By Basildon Peta and Tabby Moyo

White Zimbabwean farmers have turned to the low-key and untested tribunal of the Southern African Development Community (SADC) in a last-ditch bid to stave off their impending evictions from their farms or to receive compensation.

But legal experts doubt that the farmers, who believe they have exhausted their options in the Zimbabwean judiciary, will get a much better deal from the tribunal.

This would be its first case, and the experts suspect that even if it rules in favour of the farmers, Zimbabwean President Robert Mugabe will simply ignore the ruling. Based in Windhoek, the SADC tribunal was established in 1992 by article 9 of the SADC treaty as one of the central institutions of the regional body.

But it was launched only in 2005, when its 11 judges were appointed, with Justice Luis Antonio Mondlane of Mozambique as judge president. About the only news it has made since was when its head office in Windhoek was gutted by fire recently. Its mandate is to ensure that member countries adhere to the treaty, protocols and other legal instruments which require member states to respect the law.

The tribunal has exclusive jurisdiction over all disputes between member states. Nahas Angula, the Namibian prime minister, who launched the tribunal, said that to avoid making it a white elephant, SADC citizens and institutions should be encouraged to lodge cases with it.

So Zimbabwean farmers have taken him at his word by resorting to the tribunal for the relief they have conspicuously failed to get from their own courts.

John Worswick, the chairperson of Justice for Agriculture, a group representing about 300 white farmers, said the land seizure actions of the Zimbabwean government were in violation of the country's bilateral protocols within SADC, as well as the regional body's treaty principles and objectives. The seizure actions also violated many regional and international protocols which Zimbabwe has ratified.

"We are seeking a declaration that the failure by the Zimbabwean government to comply with its own laws concerning the obligation to promptly and without unreasonable delay pay compensation for the improvements on applicants' property is a violation of the SADC treaty's principles, terms, conditions and objectives," papers filed at the tribunal by the farmers state.

The farmers are also seeking to interdict the government from compulsorily acquiring farms without recourse to the due process of law, as allowed by Zimbabwean constitutional amendment No 17.

The farmers say this amendment removes their rights to equal treatment before the law; the right to a fair hearing before an independent court or tribunal; the right not to be discriminated against because of race or place of origin; the right to protection of property; and the right to receive prompt, fair and adequate compensation concerning an expropriation of property by the state.

Worswick said that from 2000, the process of acquiring land for resettlement purposes by the government was directed solely at so-called white persons, regardless of any other factors, such as their proper use of the land, their contribution to the national economy, their citizenship, their length of residence in Zimbabwe or any factor other than skin colour.

Tinashe Ndokera, a Zimbabwean magistrate, ruled last week that those farmers still on farms targeted for seizure after a September 30 deadline to vacate the properties were in breach of the law. He said any farmer still on land after the expiry of the deadline was "trespassing on state property".

Farmers believed this ruling had exhausted their legal options in Zimbabwe, and they turned to the tribunal. Lloyd Kuveya, of the Southern African Litigation Centre in Johannesburg, said the farmers' appeal would be a test case for the tribunal. The real test could be whether the tribunal's judgments were binding.

"The problem is whether countries would comply, whether they have the political will," he said. Given Mugabe's recent record, that seems unlikely.

Some political opponents believe Mugabe is now rushing to evict the remaining white farmers in order to get land to use for patronage purposes ahead of elections in March. Parliament has also passed a "company seizure" law requiring majority indigenous ownership of all foreign-owned firms. The measures are likely to destroy the little that is still left of the Zimbabwean economy.

Sunday Independent