Air Zimbabwe assets not seizable

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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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

TAGS: ECON EAGR ASEC PHUM ZI

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

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