AfriForum challenge is less about Zimbabwe but more about South African and Namibian land reform

LAST week I promised to tackle the issue of the sale by auction of a property of the Zimbabwe Government in Cape Town, over a court action involving AfriForum, a white legal outfit defending colonial property rights in the whole of the Southern African region. I intend to fulfil that promise, which is why I will grant Jealousy Mawarire temporary reprieve before I get back to him, get back to him in full measure and might. After all, for all his wished-for public poise and persona as the unconnected, he is a workmate, a fellow wayfarer, something which his irate readers have noticed and pointed out in their feedback.

It must be quite painful when readers from whom you hoped for a cheer, wind up going on and on about your bad breath and wolf's clothing! I am sure he now knows his worth in the marketplace of ideas. In the meantime Tsvangirai is not sparing him more headaches. In an address within an address, Tsvangirai alliteratively pleaded with the People First officials not to put positions — not people — first: "People haggle over positions, but it's not about positions, but conditions for the people of Zimbabwe. Do you get me, vaMavhaire?" So what now, Mister Know-it-all, Mister Self-appointed spokesperson?

Enter AfriForum
Two Mondays ago, a Zimbabwe Government property, No. 28 Salisbury Road, Kenilworth, Cape Town, was sold by auction for R3,7 million, over a claim of R840 000 related to legal costs in a matter involving the Zimbabwe Government and some 78 Rhodesian farmers represented by AfriForum. The background to the matter is a decision in 2008 by the Namibian-based sadc Tribunal — now defunct — to uphold a claim by the Rhodesian farmers that the whole Land Reform Programme embarked upon by the Zimbabwe Government from 2000 onwards, was racist and arbitrary, and thus offended against their rights as humans, and if I may add, as privileged humans from racist settler Rhodesia into an unprivileged, majority-ruled Zimbabwe.

White in person or outlook
Armed with this judgment, and fully aware that a sadc with a baneful settler legacy of skewed land ownership would not spare a Tribunal with such a strange disposition, the farmers, represented by AfriForum, proceeded to register the Tribunal decision with the South African High Court in Pretoria, all to make the decision actionable within the South African legal system. Of course they also knew that the Tribunal decision would need a conquering army for enforcement in Zimbabwe.

The idea was for matters to play out and fully in South Africa which they judged to be hospitable on two counts: its liberal legal tradition, and a Bench that remains predominantly white in person or in outlook. We in Zimbabwe should not take umbrage, or shake fists in the face of the ANC Government, over this situation. We kept the Rhodesian bench for more than a decade and half before we plucked enough courage to dismantle it. VaMuzenda and Chinamasa were the taskmen. President Mugabe was on leave at the time, although the matter took a swift and decisive turn once he was back in office.

Often against my own
Generally, in all decolonisation cases the Bench is always excused and exempt from all post-colonial changes as a way of reassuring whites and protecting white interests, once these whites lose control of the colonial State. It is a strange concession, but one which nationalists have been wont to accede to, starting with the Lancaster House settlement for Kenya. So, nothing odd about this anomaly in the Rainbow Nation.

The key thing is for the ANC and its Government to know that sooner or later, they have to gather sufficient anger to want to tackle this leftover Bench and, more critically, it's even longer, troublesome ethos. I can tell the South Africans — tell them as one directly involved in the overthrow of the Rhodesian Bench — that when the time comes, and one hopes we will not have much longer to wait, the greatest odd will not be white judges. Once challenged, those are always quick to resign. The greatest odd will be black judges who think the white apartheid Bench defines judicial standards until kingdom come, without acknowledging a whit that apartheid judges saw the law in apartheid terms.

The Zimbabwean experience Here we had a well-decorated black judge who frothed for Gubbay and his ilk, frothed for the retention of a white judicial ethos. Even after that Bench was dismantled, you still had remnant judges - all black - dissenting or even making strange judgments to cheers from western-sponsored activist rights NGOs. But Government moved on, lips clenched, until the old Rhodesian juridical ethos gave way, indeed until the current ethos prevailed.

In fact, the transformation of the Rhodesian bench was tied up with the resolution of the Zimbabwean land question. I hope you recall, gentle reader, the Mhuriro case presided over by the current Chief Justice when he still was a Judge President, a case whose outcome was not only progressive, but went against the ethos of the Rhodesian Bench, to great personal peril of Justice Chidyausiku. But he gathered courage, braved the backlash, all to write history.

Let those who write history, especially legal history, note and repair this gap in the current narrative by acknowledging what this great Judge did then, what he has done since, to give us a Bench that defends black rights in the aftermath of formal colonialism. So, it shall be white thoughts in black skins which shall be the biggest odd, when time for changes come to South Africa.

Both high market and political value
The Zimbabwe Government fought efforts at having the judgment registered in South Africa, fought it all the way to the South African constitutional court. Sadly, it lost. Maybe I should not import emotive adjectives into the whole narrative. Government lost. Revolutions are never lost; they only suffer temporary setbacks. And in the majority of cases, it is such setbacks which breed decisive actions, which in turn create conditions for decisive outcomes.

As the Zimbabwean government battled to get the registration of the Tribunal judgment rescinded, it, quite naturally, picked litigation costs. And of course the fact that the South African constitutional court dismissed the Government case with costs, meant those costs snowballed to the figure cited above. A delay — culpable in my view — in settling those legal fees led to the added, compounded burden of interest. Still the money was little to warrant the desultory way in which the matter was handled by government, and in relation to the market value of the property. Not to mention the political value of the case.

Removing legal and diplomatic support
AfriForum then looked for properties and interests belonging to the Zimbabwe Government to force compensation for the 78 farmers. By March 2010, it had identified a number of properties, among them the Salisbury street property. The swoop also included premises of our consular offices in Cape Town, then mothballed following a decision taken much early on to close down the Office on budgetary grounds.

A decision was then taken in the light of these hostile moves to pre-emptively reopen the Offices to uphold their status as part of Zimbabwe's diplomatic compounds, in which case they would stand protected under Article 31 of the Vienna Convention which confers immunity on all diplomatic premises. It so happens that when the consular offices were shut back then, shut owing to budgetary problems, one residential property was then leased out to raise money for the upkeep of the rest of the properties. A sensible judgment then, if you ask me.

And because it was now being used for purposes other than diplomatic, it could not be registered, let alone enjoy diplomatic immunity under the aforementioned Article 31 of the Geneva Convention. One cannot but read another culpable oversight on the part of the authorities. Surely against a clear show of such hostility, the lease could have been terminated at whatever cost, to whatever anger by the sitting tenant, to ensure the property was not exposed. Significantly, another creditor, KFW of Germany, had attempted to raise a caveat over that same property, suggesting there was ample warning to the authorities. And when the farmers targeted the property, the Zimbabwe Government had neither a legal nor diplomatic leg to stand on. Not even the South African government could come to its rescue.

Unpaid bill, not compensation to farmers
Matters continued to escalate, the only factor de-escalating being official attitude over the whole matter, which remained remarkably lackadaisical. Until that blue Monday was clearly on the horizon, with our Mission in South Africa crying wolf, wolf, crying itself hoarse all the time. Only on a Saturday, two days before the auction - all of them non-working days - were the gods finally moved. Payment was done that same Saturday, payment over a claim on legal fees which had accumulated to R840 000.

Not over compensation of the 78 farmers!
Could not have been, as the figures would not balance. Let the fact be restated: the action on the property was triggered by an unpaid bill, a bill was over legal costs, not over compensation to the 78 white farmers, something which would herald a sea-change on Government land policy. Indeed something which would get me to drop Zanu-PF forever. There is a vast difference between losing a case and abandoning a cause.

Pretext for dire conclusion
Whatever the culpable delays relating to Zimbabwe bureaucrats, the point is payment for the fees was effected, with the sheriff getting duly notified. In fact, the sheriff correctly called for a meeting of all parties hoping to announce a decision to call off the auction, now that the reason for it no longer existed. It was at that meeting that the AfriForum lawyer, a man appropriately named Willie Spies, disclosed the same property had another writ of execution, that of the German company which was owed by zisco, in an arrangement guaranteed by Government. To state clearly that the auction proceeded on account of another writ of execution, never necessarily on account of the action by the 78 farmers, much as this might have precipitated it.

That action by farmers would have been stayed by the Saturday payment. But there was a determination on the part of AfriForum to proceed with the auction, which is why it played "Father Christmas" with all those who had claims against the Zimbabwe Government. It badly needed the auction sale to go through so as to draw a dire but unrelated conclusion. They key issue is what then becomes of the R840 000 paid by the Zimbabwe Government, something the Attorney General is dealing with.

The real precedent
And now the reading. Firstly, there is absolutely no reason to suggest, as does Willie Spies, that an international legal precedent has been set where a government property has been auctioned over human rights and rule of law charges. As already described, the action was over outstanding legal fees and a separate claim over a debt against the property. No precedent has been set over claims by the 78 white farmers. What passes for interesting precedent is the fact of white colonial volk fighting across borders to stop or derail the train of decolonisation. And of course to use the judgement legacy of a defunct court whose jurisdiction had been challenged anyway, to revive a case beyond the lifetime of the concerned court, and in yet another country.

Bear in mind, gentle reader, that the Tribunal was in a foreign country, and that its stale judgment assumed freshness in yet another country, both against a sovereign country grappling with a baneful settler legacy related to a skewed ownership of a finite, people resource.

It puts a big spotlight on multilateral law and national sovereignty. More fundamentally, it deals with the whole question of institutions created in the name of multilateral bodies, while being funded by donors, as a new plank for fighting the gains of decolonising the continent. When one considers that the AU faces similar institutional challenges, the matter is definitely larger than Zimbabwe, more insistent for other nations bereft of fighting spirit such as we have.

Colour, coin and cause As if to bear out the above point, Spies has already indicated AfriForum is soon to launch another lawsuit, this time against "President Zuma and his ministers of justice and international relations" for "the South African government's complicity in the illegal process that led to the suspension of the sadc Tribunal's power to adjudicate on human rights abuses against citizens of member states".

The case is slotted for next year in the North Gauteng High Court in Pretoria. Talking to senior officials of the South Africa Government, one is gratified that the ANC seems aware of the full implication of the continued abuse of that country's justice system by those with the colour, coin and cause to do so. "We are worried, dead worried, by this incipient yet ominous trend by our Bench of paying no regard whatsoever to the Geneva Convention," said a contact.

He cited the recent Al Bashir case, and yet another, more comparable one in which a whole embassy building of the island state of Fiji was attached on account of a small debt. Clearly this is the behaviour of a Bench reared in apartheid days when South Africa was an international pariah, un-strictured by international conventions. But it also tells you by how much the law and court system in South Africa beats even international relations to please the apartheid "Shylock".

A chilling challenge Thirdly, AfriForum is less about Zimbabwe's land reform which is now a done deal, and more about South African and Namibian land reforms about which deals are still to be struck, about which action is yet to unfold. The case against Zimbabwe is meant to have a chilling effect on the leadership in South Africa and Namibia. Here, it is meant to keep the scattered Rhodesian white volk hopeful, thus giving them the reason to keep together as a "state" on the net (Rhodesia World Wide).

It now makes sense why a former CFU president, now resident in Australia, came back a few years back to urge white farmers to remain paid-up members of the CFU; and also why Ben Freeth recently told the US Congress that white former farmers were hoping for full compensation or "even a return to their land". The current action is meant to induce those in leadership to buy peace by keeping away from the land question, lest they are haunted the same way Zimbabwe is currently through international writs. It ties in with the fact that white farmers went away with their title deeds.

Never a colony again?
Fourthly, this action, itself a build-up to an eventual claim for full compensation or a reversal of land reforms, is a clear warning to the potentially simplistic and dangerous view that "Zimbabwe will never be a colony again". If that is meant to be a summary of what the Zimbabwe land revolution has achieved to date, to clinch a sense of irrevocability, then there is no doubt that this mantra is dangerously delusional.

If it is declaration of faith and commitment to the fight for total land transfer and ownership by the indigenes, then holla! The forces for the restoration of settler colonial land rights in the country and region are regrouping and are ready for a fight worldwide. If you consider that a sadc Tribunal, staffed by black judges, could still pass a judgment supportive of such claims and interests, then it should be very clear to each and all that the fight for land has just begun.

The forces for the restoration of colonial and apartheid land rights have the means, have the intellect, and in some lands, have the institutions, for a bloody fight. And if what has been possible to happen in Namibia and South Africa is anything to go by, the fact of political independence need not stand in the way of such a push. This is what will accelerate matters, trigger a second war of liberation. People are on the land. Some day someone will seek their eviction by waving the wand from Gauteng High Court, waving it to a farmer in Mvurwi!

Should Zimbabwe stumble . . .
Much worse, if the bungling of the Zimbabwean Government over this one matter points and measures the capacity of nationalists in defending property gains in post-independence, then we have a lot of capacity building to do before we can take the battle to the white colonial landed gentry. By hindsight, it is not very difficult to see why matters were bungled by Government. Three offices were involved: Foreign Affairs, the Attorney General and Finance. Coordination lapsed disastrously.

A sense of both importance and urgency lacked, again disastrously. Much worse, little officers, using very parochial, departmental lenses, were left to handle and decide a matter of such importance. That was fatal. We have to learn to cost matters, learn to read their full implications, to give them full status and regard. We did not do so in this case.

Our truncated institutions are still to wake up to the fact that Zimbabwe is under an international trial and challenge and, what is more, that she carries the precedent and hope for post-independence transformation on the continent, the hope of challenging colonially-derived white rights. We stumble, the whole region, nay, continent acquiesces. This is one case where even the skills on the Bench should have been summoned. The fight is national, the challenge international.

Post- Mugabe Zimbabwe whites want
Which means what? Well, for local politics it is completely delusional to think that the land question is dead and buried, that it should not continue to influence political choices. Minda takatora wani, you often hear, as those suffering consciousnesses insufficiency hurry on to throw their weight with quisling parties.

They think the land issue is done. Mhaiwee! All these actions, together with the current agricultural challenges spurring the return of white farmers on black-owned farmlands, simply re-valorises the land question. Land is never a finite, time-honoured question. It is lifelong. And when the People First people show revisionism on land, show it in their manifesto, they have their thumb on the pulse of a post-Mugabe Zimbabwe which whites want. Apart from having white farmers near enough, a key strategy has been to devalue land and agriculture as an asset and a gainful preoccupation respectively, devalue both in such a way that land ceases to be emotive, ceases to matter and mobilise our politics.

In short that land becomes a dead asset if not an albatross. Becomes a non-issue electorally. And when veterans of the struggle revise views on land, the likes of Tsvangirai are not only vindicated; they are rehabilitated and rendered electable. It is a sinister engineering of socio-economic and socio-political values: where by reversing land reforms, making land encumbered or having a caveat hanging over it, you re-engineer the whole politics of a people, well away from land, itself the grievance of all grievances, the casus belli of the First and Second Chimurenga.

To be wary of false saviours, false gods and goddesses: that is the challenge. Maybe the time has come again to raise the ageless issue: in 2015 and beyond, just what is the National Question? The Land and the Sovereignty residing in it, would be my answer. Thank God the way it is panning out, whether in Namibia (as the Tribunal) and in South Africa ( as the AfriForum challenge) makes it so, so easy to comprehend the intertwined nature of Land and Sovereignty.

Icho!