Zim white farmers' Pyrrhic South African court victory

A few score white Zimbabwean farmers who had land expropriated from them by the government have won a protracted, convoluted court battle to have a government property sold to pay towards compensating them. One big problem: their victory is in a South African court. That foreign court's freedom from the influence of the Zimbabwean government's clutches is one reason such a judgement could be delivered in their favour, and be possibly actionable. But it is also why the ruling is of very little use to the majority of white farmers' search for compensation, or to their overall plight.


  
The property attached for auction is in South Africa, hence the farmers filing suit in that country. A now disbanded regional court (the South African Development Community Trbunal) had found in favour of the 77 white farmers' petition that they were racially discriminated against in Zimbabwe's land reform, and sought to pressure the Zim government to pay them compensation.

Zimbabwe ignored the SADC court's ruling, and leaned on the SADC region's states to set the whole court aside on the basis that it was improperly instituted. Everybody understood this to be the Zimbabwe's government's reaction to the SADC court casting its often violent land reform expropriations in unflattering light.

The latest South African court's ruling has essentially upheld the ruling of the suspended SADC court, rejecting Zimbabwe's appeal against its favorable find for the white farmers.

On the eve of the South Africa's court ruling, a lawyer for the white farmers had said a judgement in their favor would be precedent-setting and a moral victory against a rogue regime that ignored its own laws (setting aside property rights to expropriate farms without compensation) as well as of international conventions to which it was signatory (the SADC Tribunal.)

The muted reaction to the ruling so far does not make it is clear that it is as big of a victory for the white farmers as they had hoped.

Zimbabwe's push for SADC to suspend the tribunal may have been an utterly cynical back - tracking of committments it had made to abide by the rulings of the court. It is said none of the SADC states had fully thought through the implications of the tribunal over-ruling their own courts until the judgement against the Zimbabwe government and in favor of the white farmers who petitioned it. But once Zimbabwe had persuaded the other member states to agree to the court's suspension, it seems farcical for the courts of one of those member states to invoke a ruling of that suspended regional court.

Then there is the unavoidable awkwardness of a white-dominated court in South Africa ruling in favour of a group of white farmers in Zimbabwe. In the racial-historical-political context of southern Africa, it is impossible to completely separate the judicial aspects from the unfortunate impression that it is a still white-dominated South African judiciary standing together with Zimbabwe's white farmers. It makes all the easier for the Zimbabwe government to argue that it is not justice at play here, but merely commonly threatened southern African whites protecting their interests. In a southern Africa where memories of the ugly racialized past are still fresh and deep, these sentiments have wide currency.

Since the land reform expropriation started, Zimbabwe has instituted new laws legalizing its actions and decisions on land, including a provision for the government to pay compensation for 'improvements' on expropriated land when the funds are available for it to do so. At home, the Zimabwean government has legally, constitutionally covered its back with regard to land reform, just like colonial governments did in white-washing their own earlier expropriation of African land.

As individuals the dispossessed white farmers have clearly received a raw deal. But in the context of southern Africa's messy land and race history, it is very tricky in a group sense for the white farmers to invoke issues of morality and justice. There are exceptions, but how many of them became hereditary title holders of African land was arguably immoral and unjust even by the standards of the time of the colonial land grabs. They face an almost impossible task in black majority-ruled southern Africa to try to argue that their group plight is any worse than that generations of Africans who were urged to accept that the past cannot be undone and that they must just learn to 'get on with it.'


In the more than a decade since Zimbabwe's farm expropriations began, the sympathy momentum that the white farmers may have initially enjoyed in the western world has arguably waned. That sympathy in some parts of the world, and even in Zimbabwe itself, was based on the brutality of their disposession, admiration for the sophisticated farmers they had become, on antipathy to President Robert Mugabe and so forth.

Many factors have changed in the last few years in regards to the Zimbabwe land issue. More of the African historical perspective that was poorly understood before has got out to the world. It is abundantly clear that land reform was massively popular in Zimbabwe and remains so, despite all the problems. Any early thoughts that it might be reversed have largely evaporated. All these factors and many more have increasingly drowned out the dispossessed white farmers' initially very strong voices. They have increasingly been reduced to looking like whiners about their unchangeable fate, regardless of how unfair it has been to them.

In arguing their case, the white farmers seemingly approached every conceivable world (or rather western) leader or institution they thought might be able to pressure the Mugabe government to go back on its reforms, or at least to cough up compensation. None of that made any difference to a government that had clearly resolved that it would no longer tolerate a white-dominated farming sector.

The white farmers were so initially confident that they could rally enough kith and kin sympathy in the West to make Mugabe 'behave' that it simply  did not occur to them that some kind of accommodation with his government was the only way they were going to get any sort of half-way satisfactory resolution of their plight.

As the impasse stretched on interminably, even white farmer-sympathizing Britain seemed to tire of it. The only way Britain could be seen to provide the funds to compensate the white farmers was in the context of a larger, perhaps international effort to support Zimbabwe's farming, including and especially its now dominant but struggling black small to medium scale farmers. Yet its many shrilly expressed disagreements with the Mugabe government over all kinds of issues made that impossible. To support the white farmers in isolation would open Britain up to the frequently hurled charge that its main interest in Zimbabwe was a racist concern for the welfare of those white farmers, rather than 'freedom and democracy' issues.

With weakening British support, the rest of the western world's sympathy and support for the white farmers also waned. The farmers increasingly found themselves on their own, without the international support they had been so confident would either depose Mugabe, force him to give them back their farms or force him to compensate them on their terms.

Meanwhile, the MDC party that had once been the great hope of the white farmers for reversing 'Mugabe's land grab' began to increasingly distance itself from any such revisionist association, reeling as they were from Mugabe's relentless, stinging accusation that they were merely lackeys of those white farmers, trying to stem the tide of the pro-black land revolution . The MDC may have been happy to accept the white farmers' financial contributions when they were still able to give them, but the link with the farmers increasingly became toxic in many other respects.

While all these developments were taking place over several years, the Mugabe government became more confident and entrenched, especially after getting away with engineering a 'win' in the controversial, bloody election of 2008, and even more so when the subsequent MDC/ZANU-PF coalition government was able to stem hyperinflation and restore a semblance of stability to what had been a crisis-plagued economy. That several years-long crisis phase helped the white farmers argue for their economic indispensability, to say their dispossession had been its cause.

The situation in regards to the white farmers in 2012 has become even more unfavorable than it ever was. They continue to carp about the many deep problems that plague Zimbabwe's agriculture, but few are paying them any attention, least of all the MDC/ZANU-PF government. In the discussion about addressing agriculture's problems, nobody talks as if the former white farmers will have much of a role in the future.

The white farmers' remaining hope for compensation is serious engagement with the Mugabe government, even if it is simply to work together to try to find a common position towards outside agricultural assistance that might include compensation for the white farmers. But  the white farmers squandered the opportunity to engage the Mugabe when they still had some significant western sympathy and leverage.  Instead they talked tough even after it was clear that Mugabe was determined to do whatever it took to wipe them out as an economic/political force, and when it was clear that they had lukewarm support even within the MDC they helped bankroll.

When it became clear to sections of the white farmers that no international pressure on Mugabe was going to save them and that they had to swallow their pride and engage with his government on its terms rather than theirs, things had moved on. Their realization came too late, when the Mugabe government felt no need to have anything to do with them.

It has been steadily downhill for the white farmers in the last few years, in almost every sense. The West has its own problems to worry about that make it unlikely to be much interested in making significant contributions to any compensation fund. Mugabe is slowly coming out of his diplomatic isolation from the western world. The white farmers feel increasingly estranged from the MDC, whose chances of attaining unshared power no longer seem as sure as they did a few years ago.

Even if the South African property is auctioned off and the proceeds shared amongst the 77 farmers that took part in the suit, it is difficult to see any significant additional benefit for those farmers or the rest of their dispossessed, uncompensated counterparts. If anything, it may just make an already hard-headed Mugabe government even more intransigent (if that is possible) in dealing with them.

At some point in the last several years, the white farmers' plight became more political than legal. They didn't notice or accept that at the time, and failed to make overtures to the Mugabe government when there might have been some chance of usefully engaging with them. The very idea sickened many of them, but it was never an issue of whether the Mugabe government smelled nice or not, but of realpolitik. When the white farmers finally woke up to just how much the ground had shifted under them, not in their favour, and sections of them began to be ready to usefully engage Mugabe's government on its hard-headed terms, the window of opportunity had passed.

It is hard to see the South African court judgement as being as significant as the white farmers might have hoped. It is likely to be a relatively minor footnote in the earthquake of change that 'Mugabe's land grab' represents in the long-established power relations of southern Africa.

As a group whites in Zimbabwe, especially the farmers, were so accustomed to being in the drivers' seat in relating to Africans that when they for the first time encountered one even more hard-headed, ruthless and uncompromising as them in the form of Mugabe, they had no group experience of how to deal with him. 

The overall momentum of the whole 'land issue' in Zimbabwe very long ago shifted from the white farmers. It was a miscalculation of immense proportions for them not to have read the times well and early enough to have seen this when they could have still salvaged some dignity, and perhaps some property and compensation.              

The Zimbabwe Review