Friday, June 10, 2011

Windhoek: A Victory for Justice

Windhoek: A victory for justice

Wednesday, 08 June 2011 22:28
Zimbabwe Herald

IN a draft report commissioned by Sadc and dated February 14, 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."

This was the precursor to the direction into which Sadc was being pushed by Western powers in relation to the expected finalisation of the Sadc Tribunal case, itself effectively suspended on August 17, 2010; after Zimbabwe successfully challenged the legitimacy of the body.

The Western meddling in this particular case closely resembles what is happening with the lobbying that has preceded the issue of the so-called election roadmap for Zimbabwe - a matter the MDC-T views as a way of smuggling in Western election monitors in order to prop up their chances, and to legitimise any contesting they might choose to do if or when they lose the next election to Zanu-PF.

The MDC-T is doing everything and anything the ill-minded planners at Harvest House can come up with to create an image of a dire political situation in Zimbabwe in order to create a semblance of relevance to the otherwise truly baseless claim that Zanu-PF is terrorising and brutalising the electorate ahead of a coming election, the MDC-T is absolutely scared of.

The MDC-T wants an election roadmap that delegitimises any of Zimbabwe's institutions that may be viewed as sympathetic to the cause of the liberation war that brought national independence to the country, institutions such as the military, the police force, the youth ministry and so on.

The idea is to silence the voice of the liberation legacy which the MDC-T believes is the major strength of Zanu-PF. The discredited strategy adopted by the MDC-T is a tired one - paint the war veteran part of the police force and, the military as violent by orientation and, taint the rest of the war veterans as a bunch of thugs that are out of control and very dangerous to freedoms and liberties of all others.

Add to this sinister campaign the vainglorious support of Western media and, the so-called independent media and then push for an election roadmap that seeks to rid Zimbabweans of war veterans in general and those serving in the security forces!

The strategy seeks to retire the influence of the liberation legacy to the electorate, thereby crippling what is perceived to be the backbone of Zanu-PF, its trump card in elections, its foundational strength and its attraction to the masses.

Much as the MDC-T is evidently a violent party whose youths have a terrible chronological history of atrocities that includes numerous attacks on fellow MDC-T members and officials, and recently, the callous murder of a police officer who was going about his assigned duties, there is this traditional grandstanding where the MDC-T leadership tirelessly manufactures scenes where the party is portrayed as victims of ruthless political monsters from Zanu-PF, or from some state institutions that the MDC-T views as hostile to the party's leanings to Western imperialism.

This time the manufactured scene seems to be the alleged "bomb attack" on a wall that surrounds Biti's House, an attack that was first reported to Western journalists and other journalists from the so-called independent media, a long 17 hours before the police were notified of the alleged attack.

It would make a lot of sense to assume that the attack, if ever it actually happened was of more interest to the media than it was a threat to lives. That is why the owner of the house thought it necessary to report it to journalists first, and in fact almost forgot to report to the police, something he seems to only have done to fulfill formalities and to make the script more credible.

In fact, the owner of the house was conveniently away so that the escape can elicit a more mythical emotion that says, "thank God he was not inside; we would be talking of something else now."

The adopted strategy is to smear all the institutions that are perceived as sympathetic to the liberation cause and to portray them as violent and undemocratic. This is why the MDC-T preaches the vainglorious message that says General Constantine Chiwenga and Commissioner General Augustine Chihuri are faces of political violence, regardless of the fact that the MDC-T itself believes religiously in violence as a tool to achieve political ends.

We hear Brigadier Douglas Nyikayaramba is the newest enemy of MDC-T supporters as extensively published by the party's mouthpieces. This is precisely because the man's political views are contrary to what the MDC-T wants army officials to think, especially in relation to who should win an election in Zimbabwe, and also, to views on the hostilities of Western countries in Zimbabwe; more importantly the hated anti-imperialist resolve that the MDC-T thinks is coming from ungrateful Africans who fail to grasp the glorious good intentions of Westerners.
But, this essay is about the May 20, 2011 Windhoek Summit.

In the case of this earlier described Sadc Tribunal, Western sponsored NGOs, Western governments and other lackeys to the imperial hegemony were all determined to prop up the now defunct Sadc Tribunal in its discredited form, and, they were eagerly campaigning to amend national laws of Sadc member states, to make Sadc law superior to national laws of member states, including constitutional law, and the highest domestic courts. (See opening remarks to this essay).

In short the Sadc Tribunal was meant to administer laws that sideline the poor majorities of Sadc member states, protecting the colonially privileged rich few in the region, precisely the whites that chose to remain in independent Africa at the fall of colonial empires.

The WTI was sponsoring a position where the Sadc Tribunal would have autonomous power to determine its own rules and procedures. It wanted the Tribunal to have powers to suspend member countries where it deemed necessary.

It also wanted the Tribunal to have powers to punish member states by various sentences including fines. The targetted country in this campaign was obviously Zimbabwe, and the overall intention was clearly to send a chilling message that any Sadc member state that might be contemplating emulating any of Zimbabwe's nationalistic policies would suffer the dire consequences.

It is absolutely improper, but not surprising that the World Trade Institute can assign its advisors to direct how the Sadc Tribunal should be constituted. The world has to put up with the absurdities of imperial hegemony as the West brazenly embarks on a campaign to exert its influence on others. In fact, Barack Obama just declared that the US and the UK are "indispensable" in their resolve to "lead the world". He said this during his recent State visit to the UK.

The Sadc Tribunal was largely an anonymous body whose existence was not known even within Sadc itself, until December 17, 2007, when the court ruled in favour of Mike Campbell (Pvt) Ltd and others, and against the Government of Zimbabwe.

That ruling popularised the Sadc Tribunal in the West, and many of the imperial folk celebrated loudly what they thought was the demise of "Mugabe's chaotic land grab", itself a massively popular mass-empowerment exercise.

The case involved a group of white commercial farmers who were arguing that racial discrimination was an underlying issue in Zimbabwe's land reform programme; that the Zimbabwe Government had no right to acquire land occupied by white commercial farmers; that the Zimbabwe Parliament had erred in passing Amendment Number 17 to the Constitution; and that if evicted, the white commercial farmers had a right to compensation covering both land value and developments.

The Tribunal ruled that the Zimbabwe Government had violated the Sadc treaty by allegedly denying the white commercial farmers access to domestic courts. This was despite the fact that the same group of farmers had exhausted all legal channels in Zimbabwe, ending up in the Supreme Court which ruled on January 22, 2008 that race was not an issue in the implementation of the land reform programme, that the Zimbabwe Government had a right to acquire land in the interest of the nation, and that the legislature had full power to change the Constitution according to constitutional provisions.

The Supreme Court observed that "application to a court of law to challenge a lawful acquisition would in effect be an abuse of the right to protection of law." To the ousted white commercial farmers, losing a case at the Supreme Court was tantamount to being denied access to judicial recourse.

A competent Supreme Court could never rule against a group of white commercial farmers unless it was manned by "Mugabe cronies".

That was the prevailing media mantra in the West. The argument was even legitimised by a film titled "Mugabe and the White African".
What popularised the Sadc Tribunal, especially in the West; was its December 17, 2007 ruling that it had jurisdiction over the case that had been brought before it by the white commercial farmers; that the same white commercial farmers had been denied access to domestic courts in Zimbabwe; that racial discrimination was behind land acquisition in Zimbabwe, and that the farmers were entitled to compensation for both the land value and the developments.

The position of the Zimbabwe Government has always been that compensation should be limited to developments only, and not extended to colonially stolen land, itself acquired forcefully and without any payment by the first colonial settlers.

Zimbabwe refused to recognise the ruling of the Tribunal on the basis that firstly, the Tribunal was not properly constituted since its protocol had not been ratified by the required two thirds majority of Sadc member states, and also on the basis that the Tribunal did not have the power to overturn a judgment of the Supreme Court of Zimbabwe, effectively overturning the constitutional provisions of a Sadc member state.

The Zimbabwe High Court refused to register the Tribunal's judgment on January 26, 2011 and it explained its decision on the basis that it could not overrule the Supreme Court's judgment, and that the land reform programme was a matter of public policy, and that it would be impossible to implement the decision of the Tribunal, which effectively meant a reversal of land resettlement, altogether, something that could seriously destabilise the country.

Sadc held a summit on August 17, 2010 and passed a resolution to effectively suspend the operations of the Tribunal, pending a review of its terms and reference. This suspension was disastrous for the numerous lobbyists who were working so hard to pin down the Zimbabwe Government over the land issue.

There was a lot of lobbying and sponsoring of positions by the West from August 2010 to May 20, 2011 when Sadc had a special Summit in Windhoek that looked at the "Role, Responsibilities and Terms of References of the Sadc Tribunal" among other agenda items.

What Sadc resolved at this summit is a statement of victory for African self-determination and, a great rebuke to Western meddling in the national and regional affairs of African countries. Windhoek became a huge disappointment for the extremist white elements that harbour the unthinkable hope that the land reform programme can be reversed.

The Summit resolved that there is need to amend the "relevant Sadc legal instruments" that constituted the Tribunal and that a progress report on this is to be brought before Sadc in August 2011. To reconfirm its earlier decision to suspend the Tribunal, the Summit resolved "not to reappoint members of the Tribunal whose term of office expired on August 31, 2011." Added to this, Sadc is "not to replace members of the Tribunal whose terms will expire on August 31, 2011".

The Summit reiterated the moratorium on "receiving any new cases or hearings of any cases by the Tribunal" until the protocol on the Tribunal has been reviewed and approved.

Effectively, Sadc is simply saying for now, the Tribunal is defunct until such a time it will be reconstituted. All its work has been effectively nullified, including the rejected ruling against the Government of Zimbabwe.

Of course, the Western media and their otherwise vociferous civic organisations based in Southern Africa have been conspicuous by their silence over the Windhoek declarations.

They hate the resolution. Sadc is once again seen as doing the bidding of a "ruthless dictator" in Zimbabwe.

The communiqué mocks greatly the sponsored position of the World Trade Institute (WTI) and none of the proposed structures seems to have impressed Sadc.

As mentioned already, the Summit effectively nullified the prior judgments of the Tribunal and the decisions can no longer pass for legitimate legal precedence to be used as reference in case law.

Decisions taken by an inappropriately constituted body taking itself for a court cannot stand as legitimate in legal records. That was exactly the argument passed by the Zimbabwe High Court in refusing to register the Tribunal's ruling.

It was a decision taken by a wrongly constituted legal body which had no mandate to exist, let alone to preside over any cases.

But, Sadc itself squarely takes the blame for this development.

When Sadc will reconstitute the Tribunal, it will be of uttermost importance that the body is structured to safeguard the interests of Southern Africa and its peoples in their majority.

The law must be there to protect the people and not to expose them to imperial forms of deprivation and exploitation.

Sadc cannot afford to structure a Tribunal that would one day see it sensible to nullify a national programme like Zimbabwe's land reform program, especially in favour of a few colonially privileged individuals.

The West will always seek to influence international and regional institutions in a way that perpetuates its imperial hegemony, and Sadc is no exception to these machinations.

We cannot afford systems that perpetuate the suffering of our own people, propping up the superiority of those that occupied higher social rankings on the basis of their racial background or colonial privileges.

Sadc's position is a strong political statement in defence of the gains of independence for Africa. It is a vindication of the goals of the Frontline States that stands in history as the foundation of Sadc itself. Samora Machel, Julius Nyerere, Kenneth Kaunda, Robert Mugabe, Nelson Mandela, Sam Nujoma, Jose Eduardo dos Santos, Seretse Khama, and all other founding fathers of Southern African independence would have all felt betrayed if Sadc were ever to be used by the West to reverse the land reform programme in Zimbabwe. The fallen heroes of the liberation war would turn in bitterness in their graves.

Windhoek was a victory for justice, a hope for the future of Southern Africa and a roadmap to true self-determination by the region.

It is this writer's hope that the Sadc deliberations to be carried on the sidelines of the Sadc-Comesa-EAC Tripartite Summit this Saturday will expose the Westerners for who they are, by dealing decisively with the issue of MDC-T violence in Zimbabwe, as well as making it clear to the MDC-T leadership that the grandstanding as political victims can no longer fool the continental leadership.

Sadc we are one and together we will overcome. It is homeland or death!

Reason Wafawarova is a political writer and can be contacted on

This e-mail address reason@rwafawa or visit

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