Business Day (South Africa) 24 July 2006
Zimbabwe farmers claim for land grab
Business Day Correspondent
A GROUP of 11 dispossessed Zimbabwean farmers of Dutch origin are poised to take their case for compensation in respect of confiscated land to an international tribunal.
The Dutch Farmers Association, with UK-based AgricAfrica, registered the case on behalf of the farmers at the International Centre for the Settlement of Investment Disputes, a World Bank resolution forum. The claims total more than $15m.
The case has been brought in terms of a bilateral investment treaty between the Netherlands and Zimbabwe. According to the treaty, the Zimbabwean government has promised to pay compensation to Dutch nationals in the event of a dispute arising out of an investment in Zimbabwe.
Arbitrators are expected to hear the case by the end of August. Should the ruling by the tribunal be favourable, it could set a precedent for similar claims against Zimbabwean President Robert Mugabe’s government in the international courts.
The centre’s rulings are enforceable in the 140 states that have ratified the organisation’s convention. Three arbitrators, drawn from a list of the finest legal minds, will consider the matter. The Zimbabwean government is permitted to choose one arbitrator.
The Dutch claimants are being represented by Wiley Rein & Fielding in Washington, Bishop & Sewell in London, and by Coghlan Welsh & Guest in Harare.
AgricAfrica chairman Bob Fernandes used to work as a property valuer in Zimbabwe. Since the land invasions began in 2000, he has been involved in the valuation of more than 3000 title deeds of Zimbabwean agricultural properties.
He said the body created by Zimbabwean farmers, Justice for Agriculture - which helped bring cases to the Zimbabwean courts, many of which resulted in favourable rulings that were not obeyed by the government - had set a good precedent that should see the Dutch farmers’ case being successful.
The case has been partly funded by the Open Society Initiative for Southern Africa, a nonprofit organisation.
Since 2000, the Zimbabwean government has taken over 4000 white-owned commercial farms.
The government last year passed laws that nationalised the farms, barring farmers from challenging the seizure of their property in courts. Economists and critics say the policy has ruined a once-thriving agricultural sector.
Some of the confiscated land belonged to foreign countries, and was being protected under bilateral agreements.
Zimbabwe Security Minister Didymus Mutasa, who heads land reform and resettlement, said last week that those with farms covered by such agreements would receive full compensation and had the right to contest the seizures in court.
But Fernandes said while the Zimbabwean government had offering some compensation to dispossessed farmers, it amounted to less than 10% of the value of the expropriated land. “With the current rate of inflation, it means farmers would be paid a fraction of what the farms are worth. If the ... arbitration (is successful), the compensation will reflect the farms’ true worth,” he said.
“It will also set a precedent for claims by the rest of the farmers.”
Should the Dutch farmers’ case succeed, the foreign-exchange starved Zimbabwean government will have to pay the amount awarded.
Once liability is established, the arbitrators will set the amount the former farmers are owed. This should happen by the end of January at the latest. The centre’s association with the World Bank may be an added incentive for Zimbabwe to settle the Dutch group’s claim.
“If it refuses to pay, the law allows for Zimbabwe’s assets to be seized in any one of the 139 countries that signed the New York convention on the recognition of arbitral award,” Fernandes said.
“But this is unlikely to happen as every ... compensation ruled on in the past has been paid.”
The Zimbabwean government has vowed not to pay white farmers compensation for the land, only for improvements, arguing that former colonial power Britain should pay for the land.
According to state television, the issue of farms covered by bilateral agreements has been contentious, forcing the government to set up a committee to look into foreign land holdings. The committee is chaired by the foreign minister and comprises Mutasa and central bank officials. It will determine whether to “compensate and acquire, give back the farm to the former owner, or move the settled people,” state television said.
Mugabe defends the land reforms as necessary to redress colonial policies that put 70% of the most fertile land in the hands of a few white farmers, and accuses the west of sabotaging the economy to punish him for the land seizures. With Reuters