V. INTERNATIONAL LAW AND CONSTITUTIONAL OBLIGATIONS

Zimbabwe is a party to a range of international instruments, including the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and the African Charter on Human and Peoples' Rights, among other treaties. Under these treaties, the government has a duty to guarantee equal protection of the law to all persons without discrimination, and to prosecute serious violations of the rights enumerated, including where the perpetrator is a private citizen. Independence of the judiciary is also a cornerstone of these international provisions. Crimes should be investigated and prosecuted in a fair, effective, and competent manner by the relevant judicial, administrative, or legislative authorities.

The Zimbabwean constitution provides similar guarantees. Section 18(1) of the constitution stipulates that every person is entitled to the protection of the law. Section 18(9) of the constitution says that every person is entitled to a fair hearing within a reasonable time by an independent court. The independence of the judiciary is guaranteed by section 79b.

Right to Property
The Universal Declaration of Human Rights, 1948 (article 17) states that "everyone has the right to own property alone as well as in association with others," and that "no one shall be arbitrarily deprived of his property." This right-always controversial- is not included in the International Covenant on Civil and Political Rights, nor in the International Covenant on Economic, Social, and Cultural Rights. Article 14 of the African Charter on Human and Peoples' Rights, however, provides that: "The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws."¹⁷³ The Convention on the Elimination of All Forms of Racial Discrimination sets forth in article 5 the right of everyone to equality before the law without distinction as to race, color, or national or ethnic origin, including the enjoyment of "the right to own property alone as well as in association with others." CEDAW establishes the same rights for both spouses with respect to ownership, acquisition, management, administration, enjoyment, and disposition of property (article 16).

The right of governments to acquire land in the public interest is commonly recognized. Effective protection of economic and social rights may require redistributive measures, including measures which do not provide for full market value compensation for land that is expropriated. The complete protection of existing property rights can only be justified in a situation where everyone has a basic minimum for what they need to maintain a decent standard of living. The issue with the Zimbabwe government is thus not the concept of redistribution, but the need for land reform to follow basic criteria of due process and nondiscrimination, as required both by the African Charter in relation to property rights, and by other international instruments more generally.

Right to Due Process of Law and Nondiscrimination
Virtually all human rights treaties include clauses stating that the rights they enumerate shall be enjoyed without discrimination. They also include provisions for all people to have equal protection of the law. Article 26 of the ICCPR provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.¹⁷⁴

The Human Rights Committee, which interprets states' obligations under the ICCPR, has made clear that article 26 provides for protection against discrimination in the enjoyment of all rights, including rights not mentioned in the ICCPR, such as the right to property. These provisions make it clear that a program of land reform that discriminates in law or fact on the grounds of political belief or other grounds is not in accordance with international human rights law.

Land reform is generally advocated in Zimbabwe as urgently necessary to address the stark inequalities in land distribution and wealth. However, as stated in the African Charter and reinforced by the provisions of the ICCPR and other binding international treaties, the rules providing for compulsory purchase should be clearly set out in law, and those affected should have the right to voice opposition to the acquisition and to challenge it before a competent and impartial court. In addition, the security forces and criminal justice system must provide equal protection to all those who are victims of violence, and the law should take its course without interference from political authorities.

173 The African Charter also provides, in article 21(2), that: "In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation."

174 Article 2(3) of the ICCPR provides that: "Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted."