Sadc Tribunal does not exist - 10 August 2009

Sadc Tribunal does not exist - 10 August 2009

By Mabasa Sasa

THE Sadc Tribunal that has passed two judgments perceived to be an attempt to reverse the country's land reform programme is illegitimate because two-thirds of the regional body's membership has not ratified the protocol that seeks to create the Southern African court.

According to a presentation by Justice and Legal Affairs Minister Patrick Chinamasa to his regional counterparts and Sadc attornies-general, said only five countries have so far ratified the protocol and an amendment to the document.

This means by law the Sadc Tribunal does not exist and raises questions as to why the bloc's secretariat has allowed it to even sit in the first place.

Separate investigations have also revealed that the Sadc Secretariat has been enforcing other protocols and treaties that have not yet been ratified by two-thirds of the membership.

Part of Minister Chinamasa's presentation to the July 23-August 3 meeting in South Africa, states: "The Government of the Republic of Zimbabwe is surprised that in its haste to judge Zimbabwe, the Tribunal has not examined the history of the treaty and the protocol on the Tribunal, an exercise which was necessary in order to determine whether the protocol came into force and, if so, whether Zimbabwe is a party to it.

"We had not raised this issue before as an indication of our good intentions but the referral of this matter to the Summit leaves us with no option but to question the Tribunal's omission to address so fundamental a question."

Only Botswana, Lesotho, Malawi, Mauritius and Namibia have ratified the protocol, meaning that the Tribunal remains in existence as a proposal only.

Seventy-nine Zimbabwean white commercial farmers applied to the Sadc Tribunal to reverse the acquisition of their farms by Government for purposes of resettlement.

The Tribunal subsequently passed two judgments in favour of the farmers; an interim relief and a final relief order barring Government from acquiring their farms.

However, Government has said it will not recognise these orders because the Tribunal does not yet exist.

Regional justice ministers deferred their discussions and will meet on the sidelines of the Sadc Summit in the DRC in September.

In an interview yesterday, Minister Chinamasa said: "According to the Treaties Status Report given to us by the Sadc Secretariat itself, only five countries have ratified the protocol and its amendment. This is short of the required two-thirds majority and thus the Tribunal does not exist.

"In fact, Zimbabwe is not even one of the five countries that ratified. The Tribunal is not in a position to exercise jurisdiction even on the five who have ratified.

"The Sadc Treaty of 1992 requires that any protocols must be ratified by two-thirds of the total membership. Over and above this, the constitutions of the member states oblige them to first have any treaties approved by their own parliaments before any ratification.

"There has never been any basis for the Tribunal to exercise jurisdiction and trying to do so is a grave violation of Zimbabwe's Constitution, the Sadc Treaty and international law.

"It is quite an embarrassing situation because both the Tribunal and the Sadc Secretariat have egg on their faces."

He said the Tribunal should have on its own initiative first sought to establish if it was legally constituted and the secretariat should have never allowed protocols to enter into force before the requisite ratification.

"The Tribunal itself and any judgments it purports to pass on anyone are null and void. To move forward, the secretariat must seek to regularise the enforcement of protocols.

"On our part, Zimbabwe will not ratify that protocol until the relationship between the Tribunal and domestic courts is clarified because right now it looks as if there are people who want to make it a court of appeal superior to member states' own highest courts."

Zimbabwe's Supreme Court, sitting as a Constitutional Court, ruled against the 79 farmers and upheld the constitutionality of the land reform programme.

They successfully appealed to the Tribunal but the judgments cannot be enforced.

Observers said there was a possibility that the white farming community intended to use the Tribunal to reverse the land reform programme by getting a regional court to bar acquisitions and overturn the resettlement that has already taken place.

On the issue of the enforcement of other protocols, it has emerged that Sadc could have been using up to 10 agreements that are yet to be ratified.
Source: Herald (Zimbabwe Government)