Wednesday, January 27, 2010

Law in Southern Africa

“They told me you had been to her,
And mentioned me to him:
She gave me a good character,
But said I could not swim.

He sent them word I had not gone
(We know it to be true):
If she should push the matter on,
What would become of you?

I gave her one, they gave him two,
You gave us three or more;
They all returned from him to you,
Though they were mine before.”

The Supreme Court of Zimbabwe has ruled against registering the 2008 SADC Tribunal decision declaring illegal the Governments forced acquisition of land from white farmers. This, of course, means that those farmers will not be able to recover (land, compensation, etc) against the tribunal judgment in Zimbabwe.

I have not been able to get a copy of the decision so I rely on newspaper reports when discussing the rationale of the Court. The Supreme Court of Zimbabwe said that as a general rule, courts were obliged to enforce SADC tribunal rulings as a matter of public policy. However, application of that general rule, according to the Court, is subject to facts and circumstances of the matter and the practicality of recognizing and enforcing SADC tribunal decisions. The Court pointed out that if enforcement were permitted, this would contravene Section 16B of the Zimbabwe Constitution which is the heart of the land reform (acquisition) programme.

Additionally, the Court stated that on utilitarian concepts alone the greater good would be served by NOT enforcing the ruling. Essentially, it would simply be too impractical to declare land reform illegal and return the land to the 79 illegally evicted farmers. The people who now occupy that land would need to be relocated after all. Also, citizens of Zimbabwe have come to expect the Government to acquire land. Hence, the policy of land reform (acquisition) must be upheld…..and for legal reasons too.

“…If I or she should chance to be
Involved in this affair,
He trusts to you to set them free,
Exactly as we were.

My notion was that you had been
(Before she had this fit)
An obstacle that came between
Him, and ourselves, and it.

Don't let him know she liked them best,
For this must ever be
A secret, kept from all the rest,
Between yourself and me.”

(A poem submitted as evidence at Alice’s trial)

Lewis Carroll, Alice in Wonderland & Through the Looking Glass.

Meanwhile, Afriforum, a South African Civil Rights organization, has won the right to add the Zimbabwe Government to an application before the High Court of South Africa to register the 2008 SADC tribunal ruling declaring land acquisition illegal.

The farmers involved in the application are seeking recovery from the Zimbabwe Government for the seizure of their lands. That application will be heard by the High Court in Pretoria in late February 2010. If successful, the farmers may seek to be compensated by attaching assets of the Zim Government in South Africa.

I will repeat what I have said before which is that the International Arbitration Community should be all over this. Not one of the academic, professional, lawyer/arbitrators is paying any attention or dedicating any resources to supporting the concept of the SADC tribunal as a legitimate arbitral body whose decisions MUST be enforced in order to uphold the concept of arbitration. This IDEAL of arbitration espoused at expensive drinks parties held at posh law chambers in London, New York, Paris and for awhile Dubai, mocks the truth of arbitral processes that resolve disputes at the local level DAILY without the extortionist fees of overpaid, lazy thinkers, who inhabit the International Arbitral community. But they are not interested-at all.

Tuesday, January 26, 2010

Personal Muzungu

This is more of a personal post about my doctoral journey. I have some new supervisors which is very good. There are some changes to my status which require administrative attention. It is always a problem that I am so far from London now. California is really on the edge of the universe even as a state in the US. I am completely isolated from other PhD students.

I tried to get involved in a local university graduate seminar but they were all sociologists and anthropologists and the topics of discussion were so far a field from what I wanted to think about, it seemed inefficient to continue attending. So, I phone my mates in London when I can and whinge and as funds are running low I go to London less frequently than I should. I will finish but it won’t be the prettiest thesis Queen Mary has ever seen.

Right now, I am working part-time on some book chapters for a book I am co-authoring. It is on US Business Law. It really is quite interesting even if it is domestic.

The thing I am thinking about most now is how isolating the PhD process is. Being a housewife can be isolating too. I am not astounded by the isolation. Rather, I wonder how the English style of sink or swim really compares to the US. In the US you have course work and so many activities that involve the student in the Department. Queen Mary has some activities but not for all students.

I am in the Centre for Commercial and Legal studies. There have always been fewer opportunities to meet other students even when I lived in London. Granted, I have always been a mature student which really sets you apart. I went to University when I was supposed to…but that was about it. The rest of my degrees I have always been on the fringe. The fringe is where I have spent a great deal of time.

Regardless, I think about how isolation defines the PhD experience. Sort of like sleep deprivation defines Medical students in the US and junior associates at law firms. I think all of these are extremes. They may serve to separate the wheat from the chaff very effectively but otherwise are meaningless. I believe each program picks an adversity they want you to suffer and voilĂ  that is it. You are tested and tried and either you survive or you don’t.

I am confident I will survive. I am not as dreamy about the whole doctoral thing as I was when I started. Instead, I believe I have some important research and I want to get it out there. Not because someone will get it out there first. I am quite sure I have little competition for writing about stock exchanges in East Africa. And if there were competition, that would be a good thing.

A friend of mine who lives in London told me I needed to explain my African experiences to ‘my people’ so they learn. I liked that because I believe that. I don’t want to save Africa as most people think when I tell them about my research. I want to translate just the little part that I know for ‘my people’ who are limited in their thinking but have very big hearts. I hope to know more so that I can translate more.

Nuns, who are in training, water sticks daily to try and make them grow-it is intended to build faith.

I see my isolated research like that.

Wednesday, January 6, 2010

New Years Wish

Happy New Year!!

This quote (below) is from an email I received from a friend from Angola. Not sure it is blog-material but it is too special to keep to myself. Still waters run very, very deep, Angola!

'I wish you and your family all the best. In 2010 may peace break into your home and may thieves come to steal your debts. May the pockets of your jeans become a magnet for $100 bills. May love stick to your face like vaseline and may laughter assault your lips! May happiness slap you across the face and may the problems you had, forget your home address!'