A lawyer who was representing 12 Dutch farmers whose land had been seized by the Zimbabwean government said that getting compensation would be very challenging because it was difficult to identify assets owned by the Zimbabwean government overseas.
Boyd Carr said many of Zimbabwe’s most visible foreign assets, such as Air Zimbabwe aircraft, were in fact the property of partly-privatised entities and therefore would not be seizable.
The farmers had taken the government to the arbitration court arguing that their farms were covered by the Bilateral Investment Promotion and Protection Agreement between Zimbabwe and the Netherlands.
The government agreed but differed with the farmers on the magnitude of the compensation.
The farmers said their land was valued at 25 million Euros while the government valued the properties at only 300 000 Euros.
Full cable:
Viewing cable 09HARARE72, FARM SEIZURES CONTINUE: SADC RULING AND BIPPAS
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|
Reference ID |
Created |
Classification |
Origin |
VZCZCXRO8856
OO RUEHBZ RUEHDU RUEHMR RUEHRN
DE RUEHSB #0072/01 0300820
ZNY CCCCC ZZH
O 300820Z JAN 09
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3980
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHAR/AMEMBASSY ACCRA 2590
RUEHDS/AMEMBASSY ADDIS ABABA 2712
RUEHRL/AMEMBASSY BERLIN 1199
RUEHBY/AMEMBASSY CANBERRA 1981
RUEHDK/AMEMBASSY DAKAR 2336
RUEHKM/AMEMBASSY KAMPALA 2761
RUEHNR/AMEMBASSY NAIROBI 5189
RUEAIIA/CIA WASHDC
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK
RHMFISS/EUCOM POLAD VAIHINGEN GE
RHEFDIA/DIA WASHDC
RUEHGV/USMISSION GENEVA 1879
RHEHAAA/NSC WASHDC
C O N F I D E N T I A L SECTION 01 OF 03 HARARE 000072
SIPDIS
AF/S FOR B. WALCH
DRL FOR N. WILETT
ADDIS ABABA FOR USAU
ADDIS ABABA FOR ACSS
STATE PASS TO USAID FOR E. LOKEN AND L. DOBBINS
E.O. 12958: DECL: 01/29/2019
SUBJECT: FARM SEIZURES CONTINUE: SADC RULING AND BIPPAS
PROVIDE NO PROTECTION
Classified By: Ambassador James D. McGee for reason 1.4 (d)
——-
SUMMARY
——-
¶1. (C) In mid-January, the president of the Commercial
Farmer’s Union told us that the Zimbabwean government was
continuing to promote its land seizure and redistribution
program by evicting commercial farmers and handing their
farms over to loyal regime officials. Land reform was a
topic of conversation at the ZANU-PF annual conference in
December 2008; however, discussion of granting several
hundred commercial farmers long-term leases does not appear
to be sincere. The November 2008 SADC Tribunal ruling that
the Land Reform Program violates Zimbabwe’s SADC treaty
obligations has been dismissed by the government. Bilateral
Investment Promotion and Protection Agreements (BIPPA) have
not provided any protection to foreign-owned farms either, as
evicted Dutch farmers are still awaiting a compensatory
ruling by the International Court of Arbitration, while the
Zimbabwean High Court has dismissed a Danish farmer’s claim
for protection under a BIPPA between Denmark and Zimbabwe.
END SUMMARY.
———————————-
Commercial Farm Invasions Continue
———————————-
¶2. (C) On January 20, poloff met with the president of the
Commercial Farmer’s Union (CFU), Trevor Gifford, who
discussed the status of the remaining large-scale commercial
farmers in Zimbabwe. According to Gifford, the majority of
these commercial farmers are facing continued harassment,
eviction notices, and illegal land invasions by members of
the army, police and government. The CFU, which tracks
disturbances on farms owned by its members, reported that in
January alone there were 23 incidents ranging from seizures
of crops, equipment and livestock, to physical attacks on the
owners or farm employees. There are currently 50 farmers who
are facing prosecution by the government for refusing to
leave properties they were ordered to vacate by authority of
the Zimbabwe Land Reform Program.
——————————————— —
Offer Letters to Commercial Farmers Disingenuous
——————————————— —
¶3. (C) At the recently concluded ZANU-PF annual conference
in December, the land reform program was discussed and a
document released stating that of the 15.5 million hectares
that were originally owned by large-scale commercial farms,
12.3 million hectares have been redistributed since 2000.
The paper also claimed that 341 white farmers had been
identified to be allowed to continue farming. These farmers
would be given offer letters entitling them to lease the land
for an unspecified time period. Gifford quickly dismissed
the offer-letter claim and explained that it was a marketing
effort by the GOZ to make it appear as if the land reform
program was not racially based. He said that neither the CFU
nor CFU members had ever been informed of who these farmers
were, and no offer letters had ever been issued. He also
mentioned that this claim had been circulated over a year
ago, and no action had come of it at that time.
¶4. (C) Gifford did say that approximately two years ago 16
white commercial farmers had received 99-year leases from the
government. These farmers were all closely connected to the
regime.
——————————————— —
HARARE 00000072 002 OF 003
GOZ Intends to Ignore SADC Tribunal Land Ruling
——————————————— —
¶5. (C) Following the SADC Tribunal ruling on November 28,
2008 that the Land Reform Program was racially discriminatory
and violated Zimbabwe’s SADC treaty obligations with regard
to upholding the rule of law and respect for human rights,
senior GOZ officials indicated that the GOZ would not respect
the judgment. For example, Didymus Mutasa, the Minister of
State Security and one of the architects of Zimbabwe’s land
reform program, described the Tribunal as “daydreaming.”
Gifford told us that farm invasions on properties covered by
the Tribunal ruling have continued.
¶6. (C) Another indication of the GOZ’s intent to ignore the
Tribunal ruling was the dismissal of then acting attorney
general Barat Patel by President Mugabe and the subsequent
replacement of him with Johannes Tomana. A local independent
newspaper reported that Patel had advised the government that
it should abide by the SADC ruling. Gifford told us that
Tomana was a strong supporter of the land reform program and
had himself forcibly evicted Kestrel Bezuidenhout, an elderly
white farmer, from his farm in the Makonde district of
Mashonaland East. (Bezuidenhout did not contest the eviction
legally out of concern for his own safety.)
———————————————
Zimbabwe Also Contesting Bilateral Agreements
———————————————
Dutch Farmers Still Awaiting Arbitration Ruling…
¶7. (C) Boyd Carr, a Harare lawyer representing 12 Dutch
farmers who were evicted from their farms by the government,
spoke with poloff on January 26 about the legal status of
their class action case before the International Court of
Arbitration. The farmers are alleging a violation of the
Bilateral Investment Promotion and Protection Agreement
(BIPPA) between Zimbabwe and the Netherlands.
¶8. (C) According to Carr, on October 31, 2007, before a
three-judge panel, the GOZ conceded that seizures of farms
owned by Dutch citizens*which began in 2000*were in
violation of the BIPPA. Following this concession, the
Tribunal, consisting of an American judge chosen by the Dutch
farmers, a Pakistani judge chosen by the GOZ, and a French
judge agreed upon by both parties, was charged with assessing
compensation. The Tribunal has been in existence for 15
months and has still not rendered a compensatory verdict.
Carr cited the Pakistani judge as the cause of the delay and
mentioned that*despite the ICA’s reputation overall as an
expedient body*he has a history of delaying judgments. Carr
explained that the Dutch plaintiffs had submitted a valuation
of the farms summing approximately 25 million Euros, while
the GOZ had valued the properties at only 300,000 Euros.
¶9. (C) According to Carr (and confirmed by the ICA website),
should the Tribunal render a final verdict, it would be
enforceable under the terms of the UN Convention on the
Recognition and Enforcement of Foreign Arbitral Awards. This
Convention would allow the plaintiffs to legally petition to
claim assets owned by the Zimbabwean government and located
overseas, as compensation derived from the arbitration
settlement. Such a petition would be enforceable in the 156
countries that are signatory to the convention. However,
Carr felt identifying overseas GOZ assets would be
challenging. Many of Zimbabwe’s most visible foreign assets,
such as Air Zimbabwe aircraft, are in fact the property of
partly-privatized entities and therefore would not be
seizable.
HARARE 00000072 003 OF 003
…While Danish BIPPA Disregarded by High Court
¶10. (SBU) On November 27, 2008, the Zimbabwean High Court
dismissed a Danish lawsuit against the government seeking
protection of property rights under the signed BIPPA between
the governments of Denmark and Zimbabwe. The lawsuit was
brought by Danish farmer Kim Bikertoft, former owner of
Nyahondo Farm in Chinhoyi, who challenged the acquisition of
his farm by retired brigadier general Walter Tapfumaneyi. At
the time of the ruling, the High Court gave no explanation
for the dismissal of the suit.
——-
COMMENT
——-
¶11. (C) The Zimbabwean government’s program of
systematically seizing land from commercial farmers*of both
Zimbabwean and foreign origin*and redistributing it to
government-identified “indigenous” Zimbabweans continues
unabated. In practice, the distribution rewards loyalty of
senior officials from government, the military, and the
police. Government officials and High Court judges have made
clear that neither calls to respect property rights by SADC
neighbors, nor the BIPPAs that Zimbabwe voluntarily signed,
would undermine this long-standing pillar of the Mugabe
patronage system. END COMMENT.
MCGEE
(90 VIEWS)
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