(1) By unanimity: the Tribunal has jurisdiction to hear the case. (2) By unanimity: the Applicants have been denied access to the courts in Zimbabwe. (3) By a majority of four to one: the Applicants have been discriminated against on the ground of race. (4) By unanimity: fair compensation is payable to the Applicants for their lands compulsorily acquired by the government of Zimbabwe.
Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe[1] is a case decided by the Southern African Development Community (SADC) Tribunal (hereinafter "the Tribunal"). The Tribunal held that the Zimbabwean government violated the organisation'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.
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. Government-orchestrated land invasions began in February 2000.[2] 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.[3]
During the early 1970s Campbell, a South African Army captain, had been involved in the Rhodesian Bush War that pitted Rhodesia's mostly white government—50 of the 66 parliamentary seats were reserved for whites—against black nationalist guerrillas. He moved to Mount Carmel farm in 1974. He added a neighbouring plot of land in 1980, following Zimbabwean independence. As well as farming, Campbell set up an extensive nature reserve on the property, replete with giraffes, impala and other indigenous animals. He also created the Biri River Safari Lodge, which became a popular tourist attraction.[4]
Campbell purchased Mount Carmel from himself after independence. (The full title was vested in 1999, when the Zimbabwean government declared no interest in the land.)[5] 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.[6][7] 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."[6] After three more preliminary notices to take the farm were published in 2004, Campbell applied to the High Court for a protection order.[6]
Amendment 17 was added to Zimbabwe's constitution on 14 September 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.[8][9] Campbell initiated proceedings in court on 15 May 2006, challenging the validity of Amendment 17.[2][9] 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.[2] On 11 October 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 29 June 2008.[10] Campbell died on 6 April 2011; his family stated he died from complications of the 2008 beating.[11]
Decision by the Supreme Court of Zimbabwe
The Supreme Court of Zimbabwe issued a decision in the case on 22 January 2008, dismissing Campbell's challenge.[2][12] 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.[13] 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."[13]
The SADC Tribunal
The Tribunal was established by the SADC treaty.[14] 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 co-ordinating development projects to lessen economic dependence on the then apartheid South Africa.[15] 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.[9]
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.[9]
17 December 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.
28 November 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.
5 June 2009 After Campbell and another applicant, 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.[16] 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 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.[2] 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.[2] No mention of the Tribunal's decision was made at the SADC's summit in early September 2009.[17]
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.[2] Ben Freeth's[18] and Mike Campbell's[19] 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,[20][failed verification][21] and stated that Zimbabwe would no longer be bound by any of the Tribunal's past or future judgments.[22][failed verification]
Decision by the High Court not to register the SADC Tribunal's judgement in Zimbabwe Judge Patel of the High Court issued a decision[23][24] 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 [sic] of reference of the SADC Tribunal should be undertaken and concluded within 6 months."[25] 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.[26]
In a draft report[27] commissioned 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 [SADC] Tribunal continues to function in all respects as established by Article 16 of the Treaty.[28]
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[29] to be sold by auction to compensate three Zimbabwean farmers, including the late Mike Campbell.[30][31] 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.[31] The Zimbabwean government appealed the High Court's decision, but both the Supreme Court (in September 2012)[32] and the Constitutional Court of South Africa (in June 2013)[33] 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.[34][35]
Mike Campbell's death
Mike Campbell died on 6 April 2011, aged 78. His family stated his death was due to the consequences of having been tortured.[36]
Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.
Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.
Land reform in Zimbabwe officially began in 1980 with the signing of the Lancaster House Agreement, as a program to redistribute farmland from white Zimbabweans to black Zimbabweans as an effort by the ZANU-PF government to give more control over the country's extensive farmlands to the black African majority. Before the implementation of these policies, the distribution of land in what was then known as Rhodesia saw a population of 4,400 white Rhodesians owning 51% of the country's land while 4.3 million black Rhodesians owned 42%, with the remainder being non-agricultural land. The discrepancy of this distribution, as well as the overall dominance of the white population in the newly-independent but largely unrecognized Rhodesian state was challenged by the black nationalist organizations ZANU and ZAPU in the Rhodesian Bush War. At the establishment of the modern Zimbabwean state in 1980 after the bush war, the Lancaster House Agreement held a clause that prohibited forced transfer of land, this resulted in changes in land distribution from the willing sale or transfer by owners being minor until 2000, when the government of Robert Mugabe began a more aggressive policy.
The Southern African Development Community (SADC) is an inter-governmental organization headquartered in Gaborone, Botswana.
The Alien Tort Statute, also called the Alien Tort Claims Act (ATCA), is a section in the United States Code that gives federal courts jurisdiction over lawsuits filed by foreign nationals for torts committed in violation of international law. It was first introduced by the Judiciary Act of 1789 and is one of the oldest federal laws still in effect in the U.S.
The Caribbean Court of Justice is the judicial institution of the Caribbean Community (CARICOM). Established in 2005, it is based in Port of Spain, Trinidad and Tobago.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.
Al Odah v. United States is a court case filed by the Center for Constitutional Rights and co-counsels challenging the legality of the continued detention as enemy combatants of Guantanamo detainees. It was consolidated with Boumediene v. Bush (2008), which is the lead name of the decision.
The judiciary of Colombia is a branch of the State of Colombia that interprets and applies the laws of Colombia, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The judiciary comprises a hierarchical system of courts presided over by judges, magistrates and other adjudicators.
The law of New Zealand uses the English common law system, inherited from being a part of the British Empire.
Mugabe and the White African is a 2009 documentary film by Lucy Bailey & Andrew Thompson and produced by David Pearson & Elizabeth Morgan Hemlock. It has won many awards including the Grierson 2010 and been BAFTA and Emmy Nominated. The film documents the lives of a white Zimbabwean family who run a farm in Chegutu, as they challenge the Fast Track land redistribution programme that redistributed white-owned estates, a legacy of colonialism and UDI, beginning in 2000. The film follows Mike Campbell, his son-in-law Ben Freeth, and their family as they challenge Robert Mugabe and the Zimbabwean government before the Southern African Development Community tribunal for racial discrimination and human rights violations. The film premiered in the UK on 21 October 2009 at the London Film Festival.
The Supreme Court of Zimbabwe is the highest court of order and the final court of appeal in Zimbabwe.
The SADC Tribunal was a court and the highest policy institution of the Southern African Development Community (SADC). It was housed in the Turnhalle building in Windhoek, the capital of Namibia. Although established on paper since 1992, members of the Tribunal were only appointed during the SADC Summit in 2005. On 18 November 2005 the Tribunal was inaugurated and the members were sworn in by Peter Shivute, chief justice of Namibia of the Namibian Supreme Court.
The Common Market for Eastern and Southern Africa (COMESA) is a regional economic community in Africa with twenty-one member states stretching from Tunisia to Eswatini. COMESA was formed in December 1994, replacing a Preferential Trade Area which had existed since 1981. Nine of the member states formed a free trade area in 2000, with Rwanda and Burundi joining the FTA in 2004, the Comoros and Libya in 2006, Seychelles in 2009, Uganda in 2012 and Tunisia in 2018.
William Michael Campbell was a white African farmer from the district of Chegutu in Zimbabwe. Together with his son-in-law Ben Freeth, he rose to international prominence for suing the regime of Robert Mugabe of violating rule of law and human rights in Zimbabwe, in the case of Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe. His struggle was the subject of an award-winning documentary, Mugabe and the White African.
Benjamin Freeth, MBE is a White Zimbabwean farmer and human rights activist from the district of Chegutu in Mashonaland West Province, Zimbabwe. Together with his father-in-law, Mike Campbell, he rose to international prominence after 2008 for suing the regime of Zimbabwean President Robert Mugabe for violating the rule of law and human rights in Zimbabwe. Freeth and Campbell's lawsuit against the Mugabe regime—the case of Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe—was chronicled in the award-winning 2009 documentary film Mugabe and the White African.
The Turnhalle is a building in Windhoek, the capital of Namibia. Built during the era of Imperial Germany's colonisation of South West Africa, it has been through a variety of uses, most prominently as the venue for the 1975–1977 Turnhalle Constitutional Conference, an attempt to quell armed resistance waged by the People's Liberation Army of Namibia against South African occupation. The Turnhalle housed the Tribunal court of the Southern African Development Community (SADC) until disbandment in 2012.
The Supremacy Clause of the Constitution of the United States establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. It provides that state courts are bound by, and state constitutions subordinate to, the supreme law. However, federal statutes and treaties must be within the parameters of the Constitution; that is, they must be pursuant to the federal government's enumerated powers, and not violate other constitutional limits on federal power, such as the Bill of Rights—of particular interest is the Tenth Amendment to the United States Constitution, which states that the federal government has only those powers that are delegated to it by the Constitution. It is the responsibility of the United States Supreme Court in that case to exercise the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution.
Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), was a United States Supreme Court case that helped define the range and scope of federal question jurisdiction in state corporate law matters. The case dealt with whether or not a district court had the power to uphold the constitutional validity of the Federal Farm Loan Act of 1916.
1 2 Mike Campbell (Private) Limited v. The Minister of National Security Responsible for Land, Land Reform and Resettlement, Supreme Court of Zimbabwe, 22 January 2008
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