One of the classic debates within the development field is the interplay between rights and economic prosperity. On one side of the debate are those who argue that development should come first, even if it is at the cost of civil and political rights of the population. On the other side are those arguing that they must come hand in hand, as the suppression of rights often leads to political instability and conflict, which harms any possible gains made in economic development. To be sure, the importance of dependable property rights and accessible due process in legal disputes has been linked by several scholars as general requirements to sustained economic growth. Indeed, this was the thinking behind incorporating human rights into the regional economic communities that sprung up across Africa following the end of colonization.
But the part of the equation often left out is the reality that human rights are only worth as much as they can be enforced, and often that requires enforcing these rights against national governments committing the abuses. Consequently, it did not take long before the three major regional economic communities in Africa – The Economic Community of West African States (ECOWAS), the Southern African Development Community (SADC) and the East African Community – established their own regional courts of justice that addressed the issue of human rights.
Unfortunately for SADC, that legacy may be approaching its end. In 2008 the SADC Human Rights Tribunal ruled against Zimbabwe on the infamous land seizure policy the government put into place in 2000. The ruling set up a showdown between the Tribunal and Robert Mugabe, who refused to recognize the legitimacy of the decision. Rather than support the legal judgment of the tribunal and the importance of upholding human rights in the region, the 14 member governments suspended the tribunal in 2010 and recently rewrote the admissibility procedures to prohibit individuals from filing complaints with the tribunal, limiting it to state complaints only.
Several key figures in the region spoke out against these developments, to no avail. But it looks like the issue may be getting new life as the African Commission on Human and Peoples Rights ruled a complaint by Luke Tembani and Ben Freeth against all 14 SADC member states admissible on the basis that the suspension of the tribunal violates the African Charter on Human Rights and the rule of law.
Tembani and Freeth are no strangers to the intricacies of human rights litigation. Tembani became one of the first black commercial farmers following the Zimbabwe civil war in 1980 while Freeth came to prominence as a farmer activist along with his father-in-law Mike Campbell. Both families were evicted from their commercial farms as part of Mugabe’s land reform program and both filed cases in the national Zimbabwean courts and finally the SADC tribunal where they won. In many ways, they have become the faces of the fight against the farm seizures and the political violence and corruption it has come to represent, especially following the death of Campbell who succumbed to health issues after being abducted and tortured by militias associated with Mugabe’s ZANU-PF party in the 2008 post-election violence. By bringing a complaint against all SADC governments, the case makes the struggle of everyday Zimbabweans a regional issue and demands better action by SADC than capitulating to one leader’s demands.
If the African Commission rules in the favor of the complainants, it could be a landmark decision for the entire continent. But with new presidential elections expected in 2013, the decision to hear the issue could add fuel to what is already looking like a volatile political fire. The issue here in not just the controversial land reform process that Zimbabwe adopted, but ability of citizens to hold their governments accountable for violating their basic rights, even when the national courts fail to do so. Enshrining this ability enforces human rights and the rule of law, but is also critical for economic development. As Africa continues to come out from behind the economic shadows, it is cases like this that will define the path of the continent and help decide what kind of standards future governments will have.
Originally published on November 27, 2012 at www.foreignpolicyblogs.com