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Land reform goes on trial

Augustine Mukaro

JUDGE Gilbert Guillaume of France, Ronald Cass, former dean at the Boston School of Law, and former Pakistan Justice minister Mohammad Wassi Zafar, have been appointed to preside over a Dutch farmers’ ca

se against government filed at the International Centre for the Settlement of Investment Disputes (ICSID).

The Dutch Farmers Association, in conjunction with UK-based Agric-Africa, registered the case on behalf of dispossessed local farmers at the ICSID in Washington last year, demanding that President Mugabe’s government should uphold Bilateral Investment Promotion and Protection Agreements (Bippas).

Judge Guillaume, a former president of the International Court of Justice and a designee of the government of France to the ICSID panel of arbitrators, will preside as the casting vote in the case.

The Zimbabwe government appointed Zafar as their arbitrator while farmers chose Cass to represent them.

The centre was established in 1966 as an affiliate of the World Bank to provide facilities for the arbitration of disputes between member countries and investors who qualify as nationals of other member countries.

The Zimbabwe case is number 74 out of the 104 cases that are before the tribunal.

A group of 11 dispossessed Dutch farmers took their case for compensation in respect of confiscated land to the tribunal, claiming more than US$15 million.

The case was filed by Bernardus Henricus Funnekotter and others, and then registered by the tribunal on April 15 under Case Number ARB/05/6.

“We are claiming in excess of US$15 million as compensation for improvements, land (title deed value) and expropriated moveable assets,” Funnekotter said this week.

“The Zimbabwe Government will be responsible for the payment of the claim, which at present is accruing interest back-dated to the time they expropriated the land, and they have to pay in the currency of the nationals — which would be euros.”

He said farmers want to prove that both governments signed and ratified the Bippa agreement and show the inappropriate methods used by the Zimbabwe government to take possession of their land.
Funnekotter said Zimbabwe has been pushing for the arbitration to be held in Harare citing problems of foreign currency shortages.

“The Zimbabwe government asked for the venue to be in Harare pleading a pathetic reason as being short of foreign currency, which was denied,” he said.

“Anyway Harare would be an unfair venue for the Dutch nationals.”

More than 60 Dutch farmers were forced off their properties despite the fact that they were protected under a Bippa, ratified by President Robert Mugabe in 1996.

There were about 1 000 Dutch nationals, 70 of them farmers, in Zimbabwe before 2000 who grew flowers on land that was protected by the Bippa.

Under the agreement, government had promised to pay full compensation to Dutch nationals in the event of a dispute arising out of an investment in Zimbabwe.

Should the ruling by the tribunal favour the applicants, it could set a precedent for similar claims against government in international courts. The centre’s rulings are enforceable in 140 states that have ratified the organisation’s convention.

The Dutch claimants are being represented by Wiley Rein & Fielding in Washington, Bishop & Sewell in London, and by Coghlan Welsh & Guest in Harare. Agric-Africa chairman Bob Fernandes used to work as a property evaluator in Zimbabwe.

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