Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe

Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe is a case decided by the Southern African Development Community (SADC) Tribunal (hereinafter "the Tribunal"). The Tribunal held that the Zimbabwean government violated the organization's treaty by denying access to the courts and engaging in racial discrimination against white farmers whose lands had been confiscated under the land reform program in Zimbabwe.

Background
Land reform in Zimbabwe began after the signing of the Lancaster House Agreement in 1979 in an effort to more equitably distribute land between the historically disenfranchised blacks and the minority-whites who ruled Zimbabwe from 1923 to 1979. Government-orchestrated land invasions began in February 2000. The Zimbabwean government formally announced a "fast track" resettlement program in July 2000, stating that it would acquire more than 3,000 farms for redistribution.

Mike Campbell purchased Mount Carmel in 1974 (full title vested in 1999). In July 2001, amid large-scale land invasions by "war veterans", Campbell received a government notice to acquire Mount Carmel in the district of Chegutu, but the notice was declared invalid by the High Court. In July 2004, a new notice of intent to acquire Mount Carmel was published in the official Government Gazette, but no acquisition notice was actually issued. However, two months later, according to court filings, "persons purported to occupy the farm on behalf of Zanu PF spokesman Nathan Shamuyarira, claiming the former minister had been allocated the farm." After three more preliminary notices to take the farm were published in 2004, Campbell applied to the High Court for a protection order.

Amendment 17 was added to Zimbabwe's constitution on September 14, 2005 to vest ownership of certain categories of land on the Zimbabwean government and to eliminate the courts' jurisdiction to hear any challenge to the land acquisitions. Campbell initiated proceedings in court on May 15, 2006, challenging the validity of Amendment 17. In December 2006 the Gazetted Land (Consequential Provisions) Act passed into law, requiring all farmers whose land was compulsorily acquired by the government and who were not in possession of an official offer letter, permit, or lease, to cease to occupy, hold, or use that land within 45 days and to vacate their homes within 90 days. On October 11, 2007, before the Supreme Court of Zimbabwe had delivered its judgment in the case, Campbell filed an application with the SADC Tribunal challenging the acquisition by the Zimbabwean government. Subsequently, 77 other persons joined as parties in the proceedings against the government of Zimbabwe.

Mike Campbell, his wife Angela and their son-in-law Ben Freeth were kidnapped, taken to an indoctrination camp and beaten by thugs on June 29, 2008.

Decision by the Supreme Court of Zimbabwe
The Supreme Court of Zimbabwe issued a decision in the case on January 22, 2008, dismissing Campbell's challenge. The Court held that: (1) race was not an issue in the case, because neither the relevant provisions of Section 16B of the Constitution nor the land acquisitions made reference to race or color; (2) the Government of Zimbabwe has an inherent right to compulsorily acquire property, and (3) the legislature has full power to change the Constitution. The Court also stated that an "application to a court of law to challenge a lawful acquisition would in effect be an abuse of the right to protection of law."

The SADC Tribunal
The Tribunal was established by the SADC treaty. The SADC has been in existence since 1980, when it was formed as a loose alliance of nine majority-ruled States in Southern Africa known as the Southern African Development Coordination Conference (SADCC), with the main aim of coordinating development projects in order to lessen economic dependence on the then apartheid South Africa. The Tribunal ensures adherence to, and the proper interpretation of, the provisions of the Treaty and the subsidiary instruments made under it, and adjudicates upon disputes referred to it.

Decisions by the SADC Tribunal
The Tribunal concluded that it had jurisdiction to hear the case because the dispute concerned "human rights, democracy and the rule of law," which are binding principles for members of the SADC.

December 17, 2007

The Tribunal granted an interim measure ordering the government of Zimbabwe to take no steps, directly or indirectly, to evict Campbell from the farm or interfere with his use of the land.

November 28, 2008

The Tribunal's decision on this date addressed four main issues: (1) Whether the Tribunal had jurisdiction to hear the case; (2) whether the plaintiffs had been denied access to domestic courts in violation of the SADC Treaty; (3) whether the Zimbabwean government had discriminated against the plaintiffs on the basis of race, and (4) whether the plaintiffs were entitled to compensation. (1) The Tribunal held that it had jurisdiction to hear the case, because Amendment 17 had eliminated the plaintiffs' access to the domestic courts, and the plaintiffs were therefore entitled to seek remedy before the Tribunal. (2) The Tribunal found that the plaintiffs had been deprived of their right to a fair hearing before being deprived of their rights. (3) On the racial discrimination issue, the Tribunal held that the actions of the Zimbabwean government constituted indirect or "de facto" discrimination because implementation of Amendment 17 affected white farmers only. (4) Finally, the Tribunal held that the plaintiffs were entitled to compensation for the expropriation of their lands.

June 5, 2009

After Mike Campbell and another applicant named Richard Thomas Etheredge filed a new application to declare the Government of Zimbabwe in contempt, the Tribunal held that the Government of Zimbabwe had failed to comply with the Tribunal's previous decision. The Tribunal stated that it would report its finding to the Summit of the SADC.

Post-Decision Developments
Non-enforcement of the Tribunal's Judgment

Mike Campbell applied to register the Tribunal's judgment of November 28, 2008 in the High Court on December 23, 2008, but the application was not accepted with no reasons given. Over a hundred prosecutions of white farmers continue because they remain on their lands. The High Court issued orders in April 2009 to evict the invaders on Mount Carmel, but nothing was done by the police to enforce the orders. No mention of the Tribunal's decision was made at the SADC's summit in early September 2009.

Threats, Intimidation and Fires

After February 2009, Mike Campbell, Ben Freeth and his family received threats from invaders. Mike Campbell and his wife were eventually forced out of their home and Mount Carmel was invaded. Ben Freeth's and Mike Campbell's homesteads were destroyed in fires on August 30, 2009 and September 2, 2009, respectively.

Zimbabwe Denies the Legitimacy of the Tribunal

Zimbabwe's Justice Minister Patrick Chinamasa wrote to the Tribunal to inform of Zimbabwe’s withdrawal from the Tribunal in a letter written on August 7, 2009, arguing that it did not have jurisdiction over Zimbabwe because the Tribunal's Protocol has not yet been ratified by two-thirds of the total members of the SADC, as required by the organization's treaty, and stated that Zimbabwe would no longer be bound by any of the Tribunal’s past or future judgments.

Decision by the High Court Not to Register the SADC Tribunal's Judgement in Zimbabwe

Judge Patel of the High Court issued a decision on January 26, 2010 in which he held that the SADC Tribunal was properly constituted and had jurisdiction to hear Campbell's case, but its decision could not be registered for purposes of enforcement. Judge Patel's decision relied on two main reasons. First, the Supreme Court of Zimbabwe had confirmed the constitutionality of the land reform program, and registering the SADC Tribunal's judgment in Zimbabwe would challenge the Supreme Court's decision and undermine its authority; this would be contrary to public policy. Second, if the Zimbabwean government complied with the SADC Tribunal's decision, it would contravene section 16B of the Constitution (introduced by Amendment 17 in 2005, see above); this could not be allowed because the Constitution is the supreme law of Zimbabwe.

The SADC Summit Orders a Review of the Role, Functions and Terms of the SADC Tribunal

On August 17, 2010 the Summit of the SADC heads of state and government decided "that a review of the role functions and terms [sic] of reference of the SADC Tribunal should be undertaken and concluded within 6 months." According to an opinion submitted by a group of legal and human rights organizations, the SADC Summit effectively suspended the Tribunal, as it failed to renew the tenure of five judges and failed to appoint new ones, leaving the Tribunal improperly constituted in violation of the Tribunal's Protocol; this decision may have been precipitated by Zimbabwe's challenge to the legality of the Tribunal after the Tribunal decided against Zimbabwe in cases concerning land disputes.