Mike Campbell and Others v. Republic of Zimbabwe, SADC (T) No. 2/2007
Application to the Southern African Development Community (SADC) Tribunal[1] challenging acquisition of agricultural land by the government of Zimbabwe; Whether Zimbabwe violated domestic and international treaty obligations; Jurisdiction of the Tribunal; Access to Judicial Remedies; Equality/Non-Discrimination; Exhaustion of Domestic Remedies.
[1] The general jurisdiction of the Tribunal is to adjudicate as well as to give advisory opinions upon all matters which may be referred to it under the Treaty and Protocols, all subsidiary instruments adopted within the framework of the community, acts of Institutions of the Community, and all matters specifically provided for in any other agreements that Member States may conclude amongst themselves or within the Community and which confer jurisdiction on the Tribunal.
The Applicants alleged that their property rights in agricultural lands had been infringed by a provision in the Zimbabwean Constitution which effectively vested the ownership of all agricultural lands compulsorily acquired under it to the State, as well as racial discrimination in the application of the provision. The provision additionally ousted the jurisdiction of the courts to entertain any challenge concerning such acquisitions of agricultural land. The Tribunal, in effect, exercised judicial review of the Zimbabwean Constitution on its compatibility with the SADC Treaty as well as general human rights principles as enshrined in international instruments. It ruled that the ouster clause in the Zimbabwean Constitution that precluded the Applicants from litigating their case in the Zimbabwean courts violated the rule of law as well as Zimbabwe's international human rights treaty obligations.
The Tribunal canvassed a number of issues which directly impact on human rights and these were: the jurisdiction of the Court to entertain the matter, denial of the right of access to courts, exhaustion of domestic remedies, the right to freedom from discrimination and the right to fair compensation for deprivation of property. With regards to the obligation to exhaust domestic remedies, the Tribunal ruled that where the municipal law does not offer any remedy or the remedy that is offered is ineffective, the individual is not required to exhaust the local remedies. The Tribunal found that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation. Zimbabwe was also found to have discriminated against the Applicants on the basis of race, thereby violating its obligation under the SADC Treaty and international human rights instruments.
Keywords: Mike Campbell and Others v. Republic of Zimbabwe, SADC (T) No. 2/2007, Land, Right, Natural, Resources
In a later case brought in the Zimbabwean High Court, this court refused to enforce the SADC Tribunal judgment by ruling that such decisions are not binding on Zimbabwe. The Court intimated that the SADC Tribunal's decisions do not apply and cannot be enforced in Zimbabwe unless Parliament ratifies the Protocol which established the organization, jurisdiction and rules of procedure of the Tribunal. This is despite the fact that Zimbabwe is a state party to the Institutional Treaty of the Community of the Development of Southern Africa that created the SADC Tribunal and has nominated the Zimbabwean judge who currently serves on the Tribunal.
While the case does not directly touch on specific ESC rights, it is significant that the first decision of this international tribunal has closely reviewed the provisions of a domestic constitution for its compliance with human rights imperatives. Secondly, the ruling emphasizes that access to justice is a fundamental right; deprivation of which constitutes a violation of the rule of law. Thirdly, the Tribunal, consistent with rulings of other international tribunals, has emphasized that where national law does not offer any remedy or the remedy that is offered is ineffective, the individual is not required to exhaust the local remedies before approaching an international tribunal. The decision also reveals the possibility for utilising the SADC Tribunal for all cases of human rights violations.
