On 18 August 2005, the Heads of State or Government of SADC at their summit in Gaborone, Botswana pursuant to Article 4(4) of the Protocol on the Tribunal appointed its Members. On 18 November 2005, the Tribunal was inaugurated and its members were sworn in Windhoek, Namibia.
The need for a regional tribunal is well established and accepted by all including the government of Zimbabwe (GOZ). However, GOZ to formally withdraw from the jurisdiction of the Tribunal following two adverse judgments passed by the Windhoek-based court goes a long way towards exposing how complex the project to create a United States of Africa founded on shared values, principles and beliefs is or can be.
Notwithstanding the fact that all the Zimbabwean key role players accept the positive role played by SADC through its facilitator in the formation of the inclusive government, we now know that at the end of the day supranational institutions can only be as effective as the powerful men in the individual nation states want them to be.
The fact that the Zimbabwean government was represented as a litigant in the landmark land dispute case is significant. Ordinarily it would be wrong, for example, for one to agree and proceed to participate in a game of football and after losing then seek to distance oneself from the process and outcomes. By agreeing to be a player, it means necessarily that one becomes bound by the process and its outcomes.
The GOZ was represented in the legal proceedings and it cannot be denied that this represented a unique opportunity for Zimbabwe as a member state of SADC to defend its land policies and programs as well as the legal and historical basis of the land acquisition program to peers.
When the GOZ disagreed with the Commonwealth, a decision was made to withdraw from the club. Now the ZANU-PF part of the inclusive government supported by the GPA framework, that is underpinned by a shared view by the three political parties that the land reform program is irreversible, has taken the view that Zimbabwe must withdraw from the regional body’s jurisdiction and in doing so render the judgments of no force and effect.
The GOZ, which has been part of the litigation presumably on the assumption that the judges will take the same view that has been taken by SADC’s political actors that the root cause of the Zimbabwean crisis is the land dispute and, therefore, the only viable option is for Zimbabweans to pursue their domestic remedies as they deem fit, argues the Tribunal as constituted lacks the legal authority and mandate as it has not been sanctioned by two thirds of the member states, as is required.
Hon. Chinamasa who as it now appears evident managed to convince his SADC Ministerial colleagues at a meeting held from July 27 through August 3, 2009 believes that he has the support of the region to take the decision that he did on behalf of the GOZ. After all SADC is the primary guarantor of the GPA and, therefore, even if MDC-T may have reservations about the manner in which the decision to withdraw from the Tribunal’s jurisdiction, the Minister feels rightly or wrongly to be entitled to proceed to nullify the two judgments.
To the extent that only five of the fourteen SADC countries have so far ratified the Tribunal Protocol, it is now being argued that the purported application of the provisions of the Protocol on Zimbabwe is a serious violation of international law notwithstanding the fact that at all material times this was a known fact leading legitimately to a valid question of why the GOZ in the first place bothered to cooperate with a body that it now says opportunistically lacked the legal authority to adjudicate on Zimbabwean disputes.
Although the factual and legal matrix of the matters brought before the Tribunal do not change just because of the Tribunal’s lack of jurisdiction, it is not uncharacteristic for Hon. Chinamasa to distract attention from the core issues at hand by seeking to advance legalistic and formal technical arguments. In doing so, the actions and decisions of the GOZ on land reform often never get properly adjudicated or interrogated by an independent tribunal particularly given that between Hon. Chinamasa and Mnangagwa most of the judges on the Zimbabwean judges were appointed largely drawn from the civil service.
To Hon. Chinamasa, the land question has been adequately addressed in Zimbabwe and no other authority should ever be allowed to poke its nose on this issue. Instead of addressing the critical issues that have universally tainted the legitimate issue of redressing the historically determined land ownership patterns, what seems to be now at stake is the legitimacy of the Tribunal and its implied bias against the revolution.
It is evident that the thinking that informs Hon. Chinamasa and his colleagues is that revolutionaries must never be accountable to any independent tribunal especially if their actions are aimed at correcting historical wrongs.
What would give Hon. Chinamasa to make the decision and communicate it to the Tribunal without the knowledge and consent of his Prime Minister? Hon. Chinamasa who was also one of the key players in the GPA negotiations fully knows where sovereignty is vested in the context of the inclusive government. He knows as we all should that the address of sovereignty has not changed since 1980 and, therefore, key decisions that have implications on sovereignty have to be made by the constitutional head of state, government and the defence forces.
The GPA was framed on certain key underlying principles i.e. that President Mugabe is the legitimate head of state and government. The Presidium is still under ZANU-PF control. In the circumstances, Hon. Chinamasa only needs to consult the Presidium and is not really accountable to the Council of Ministers whose constitutional relevance is all apparent to any rational observer.
Accordingly, Hon. Chinamasa suffers no disability from making the decision that he made and it is unlikely that any serious tensions will emerge from this decision within the inclusive government particularly when one considers that there is no disagreement on the irreversibility of the land reform program however imperfect its implementation has been.
When Hon. Chinamasa makes a decision one must take it seriously and since the formation of the inclusive government he has continuously demonstrated that the inclusive government is really an exclusive formation underpinned by values, beliefs and principles of ZANU-PF as the dominant political culture.
In fact by questioning the jurisdiction of the Tribunal without questioning the SADC processes that led to the formation of the inclusive government, it is clear that Hon. Chinamasa is reminding the world and injured parties where the buck stops and how no change can legitimately be described as democratic change.
Although the MDC may very well be opposed to Hon. Chinamasa’s decision and supportive of the 79 commercial farmers who were granted an order barring the GOZ from compulsorily acquiring their land without paying compensation, Hon. Chinamasa knows that if push comes to shove he will prevail and the inclusive government will not be threatened in any serious manner.
The two MDC parties are signatories to the GPA as they are to the Kariba Draft Constitution to give them legitimate grounds to distance themselves from the real consequences.
Although the Tribunal has ordered the GOZ to compensate those who have lost their land under Zimbabwe’s land reform programme since 2000, it is not surprising that such order have been received with contempt and, in fact, Hon. Chinamasa would go as far as to say that Zimbabwean laws permit the GOZ to act in the manner it has acted and nothing will change this.
ZANU-PF has framed the land question as a defining one and hence the refusal to assign the Ministry of Justice to MDC representatives. To this end, it is unlikely that the position of the GOZ as articulated by Hon. Chinamasa will be reversed at the Summit that begins tomorrow in Kinshasa. It would be naive to expect the GOZ to be sanctioned by SADC. Equally, it is highly unlikely that any action will be taken by SADC against the GOZ.
SADC by guaranteeing the GPA has already pronounced its opinion on the land question to give anyone hope that relief can come from Kinshasa. President Kabila is the next Chairman of SADC and it is unlikely that he will be supportive of any view contrary to the official position of President Mugabe.
Even the United Nations will not come to anyone’s rescue. What the GOZ expects is that SADC will endorse the position that the only outstanding issue on the implementation of the GPA is the removal of sanctions not compensation for land losses.
The victims who have used the SADC Tribunal as a forum to complain about their property and human rights injuries are all white and this does not assist in framing supportable arguments for African intervention. If anything, many SADC states hold the same views as the one held by President Mugabe and ZANU-PF that restoration of historically altered property rights must not come at any cost to the former victims and beneficiaries of land reform.
The wounds created by the colonial system are too fresh to be ignored and yet Africa needs investment in the agricultural sector to advance its interests. The land reform program has not produced the intended commercial outcomes. The removal of white commercial farmers from land and replacing them with black farmers in and out of itself will not materially change Zimbabwe’s fortunes without addressing critical foundational and fundamental issues that drive national progress.
The right, title and interest to land is necessary but not sufficient to determine one’s success as a farmer. Farming as an enterprise requires a mindset no different from that of any entrepreneur pursuing other business interests. A farming enterprise must be regarded as any living organism requiring support and care.
The Africa we want to see must be a negotiated one. It is important that such negotiation be informed by the demands of the future and less by the disabilities of the past. There is nothing that will change the past but there is a lot that we can do to change the future. The choices that we make today have an important bearing on the future of this continent we all say we love dearly.
The decision to withdraw from the Tribunal’s jurisdiction will not add value to the key challenges that Zimbabwe faces. It is and should never be too late for Zimbabweans to pause and reflect on what kind of country they want to see. A country with only black people as farmers with secure title to land? Or a country where genuine farmers have access to land to be able to successfully and efficiently convert a seed into a crop that can feed not only Africans but all who are willing and able to pay for the output.
As Africans, we can use the opportunity offered by Zimbabwe to begin new conversations on what kind of Africa we want to see. Does Hon. Chinamasa’s views at this defining moment in Zimbabwe and Africa’s journey towards a better life for all help the journey or undermine it? I have learned that people like Hon. Chinamasa are not as harmful as we imagine for the real harm comes from the silence of the many. This battle is no longer between black and white but between light and darkness, progress and backwardness, and more importantly between disgraced ideas and progressive nation building concepts and ideas.