Zimbabwe Democracy Now

Legal Opinion: Proposed Bilateral Investment Promotion and Protection Agreement between Zimbabwe and South Africa

Posted by ZDN on November 25, 2009

EX PARTE: COMMERCIAL FARMERS UNION

IN RE: PROPOSED BILATERAL INVESTMENT PROMOTION AND PROTECTION AGREEMENT BETWEEN ZIMBABWE AND SOUTH AFRICA

OPINION
J.J. GAUNTLETT SC
F.B. PELSER
Chambers
Cape Town
21 November 2009

A. INTRODUCTION

1. Our Consultant is the Commercial Farmers Union.

2. We have been asked to consider urgently the proposed conclusion of a Bilateral Investment Promotion and Protection Agreement (”BIPPA”) between South Africa and Zimbabwe (both members of the South African Development Community (”SADC”))¹, and to advise on the relevant international and constitutional law obligations impacting thereon. Of significance is the fact that the BIPPA – which is aimed at providing security of tenure to South African investments in Zimbabwe – expressly excludes past claims arising from Zimbabwe’s post-2000 land seizure measures, despite the fact that such claims have been upheld by the relevant international court.

3. The question for consideration is whether entering into a bilateral treaty which purports to exclude liability arising (the SADC Tribunal has held, in its final award on 28 November 2008) in terms of an existing multilateral treaty constitutes a breach of South Africa’s legal obligations. For the reasons provided below, we answer the question in the affirmative.

B. BACKGROUND

4. It is necessary to provide the background to the question under consideration. As briefly outlined below, the background shows that the proposed exclusionary clause in the BIPPA impacts on legal proceedings concluded on international law level. The proceedings are also currently sub judice in Zimbabwe on the national law level, and are further subject to consideration by the SADC Summit on the international political level. (The Tribunal in a separate final ruling in June 2009 has held the Government of Zimbabwe to be in breach of its orders of 28 November 2008, and formally referred this defiance to the SADC Summit for consideration of consequential measures under the Treaty). The background further shows that the circumstances closely resemble the facts on which the High Court in South Africa has recently held against the Government of South Africa.

(a) SADC Tribunal proceedings

5. During 2007 various members of the Commercial Farmers Union instituted legal proceedings in the SADC Tribunal after exhausting existing remedies in Zimbabwe. The proceedings were based on the fact that they were either already expropriated or stood to be expropriated without compensation, as a result of Zimbabwe’s land seizure measures, purportedly (after they had commenced) authorised by amendment to the property clause in the Bill of Rights in Zimbabwe’s Constitution.

6. On 28 November 2008 the Tribunal upheld the farmers’ case. It held that Zimbabwe’s land reform exercise was in breach of international human rights norms and the rule of law as entrenched by the SADC Treaty. The Tribunal condemned the land reform exercise on all three bases contended. These were that (1) it constituted racial discrimination, because the measures did not relate to criteria of land-use or -need, but targeted only so-called white farmers and benefited designated cronies and a class of political chefs; (2) it amounted to expropriation on an arbitrary basis and without compensation; and (3) it ousted courts’ jurisdiction to adjudicate on human rights infringements. The Tribunal ordered the Government of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of farmers not yet expropriated and to pay compensation to those already expropriated.

(b) Aftermath of SADC Tribunal proceedings

7. It is a matter of public record that despite the order, farm invasions continued in Zimbabwe – not only with impunity, but with active State involvement. Therefore the farmers again approached the Tribunal, this time for an order declaring that the Government of Zimbabwe was in breach of the order of 28 November 2008 and that the matter be referred to the SADC Summit for it to consider appropriate measures. Also in the latter application the farmers succeeded, and the Tribunal made a punitive costs order against Government of Zimbabwe. Nevertheless farm invasions intensified, and instances of destruction of property, physical assaults and even murders of farmers, their families and farmworkers and their families increased.

(c) High Court proceedings

8. In order to ensure effective protection in Zimbabwe in terms of the relief grated by the SADC Tribunal, application was made to the High Court of Zimbabwe to register the Tribunal’s ruling as provided for under the Protocol to the Tribunal. That application is enrolled for hearing on 24 November 2009. It is likely to be still sub judice on 27 November, which is the date for the proposed signing of the BIPPA.

9. It is against this background – namely a ruling by the relevant international court, pending proceedings before the relevant national court and deliberation thereon by the SADC Summit – that the legal question posed is to be considered.

C. LEGAL PRINCIPLES

10. Both international law and national law imposes duties on South Africa which impact on it entering into the proposed BIPPA. We deal with the relevant international and national legal principles separately.

(a) International law

11. As stated, both South Africa and Zimbabwe are members of SADC. As such their international law obligations are governed by the SADC Treaty on sub-regional level in addition to other principles operating regionally and globally. We limit our discussion to South Africa’s obligations for purposes of this opinion.

(i) Sub-regional international law

12. In terms of the SADC Treaty, Member States are bound to honour human rights and to further the rule of law.² Member States are also obliged to co-operate with and assist the institutions of SADC, like its Tribunal.³ Further, Members States are obliged to refrain from taking any measures “likely to jeopardise the sustenance of SADC principles”, which include advancing the rule of law and human rights.⁴ The Treaty further requires that States take all steps necessary to ensure the uniform application of the Treaty⁵

13. In our view, entering into a bilateral treaty which excludes liability imposed by the SADC Tribunal constitutes a clear violation of these duties. The exclusionary clause subverts the Tribunal’s order and detracts from the Tribunal’s status. It also jeopardises the human rights culture prevailing in SADC and dilutes the rule of law and remedies for breaches of human rights. Moreover, exemptions of liability under SADC law granted by Member States inter se in terms of bilateral treaties impede a uniform implementation of the SADC principles. This is contrary to the Treaty, which constitutes the supreme law among its Member States.

(ii) Regional international law

14. The African Charter, which is the regional instrument binding on South Africa, imposes a duty on States to ensure that human rights violations are redressed effectively. The African Commission held that

“any person whose rights are violated [should] have an effective remedy as rights without remedies have little value. Article 1 of the African Charter requires States to ensure that effective and enforceable remedies are available to individuals”⁶

15. This the Constitutive Act of the African Union confirms. Its Preamble provides that members States are obliged to

“promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law”.

16. Article 4(m) of the Constitutive Act gives effect to this. It obliges signatories to respect democratic principles, human rights, the rule of law and good governance. Also article 4(o) further gives effect to this principle by imposing the duty on Member States to demonstrate

respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities”.

17. Thus human rights norms operating within the wider African region requires States to give effect to human rights and their protection, and obliges States not to compromise judicial remedies by exclusionary clauses which grant impunity to human rights violations.

(iii) Global international law

18. Also obligations under global international law proscribe exemption of liability for human rights infringements as envisaged under the BIPPA.

19. In terms of the United Nations Charter the promotion and encouragement of respect for human rights and for fundamental freedoms are fundamental.⁷ Its preamble reflects adversely on State immunity and practices facilitating impunity. It records State parties’ commitment

“to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.

20. The Universal Declaration goes further, however. It expressly imposes the duty to provide an adequate remedy for the breach of human rights in article 8. It provides:

“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.

21. To this the International Covenant on Civil and Political Rights provides binding effect. Article 2(3) of the Covenant obliges State parties

“(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted”.

22. Article 5(1) of the Covenant provides that the above obligations may not be qualified through governmental acts, whether legislative or executive. It provides:

“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”

23. Thus the position under regional international law is fortified by instruments of global international law.

(iv) Conclusion on international law

24. In the light of the above provisions, it is clear that international law recognises the obligation to make full reparation for any injury flowing from an international wrongful act⁸, and acknowledges the principle that victims of human rights infringements are entitled to an effective remedy.⁹ Exclusionary clauses clearly compromise this, contrary to the non-derogatory obligation imposed by international law.¹⁰ As such the BIPPA falls foul of international law on account of compromising the Tribunal’s order. It not only derogates from the Tribunal’s order, however, but also detracts from its status contrary to the duty of SADC Members to defer to SADC institutions. Detracting from the judicial arm of SADC also infringes the principle of separation of powers, which is not only of national constitutional importance.

25. Relatively recently the fundamental importance ascribed to the separation of powers was reaffirmed in the Commonwealth (Latimer House) Principles on the Three Branches of Government, which has particular relevance from a South African perspective. The Latimer House Principles confirm that

“Parliaments, Executives and Judiciaries are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability”.

26. It further re-affirms the commitment to judicial independence and the effective administration of justice by courts, which is “important for maintaining the balance of power between the Executive, Legislature and Judiciary.” In doing so it gives effect to the Harare Commonwealth Declaration¹¹, which also stresses the importance of substantive human rights norms. The Harare Declaration emphasises the co-importance of economic development and the rule of law. Both of which are equally “essential to the security and prosperity of mankind”.

27. The Harare Declaration further guarantees equal rights for all citizens regardless of inter alia race and colour, and recognises “racial prejudice and intolerance as a dangerous sickness and a threat to healthy development, and racial discrimination as an unmitigated evil” which must be opposed in all its forms.¹² In the Declaration signatories further pledged to uphold

“the rule of law and the independence of the judiciary; fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief; [and to] extend the benefits of development within a framework of respect for human rights”.

28. The latter two instruments do no more than re-emphasise the binding norms of general international law as stated above. However, its re-emphasis assumes particular force as a bespoke articulation of the trite principles of international law as accepted by emerging democracies similar to South Africa. They therefore add considerable weight to the binding nature of the principles otherwise obligatory on South Africa.

(b) National law

29. From a national law perspective, the principles relating to diplomatic protection are of particular relevance. Before discussing those, it is important to note that various international law obligations referred to above also find resonance in South African domestic law.

(i) International law principles amplified by Constitution

30. One of the principles of international law amplified by the South African Constitution is the obligation to respect the independence and authority of the judiciary. It is deeply entrenched in the relevant constitutional provisions and caselaw in South African domestic law. Thus also in terms of national law the South African executive authority is bound to respect the judiciary and give effect to its judgments. So, for instance, in De Lange v Smuts NO the Constitutional Court held:

“In a constitutional democratic State, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional State) citizens as well as non-citizens are entitled to rely upon the State for the protection and enforcement of their rights. The State therefore assumes the obligation of assisting such persons to enforce their rights, including the enforcement of their civil claims against debtors.”¹³

31. This dictum was applied in Nyathi v MEC for Department of Health, Gauteng, where the Constitutional Court held

“Deliberate non-compliance with or disobedience of a court order by the State detracts from the ‘dignity, accessibility and effectiveness of the courts’. Yet s 165(4) of the Constitution expressly imposes an obligation on organs of State ‘through legislative and other measures [to] assist and protect the courts to ensure the . . . dignity, accessibility and effectiveness of the courts’.”
. . .
The constitutional right of access to courts would remain an illusion unless orders made by the courts are capable of being enforced by those in whose favour such orders were made. The process of adjudication and the resolution of disputes in courts of law is not an end in itself but only a means thereto; the end being the enforcement of rights or obligations defined in the court order.”¹⁴

32. Another fundamental principle that finds particular application in the current circumstances is the deep-seated rule that all exercises of public power are constrained by the Constitution and the Bill of Rights.[14. President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); President of the Republic of South Africa v South African Rugby Football Union (3) 2000 (1) SA 1 (CC); Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC).]

It is indeed this principle that forms the premise from which the Constitutional Court’s caselaw on diplomatic protection proceeds.

(ii) Diplomatic protection

33. The term “diplomatic protection” has a wide-ranging meaning. It includes not only all State action to prevent a threatened violation of international law, but also action aimed at remedying violations after the event.¹⁵ The importance of Constitutional constraints on the exercise of public power in the sphere of diplomatic protection was emphasised in Kaunda v President of the Republic of South Africa,¹⁶ which is the fons et origo of diplomatic protection in the South African constitutional dispensation. The principles espoused in the judgment therefore require particular attention in answering the question under consideration from a perspective of national law.

34. In Kaunda all three of the substantive judgements specifically recorded that the Executive had to exercise its power to engage in international relations lawfully and rationally, and that the exercise of such power was, despite its sensitive political nature, justiciable.¹⁷ So, for instance, the majority held that while it remained true that diplomatic protection remained the prerogative of the State to be exercised at its discretion,¹⁸ South African citizens were entitled to request protection from South Africa under international law against wrongful acts of a foreign State.¹⁹

35. Chaskalson CJ noted that when the request for diplomatic protection was directed at a material infringement of a human right protected by customary international law, the Executive had to be vigilant.²⁰ For the Constitution contemplated positive conduct by the State to protect South Africans against human rights abuses.²¹ Thus the Government had a duty to consider the request for protection and had to deal with it in a way consistent with the Constitution. Indeed, so strong was this obligation that in some instances Government would have to act at its own instance.²² The majority concluded that in a case of gross abuse of international human rights, a request to Government for assistance

“where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.”²³

36. In a separate judgment Ngcobo J, as he then was, held that the commitment to the promotion and protection of fundamental human rights, democracy, justice and international law had to underpin the State’s foreign relations policy.²⁴ He held that the State could not “remain silent when a member State commits the most egregious violations of any of the fundamental human rights enshrined in these instruments”.²⁵ Instead, Government had to act positively “when an egregious violation of the very fundamental human rights, enshrined in the document it has ratified, is being committed by a member State.²⁶

37. Contrary to the majority he held that the proposition that Government had no constitutional duty to extend diplomatic protection had to be rejected. That proposition, he noted, was in any event contrary to Gvernment’s own declared policy – the facts showed that Government in fact acknowledged its constitutional duty to protect its foreign nationals.²⁷ According to Ngcobo J the duty on Government required it to consider requests for diplomatic protection, and to apply its mind carefully to the request. It had to respond rationally and could not refuse requests arbitrarily.²⁸

38. In her dissent concurred in by Mokgoro J, O’Regan J held that the constitutional imperatives required Government to have regard to the plight of a citizen who was threatened with or had experienced an egregious violation of human rights norms at the hands of another State. Otherwise the achievement of human rights would be obstructed and international human rights norms undermined.²⁹

39. Like Ngcobo J, she noted that this finding accorded with Government’s demonstrated policy.³⁰ While it was clear that the consideration and assessment of another country’s justice system was a sensitive matter for our government, the demands of comity and sensitivity did not mean that Government could disregard violations of its citizens’ human rights by other States. Government had to be responsive to the developing global and regional commitment to the protection of human rights, she held.³¹

40. The Constitutional Court’s judgment in Kaunda was recently applied by the High Court in Von Abo v Government of the Republic of South Africa.³² The applicant in that matter was a South African citizen who had been expropriated without compensation of farming operations held in Zimbabwe. Despite his request for diplomatic protection, the South African government failed to assist him. The striking similarity with the position of the applicants in the Campbell matter clearly renders the judgment of considerable relevance.

41. In Von Abo the High Court was particularly critical of the lack of protection granted by Government. This was because the land seizures he was subjected to were clearly in breach of both South African and international law, the court held. It provided examples of steps the State could have taken in order to comply with its constitutional duty to its citizens.³³ All of these comprised positive action. Significantly the court specifically mentioned the protective measure of entering into a bilateral investment treaty or BIPPA. The court observed that such protective measure would constitute sufficient constitutional protection if it contained a clause providing for compensation by the errant State to the aggrieved party, and if that clause operated with retrospective effect. Failure to adopt any of the protective measures available to it constituted an inexplicable dereliction of duty by the State, the court concluded.³⁴

(iii) Conclusion on national law

42. In our view the High Court’s judgement in Von Abo constitutes clear authority for the proposition that entering into a BIPPA that contains a compensation clause which operation is restricted to prospective violations of human rights only, is contrary to the Constitution. It is to be noted that this judgment is final, and that its correctness has been accepted by Government in subsequent proceedings before the Constitutional Court.³⁵

43. Also the Constitutional Court’s judgment in Kaunda provides strong authority for the proposition that a categorical denial of diplomatic protection, as the exclusionary clause in the BIPPA entails, is unconstitutional. While the majority held that no constitutional entitlement to diplomatic protection existed, all three judgments confirmed that the State had a duty to consider a request therefor. By entering into the proposed BIPPA with the exemption clause, this constitutional duty will be breached. For by doing so the State would fatally fetter its own discretion to accede to a request for diplomatic discretion.

44. We further observe that all three judgments emphasised the importance of giving effect to national and international human rights when engaging in international relations. It needs to be borne in mind that an important basis for the majority’s decision was the strong public policy consideration, affirmed by international law obligations, applicable in that case. Those were the importance of international co-operation in law enforcement of international crimes.³⁶ In a context like the present, however, the international obligations are to co-operate with the SADC Tribunal and to give effect to its ruling, and to ensure that effective remedies are afforded to victims of human rights infringements. Clearly these considerations support granting diplomatic protection.

45. We note that in the circumstances under discussion – namely of a BIPPA purporting to provide amnesty for human rights infringements – none of the considerations justifying exemption of liability for human rights violations arises.³⁷ Therefore the exclusionary clause cannot be justified constitutionally on this basis.³⁸

46. Finally, as noted, the registration of the SADC Tribunal’s ruling is currently pending before the High Court of Zimbabwe. Similarly the referral of Zimbabwe’s failure to comply with it currently serves before the SADC Summit. In this light we consider that South Africa would act in violation of its international law obligations accruing on signature of the SADC Treaty and the making of its Protocol to enter into an essentially contradictory bilateral international law obligation with Zimbabwe which could pre-empt the issues for consideration. Doing so would, in our view, also breach the principle of comity which binds governments.

D. CONCLUSION

47. In our view, thus, if the Government of South African proceed to conclude the BIPPA and in terms thereof purports to immunise Zimbabwe from its international law liabilities, the South African government would act contrary to the principles of the SADC Treaty and other international instruments, and in violation of the South African Constitution, and may in law be interdicted against doing so. This is particularly so if, as must be inferred, it has negotiated the terms of the BIPPA without taking independent legal advice regarding its ability to do so in the light of the final SADC Tribunal award of November 2008, the Tribunal’s referral to the SADC Summit of June 2009, and the pending application next week in Harare to register the Tribunal’s award for enforcement under the domestic law of Zimbabwe.

We advise accordingly.

J.J. GAUNTLETT SC

F.B. PELSER

Chambers
Cape Town
21 November 2009

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