The SADC Tribunal: The rule of power versus the rule of law - The Tribunal Tragedy

When the Southern African Development Community (SADC) Tribunal ruled in 2007 and in 2008 that Zimbabwe’s Fast-Track Land Reform Programme was racist, and violated property rights and the right to access justice, a series of events ensued that placed several of the region’s most salient issues in the international limelight. The implications of this are still to be confronted.

The SADC Tribunal pronounced that Zimbabwe had to pay compensation. The Mugabe regime simply ignored the Tribunal, later launching a campaign both inside and outside the courtroom to further a stance amounting to non-compliance with the region’s only supra-national judicial body capable of making enforceable rulings on human rights violations.

Currently appealing to the South African Constitutional Court, the farmers hope that South Africa has the legal power to enforce the SADC Tribunal’s ruling. Their recourse to South Africa is a consequence of the Tribunal first being neutered by the SADC Summit of 2011, suspending its activities, and then being dissolved by SADC Summit of 2012. The Tribunal’s future will be decided at the SADC Summit in Malawi in August 2013.

Rule of power: Sundering the people’s shield

The affair has significance beyond the jurisprudential world, an angle often overlooked. Recently, Judge Ariranga Pillay (the former Judge President of the Tribunal) and Michelo Hansungule (Centre for Human Rights, University of Pretoria) drew attention to facets of this angle. The cases brought against Zimbabwe illustrate the link between the rule of law, sundered by the regime, and poignant issues of food security and human security, which the state can no longer guarantee.

One of the more ominous comments by the High Court of Zimbabwe, in defiance of the Tribunal’s ruling, reads that the pronouncement contravenes Zimbabwe’s public and agrarian policies, specifically stating that “the greater public good must prevail.” At face value this is neither an auspicious nor suspect remark. The ‘public good’ has been championed by liberation heroes since the American and French revolutionaries dragged the world into political modernity. In the Zimbabwean case the statement comes not only from the Zimbabwean court, as an independent judicial announcement, but from the Mugabe regime.¹

This state of affairs is the antithesis of a notion of the supremacy of ‘right’: that the individual is free to pursue her own good, directed and driven by her moral powers.² The rule of law is a condition wherein citizens rule through the supremacy of law; in South Africa preeminence is given to the constitution.

William Oakeshott writes that where the rule of law prevails the state becomes, “…the custodian of a system of legal rights and duties in the enjoyment and observation of which the subjects of the government may pursue their own chosen ends and purposes while still remaining in a single association.”³ Zimbabwe’s reaction to the Tribunal’s rulings and its constant disregard for rule of law, preferring the ‘rule of power’, are themselves ‘pronouncements’ of men within power, from a regime, and thus neither from a democratic platform nor an independent pillar of a democracy, the judiciary.

Leveraging uncertainty: the rule of law and the global economy

The repercussions of political statements impact where the legal world and the global economy intersect. Statements go out into a world where information and finance are globalised; the rate of transfer and exchange are increasingly rapid. This rapidity compounds the volatility within the global market space.⁴ And increased volatility is increased risk, as uncertainties of origin and consequence become more accentuated.⁵ The rule of law, however, is a mechanism to leverage against this risk as it affirms predictability and stability, as well as access to justice. The resulting sense of domestic cohesion and trust invites investment.⁶

The importance of investment allocation can be explained by economies breaking free of territorially organised competition.⁷ The mobility of capital and labour has given them a more strategic role, with greater tactical flexibility. Yet, the mobility and rapid exchange of capital, especially in the form of finance, has resulted in vulnerability and uncertainty, as the sources of economic power are freer to go where they might be best employed. The retreat of investment flows, movement of trans-national corporations as producers and employers and the ‘deterritorialised’ power of business creates a new economic rationale of power, international relations and the role of jurisprudence.⁸

Zimbabwe

Zimbabwe, once dubbed the ‘bread basket’ of Africa, has become a ‘begging bowl’ of Africa. The Tribunal ruling took issue not with the idea of land reform itself, but with the unreasonable, violent and arbitrary way it was implemented. Property rights were effectively done away with, as the farmers in question had bought the land after the liberation struggle and were often in possession of ‘certificates of no interest’ from the government.

The World Bank’s Ease of Doing Business Report ranks Zimbabwe 172 out of 185 countries, citing dismal scores regarding enforcing contracts, dealing with construction permits and protecting investors. The World Economic Forum’s Global Competitiveness Report in turn ranked Zimbabwe 132 out of 144 countries, citing lack of judicial independence, inefficient legal frameworks, policy instability, restrictive labour regulations and tax regulations as the biggest problems.

Lessons for SADC

Zimbabwe is not an isolated case. The SADC Summit (the policy making arm consisting of heads of state) is the body that dissolved the Tribunal. No SADC country was willing to risk political capital to defend the rulings, especially if it meant incurring ire from liberation era stalwarts such as Mugabe. South Africa, a country from which much has been expected in terms of moral authority, voted against the Tribunal at the Summits, despite provisions of human rights and rule of law being embedded in its Constitution and Bill of Rights. Then again, much political capital had been used already to secure a top African Union position for Nkosazana Dlamini-Zuma, a campaign officially announced in January 2012, culminating in victory on 15 July 2012.

Another case involves Impala Platinum’s (Implats) efforts at complying with Zimbabwe’s indigenisation policy. The government has effectively reneged on a previous deal, seized mining claims and is shifting additional costs onto Implats. Ted Mazorora, a Zimbabwean mining law expert, has pointed out that that, “It is important to have a regulatory system that is stable, transparent and appropriate to the conditions of mining in the country," and drew attention to the importance of a stable regulatory framework to “give certainty” to investment.

The arbitrary powers of the Zimbabwean Empowerment Minister, under whose purview the indigenisation imperative falls, have been received by investors, banks and industry as a further chiseling away of the rule of law in a regime already renowned for the injudicious acquisition of land and capital.

It is incumbent upon SADC countries to realise that competitive engagement in the global economy relies upon, amongst other things, adherence to the rule of law, especially when it assists to establish policy certainty.

Farmers are businesspeople. With a burgeoning youth demographic, persistent food shortages and with agriculture in Africa an increasingly attractive investment destination, SADC needs to appreciate the nexus that exists between the law and the economy. Pending the South African Constitutional Court’s judgment regarding the Zimbabwean famers and the next SADC Summit in Malawi in August 2013, the words of Saint Augustine of Hippo seem relevant, “Without justice, what is government but a great act of theft?”

NOTES
1 - Maffettone, S. 2010. Rawls: An Introduction, Cambridge: Polity Press, pp. 36-37.
2 - Oakeshott, W. 2006. Lectures in the History of Political Thought. Exester: Imprint Academic, p. 483.
3 - Ibidem. Pp. 483-484.
4 - Schwab, K. et al. 2012. Global Risks 2012, Seventh Edition, Geneva: World Economic Forum, pp. 8, 10-12.
5 - Booth, K and Wheeler, N. (2008) ‘Uncertainty’, in Williams, P., Security Studies: An Introduction, London, Taylor & Francis Group, pp. 133-15; Khanna, P. (2012) ‘Introductory Thoughts’, A New Era of Geo-economics: Assessing the interplay of economic and political risk, IISS seminar. International Institute for Strategic Studies, Geo-economics and Strategy Programme, 23-25 March, pp. 1-18; Williams, M. “(In)security Studies, Reflexive Modernization and Risk Society”, Cooperation and Conflict 43:57 (2008), pp. 57-79.
6 - Kahler, M. “Economic Security in an era of globalisation: definition and provision”, The Pacific Review 17:4 (2004), pp 485-502.; Vietor, R. 2007. How Countries Compete: Strategy, Structure and Government in the Global Economy, Harvard Business School Press: Massachusetts, p. 7; Voser, P. et al. 2011. Signals and Signposts: Shell Energy Scenarios to 2050, Shell International BV: The Hague, pp. 11-12, 15.
7 - Beck, U. “The Cosmopolitan State: Redefining power in a global age”, International Journal of Politics, Culture and Society 18:3/4 (2005), pp 143-159;
8 - Kanza et al. 2012. World Economic Forum on Africa: Shaping Africa’s Transformation, Geneva: World Economic Forum

André Dumon - andre@hsf.org.za
Intern
Helen Suzman Foundation