JOHANNESBURG – On Tuesday, September 17, 2013, an unremarkable house with a dirtied backyard pool located in an upscale neighborhood in Cape Town was scheduled for auction by the South African government. The occupant had failed to comply with a court order, so the state (in a tragically ironic move) seized the property to sell as collateral to satisfy the court's costs order. This would all be rather routine legal maneuvering if it were not for fact that the occupant of the house was none other than the government of Zimbabwe – South Africa's largest trading partner on the continent and a strategic regional ally. The slated transaction marked the final chapter in a thirteen-year saga to one of the most reported land disputes in the world.
In the early 2000s, Zimbabwe's liberation president, Robert Mugabe, encouraged bloody takeovers of large commercial white-owned farms as part of his campaign to redistribute the country's fertile industrial agricultural land to previously disenfranchised blacks. The land grabs crippled the economy, decimating the agricultural sector, as the number of white-owned commercial farms diminished to about 250 from 4,500.
Mugabe's land indigenization policy was formalized in 2005 through a constitutional amendment that provided for compulsory acquisition of identified agricultural land without compensation, save for improvements made to the land. To secure the executive mandate, the amendment ousted the jurisdiction of Zimbabwean courts to challenge any confiscation.
White commercial farmers whose land the government (despite having issued titles authenticating the initial property sale) confiscated challenged the program before the Southern African Development Community Tribunal – the adjudicatory body of a regional economic bloc of fifteen southern African member states. The Zimbabwe government maintained that its land reform initiative must be understood "as a means of correcting colonially inherited land ownership inequities."
The case reverberated across the post-colonial region, pitting initiatives to create a more just and equitable society against the principles of democracy, human rights and the rule of law.
In 2009, the tribunal ruled in favor of the Zimbabwean farmers. It found that the redistribution program was carried out to benefit the ruling elite, not to redress inequitable land ownership as the government had maintained. "The aim of [Zimbabwe]…might be legitimate if and when all lands under the program [sic] were indeed distributed to poor, landless and other disadvantaged and marginalized individuals or groups," it wrote in the judgment.
Zimbabwe, unmoved, ignored the tribunal's orders and continued its land reform program.
The farmers, desperate and bloodied, approached a South African trial court for relief, and this June the Constitutional Court of South Africa not only upheld the tribunal's ruling, but also developed South African law to empower its domestic courts to enforce rulings of any tribunal where South Africa had an international obligation.
Over the course of the case, the farmers' challenge led to the disbandment of the SADC Tribunal – officials permanently stripped it of its jurisdiction to hear individual human rights cases. In 2011, the lead farmers' plaintiff, Mike Campbell, died from brain injuries sustained during an earlier beating by Mugabe loyalists. He lived out his final days in poverty in Harare, the capital. This August, as if to add injury to insult, regional leaders, weary of alienating a strong ally, elected Mugabe as the next leader of SADC.
But it looks like the farmers may have had the last laugh after all.
After the unremarkable house in Cape Town was placed on the auction block, Mugabe's representatives "hastily" halted the sale and by weeks end made its first payment to the farmers' trust account in compliance with the tribunal's initial order. "The payment of the punitive cost order is a breakthrough for justice in the region. This is but the first step in our struggle for justice for Zimbabwean farmers. That struggle will continue," said a legal advisor to some of the farmers.
Drew F. Cohen is a law clerk to the chief justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at email@example.com.
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