Background
In 2013, the HSF issued several Briefs detailing the issues faced by the SADC Tribunal.
Notably, ‘the HSF wrote of the (disbandment of the Tribunal)’ as follows:
“(The Tribunal) ruled in 2007 and 2008 that Zimbabwe’s … Land Reform Programme was racist and violated property rights and the right of access to justice… The SADC Tribunal pronounced that Zimbabwe had to pay compensation… Mugabe… simply ignored the Tribunal, later launching a campaign … to further a stance amounting to non-compliance (with) enforceable rulings on human rights violations."[1]
In a later brief, the HSF noted that:
"The SADC Tribunal was established as far back as 1992, but was only staffed and became operational in 2005. However, following the decisions in 2007 and 2008, and subsequent to the Mugabe regime’s campaign to have it shut down, the SADC (Heads of State) Summit ordered a review of its functions in 2010, suspended its activities in 2011 and completely disbanded it in 2012."[2]
In that same Brief, the HSF highlighted the ruling of South Africa’s Constitutional Court in Government of the Republic of Zimbabwe v Fick.[3] The HSF wrote that:
"The matter came before the CC as an appeal against a decision of the Supreme Court of Appeal (SCA). The SCA itself dismissed an appeal against a prior ruling of the North Gauteng High Court (High Court).
The High Court was approached by the disposed farmers for the registration and enforcement of the (punitive) costs order (given by the SADC Tribunal against Zimbabwe) in South Africa. The High Court found in their favour and issued a writ of execution against Zimbabwe’s immoveable property.
Zimbabwe then unsuccessfully applied to the High Court for the rescission of the order, which application was dismissed. Zimbabwe appealed further, unsuccessfully, to the SCA.
Mogoeng CJ, writing for the majority, granted leave to appeal on the basis that this case raised important constitutional issues pertaining to access to courts and our own commitment to upholding and enforcing multilateral treaties to their full extent.
In dismissing the appeal with costs, Mogoeng CJ held that the duty to develop and apply our own common law, so as to allow the enforcement of foreign judgments within South Africa, was a constitutional duty created post-1994, notwithstanding the injunctions created by the SADC Treaty to enforce judgments of the Tribunal.
The effect of the (majority) CC judgment is that whilst the Tribunal may no longer exist, its decisions are legal and binding and can be enforced within South Africa. To the disposed farmers it means that something may now be done to restore their dignity as the Zimbabwean Government is finally held accountable under the rule of law."[4]
Regrettably, a few days after the judgment was delivered, the Zimbabwean Government declared the property to be of diplomatic status, thus protecting it from being sold in execution in terms of the Vienna Convention.[5]
While this was obvious action aimed at frustrating the course of justice, the fact that the dispossessed farmers were partially successful in their plight for justice before South Africa’s Courts is important. The ruling established the principle that even though the Tribunal may have been disbanded, in South Africa at least, its rulings were competent and enforceable.
ACPHR Application
The farmers had always stated, however, that their intention was to have the SADC Tribunal reinstated. This was owing to the fact that the Tribunal had proven to be the only institution that they could rely on to protect them, given the questionable results of various diplomatic efforts to intervene in Zimbabwe.
The Application before the ACPHR, brought by two disposed Zimbabwean farmers, Ben Freeth and Luke Tembani, sought to have the Tribunal reinstated in full. As was reported,[6] ‘the application was based in part on two articles within the African Charter in human rights which explicitly state(d) that no AU members can prevent their citizens from accessing justice at national courts.’
However, the ACPHR has dismissed the application on the technicality that the APCHR’s jurisdiction does not extend to regional courts.
Ben Freeth, one of the applicants, said that:
“It is a cop out by the Commission and says that it is ultimately only there to rubber stamp decisions of the EU executive. It has lost huge credibility as a result of this decision...”
He added that there is much speculation about the Commission’s decision being influenced by the AU’s decision to appoint Mugabe to a top position in the AU council last year. That development, which puts Mugabe in line to take over the chairmanship of the AU in 2015, coincided with the Commission’s decision.[7]
Concerns
The HSF is concerned that the rule of law and the protection of human rights, yet again, seems to not be a priority for regional institutions. It is notable that while the ACPHR did base its decision on a lack of jurisdiction, such a justification speaks more to the fact that there is a lack of political will among regional governments to protect, promote and respect human rights and the rule of law. While the ACPHR did criticise governments for the manner in which this matter was handled, the fact that nothing meaningful came out of their ruling is little comfort for those people who are being subjected to the worst of the Mugabe regime.[8]
As the de-fanging of the SADC Tribunal has shown, it is troublesome that institutions can be undermined so that officials across governments can shield each other from proper and just scrutiny where it is warranted. The Zimbabwean example - where the only institution that was willing to speak out against the Mugabe regime’s excesses has now been disbanded - is demonstrative of this. The HSF is concerned that, notwithstanding the South African government’s domestic obligations in terms of our Constitution, following our stance on Uganda, our conduct of foreign policy continues to lack a definitive human rights agenda.
Conclusion
The HSF regrets the findings of the ACPHR and hopes that whatever political action is to be taken, if any, human rights and the rule of law are the foremost concern of our leaders. As the SADC Tribunal showed, in the best way possible, too often our courts are called upon to defend the rights of people against the interests of the politicians that supposedly serve them. It is our hope that in future this principle is advanced rather than retarded.
