Zimbabwe Farm invasions - letter to Police Commissioner, himself a thug
Zvakanaka
The Commissioner General
Zimbabwe Republic Police
Police General Headquarters
Off Josiah Chinhamano Ave
Harare
Dear Sir
RE: NEW FARM INVASION, ASSAULTS, MALICIOUS DAMAGE TO PROPERTY AND FORCED
WORK STOPPAGE - MOUNT CARMEL CHEGUTU - MIKE CAMPBELL (PVT) LTD, WILLIAM
MICHAEL CAMPBELL AND ORS
Mike Campbell (Pvt) Ltd, William Michael Campbell, his family,
representatives employees and their families instruct us.
THE FACTS
Mount Carmel farm in the Chegutu farming district is registered in the
name of Mike Campbell (Pvt) Ltd a company with limited liability duly
registered in accordance with the laws of Zimbabwe.
As you are aware the SADC Tribunal under case No SADCT 02/2007 handed
down its judgment in Windhoek on the 28 November 2008. Part of the
final order reads as follows:
"By unanimity, the Respondent (the Government of the Republic of
Zimbabwe) is directed to take all necessary measures, through its
agents, to protect the possession, occupation and ownership of the lands
of the Applicants and to take all appropriate measures to ensure that no
action is taken, pursuant to Amendment 17, directly or indirectly,
whether by its agents or by others, to evict from, or interfere with,
the peaceful residence on, and of those farms by the applicants".
On the 28 May 2008 in open court before the Tribunal the Deputy Attorney
General Advocate Prince Machaya on behalf of the Government of the
Republic of Zimbabwe had this to say to their Excellencies of the
Tribunal:
"I would like to categorically inform the Tribunal that there should be
compliance with the order of this Tribunal. I have drawn[this] to the
attention of our Acting Attorney - General[and] I've also drawn it to
the attention of the Minister of Justice and the Minister responsible
for Lands that there is a need to comply fully with the order of the
TribunalOur Minister of Justice concurred in my discussion with him that
Respondent had an obligation to comply at the international level with
the orders of this Tribunal". [Transcription of proceedings - Windhoek
SADC Tribunal p. 31-32].
The Deputy Attorney- General's undertaking is of course consistent with
the Southern African Development Community Declaration and Treaty signed
by President R G Mugabe on behalf of the people of Zimbabwe on 17 August
1992 in Windhoek.
Article 6 .4. provides: "Member States shall take all steps necessary to
ensure the uniform application of this Treaty ".
Article 6.5 states that "Member States shall take all necessary steps to
accord this Treaty the force of national law."
Finally, Article 6.6 requires "Member States[to] co-operate with and
assist institutions of SADC in the performance of their duties." The
Tribunal is one of the institutions established by the Heads of State of
SADC.
The Treaty - as you might be aware - was ratified by our Parliament on
17 November 1992.
Honourable R G Mugabe with other Heads of State, desirous of concluding
the Protocol on the Tribunal, signed the Protocol on the 7th August 2000.
In so doing, Government undertook and agreed that the "Tribunal shall
have jurisdiction over disputes between States, and between natural or
legal persons and States."
Importantly, Article 32 2. - concerning the enforcement and execution of
Tribunal decisions - provides that "States and institutions of the
Community shall take forthwith all measures necessary to ensure
execution of decisions of the Tribunal". Article 32. 3 is explicit. It
provides that "Decisions of the Tribunal shall be binding upon the
parties to the dispute in respect of[a] particular case and [shall
be]enforceable within the territories of the States concerned."
Georges JA (as he then was) in the case of Barker McCormac (Pvt) Ltd v
Government of Kenya 1983 (4) SA 817 (ZS) said:
"there is no doubt that customary international law is part of the law
of this country. In so far as the common law of Zimbabwe is Roman -
Dutch the support for the proposition in Nduli and Another v Minister of
Justice and Others'. Rumpff C.J. quoted with apparent approval from
Hahlo and Kahn `South African Legal Systems and its Background' at 113:
`. South African legislatures and courts have always held that the law
of nations exists. The courts will normally apply it (taking judicial
cognisance of its rules) in appropriate cases unless it conflicts with
South African legislation or common law'".
There is no Supreme Court or statutory authority to our knowledge to
contradict the authority referred to.
On the basis of our client's final order from the SADC Tribunal there is
a legitimate expectation that our client is entitled to the protection
of the law to the order so granted.
But even if this is not agreed, our client has established common law
and statutory rights to protection of the law to quiet, undisturbed
peaceful possession to their property against self-help conduct from
third parties that amounts to dispossession.
This right is an inalienable right. That right is recognized under the
mandamentem van spolie. The right to protection through due process
proceedings continues to subsist no matter Constitutional Amendment No
17 and to the promulgation of the Gazetted Land (Consequential
Provisions) Act Cap 20:28. In this latter regard, our clients have not
been called upon to answer a charge of having contravened the provisions
of the Gazetted Land Act. No court has issued against our client an
eviction order from Mt Carmel. That process has not commenced let alone
been completed.
From an enforcement perspective, the police clearly have a
Constitutional duty to ensure that persons and their property are
safeguarded and protected from inimical conduct by third parties who
resort to taking the law into their own hands.
"[E]very person is entitled to the protection of the law." (s 18 of the
Constitution of Zimbabwe).
That right and the concomitant obligation on the part of the police to
provide protection to persons and their property against summary
invasion, assaults, damage to property and other criminal conduct ought
to be self-evident. In case it is not, we draw your attention to the
case of Commissioner of Police v Commercial Farmers' Union 2000 (1) ZLR
503 (H) wherein Chinhengo J held that the police were enjoined as law
enforcement agents to ensure that law and order was protected and
maintained.
In the matter of Zimbabwe Human Rights NGO Forum v Zimbabwe -
Communication 245/2002 - 2006 the African Commission recognised that the
"responsibility of maintaining law and order in any country lies with
the State specifically with the police force of that State. As such, it
is the duty of the State to ensure through its police force that where
there is a breakdown of law and order, the perpetrators are arrested and
brought before the domestic courts of that country."
New legal developments have arisen which deserve recognition and
application by the police force. Police officers are public officers.
They have public duty obligations and responsibilities.
Amendment No 19 - promulgated into law on 13 February 2009 through GN
7A/2009 - inserted the following to our Constitution "Provisions to
ensure protection of law"
"18 (1a) Every public officer has a duty towards every person in
Zimbabwe to exercise his or her functions as a public officer in
accordance with the law and to observe and uphold the rule of law".
In line with the inalienable right of our clients' to peaceful,
undisturbed possession of their property, to the right to protection of
their homes and means to a livelihood, we must now call upon you as a
matter of extreme urgency - through your officers - to uphold the rule
of law in line with the spirit and intent of our Constitution and
established common laws principles. If this is not done an unacceptable
perpetuation of anarchy will manifest itself.
As stated by Justice Brandeis in Olmstead et al v United States 277 US
438,485 (1928) quoted with approval by Honourable Justice Ebrahim in the
matter of Commercial Farmers Union v Minister of Lands, Agriculture and
Resettlement and Ors in SC 111/2001 at p 55 of the judgment:
"In a government of laws, existence of the government will be imperilled
if it fails to observe the law scrupulously. Government is the potent,
omnipresent teacher. For good or for ill, it teaches the whole people
by its example. If the government becomes the law unto himself, it
invites anarchy."
CRIMINAL CONDUCT IN AND AROUND MOUNT CARMEL
It becomes necessary to set out recent developments on Mount Carmel,
specifically in the last two days. The criminal acts and misconduct that
have occurred imperil the rule of law and preservation of peace and order.
On 3 April 2009 at approximately 15:00 hours a maroon Toyota Prado
Registration No 743 - 096M arrived on the farm led by man who gave his
name as Mr Chimbambabira. which is presumably a `chimurenga' name.
He later gave out that his name was Mr Madangonda. This individual came
straight into the main residence through the backdoor and gave Bruce
Campbell five minutes to get out of the house and leave the property.
This individual was accompanied by approximately 10 other people who
told Mr Campbell that they were from Mr Shamuyarira's office. They had
no papers and no land officials or police were present.
A report was made to Chief Inspector Manyika (Chegutu RRB No 0505651
refers) The Chief Inspector said that he was coming to sort out a
problem on Fairview farm 6 km away and would proceed onto Mt Carmel
thereafter.
The Mount Carmel workers were unhappy that Mr Madangonda wished to evict
their employer with immediate effect and gathered in numbers to dissuade
them from doing so. Chief Inspector Manyika never came to the farm and
at 9:30 pm the workers eventually prevailed upon the invaders to leave.
The invaders appeared the next morning at approximately 9 am and further
reports were made to police Chegutu. This included two visits to the
police station as well as various telephone calls for assistance. When
the police never came out - as expected - the workers and others from
resettlement and surrounding farms removed them from the farm by
motor-vehicle. Eventually Chegutu police came out and arrested seven
including 3 Mount Carmel workers and 4 others.
These persons have subsequently been detained by the police at Chegutu
police station ostensibly on charges of "kidnapping". Since then, as at
Sunday 5 April 2009, it is reported that a further 15 (approximately) Mt
Carmel workers have been arrested by the Chegutu police, on as yet
undetermined charges, presumably at the instance of Mr Madangonda and
his accomplices.
According to witnesses the police have assaulted some of the arrested
persons.
The invaders, assaulted various other workers on the 4th April 2009 and
thereafter brought these persons to the Chegutu police station on
trumped up charges. Iron bars were used in these assaults and one worker
was particularly badly injured and has subsequently been hospitalised.
The invaders then started moving around the main residence singing
"chimurenga" songs. They broke through the kitchen door to the main
residence occupied by Mr and Mrs Campbell and shouted that the house now
belonged to Nathan Shamuyarira.
Reports were made regarding all these events but the police decline or
refuse to arrest the invaders.
Eventually, after four hours of persistent attempts by the invaders to
get Mr Campbell and others out of the main residence by force police
were transported out to the scene but made no arrest upon their arrival.
Subsequent thereto, the invaders have caused all commercial work and
production on Mount Carmel to be stopped. A lorry due to collect a load
of 25 tonnes of mangoes for export has had to go back to South Africa empty.
In excess of 100 tonnes of mangoes are ready to be reaped but the Mount
Carmel workers are too intimidated to harvest the crops whilst the
invaders are present on the property. The invaders would appear to be
allowed to act impunity.
PUBLIC PRONOUNCEMENTS BY GOVERNMENT ON THE RULE OF LAW AND STOPPING NEW
INVASIONS
On the 19 March 2009 [and in subsequent press reports] it is reported
that:
"President Robert Mugabe yesterday launched an interim economic
blueprint that will, among other things, demand an immediate halt to
farm disruptions in an effort to kick-start the country's moribund economy.
The Short Term Emergency Recovery Programme (Sterp) seeks to ignite
activity in Zimbabwe's key economic drivers - agriculture, mining and
manufacturing..
`In order to promote confidence, investments and other developments on
farms, as well as ensuring security on farming operations, the inclusive
government will uphold the rule of law as well as enforce law and order
on farms including arresting any further farm [invaders].which disrupt
farming activities' the document says.
The document promises to carry out a land audit in a `transparent and
non-partisan manner' in line with the September 15 Global Political
Agreement signed by [President] Mugabe and leaders of the two MDC
formations, Morgan Tsvangarai and Arthur Mutambara, now Prime Minister
and Deputy Prime Minister respectively in the power-sharing pact.
Sterp also seeks to restore land and property rights and provide
security of tenure in an effort to promote private sector financing ."
[See Zimbabwe Independent and The Herald newspapers generally].
CONCLUSIONS OF FACT AND LAW
An untenable unlawful state of affairs persists on Mount Carmel. The
resort to self-help invasions of this property violates the law of
trespass. The Miscellaneous Offences Act makes summary trespass a
criminal offence. This law remains good law and we cannot see any
justification on the part of the police, upon receiving complaints, not
to act to arrest and remove the invaders.
The assaults that have taken place with iron bars and other instruments
by the group of recent invaders violates the Criminal Code and would
ordinarily warrant immediate reaction and arrest by the police. This has
not happened. To the contrary, some of the victims have instead been
arrested and detained by police Chegutu.
The smashing open of Mr Campbell's kitchen door and forced entry as
detailed earlier is a criminal wrong.
The acts of intimidation to force Mr Campbell and his wife Angela, both
of whom are elderly and are not well and who were previously beaten
within inches of their lives for having the temerity to approach the
SADC Tribunal for relief, is unlawful and should not be allowed or
overlooked.
The forced work stoppage is tantamount to economic sabotage. This is
unacceptable particularly at a time when Government through the
President, Prime Minister and members of the unity government are
attempting to restore law and order and claw back a position to property
security, tenure and investment from the international community.
The inaction on the part of Chegutu police must be deprecated in the
strongest possible terms.
The law to vacant possession of Gazetted land appears to be settled. Our
Courts insist upon Government to follow due process to vacant possession
of gazetted land.
The current self-help action of the Mt Carmel invaders, ignoring the
public sentiments of Government and established law, to which police
officers at Chegutu appear to turn a blind eye, is untenable.
For these cumulative reasons we call upon your office to IMMEDIATELY and
as a matter of urgency do the right thing and restore the status quo
ante to peaceful possession, use and occupation of Mt Carmel to the
Campbell family and their workers.
The writer is in a position to meet with you or your delegated officers
as a matter of urgency to avoid the costs of a court application.
For record purposes, we are copying this letter to the under-mentioned
offices.
Yours faithfully
Gollop & Blank
Cc. The Prime Minister's Office, c/o Bath Road, Belgravia, Harare
Cc. The Minister of Lands and Rural Resettlement - Honourable H Murerwa
- Block 2 Makombe Complex , Off H Chitepo/Harare Street, Harare
Cc. The Minister of Home Affairs, 11th Floor Kaguvi Building, Off 4th
Street, Harare
Cc. The Minister of Constitutional Affairs - Hon E Matinenga c/o
Advocates Chambers, 13th Floor Mutual Centre, Off Africa Unity Square,
Harare
Cc. Officer in Charge - Chief Inspector Manyika Z R Police Chegutu
Cc. SADC Secretariat, Gabarone, Botswana
Cc. Lorentz Angula Inc 3rd Floor LA Chambers, Dr Agostinho Neto Rd,
Auspann Plaza, Auspannplatz, Windhoek, Namibia.