THE suspension of the Southern African Development Community (Sadc) Tribunal and the drastic curtailment of its jurisdiction were a “clear violation” of the right of access to the courts, Zimbabwean farmers Luke Tembani and Ben Freeth have said in legal argument.
Report by Businessday
Their legal submissions late last month to the African Commission on Human and Peoples’ Rights are the latest step in a prolonged 11-year battle with the State of Zimbabwe over the loss of title to their farms in land grabs after 2000 — a process widely viewed as executive self-help to land in Zimbabwe.
When the tribunal was first set up, it had the jurisdiction to hear disputes between member states and disputes between individuals and their governments — once individuals had exhausted their country’s domestic courts.
But in 2010, the tribunal was in effect suspended and then, last year, the Sadc heads of State decided that the tribunal’s protocol should be amended to disallow individuals from approaching it.
The two farmers then approached the African Commission, saying they had “nowhere else to turn” and asking the commission to refer their case to the African Court of Justice and Human Rights.
But the commission found last year that it could hear the case itself and asked Tembani and Freeth to make legal submissions. Their counsel, Jeremy Gauntlett SC, said the “initially temporary suspension and now permanent ouster” of the tribunal’s jurisdiction was unlawful on a number of grounds.
It infringed the African Charter on Human and Peoples Rights and the Sadc Treaty — because it infringed the right of access to courts, interfered with judicial independence and violated the rule of law and the separation of powers. The suspension was also procedurally irregular, irrational and “in bad faith”, he said. He also referred to warnings of a contagion-effect across the continent. Amendments condemned THESE decisions were widely condemned, with critics saying the summit had bowed to pressure from Zimbabwe after it refused to enforce a number of the tribunal’s orders relating to unlawful land expropriations. The summit decisions also effectively squashed Tembani and Freeth’s case.
