Abstract
This paper analyses the recent Southern African Development Community (SADC) Tribunal Campbell case from a trade and investment protection perspective. In the Campbell case the issue of the forcible expropriation of farm land without compensation by the Zimbabwean government was raised before the Tribunal in a human rights context. By revisiting the dispute and analysing it from an investment protection perspective, the author controversially seeks to advance the thesis that the dispute had more to do with investment protection than the protection of human rights. This is done by isolating the specific issues the SADC Tribunal adjudicated upon and contextualising them in relation to investment protection rather than land and agrarian reform. To drive the point further home, a brief comparative analysis of the pertinent investment provisions of the North American Free Trade Agreement (NAFTA) and SADC is made. From the analysis, important lessons for SADC investment protection are extracted and highlighted. Despite the fact that the NAFTA provisions do not directly apply to SADC disputes, this paper concludes that NAFTA jurisprudence offers useful insights which the SADC can tap into, to the advantage of its nascent jurisprudence on investment protection.
Highlights
For quite some time Zimbabwe has been in the regional and international spotlight for mostly negative reasons
The crux of the submission by Mike Campbell and the 77 other farmers was that: a) the Zimbabwean government had acted in breach of its obligations under the Southern African Development Community (SADC) Treaty by enacting and implementing Amendment 17;50 b) all the lands acquired by the government from the respondent had been illegally acquired since the Minister responsible had failed to establish that he had applied reasonable criteria in order to satisfy himself that the lands to be acquired were reasonably necessary for resettlement purposes;51 c) the applicants were denied access to the courts to challenge the legality of the compulsory acquisition of their lands;52 d) the applicants had been racially discriminated against since they were the only ones whose land had been compulsorily acquired under Amendment 17;53 and
It is not contended that NAFTA law must become SADC law, neither is it the intention of this paper to imply that NAFTA rules are applicable to Zimbabwe
Summary
For quite some time Zimbabwe has been in the regional and international spotlight for mostly negative reasons. While it is true that the dispute was primarily about land reform laws and policies that were alleged to be discriminatory, racist and making no provision for compensation in an expropriation context, the findings do have serious implications for trade and investment protection in the SADC region. I attempt to analyse the Campbell case from a trade and investment protection perspective This analysis is done by isolating the specific issues the Tribunal adjudicated upon and contextualising these issues to investment protection rather than land and agrarian reform per se. After a brief legal-historical background to Zimbabwe’s land reform laws and policies, it gives an account of the facts and legal issues arising from the Campbell decision together with a cursory identification of emerging trade and investment issues. The paper sums up possible lessons the SADC can learn from NAFTA and makes a few suggestions for SADC law reform in a bid to indicate how a legal regime suited for investment protection may be established
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