THE long-stalled bilateral investment promotion and protection agreement (Bippa) between Zimbabwe and South Africa is due to be signed today.
The agreement is being signed in a contentious environment in which local and South African farmers believe that the treaty must guarantee land rights.
As late as this week the Commercial Farmers Union published legal opinion by prominent South African lawyers Jeremy Gauntlett SC and FB Pelser — advising the South African government not to sign the agreement. We carry excerpts of the legal opinion elsewhere in this edition.
The Zimbabwe government on the other hand has for a long time argued that it will not enter any bilateral investment protection agreement as long as such a treaty seeks to reverse the land reform programme.
That is to say that the issue of property rights of foreign investors as they relate to land are not guaranteed under a Bippa.
The government has kept under wraps the final draft of the agreement to be signed today but there are real fears from South African farmers — a number have already lost their farms under the government’s land expropriation plan — that protection of investment in landed property has been excluded from the Bippa.
They have every reason to be afraid. In August Justice minister Patrick Chinamasa had this to say about the delay in the signing of the Bippa: “We have made it clear that compensation for developments on any acquired land would be paid over a period of time. If they (South Africans) are agreeable to exclude land from the agreements, then the Bippa will be signed any time. We will, however, not agree to agreements that will undermine and cause confusion over the land issue.”
If anything, the confusion around the Bippa stems from Zimbabwe’s mixed message in its dealings with the South African government.
Zimbabwe has pleaded for foreign investment and the South African government has already asked the international community to heed this call. Zimbabwe is expecting a bigger chunk of investment to come from South Africa, hence the need to expedite the signing of the trade treaty. But Zimbabwe has in its quest to attract investment and lines of credit from South Africa displayed the now all-too-familiar arrogance which has proved to be unhelpful.
Zimbabwe has already demonstrated utter contempt for property rights by disregarding court decisions and thumbing its nose at the Sadc Tribunal which ruled that the land reform in Zimbabwe was racist and that the government failed to protect dispossessed farmers or adequately compensate them.
Zimbabwe’s justification for violating farmers’ fundamental rights and breaching protections owed to foreign investors has been that the state is compelled to do so on the grounds that it is seeking to protect a valid human rights obligation to indigenous people; that is the right to land. In current pending international law proceedings between investors and governments, arbitrators are being asked to weigh whether human rights considerations should limit or preclude the liability of states for breaching investment treaty obligations.
That quest for preclusion has become an easy escape route by governments to violate international obligations and the Zimbabwean case is emblematic. The violation of existing Bippas by Zimbabwe and resistance to include land protection clause in new treaties has little to do with empowerment or transfer of wealth but sheer greed. Today we question the benefits to the nation of the expropriation of properties once owned by Dutch farmers and those confiscated from South African investors. Can the argument of common good hold here?
It is accepted that one of the most important challenges of modern investment treaties is to ensure that the increased flows of foreign investment and corporate activity do not contradict sovereign commitment to human rights. This is not an abstract issue, neither is it a licence for the government to get careless and destroy primary production systems.
For the land rights argument to hold water — especially in our case where regulatory systems, including democratic systems of checks and balances, are rudimentary — there must be a participatory approach to ensure people fully understand the international processes that facilitate foreign investment in or near their communities.
It is fundamentally important that our rulers realise that Bippas have developed as a result of investors having realised the weaknesses of local institutional remedies. By entering into an agreement with South Africa, Zimbabwe is inviting international scrutiny and it should be seen upholding international law. At the moment it’s not.
The Bippa with South Africa therefore is a major test for Zimbabwe’s sincerity in upholding international norms which are fundamental in promoting investment. The world is watching.