Freeth, Campbell and the SADC Tribunal

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By Dr Tafataona Mahoso

IT was the popular understanding of African living law which motivated our ancestors in the First Chimurenga and the African liberation movement in the Second and Third Chimurenga.
This understanding of African living law was so palpable that it was turned into songs of liberation.
“Kunenzira dzemasoja dzekuzvibata nadzo,” being one of the many songs.
It was the formal forfeiture of African living law embedded in Paragraph 5 of Section F of the Lancaster House Agreement of December 21 1979 which opened the floodgate for continuing and continued anti-African campaigns such as the anti-narrative by Ben Freeth which The Patriot newspaper is addressing in this current issue.
The full title of Freeth’s ‘know-nothing’ anti-narrative is: ‘Why white Zimbabwean farmer Ben Freeth returned to his farm eight years after it was destroyed by pro-Mugabe forces’.
The story, written by Martin Fletcher, would have been understandable if it had been limited to just Ben Freeth’s personal (nostalgic) motive for returning to Zimbabwe and to the farm.
But no!
Freeth, through the anti-narrative, turned out to be a sweeping crusader claiming to speak for ‘thousands of farmers and farm workers’ and seeking to cause the discredited SADC Tribunal to be reinstated to its former status after it was suspended by the SADC Heads of State.
But it is important to explain why I call the story a ‘know-nothing narrative’ which makes it an anti-narrative.
‘Know-nothing’ refers here to two things:
It assumes that persons who will read Ben Freeth’s story know nothing about the history of Zimbabwe, the history of Rhodesia, the history of the British South African Company (BSAC) and the specific histories of the First, the Second and Third Chimurenga; or it assumes that most people concerned with the land issue in Zimbabwe choose, like Freeth himself, not to know anything except the case of the suspended SADC Tribunal and the case of Freeth’s father-in-law Mike Campbell.
By ‘anti-narrative’ I mean that the account is cast in a manner to defeat history, to contradict normal ways of seeking understanding through telling a story.
The account deliberately seeks to make a spectacle out of one man, his family and the one farm he once occupied; and to use that spectacle to erase all other successfully re-distributed and resettled farms as well as to erase the real narratives of 400 000 African households whose lives were transformed through the African land revolution.
The focus of the anti-narrative is Ben Freeth, his family and former farm workers who, except for just two, also remain silent and out of the spectacle.
The former white settler-farmers who chose to share land with Africans and to remain in Zimbabwe to this day have also been erased from this anti-narrative.
According to Professor Richard Bell in his Understanding African Philosophy, at least three steps are expected of anyone who wishes to be understood across linguistic, cultural, religious, philosophical and moral boundaries, as Ben Freeth claims to be doing:
l The first step is that the one seeking to be understood by someone else and to understand that someone, must ‘step up to’ or ‘go up to’ that someone, that is ask to enter the world, the history, the living law and language of that someone.
In the anti-narrative at hand, the most significant someone are the ‘war veterans’.
Freeth does not seek to step up to them or to enter their world.
He demonises them outright.
l The second step is that the one seeking to understand and to be understood must humble himself/herself to become an honest eyewitness taking in the account or story of the African according to his living law and living history and then rendering an honest ‘translation’ of that which has been taken in.
Freeth begins by erasing or rejecting that which he is supposed to see and to take in.
He does so by conflating his personal motives with the history of Zimbabwe which he also reduces to ‘Robert Mugabe’.
l The third step is that the actual text which emerges from this encounter has to be an honest, genuine, attempt to communicate the meaning of what is being observed, what is being heard.
It should not be restricted to the personal creation of meaning at the expense of communicating meaning.
The elements already mentioned as erased from the anti-narrative make Freeth’s story almost worthless because it is limited to just personal meaning creation at the expense of what in fact is an African narrative of global significance and resonance.
Freeth dwelt on the judgments of the SADC Tribunal without communicating the full meaning of the white farmers’ appeal to that body.
The first fact which has far-reaching implications is that the white settler-farmers chose to throw back into the regional and international arena an issue which Zimbabwe and the majority population of Zimbabwe had successfully nationalised and domesticated following the expiry of Section 16 of the Lancaster House Constitution.
This move, to re-internationalise and re-multi-lateralise the land issue through the SADC Tribunal had grave implications which the Civil Division of the Attorney General of Zimbabwe, the white settler-farmers, the farmers’ lawyers and the Tribunal – all overlooked in 2009.
That was because these entities were also steeped in Roman Dutch and English law.
The second fact is that, at the time, the Civil Division of the Attorney General’s Office failed to research the matter adequately and to consult other state agencies before conceding to placing the matter before the Tribunal.
Had such research and consultations been done, two things would have become evident: that there were several other states involved in the matter besides Zimbabwe and that the state of Zimbabwe, having repatriated and domesticated the issue from Lancaster in 1979, had never given up its right to prosecute the 79 white settlers in the courts of Zimbabwe for their refusal to give up a colonial status-quo in favour of popular and equitable change known as the Third Chimurenga.
So the third substantive fact omitted by David Peter Drury and his clients, with the help of a donor-funded tribunal in SADC garb, is that the prosecuting authority in Zimbabwe had never given up its right to prosecute.
In fact, it is that right to prosecute or the emphatic statement of that right which the Tribunal condemned as contempt of court when in fact the Tribunal had no jurisdiction over the matter.
The fourth substantive fact is that several states were involved in the matter, again with far-reaching implications and complications.
The fifth substantive fact is that the so-called SADC Tribunal was not wholly funded from autonomous budgets of SADC state parties.
From the history of donor-intervention in African and Commonwealth judiciaries, it is clear all donor-funded commissions and tribunals should never claim to be independent.
The states who fund them would condemn such tribunals or commissions if the tables were turned and US or UK tribunals were to be funded by Russia or China, for the purpose of deciding US and UK national questions.

The international dimension and its implications for the SADC Tribunal

Before presenting proof of the reality of each of the five omitted facts, let us look at what it means to recognise the international relations perspective in the land case taken to the SADC Tribunal by Mike Campbell, Ben Freeth and others.
First, this perspective reveals at least three nations in an unsustainable relationship full of tensions which led to war.
The three were the Zimbabwean nation subjugated by the Rhodesian settler-nation which was itself a subsidiary of the British nation.
In state terms, we had Rhodesia, Zimbabwe and the UK.
The Zimbabwe nation went to war directly against the Rhodesian settler-nation and indirectly against the British imperialist nation and its allies in North America.
The war was about land.
Now, international relations experts warn against taking to any tribunal any matter which is fraught with tensions that are serious enough to cause war. For example, Chapter 25 of Hans Morgenthau and Kenneth W. Thompson’s book Politics Among Nations is entitled ‘Judicial Settlement’.
The authors would categorise litigation over the land issue in Zimbabwe after 1965 as one of those misplaced and ‘unsuccessful attempts to establish compulsory jurisdiction of international courts for the peaceful settlement of international disputes which otherwise might lead to war’.
The Zimbabwe issue belonged to this category not only because a 15-year war was fought from 1965 to 1980, but also because judicial judgments such as those of the Supreme Court of Zimbabwe under Anthony Gubbay and the one from the so-called SADC Tribunal were likely to trigger a new war.
Nowhere in the papers have we seen the parties or the Tribunal acknowledge the Third Chimurenga as a peace-building revolution to conclude a matter which once caused war and may lead to war again.
This omission smacks of either gross ignorance or dishonesty.
Freeth admits grudgingly that very few white farmers died during their union’s fierce resistance to land redistribution.
The dispute between the white Commercial Farmers Union and Justice for Agriculture on one hand and the African land reclamation movement on the other hand, represented conflict and tension between a colonial and neo-colonial status-quo on one hand and a reparations revolution on the other hand.
There are some disputes for which the so-called SADC Tribunal was intended.
The case of Mike Campbell Private Limited and others against the State of Zimbabwe was not one of them.
Morgenthau and Thompson distinguish not only between those seeking to uphold the status-quo and those who seek to overturn it.
They also separate what they call ‘pure disputes’ which such a tribunal could easily resolve and ‘disputes with the substance of an on-going tension’ which such a tribunal can never resolve.
Pure disputes are usually technical and a court in such disputes can rely on experts to verify certain data whose basis and conventions both parties accept.
A tonne of copper in Chile can be verified and be viewed as equal to a tonne of copper in China.
A boundary between two states could be pegged and placed based on an agreed method of surveying.
These objective criteria and characteristics do not apply to disputes with the substance and history of an on-going political tension.
Were there more states than just Zimbabwe in the Zimbabwe land case before the SADC Tribunal?
Britain, US, the European Union and Australia are all parties to the tensions over Zimbabwe’s land revolution.
Throughout Zimbabwe’s history, these states and groups of states have always taken the side of the white-settler against the African majority.
In 2005-6, 11 white nations still owned land in Zimbabwe under bilateral investment agreements.
In other words, whereas Britain has had a racist claim on Zimbabwe’s land since its citizens invaded this country in 1890, the other white countries have also partaken in that land grab in later years.
There is a material basis for these white states’ solidarity with the settlers. If they have now lost these farms to the African land revolution, their sanctions against Zimbabwe have to be seen as a direct act of revenge for nationalised property.
If they still have the farms, then their hostile policies have to be seen as intimidation to prevent further nationalisation of land by landless indigenous Zimbabweans.
And the eagerness of Britain, US and their white allies to entrench Roman Dutch or English law and sponsor and fund outfits such as the so-called SADC Tribunal can also be seen as arising from a desire to regain through sponsorship and bribery what they or their white cousins lost through war and revolution.
Another demonstration of the real existence of more state parties in the land dispute placed before the SADC Tribunal is the Lancaster House Conference which produced the Lancaster House Constitution.
The Patriotic Front had walked out of the talks because the UK and US Governments were insisting on protecting the white monopoly on African land in a future independent Zimbabwe.
To break the deadlock, the UK and US pledged to accept land redistribution and to contribute together up to US$2 billion which the new majority Government of Zimbabwe would use to compensate white settler-farmers for land nationalised and distributed to landless Africans.
During the previous Geneva talks in 1977, the UK had pledged £75 million while the Americans pledged US$520 million for land redistribution.
These amounts were very little.
Worse still, the pledges were not honoured at all in the case of the US.
The UK reneged after having made some small payments.
But our point is, it is a gross conflict of interest when any of these white powers take an interest in funding the training of our judges who are going to judge the same landless Africans to whom the donors believe they lost property unjustly.
It is a gross conflict of interest when any of these powers sponsor and fund the setting up and operations of such bodies as the SADC Tribunal and the African Commission on Human and People’s Rights.
Another proof that more than one state was before the SADC Tribunal in the Zimbabwe land case is the EU sanctions policy against Zimbabwe which lists Zimbabwe’s revolution in land tenure and land redistribution as a key reason for the illegal sanctions.
On January 11 2002, the EU issued what it called ‘EU Conclusions’ misusing the Cotonou Agreement to impose sanctions on Zimbabwe.
One pressing reason for the sanctions was what the EU called ‘illegal farm occupations’ and ‘illegal occupation of properties’.
What does all this mean?
Several points need to be developed separately in future instalments.
Here I can only summarise them.
l The final ruling by Zimbabwe’s Supreme Court in favour of the Third Chimurenga and resettled farmers and against Mike Campbell, Ben Freeth and the SADC Tribunal was an exceptional concession to the revolution by a judiciary steeped in Roman Dutch and English law.
The issue would not have been so convoluted if African leaders and their new legal advisors had not agreed to entrench Roman Dutch and English law in Zimbabwe.
l In recycling the case through the media in 2017, Ben Freeth realises that as long as Zimbabwe’s legal system remains Roman and English, the white settlers’ anti-narrative represented by Freeth’s ‘story’ stands a chance of at least compromising the achievements of the Third Chimurenga if not reversing it.
l It is not enough to say the Zimbabwe Government made a mistake by submitting to the SADC Tribunal when the case of the 79 white farmers was first submitted in 2007, without pointing out that the ‘mistake’ was one of the consequences of the entrenchment of Roman Dutch and English law effected in 1979 at Lancaster together with the African elites’ forfeiture of African living law.
The SADC Tribunal itself is a product of the entrenchment of Roman Dutch and English law not just in Zimbabwe, but in the entire sub-region.
That is why Chief Justice Godfrey Chidyausiku’s belated ruling on the land issue was treated as unusual or exceptional and that is why Ben Freeth and the neo-Rhodesians continue to ignore the ruling and to press SADC for the re-instalment not only of the Tribunal, but its nullified judgment as well.

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