JUSTICE Minister Patrick Chinamasa misled the public this week when he announced that Zimbabwe had pulled out of the Sadc Tribunal arguing that the panel was not properly constituted and therefore illegal, Zimbabwe Lawyers For Human Rights (ZLHR) have said.
The lawyers said Chinamasa misinformed the public that the Tribunal was illegal and not properly constituted because it was not ratified by two-thirds of Sadc members.
ZLHR argues that Chinamasaâ€™s interpretation is wide of the mark because the Articles he was relying on have been repealed.
Articles 35 and 38 of the Tribunal Protocol have both been repealed by an amendment to the Sadc Treaty. Article 16 repealed Articles 35 and 38 and overrides Article 22Â of the Treaty which deals in part with the need to have ratification by two-thirds of Sadc members.
â€œWhat Honourable Chinamasa fails and/or neglects to mention or address is the fact that, in 2001, the Sadc Treaty was amended so as to make the Sadc Tribunal an integral part of both the Treaty and the Institution of Sadc. The said amendment to the Sadc Treaty spcifically established the Sadc Tribunal and incorporated it into Sadc as an integral organ. The amendment went on to refer to the Tribunal Protocol and categorically excluded it from the usual requirement for ratification by two-thirds before it could come into force and effect,â€ ZLHR said.
ZLHR added: â€œHonourable Chinamasa and/or his legal advisors neglected or failed to appreciate that these requirements for ratification were thus made redundant by the Sadc agreement on the Amendment to the Protocol at their meeting in Luanda, Angola, on 3 October 2002.
â€œSadc member statesâ€™ heads of state and government and/or their duly authorised representatives agreed that it was not necessary to ratify the protocol and appended their signatures to this agreement. In fact, the ministerâ€™s colleague and counterpart, Stanislus Mudenge agreed and signed this amendment on behalf of Zimbabwe.â€
The Tribunal ruled in November last year that the chaotic land seizures were discriminatory, racist and illegal under the Sadc Treaty.
The regional court ordered Harare not to evict the 78 farmers and that it pays full compensation to those it had already forced off farms.
President Robert Mugabe has publicly dismissed the ruling, while his supporters defied the court order by continuing to seize more land from the few white farmers remaining in Zimbabwe.
ZLHR says contrary to Chinamasaâ€™s claims, the Tribunal is a creation of the Declaration Treaty and did not â€œowe its existence to the ratification of the Tribunal Protocolâ€.
â€œIt is clear from the above provisions of the Sadc Treaty that, while all other protocols require ratification by two-thirds of Sadc member states, the same rule does not apply to the protocol relating to the Tribunal.
â€œThis was knowingly agreed to by Sadc member states and, in fact, they believe they found this Tribunal to be so critical to the protection of the objectives and workings of Sadc that they knowingly, intentionally and willingly did away with the need for ratification by two thirds of the Sadc member states,â€ ZLHR said.
The lawyers questioned why Zimbabwe seconded Justice Antonia Guvava to sit as a judge on the Sadc Tribunal if it had been illegal.