BILL WATCH 3/2013
[22nd January 2013]
Both Houses of Parliament have Adjourned until Tuesday 5th February
Land Reform Exercise to Avoid BIPPA Farms – “For Now”
On New Year’s Eve Minister of Lands and Rural Resettlement Herbert Murerwa announced that “for now” the Government would halt compulsory acquisition of agricultural land covered by Bilateral Investment Promotion and Protection Agreements between Zimbabwe and other countries [BIPPAs]. In fulfilment of this decision, official “offer letters” authorising resettlement farmers to occupy plots on Tavydale Farm, Mazowe district, which is covered by the BIPPA with Belgium, had, said the Minister, been withdrawn. The decision recognises the potential practical implications, the costs, for Zimbabwe of failure by the Government to abide by binding international agreements.
Government liability to pay compensation under BIPPAs is the problem Minister Murerwa stressed – as did Minister of Justice and Legal Affairs Patrick Chinamasa a few days later – that BIPPAs do not prohibit compulsory acquisition or make it illegal under Zimbabwean law.
[Note: The Ministers are right. A typical BIPPA recognises the possibility of expropriation for public purposes, under due process of law, on a non-discriminatory basis and against payment of prompt, adequate and effective compensation, which must be freely transferable outside Zimbabwe in convertible currency. While the Zimbabwe Constitution and Land Acquisition Act authorise acquisition of land covered by BIPPAs and make provision for some compensation, BIPPA compensation requirements are more generous to dispossessed landowners. And BIPPAs contain provisions for disputes between investors and the Zimbabwe Government to be decided by arbitration, typically by the International Court for Settlement of Investment Disputes [ICSID] set up in terms of the international Convention on the Settlement of Investment Disputes between States and nationals of other States.]
The Minister explained that the Government’s decision to stop taking over BIPPA farms had been reached in view of the ongoing litigation in ICSID and because “we do not want to increase our liability” to compensate those dispossessed farmers covered by BIPPAs.
As an example of the Government’s liability under BIPPAs, the Minister cited ICSID compensation awards against Zimbabwe over the Government’s failure to pay compensation after taking over farms covered under the 1996 BIPPA with the Netherlands. The unpaid sum involved is now some $25 million; it increases every six months when interest at 10% is compounded [text of ICSID award of 2009 available from firstname.lastname@example.org].
Save Valley Conservancy: another potential BIPPA problem
Some of the investors in the Save Valley Conservancy, a high-profile wild-life conservation and tourist attraction in the south-eastern Lowveld, include German nationals protected by the BIPPA between Germany and Zimbabwe. The Government’s granting of hunting quotas in the conservancy under the banner of indigenisation, have according to investors had an adverse effect on this on the conservancy’s operations.
Potential cost to tourism: loss of upcoming UNWTO conference?
The German Ambassador to Zimbabwe has recently pointed out that failure to remedy the interference with the Save Valley Conservancy by positive Government action might also affect perception of Zimbabwe’s qualifications to co-host, with Zambia, the United Nations World Tourism Organisation [UNWTO] General Assembly scheduled for Victoria Falls at the end of August. Relocation of the UNWTO gathering – or its failure to attract comprehensive international attendance – would be a major setback to those working to make the gathering a success. And relocation to Madrid is said to have been mentioned as a possibility last week by visiting UNWTO officials dubious about the slow pace of preparations, particularly on the Zambian side. The officials will also have taken note of ZANU-PF supporters’ demonstration against the US Ambassador on his visit to Mutare on 16th January – if an ambassador is treated in this way it could keep foreign tourists away. Successful hosting of the UNWTO event is generally regarded as vital to ongoing efforts to showcase Zimbabwe’s tourism facilities and boost the tourism industry, with benefits for the whole economy.
Coming Up this Week– AU Regular Summit in Addis Ababa, 21st to 28th January
The AU Summit runs from 21st to 28th January. Already under way are meetings of the Permanent Representatives [Ambassadorial level] and the Executive Council [Ministerial level] preceding the two-day meeting of the AU Assembly of Heads of State and Government on Sunday 27th and Monday 28th January.
The Summit theme is “Pan-Africanism and African Renaissance”. The Zimbabwe situation does not feature on the draft Heads of State Agenda, but that does not preclude Zimbabwe and the latest developments in the constitution-making process being discussed in official or informal side meetings. There is also likely to be vigorous civil society lobbying at the Summit about ongoing violence, attacks on NGOs and the lack of civil liberties reform ahead of Zimbabwe’s upcoming elections. The Summit will undoubtedly be preoccupied with serious conflicts throughout Africa, e.g. Sudan, DRC, and now Mali. The proposed AU intervention in the Eastern DRC by a Neutral International Force which will include the SADC Standby Brigade, may affect Zimbabwe if its troops are committed there.
Résumé of Recent SADC Meetings
Regular SADC Summit – Maputo, August 2012
This Heads of State Summit in August 2012 was covered in Bill Watch 39/2012 of 20th August. On Zimbabwe the Summit communiqué [available from email@example.com] urged the GPA parties to complete the constitution-making process and continue implementing the GPA. The day before the Summit there was a meeting of the SADC Organ on Politics, Defence and Security Cooperation. President Zuma’s Report to the Organ as Facilitator of the Zimbabwe negotiations, which was transmitted to the full Summit, has now become available [from firstname.lastname@example.org].
SADC Extraordinary Summit – Dar es Salaam, 7th and 8th December
Extraordinary Summits of the Troika of the Organ on Politics, Defence and Security Cooperation and SADC Heads of State and Government took place in Dar es Salaam on 7th and 8th December. The main subject of the Summit meetings was the situation in the Eastern DRC, but President Zuma also reported verbally on the latest developments in Zimbabwe. Zimbabwe was represented by Foreign Affairs Minister Mumbengegwi.
The communiqué of the full Summit [full text available from email@example.com] contained only one short paragraph on Zimbabwe, reaffirming the SADC position that the elections in 2013 must follow the completion of the constitution-making process, including the Referendum:
“9.2 Summit urged the political stakeholders in Zimbabwe to fully implement the GPA.
9.3 Summit also urged the political stakeholders to finalise the constitutional process including referendum before the holding of the elections in 2013.”
The communiqué does not reveal what President Zuma told his Troika colleagues about developments in Zimbabwe – but it would no doubt have included, on the constitution-making process, the setting up of a Principal’s Committee to resolve outstanding disputes and expedite the process.
Comment: Now that on 16th January the GPA principals have duly announced agreement on the draft constitution, it is hoped that President Zuma will focus more on the full implementation of the GPA.
Zimbabwean Troops for DRC?
What the December SADC Extraordinary Summit decided
According to its communiqué the SADC Summit in Dar es Salaam condemned the actions of the M23 rebels in the Eastern DRC and decided that the SADC Standby Force should be deployed there. The Summit:
“(iv) affirmed that SADC, as a block will deploy the SADC Standby Force in the Eastern DRC under the auspices of the Neutral International Force (NIF) ...
(vi) mandated the SADC Interstate Politics and Diplomacy Committee (ISPDC) and the SADC Secretariat to work together with the ICGLR [the International Conference on the Great Lakes Region] to engage the African Union Peace and Security Council and the United Nations Security Council for support to the deployment and sustenance; ...
(vii) noted pledges by Malawi, Namibia, South Africa and Tanzania to contribute to the deployment of NIF, and called on other SADC members who had not made pledges “to do so as a matter of urgency”.
A day or two later President Mugabe confirmed that Zimbabwean troops might be sent to the Eastern DRC as part of the SADC Standby Force, and stressed that the costs of any such intervention would be shouldered by SADC or the AU or UN, not by Zimbabwe. There have however been local newspaper reports, perhaps based on an unconfirmed report in a Ruanda newspaper, that Zimbabwean troops are already there.
About the SADC Standby Force
The SADC Standby Force was officially launched in Zambia in August 2007, when SADC member States, including Zimbabwe, concluded a Memorandum of Understanding to set it up. The function of the Force is to participate in missions envisaged in Article 13 of the African Union Protocol establishing the AU Peace and Security Council. [Full text of MOU available from firstname.lastname@example.org]. All the African regional economic organisations have such Standby Forces in keeping with the “African Peace and Security Architecture” of the AU.
When will deployment of the Standby Force to DRC start?
AU consultations on the envisaged Neutral International Force [NIF] for the eastern DRC are still under way. There was a Ministerial level meeting in Addis Ababa on 8th January, chaired by the AU Commissioner for Peace and Security. And developments were discussed at the Organ meetings in Dar es Salaam on 9th and 10th January [see below], after which SADC Executive Secretary Salomao said neither the size nor the functions of the NIF have been determined. [This will be discussed at the AU Summit this week.]
What the Zimbabwe Constitution says about Defence Forces deployment
Section 96(1) of the Constitution gives the President, in the exercise of his functions as Commander-in-Chief of the Defence Forces, the power to “determine the operational use” of the Defence Forces. Article 20 of the GPA does not in as many words impose curbs on this power, but unilateral action by the President would not be in accordance with the spirit underlying the GPA.
What the COPAC draft Constitution says about deployment
Clause 5.23 of the latest available COPAC draft lists deploying the Defence Forces as one of the executive functions of the President that has to be exercised on the advice of Cabinet. Prior Parliamentary approval is not needed, and for deployment in accordance with multilateral international commitments – such as the commitment to the SADC Standby Brigade – Parliament would not even have to give later approval, but would have to be promptly notified.
SADC Organ Troika Extraordinary Summit 10th January
On Thursday 10th December there was an Extraordinary Summit in Dar es Salaam of the Troika of the SADC Organ on Politics, Defence and Security Cooperation, attended by Troika chairperson President Kikwete of Tanzania and members President Zuma of South Africa and Pohamba of Namibia, plus Mozambique President Guebuza in his capacity as SADC chairperson. There was a preliminary meeting at Ministerial level on 9th January.
Organ Summit proceedings The agenda of the meetings included the Eastern DRC, Madagascar and Zimbabwe, with the emphasis on the first two. According to its communiqué the Summit received a progress report on the Neutral International Force [NIF] for the eastern DRC, noted pledges by Malawi, Namibia, South Africa and Tanzania to contribute to the deployment of NIF, and called on other SADC members who had not made pledges “to do so as a matter of urgency” [full communiqué available from email@example.com].
On Zimbabwe the communiqué records the following:
“8.1. Summit commended H.E. Jacob Zuma, President of the Republic of South Africa and the SADC Facilitator on Zimbabwe Political Dialogue for his efforts towards full implementation of GPA in Zimbabwe.
8.2 Summit urged the political stakeholders in Zimbabwe to expedite the finalization of the constitution making process on the outstanding issues in order to pave the way for peaceful, credible, free, and fair elections in the country.
8.3 Summit mandated the SADC Facilitator to continue to engage the political stakeholders in Zimbabwe.”
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