Section 72 is an anathema to human rights and the rule of law and will continue to stifle investment so long as it is not changed. No moves are being made to even discuss the removal of Section 72 – which is in conflict with the rest of the Zimbabwe Constitution – and the continued contempt of the Zimbabwe Government to the Campbell Judgment which strikes it down. Section 72 goes against the SADC Treaty, international law and all the human rights charters that Zimbabwe is signed up to. If the new Zimbabwe Government was to decide to comply with the court orders that President Mugabe chose to defy (instead of continuing to be in contempt of court) and the Campbell Judgment was to be recognised, there would be no stronger or better signal that investment and financial assistance could now pour into Zimbabwe. This would be the clearest possible signal to herald significant and immediate recovery of the agricultural sector and the economy as a whole.
Until the Zimbabwe Government complies with the court orders – and does so publicly – it is important that financial institutions and governments continue to raise the issue as a prerequisite for normalisation of relations and financial assistance.
At the root of the Zimbabwe problem is the breakdown of the rule of law and its replacement with “rule by law.” We have a “command economy” with a military system of command in Government.
We have already covered the Campbell farm case in relation to Section 72 of the Constitution. My father-in-law, Mike Campbell, was abducted and severely beaten – and later died because he took President Mugabe to court in the regional court, the SADC Tribunal. This is what has happened in the past to those standing for the rule of law. Mike gained a final and binding judgment from the Tribunal in November 2008.7 This needs to be recognised and adhered to.
In January 2011, the SADC Tribunal awarded damages of nearly US$17 million to nine Zimbabwean torture victims, in a landmark ruling that yet again exposed Harare's flagrant disregard of the rule of law. The judgment in the Gondo case, which was handed down on 9 December 2010, followed a case in which the victims of organised violence and torture sued the Zimbabwean government for failing to comply with the orders of the country’s High Court.
After the Zimbabwe Government was found to be in contempt of court in the Campbell case, and the ruling of the Tribunal in the Gondo case was handed down, Mugabe managed to persuade the SADC Heads of State to suspend the SADC Tribunal in May 2011. The following year the SADC Heads of State closed down the Tribunal, depriving 277 million people in the 15 countries in southern Africa of a court of last resort when the justice systems in their own countries failed them.
The decision to do this and attempt to sign a new Protocol into place in 2014, the mandate of which would be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States, thus blocking the Tribunal from hearing any human rights cases at all, is currently being challenged in the region. I am one of the applicants in a case against former South African President Jacob Zuma9 for his part in the process. We expect a judgment before the date of this Congressional Hearing.
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