbabwe.

We advise accordingly.

J.J. GAUNTLETT SC

F.B. PELSER

Chambers

Cape Town

18 September 2009

Source: www.damediacentre.co.za

Click here to sign up to receive our free daily headline email newsletter