FRIDAY November 28 will always be remembered by white commercial farmer William Michael Campbell and 78 others as the day the justice they sought for eight years was finally delivered.
The Sadc Tribunal ruled that the decision by the government to evict and serve notice of evictions on the farmers was a nullity because it was driven by racism and contravened a treaty of the regional bloc.
The farmers were thrilled when the tribunal judge, Justice Luis Antonio Mondlane ruled: â€œWe therefore hold that in implementing (Constitutional) Amendment 17, the respondent (Zimbabwe government) has discriminated against the applicants (farmers) on the basis of race and thereby violated its obligation under Article 6 (2) of the (Sadc) Treaty.â€
The tribunal, based in Namibia, ruled that the farmers evicted from their land and those who received notices of evictions should return or stay put on the farms because Zimbabweâ€™s land reform undermined the rule of law.
In addition, the tribunal said President Robert Mugabeâ€™s government must take all necessary measures to protect the possession, occupation and ownership of the land belonging to farmers still on the land and not to take any action to evict them or interfere with their peaceful residence on these farms.
Three of the farmers already evicted, the tribunal adjudged, should be compensated on or before June 30 2009.
The farmers approached the tribunal after losing their cases in Zimbabweâ€™s High and Supreme Courts.
However, the farmersâ€™ smiles were ephemeral, as the Zimbabwe government said the Sadc tribunal was â€œdaydreamingâ€ in its ruling.
Lands minister Didymus Mutasa told the state media that the government would not observe the ruling.Â
â€œWe are not governed and directed by a tribunal. It has absolutely no jurisdiction, we are not going to observe that,â€ Mutasa said.
He said the land reform could not be attributed to racism, but to circumstances brought about by colonial history.
This stance by the government has been described by independent legal practitioners, political analysts and the civil society as a perfect, but sad example of how Zimbabwe has developed into a lawless country.
The Morgan Tsvangirai-led MDC accused Zanu PF of double standards.
Zimbabwe Lawyers for Human Rights programme officer Otto Saki said failure or refusal by the government to abide by the tribunal ruling would prove that Zimbabwe has no respect for the rule of law.
â€œFailure to oblige to the Sadc tribunal rule is a perfect example in our perception that that rule of law is not respected in Zimbabwe,â€ Saki said. â€œMoreover, it will mean that Zimbabwe is just on a cruise with Sadc by not taking the judgement seriously.â€
He said Zimbabwe should abide by regional and international treaties it signed.â€œNobody forced Zimbabwe to enter into an agreement with the rest of Sadc countries. It was voluntary and they should accept the consequences. This will be a good positive test case for the tribunal to see how effective it is and how it will deal with the governmentâ€™s non-compliance,â€ Saki added.
Retired High Court judge George Smith said the judgement was â€œvery well reasoned and cannot be faultedâ€.
He added: â€œThe tribunal was therefore satisfied that the government of Zimbabwe is depriving the applicants of their agricultural land without having had the right to access to the courts and the right to a fair hearing, which are essential elements of rule of law.â€
Smith said Zimbabwe has acceded to a number of conventions and to the African Charter.
â€œBy so doing, it is under an obligation to respect, protect and promote the principle of non-discrimination and must, therefore, prohibit and outlaw any discrimination based on the ground of race in its laws, policies and practices,â€ he added.
Commercial Farmers Union (CFU) president Trevor Gifford applauded the ruling, but expressed shock that the government said it would not respect the judgement.
â€œThe union does not accept this (Mutasa utterances) to be the official reaction of our government and farmers await a better considered and less emotional indication of official response,â€ Gifford said. â€œThe Sadc Tribunal ruling vindicates the attitude long promoted by the union. Land reform was necessary but the means of implementation adopted have been unnecessary and unlawful.â€
He said CFU would soon engage the government on the way forward after the ruling.
â€œThe union is advised that there are courses open to obtain the support of our own courts to ensure that the Sadc ruling is recognised and respected,â€ Gifford added.
Corporate and constitutional lawyer Sternford Moyo said unlike judgements of the African Commission on Human and Peopleâ€™s Rights that are advisory, judgements of the Sadc Tribunal were binding.
Moyo said: â€œThe challenges in Zimbabwe are the fact that the constitution provides in Section 111B that international treaties or agreements shall not form part of the law of Zimbabwe unless incorporated into domestic law by parliament and the fact that legislation relating to enforcement of foreign judgements was repealed and replacement legislation has not yet been enacted.â€
He said the two challenges can be dealt with on the basis that the domestication requirement arose after signature of the Sadc Treaty and should not, therefore, apply to obligations under the Sadc Treaty and with regards to the enforcement of the foreign judgement, an application has to be made to the High Court for recognition and registration of the judgement.
â€œThe difficulty is that one cannot execute against the state.Â The state Liabilityâ€™s Act does not allow it.Â Enforcement will, therefore, be through the political structures of the Sadc Treaty Organisation.Â Where there is no compliance, the matter is referred to the Assembly of Heads of State for political sanction,â€ Moyo explained.
While many are still trying to understand the Sadc Tribunal judgement, Gifford alleged that government was issuing more land offer letters.
The MDC-Tsvangirai accused Zanu PF of double standards on tribunal ruling and said it was worried with the partyâ€™s inconsistency after it dismissed the judgement.
â€œAfter Zanu PF berated the MDC for disagreeing with the Sadc Heads of State that the Ministry of Home Affairs cannot be shared, it is only logical that the regime should itself abide by the ruling of the Sadc Tribunal,â€ the party said in a statement this week.
By Wongai Zhangazha