Mike Campbell (Pvt) Ltd and Others V Republic of Zimbabwe - Post-decision Developments

Post-decision Developments

Non-enforcement of the Tribunal's judgment
Mike Campbell applied to register the Tribunal's judgment of 28 November 2008 in the High Court on 23 December 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, Campbell and Freeth's families received threats from invaders. Campbell and his wife were eventually forced from their home and Mount Carmel was invaded. Ben Freeth's and Mike Campbell's homesteads were destroyed in fires on 30 August 2009 and 2 September 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 7 August 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 organisation'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 26 January 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 17 August 2010 the Summit of the SADC heads of state and government decided "that a review of the role functions and terms 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 organisations, 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.

In a draft reportcommissioned by the SADC and dated 14 February 2011, WTI Advisors (an affiliate of the World Trade Institute) recommended, among other things, the following: SADC Member States should ensure that they give the force of law to SADC law by amending national law; Member States should consider amending the SADC Treaty to state that SADC law is supreme over national law, including constitutional law; the Tribunal should be given power to determine its own Rules of Procedure; the Tribunal's Protocol should be amended to provide that membership and rights of Member States may be suspended, with the Summit taking account of the possible consequences of suspension; the Tribunal should be able to order remedies (including fines) for non-compliance.

Legal action against heads of State
In April 2011 Mike Campbell, his company Mike Campbell (Pvt) Ltd, and another farmer, Luke Tembani, applied to the courts for an order against the 'Summit of the Heads of State or Government of SADC' and the presidents of 15 member countries, the Council of Ministers of SADC, and the Republic of Zimbabwe, demanding that the Tribunal continues to function in all respects as established by Article 16 of the Treaty.

Compensation battle in South Africa
On 6 June 2011, the North Gauteng High Court in Pretoria, South Africa cleared the way for seized Zimbabwean government assets in Cape Town to be sold by auction to compensate 3 Zimbabwean farmers, including the late Mike Campbell. It is thought to be the first ruling in international legal history that a country's assets should be sold to provide compensation for human rights violations. The Zimbabwean government appealed the High Court's decision, but both the Supreme Court (in September 2012) and the Constitutional Court of South Africa (in June 2013) dismissed the appeal.

SADC Tribunal suspended
On 20 May 2011, an Extraordinary Summit of Heads of State and Government of SADC, held in Namibia, decided not to reappoint or replace SADC Tribunal members, effectively suspending the tribunal.