South Africa's President Jacob Zuma has been accused of 'allowing' the destruction of the regional human rights Tribunal, by "selfishly" standing by while it was shut down.
The former Chief Justice of the SADC Tribunal, Judge Ariranga Pillay, told a seminar in South Africa last week that Zuma, as the leader of SADC's largest and most powerful state, could have done more to stop the destruction of the court.
Pillay described how Zuma and other SADC leaders were responsible for hobbling the court on Robert Mugabe's behalf, because of that Tribunal's landmark ruling against Mugabe's land grab campaign.
The court was wholly suspended in 2010 by SADC leaders, in the aftermath of its ruling that the land grab was unlawful. The Tribunal had also held Zimbabwe in contempt of court for refusing to honour its original ruling in 2008. The court also held the Government of Zimbabwe in breach of the SADC Treaty and other international legal obligations.
But instead of taking action against Zimbabwe, SADC leaders suspended the court for a review of its mandate. More than two years later the court remains inactive. Regional justice ministers have proposed that the court only be reinstated with a very limited human rights mandate, which blocks individual access to the court.
Pillay said at the seminar last week that it was 'ironic' that Mugabe had been one of the SADC leaders who had originally established the Tribunal to ensure the adherence of member states to the SADC Treaty. Pillay explained that this included Article 4 of the Treaty, which obliges SADC leaders "to act in accordance with human rights, democracy and the rule of law".
It was this article which the Tribunal invoked when it ruled against the Zimbabwe government.
Ben Freeth, who, together with his father-in-law Mike Campbell, led the landmark case before the Tribunal in 2008, told SW Radio Africa that Pillay's indictment of Zuma was "strong and correct."
"If South Africa had spoken out and if South Africa had moved to prevent this, then I have no doubt that other SADC leaders would have followed," Freeth said.
Mugabe meanwhile has stated that Zimbabwe will never abide by rulings in South African courts that move to uphold the original Tribunal ruling. Mugabe told the state media last week that Zimbabwe "would not be bound" by the decisions of South African courts.
He was reacting to developments in the South African Constitutional Court, which has reserved judgement on a challenge by farmers who lost land in Zimbabwe. The farmers had turned to the South African courts for help, because Zimbabwe has refused to honour the SADC Tribunal ruling.
The South African High Court in Pretoria in 2010 upheld the ruling by the Tribunal and ordered the attachment of properties owned by the Zimbabwean government in Cape Town to compensate the white commercial farmers.
Zimbabwe appealed this decision and tried to block this ruling but the application was denied in the High Court and also in Supreme Court of Appeal, with the latter dismissing Harare's application with costs.
Zimbabwe then took the matter to the Constitutional Court, arguing that the Supreme Court decision was in violation of international law. Zimbabwe lawyers have argued that a sovereign country should not be subjected to the processes that they are being subjected to by their neighbour and that "a diplomat is inviolable as much as diplomatic property in a foreign land."
The Court last week reserved judgement on the matter, but the farmers have expressed confidence that the ruling will be in their favour.
Mugabe on the other hand has dismissed the legal attempts stating: "In South Africa they have certain elements outside the ANC and cannot be controlled by the ANC and these are elements that once upon a time were here and were unseated by us and have realised that in South Africa you can go to court and get judgements. But let them have those judgments, we will simply ignore them. South African courts have no jurisdiction over us so we will simply ignore them."