The Fate of the SADC Tribunal After Zimbabwe’s Recent Move to Compensate the FTLRP Affected White Farmers

Introduction

On 12 February 2025, the Finance Minister of Zimbabwe announced that the government of Zimbabwe intends to compensate 94 former farmers who were affected by the ‘Fast Track Land Reform Programme’ (FTLRP). Such farmers include the nationals of the United Kingdom (UK), Switzerland, Denmark, Germany, the Netherlands, and the former Yugoslavia. [1] This is because such farmers are covered under Bilateral Investment Protection and Promotion Agreements (BIPPAs) that Zimbabwe signed with the farmers’ countries. It is expected that by the end of 2028, all farmers covered under the BIPPAs will be fully compensated.[2] This move was primarily initiated in 2019, after the Zimbabwean government, led by the successor of Robert Mugabe, Emmerson Mnangagwa, vowed to compensate some farmers who were affected by the FTLRP.[3] The promise is associated with the attempts of Zimbabwe to reconstruct its economy, which was destroyed by the economic sanctions from Western capitalist states.[4]

The background of the FTLRP can be traced back to 1980, when Southern Rhodesia, today Zimbabwe, gained its independence from the UK. During the colonisation of Zimbabwe, the colonial government removed the natives from their lands and allocated the same to white settlers. After Zimbabwe gained its independence, the Zimbabwean government, led by the late Robert Mugabe and ZANU-PF, faced a significant backlash from the natives for allowing the white settlers to continue occupying the lands that they had forcefully occupied.[5] Consequently, in 2000, the Zimbabwean government launched the land reform program known as the FTLRP to redistribute land occupied by white settlers to the natives.[6] The FTLRP was criticised for breaching the Lancaster House Agreement of 21 December 1979. In such an agreement, it was agreed inter alia that Zimbabwe would not forcefully acquire lands from the whites.[7] However, the Zimbabwean government decided not to honour the Lancaster House Agreement.

Mike Campbell and Others before the SADC Tribunal

To challenge the FTLRP, a group of white settlers filed a case of Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe before the Southern African Development Community (SADC) Tribunal.[8] The SADC Tribunal held that the Zimbabwean government violated the Constitution of Zimbabwe, the Treaty of the Southern African Development Community (SADC Treaty),[9] and several regional and global human rights instruments for engaging in racial discrimination against white farmers through the FTLRP.

A Defence to the Injustices Committed by the Zimbabwean Government

Zimbabwe was not pleased with criticism from the UK and other capitalist states for launching the FTLRP. The Zimbabwean government defended the FTLRP, claiming that it was a remedy to the injustices that were committed by the colonial forces by taking lands owned by the natives and placing them in the hands of the settlers.[10] The Zimbabwean government further claimed that, due to financial difficulties, it was not practicable for the natives to purchase their lands from the settlers.[11]

Furthermore, the Zimbabwean government mentioned several human rights violations that were experienced by the natives at the hands of the colonialists. The injustices, such as killings, mutilations, excessive taxation, and land acquisition, could not be compared to the effects of FTLRP. Therefore, the FTLRP was the only available remedy for the natives to regain their land rights and other lost freedoms.[12]

How Zimbabwe Wronged the SADC Tribunal?

After the conclusion of the Mike Campbell case, the Zimbabwean Government saw the SADC Tribunal as a weapon fashioned against the welfare of Zimbabweans who were on their journey to be healed from colonialism.[13] On 07 August 2009, the Zimbabwean Ministry of Justice notified the SADC about Zimbabwe’s withdrawal from the SADC Tribunal. In the letter, it was stated that Zimbabwe would no longer be bound by any of the Tribunal’s past, present or future judgments.[14] It was stated further that the tribunal issued a judgment contrary to the welfare of Zimbabwe. This means the only mistake that the SADC Tribunal made was to deliver Justice to the farmers affected by FTLRP at the displeasure of Zimbabwe.  

Apart from withdrawing from the Tribunal, Zimbabwe willfully decided not to recognise amd enforce the Tribunal’s decree in favor of Mike Campbell. After the mentioned landslide victory before the SADC Tribunal, Mike Campbell applied to register the Tribunal’s Decree before the High Court of Zimbabwe. The application was rejected by the High Court without stating any reason behind the rejection. As a result, the FTLRP continued, and it affected approximately 2000-4500 white farmers.[15] At the same time, the white settlers who remained in their lands were subjected to persecution by some of the aggressive native Zimbabweans without any interference from the police to remedy the situation.[16]

Furthermore, the then-Zimbabwean government ultimately placed the SADC between a rock and a hard place. This is because Zimbabwe informed SADC that if the SADC Tribunal continued to exist, it would withdraw from SADC. SADC was therefore required to choose between Zimbabwe’s membership and the existence of the SADC Tribunal as one of its core organs. Unfortunately, the SADC Tribunal was temporarily suspended in 2010 to restructure it. On 20 May 2011, an Extraordinary Summit of Heads of State and Government of SADC, held in Windhoek, Namibia, decided not to reappoint or replace SADC Tribunal members, effectively suspending the SADC Tribunal.[17]

What is the Fate of the SADC Tribunal?

The question remaining unanswered is the fate of the SADC Tribunal despite Zimbabwe’s move to compensate the farmers affected by the FTLRP. This is because Zimbabwe’s criticisms over the decision of the SADC Tribunal in granting victory to white farmers led to the shutdown of the SADC Tribunal. Will Zimbabwe advocate the grand return of the SADC Tribunal? Taking into account that Zimbabwe has admitted that the FTLRP negatively affected the land rights of the white farmers, as declared by the SADC Tribunal. However, what is clear is that the fate of the SADC Tribunal remains in the hands of all 16 SADC Member States.

[1]  Columbus Mavhunga, ‘Zimbabwe to Pay Displaced, Foreign White Farmers’ (VOA, 12 February 2025) <https://www.voanews.com/amp/zimbabwe-to-pay-displaced-foreign-white-farmers/7972468.html> accessed 20 February 2025.

[2] Lai Huaxia, ‘Zimbabwe Starts Compensation Payouts to Former White Commercial Farmers’ (Xinhua Net, 11 February 2025) <https://english.news.cn/20250212/2f120f18d95a4946bc34aaea2bacec6f/c.html> accessed 20 February 2025.

[3] Kitsepile Nyathi, ‘Broke Zimbabwe to Pay $3bn to White Landowners Whose Farms State Seized’ The EastAfrican (Harare, 15 February 2025) <https://www.theeastafrican.co.ke/tea/business-tech/broke-zimbabwe-to-pay-3bn-to-white-landowners-4926774> accessed 20 February 2025.

[4] Ecofin Agency, ‘Zimbabwe Approves $331mln Compensation for White Farmers to Tackle Debt Crisis’ (Ecofin Agency, 26 November 2024) <https://www.ecofinagency.com/finance/2611-46181-zimbabwe-approves-331mln-compensation-for-white-farmers-to-tackle-debt-crisis> accessed 20 February 2025.

[5] Josephine Lucy Fisher, Pioneers, Settlers, Aliens, Exiles: The Decolonisation of White Identity in Zimbabwe (ANU E Press 2010) 79.

[6] Brian Maguranyanga and Sam Moyo, Policy Brief Land Tenure in Post FTLRP Zimbabwe: Key Strategic Policy Development Issues (African Institute for Agrarian Studies 2006); Nyawo Viriri Shava, ‘Mugabe’s Dilemma: Zimbabwe and Land Reform at Independence and Beyond,’ (2010) 7 LWATI: A Journal of Contemporary Research121.

[7] Robert O Matthews, ‘From Rhodesia to Zimbabwe: Prerequisites of a Settlement’ (1990) 45 International Journal 292.

[8] Mike Campbell (Pvt) Ltd and Others v. The Republic of Zimbabwe (2007) SADC (T) 2/2007

[9] Gino J Naldi, ‘Mike Campbell (Pvt) Ltd et al v. The Republic of Zimbabwe: Zimbabwe’s Land Reform Programme Held in Breach of the SADC Treaty’ (2009) 53 Journal of African Law 305.

[10] Fainos Mangena, ‘The Ethics Behind the Fast-Track Land Reform Programme in Zimbabwe’ in Claude G. Mararike Land: An Empowerment Asset for Africa. The Human Factor Perspective (University of Zimbabwe Publications 2014).

[11] Itai Kabonga, ‘Analysis of the Fast Track Land Reform Programme (FTLRP) Contribution to Access to Natural, Financial and Physical Capital in Norton, Zimbabwe’ (2020) 6 Cogent Social Sciences 1.

[12] Ollen Mwalubunju and Elizabeth Otitodun, ‘Land Reform’ in Ollen Mwalubunju and Elizabeth Otitodun, State Reconstruction in Zimbabwe (Centre for Conflict Resolution 2011).

[13] Human Rights Watch, ‘Regional Court’s Future Hangs in the Balance. Questions and Answers: The SADC Tribunal (Human Rights Watch)  <https://www.hrw.org/sites/default/files/related_material/SADC%20tribunal_QA_Final%20Post%20HRWPress.pdf> accessed 10 March 2025.

[14] Ben Freeth,  ‘The Campbell Case: Zimbabwean Landmark Farm Test Case Time Line’ (US Congress, 23 February 2018) <https://www.congress.gov/115/meeting/house/106914/documents/HHRG-115-FA16-20180228-SD001.pdf> accessed 10 March 2025.

[15] Wehnam Peter Dabale,’ Empirical Study on the Fast Track Land Reform Program (FTLRP) and Household Food Security in Zimbabwe (2014) 2 European Journal of Research and Reflection in Management Sciences 37; Memory J Musananguro, ‘The Fast Track Land Reform Programme and its Effect on the Loss of Forests: The Case of the Mafungabusi Forest Reserve in Zimbabwe,’ (2022) 23 International Forestry Review 263.

[16] Percyslage Chigora and Sheillah L. Chikomo, ‘Human Rights in Colonial, 20th and 21st Centuries Zimbabwe and the West’s Foreign Policies’ (2021) 6 Journal of Public Administration and Development Alternatives 21.

[17] Nathan Laurie, ‘The Disbanding of the SADC Tribunal: A Cautionary Tale’ (2013) 35 Human Rights Quarterly 870.