CAMPBELL CASE: HEADS OF ARGUMENT SUMMARY

Written by James

Tuesday, 27 May 2008 16:44

Introduction:

In early 2006 a constitutional challenge was launched in the Zimbabwe courts against Amendment No. 17 of the Zimbabwe Constitution, which removes the right of those courts to adjudicate in any way in relation to forced acquisition (i.e. confiscation) of land in Zimbabwe by the Mugabe regime.
The effect of Amendment 17 is that a person whose land is seized by the Mugabe regime without payment of compensation, is not permitted to apply to a Zimbabwe court for relief.

After all legal remedies available in Zimbabwe were exhausted, the applicants lodged the present application before the SADC Tribunal. The Republic of Zimbabwe signed and ratified the Treaty of the Southern African Development Community (SADC) in 1992.

The case is being brought by William Michael Campbell on behalf of himself and as the managing director of Mike Campbell (Pty) Ltd, the owner of farm land in Mount Carmel in the rural district of Chegutu, Zimbabwe and on behalf of the employees of that company, and their families, who live and work on the farm. The Government of Zimbabwe (GoZ) is attempting to seize Mount Carmel without payment of any compensation.

The respondent is Robert Gabriel Mugabe in his capacity as the President of Zimbabwe.

The final hearing of the main action in the SADC Tribunal case was set down to be heard on Tuesday 25 March 2008, but has been postponed. What follows is a brief summary of the main arguments to be made on behalf of the applicants.

The GoZ has filed no heads of argument.

Summary of Facts:

The GoZ has been trying to seize Mount Carmel since 22 July 2001. These attempts were at first thwarted by the High Court of Zimbabwe.

On 14 September 2005 the Constitution of Zimbabwe Amendment (no 17) Act 2005 came into effect. On 15 May 2006, the applicants launched proceedings in the Supreme Court of Zimbabwe challenging the constitutional validity of Amendment 17. This served to delay the eviction of the applicants, but it became clear that no permanent protection would be found within the Zimbabwe legal system.

On 5 October 2007 the application was lodged before the SADC Tribunal. On 15 December 2007, the Tribunal issued an interim order.

On 22 January 2008, the Supreme Court of Zimbabwe finally delivered its judgment in the 15 May 2006 case. The effect was to dismiss the applicants' entire challenge. This serves to confirm the applicants' prior contention that all legal remedies within Zimbabwe had been exhausted. The only objection to the jurisdiction of the SADC Tribunal advanced by the GoZ is a failure on the part of the applicants to exhaust domestic remedies.

Meanwhile, the GoZ has instituted criminal proceedings against William Michael Campbell. The prosecution has been stayed following the 15 December 2007 interim order.

Main issues:

The issue before the Tribunal is whether the Amendment 17 or the related conduct of the GoZ comply with the Treaty obligations of the GoZ. In determining these issues, the Tribunal will be asked to consider issues regarding the following:

1.   The interpretation of the SADC Treaty.

2.   The place in the SADC Treaty of the principles of human rights, democracy and the rule of law.

3.   Does the exclusion of access to the courts offend the rule of law?

4.   Discrimination.

5.   Compensation.

1.   The Interpretation of the SADC Treaty

The Vienna Convention on the Law of Treaties 1969 should be applied to the interpretation of the SADC Treaty. The ordinary meaning of the text of the SADC Treaty should be interpreted in light of the objects and purposes of the Treaty. The Article 4 respect for principles of human rights, democracy and the rule of law is recognized in the text as essential to achieving the Article 5 objectives.

The context should also be taken into account. This includes a threefold, integrated commitment of the Member States of SADC to attaining economic development, encouraging regional peace and co-operation and ensuring respect for basic human rights and the rule of law. The context further includes other international legal instruments which the Member States have ratified, such as the Charter of the African Union and the African Charter of Human and People's Rights.

The SADC Treaty is binding on Member States in terms of the Treaty itself and the Vienna Convention. Article 27 of the Vienna Convention provides that a party may not use its domestic law as a justification for its failure to perform a treaty.

The Tribunal is granted legal authority to ensure adherence to the SADC Treaty by virtue of Article 16(1).

2.   The Place in the SADC Treaty of the Principles of Human Rights, Democracy     and the Rule of Law

In terms of Article 4, Member States must act in accordance with principles including human rights, democracy and the rule of law. Article 6(1) gives Member States a mandate to promote the achievement of the objectives of the SADC and the implementation of the Treaty provisions. Article 6(2) requires that Member States refrain from discriminating against any person on various equality grounds. Article 3(h) includes the promotion and protection of human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant instruments.

The SADC Tribunal should interpret Article 4(c) of the Treaty as requiring Member States to act in accordance with the basic human rights, democratic practices and rule of law principles established by international human rights instruments. This would give effect to the objectives and purposes of the Treaty and is compatible with the approach taken by other international courts, such as the European Court of Justice.

3.   Does the Exclusion of Access to the Courts Offend the Rule of Law?

Amendment 17 violates the SADC Treaty in that it violates the rule of law itself. Section 16B(3) of the Zimbabwe Constitution puts into effect an ouster of the jurisdiction of the courts. The provision precludes access to the courts by individuals wishing to challenge the form, manner or legitimacy of the compulsory acquisition of their land. It prevents a challenge to the deprivation of their rights to equality and property before the courts as well as a judicial assessment of the substantive fairness of compulsory land acquisition decisions.

The rule of law includes both the right of access to the courts, and the right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation (the right to due process'). Both are regarded as fundamental human rights and are well-established and protected within the national constitutional frameworks of SADC Member States and international human rights case law.

In South African case law, the Constitutional Court in Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) discussed Section 34 of the South African Constitution and noted that:

Section 34 is an express constitutional recognition of the importance of the fair resolution of social conflict by impartial and independent institutions. The sharper the potential for social conflict, the more important it is...that disputes are resolved by courts.

The amendments to the Zimbabwe Constitution constitute a fundamental deprivation of the core of the rule of law in precluding any judicial scrutiny of decisions to take property, and represent a negation of the objective, purposes and principles of the SADC Treaty. They expressly violate Article 4 of the SADC Treaty.

The ouster clause (i.e. Amendment 17) is also incompatible with Article 7(1)(a) of the African Charter on Human and People's Rights. The African Commission on Human and People's Rights has placed considerable importance on the right of access to courts, emphasizing that it should be respected even where sharp social and political conflict exists.

Ouster clauses of a scope and extent similar to section 16B of the Zimbabwe Constitution should be considered a denial of the right to access the courts under the SADC Treaty.

The right to a fair hearing before an impartial tribunal is expressly set out as a fundamental human right in many constitutions and international instruments.

In its recent judgment, the Zimbabwe Supreme Court revealed:

To stop what was considered obstructive litigation and secure finality in cases of compulsory acquisition of agriculture land for public purposes, the legislature enacted the Constitution of Zimbabwe Amendment Act (No 17) on 14 September 2005.

Now that Zimbabwe's highest domestic court has confirmed that the very purpose of Amendment 17 was to suppress pending challenges to it by the owners of the 157 pieces of land listed in Schedule 6, there can be no debate as to whether the amendment complies with the rule of law. Zimbabwe's SADC Treaty obligations do not permit such a course.

4.   Discrimination

Amendment 17 and its enforcement targets only white farmers, irrespective of their attributes, land-use and circumstances. Schedule 6 is inherently arbitrary and is based solely on race and ethnic origin, as well as the political affiliation of the intended beneficiaries. An annexure to the applicants' papers sets out a large number of utterances by those responsible for policy in Zimbabwe showing clearly that the policy of land acquisition was premised on a racial basis. The policy was designed to redress the ownership of land created during the colonial period.

In 2000, the (then) Full Court of the Zimbabwe Supreme Court stated:

We are not entirely convinced that the expropriation of white farmers, if it is done lawfully and fair compensation is paid, can be said to be discriminatory. But there can be no doubt that it is unfair discrimination...to award the spoils of expropriation primarily to ruling party adherents.

Currently, this is exactly the case and the present situation stands in sharp contrast to that in 2000. The national policy of racism offends the SADC Treaty and the established, enforceable norms (jus cogens) of international law. There is an absolute prohibition of racial discrimination in Article 6 of the SADC Treaty. The prohibition against discrimination based on race or origin has become jus cogens and ranks with crimes against humanity as contrary to fundamental international law. Consequently, it cannot be derogated from no matter the excuse, and the GoZ has offended its SADC Treaty obligations.

5.   Compensation

The GoZ does not dispute the right to compensation.

The following is common cause:
â€¢   No compensation has been paid to the Applicants.
â€¢   No assessment of compensation has been made and the procedures laid down in domestic legislation have not been followed.
â€¢   The GoZ does not have the financial resources to pay all the compensation due in respect of farms acquired since 2000.

Article 12 of the Universal Declaration of Human Rights guarantees that no one shall be subjected to arbitrary interference with his privacy, family or home nor attacks upon his honour and reputation. The principles of SADC incorporate this guarantee.

Article 17 of the Universal Declaration of Human Rights guarantees the right that no person shall be arbitrarily deprived of his property. Amendment 17 to the Zimbabwean Constitution was drafted so that no consideration is given to individual farms and merely a blanket listing was done. The deprivation of the applicants' land was arbitrary and contrary to international law.

The effect of Zimbabwe's Land Reform Programme has been to take land and improvements without proper compensation for either. In enacting section 16A of the Zimbabwe Constitution (the section brought into law by Amendment 17), the GoZ limited its obligation to pay compensation for improvements to property, and imposed the obligation to pay for the land itself on the former colonial power. This offends the principles of international human rights law in general and the SADC Treaty in particular. The GoZ is the expropriating authority. The GoZ is dealing with land which for the most part (and certainly in the applicants' case) was lawfully acquired by virtue of a commercial transaction, and not by any favour of the former colonial power. In these circumstances it was not permissible to fail to compensate the owner for the land itself. The GoZ cannot pass to a third party the obligation to pay for something which in terms of international law, as the acquiring authority, it is required to bear.

No legislative procedure exists in Zimbabwe for the assessment of compensation of the properties acquired in terms of Amendment 17. Prior to the amendment, at the time that the preliminary notices of compulsory acquisition were sent to the applicants, there were legislative procedures in place. These were not followed.

When deciding whether or not to make a compulsory acquisition, the acquiring authority must have available resources to pay compensation. The very fact that the acquisitions by the GoZ of thousands of farms in terms of Amendment 17 is far outside the financial resources of the GoZ renders that form of acquisition invalid.

The issue of compensation is so interwoven with the abrogation of the right to property that the failure to provide for and pay compensation is fatal to the compulsory acquisition exercise. Two years have passed since the GoZ claims to have obtained ownership of the applicants' property, and the failure to pay compensation leads to the inevitable conclusion that the compulsory acquisition was not done in terms of the norms of international human rights law.

Final Relief Sought:

1.   The Government of Zimbabwe is declared in breach of its obligations as a Member State of the SADC through its purported implementation of Amendment 17.

2.   Declaring the purported seizure of Mount Carmel by the GoZ to be in violation of Zimbabwe's aforesaid obligations as a Member State of SADC and as a party to the SADC Treaty.

3.   Declaring the official Zimbabwe Land Reform Programme a violation of Zimbabwe's aforesaid obligations.

4.   Directing the GoZ to comply with such obligations within a period of six months from date of the final order, to the satisfaction of the Tribunal.

5.    Authorising the secretariat of the SADC to investigate and report upon the GoZ's compliance with the final order, and to make further recommendations regarding further steps to be taken.

6.   Directing the GoZ to pay the applicants' costs in relation to the SADC Tribunal proceedings.

7.   Directing the GoZ to take no steps, and permit no steps to be taken, to evict from or interfere with the peaceful residence on and beneficial use of Mount Carmel by the applicants, and their employees and families.

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