Editor’s Memo: Sadc parly: Where is the difference?

THE Victoria Falls thundered in the background but the sun was relentless, temperatures soaring above 30 degrees in the shade.

The delegates dozed and wished it would all end so they could take a walk to the gorge and immerse themselves in the spray, or as in the fable, visit the end of the rainbow that straddles the roaring falling water to loot from the golden pot thereat.

But not so fast amigo! Not before Zimbabwean President Robert Mugabe addressed the opening of the Sadc Parliamentary Forum’s 26th plenary session. It was fireworks, man!

“May I assure you of Zimbabwe’s support of the establishment of a Sadc parliament.

“I will be one of those people who want the issue to be brought up, debated and concluded at our next Sadc summit.

“Zimbabwe’s commitment to the noble ideals and collective vision of a prosperous Sadc region is well-known.” said the president.

Wind back to 1992 and the establishment of the Sadc Tribunal.

The Tribunal was established as one of the institutions of Sadc by Article 9 of the Sadc Treaty. On August 18 2005 at their summit in Gaborone the Heads of State and Government of Sadc including President Mugabe appointed its members in accordance with Article 4(4) of the Protocol on the Tribunal. On November 18 2005 in Windhoek the Tribunal was inaugurated and its members were sworn in. One of them was Zimbabwean.

The “noble ideals and collective vision” of the Tribunal were clear.

“The primary function of the Tribunal is to ensure the adherence to law in the interpretation and application of the Treaty,” says the Tribunal on its website.

Further if says: “The Tribunal shall deliver its decisions in writing and pronounced in open court and must deliver a reasoned judgment which, subject to the provisions of the rules as to review, shall be final and binding.” (The emphasis is mine).

In 2007 some members of the Commercial Farmers Union approached the Tribunal to file a case against the Zimbabwe government. Their land had been either seized or was threatened with seizure without compensation.

In November 2008 the Tribunal upheld the farmers’ case. It said the land reform exercise was in breach of international human rights norms and the rule of law as entrenched by the Sadc Treaty.

The land reform exercise, the Tribunal ruled, constituted racial discrimination. Its measures did not relate to criteria of land-use or need, but targeted only so-called white farmers and benefited designated cronies and a class of political chefs.

The Tribunal said the land reform amounted to expropriation on an arbitrary basis and without compensation and it ousted courts’ jurisdiction to adjudicate on human rights infringements. It ordered the government of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of farmers not yet expropriated and to pay compensation to those already expropriated.

But the Zimbabwean government, contrary to its ratification of the Tribunal, in June this year rubbished its ruling. Hawkish Justice minister Patrick Chinamasa, asked if the government would comply with the ruling, had this to say: “Of course not. The tribunal has no jurisdiction over Zimbabwe. We are not State party to the protocol and it has no jurisdiction over Zimbabwe. The judges are not Sadc.”

Many people thought Chinamasa was just kidding. Legal experts at the Zimbabwe Lawyers for Human Rights said Chinamasa neglected to mention the fact that in 2001 the Sadc Treaty had been amended to make the Sadc Tribunal an integral part of both the Treaty and the institution of Sadc. The amendment specifically established the Sadc Tribunal and incorporated it into Sadc as an integral organ.

ZLHR said the amendment referred 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.

But when President Mugabe also dismissed the Tribunal in early December last year the world stood incredulous. He said his government should not be faulted for its land reform programme as it was in fact reclaiming the country, not the farms.

“We do not have any qualms with taking farms from the white farmers. Not at all. What would definitely be a problem is our failure to reclaim our country. We asked the Tribunal if they had considered what is in our constitution which clearly states there shall be a resettlement programme. They think what they say should stand.

“So it’s a tribunal that had an exercise in futility.”

Now let’s talk about the futility of turning the Sadc Parliamentary Forum into a legislative agency with authority to pass laws. What would be the difference between this and the Tribunal?

According to the Herald President Mugabe said in Victoria Falls on Wednesday Zimbabwe deeply valued Sadc’s solidarity as it was “truthful, well-meaning and that it flowed from well-known Sadc ideals”.

These “well-known Sadc ideals” are the very same ideals he dismissed when confronted with a Sadc judgment that went against him.

The Sadc parliament will pass laws that Zimbabwe will ratify but somewhere along the line Zimbabwe will rubbish them.

Wanna bet?

 

Nevanji Madanhire

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