CONSTITUTION FLASH – AGRICULTURAL LAND IN THE DRAFT CONSTITUTION

CONSTITUTION FLASH – AGRICULTURAL LAND IN THE DRAFT CONSTITUTION

Alex T. Magaisa

In the last blog we observed how the draft Constitution deals with property rights in general. We noted that the protection of private property under Clause 4.28 does not include the protection of rights in respect of what is defined as “agricultural land”. This is specially provided for under Clause 4.29 and Chapter 16.

Agricultural land is defined as “land that is used or suitable for agriculture”. It includes land used for the grazing of livestock or game. It does not include communal or urban land.

Brief Note on History & Context

This has to be one of the most challenging areas of the Constitution and this is unsurprising given the chequered history of what is generally referred to as the Land Question. It is not easy to reduce in a few words the mass of arguments on either side; to resolve a controversy that has run for more than a century. I have always said that the Land Question is one of the issues that was poorly handled at the Lancaster House Constitutional negotiations in 1979. The arrangement postponed a problem; rather than find a suitable way of resolving it. That failure has haunted post-colonial Zimbabwe to this day.

I am not sure the draft Constitution does a better job of permanently resolving the issue either. My observation is that both clauses of the Lancaster House Constitution and the draft Constitution are reflective of the dominant political position and thinking on the Land Question on the different occasions and neither places a lid on the issue. The Lancaster House Constitution sought in the main to safeguard existing property rights, which were largely a legacy of the colonial era and the system was characterised by extensive racial imbalance in land ownership, with changes envisaged through a market-based “willing buyer-willing seller” basis – the change, if any, would be gradual rather than immediate and dictated by the market. The amendments to the Lancaster House Constitution have over the years sought to change this in order to give the State more power to acquire, take ownership and redistribute land without the shackles of the market.

These changes, championed predominantly by ZANU PF, are reflected mainly in Constitutional Amendment No. 17 (2005) which sought to legitimise the Fast Track Land Reform Programme (FTLRP). The draft Constitution follows this pattern, reflecting the predominant position that has evolved over the years since independence. Needless to say, the law has struggled to find a perfect solution to this historically political question as will be evident in the political arguments that are contained in the draft Constitution. My observation is that this is a political matter that requires a political solution and hopefully some day, Zimbabwe and its former colonial power, Britain and others concerned parties will find space and time to sit down and find a permanent resolution to this challenging matter.

However, it is not the purpose of this paper to delve into the broader debate. It only seeks to present what the draft Constitution provides for and highlights strengths and weaknesses. So, off we go:

Acquisition without Contest

Clause 4.29 provides that the State may acquire agricultural land “for a public purpose”, which includes resettlement. As the acquiring authority, the State must publish a notice in the Gazette identifying the land that is being acquired. It also provides that the State will acquire full title in the land with effect from the date of publication of the notice. The existing title deed will be endorsed and cancelled immediately, vesting title to the land in the state.

The implication of this is that the mere publication of a notice in the Gazette completes the process of acquisition. This means all the state has to do is to publish a notice and it acquires title in the land. There is no provision for challenging the decision. Once published, the state acquires the land. It means that there is no security on agricultural land. Consequently, this may affect investment in agricultural land. A person cannot make long-term investments in agricultural land if there is ever-present peril that once gazetted the land is taken by the State. It also allows room for arbitrary conduct on the part of the state.

Rights of Affected Land Owners

What are the rights of persons whose agricultural land is compulsorily acquired by the State?

This is governed by section 4.29(3) which states that:

• There will be no compensation for the acquisition, except for improvements.
• There will be no right of access to the courts for the determination of any question relating to acquisition, except for compensation for improvements.
• The acquisition cannot be challenged on the ground that it was discriminatory and therefore contrary to section 4.13 (the non-discrimination clause).

This is basically a restatement of what is contained in the current Constitution, which was enacted through Constitutional Amendment No. 17 of 2005. It is a reaffirmation of the view championed mainly by ZANU PF that there should be no compensation for land except for improvements; that the issue of agricultural land is a political matter that should not be resolved through the courts of law and therefore courts are barred from entertaining matters relating to land acquisition. It is also an acknowledgement of discrimination but specifically excludes the application of the non-discrimination clause.

It opens up further grounds for discrimination because section 4.13 prohibits discrimination on many different grounds. Now, by stating that acquisition cannot be challenged on grounds that it is discriminatory, it opens up the floodgates of discrimination on various grounds. For example, women can be discriminated on the grounds of gender or sex and it may not be illegal. Single parents can be discriminated on the basis of marital status and such conduct may still be lawful. Similarly, a group of people can be discriminated on ethnic grounds or political affiliation and under this clause such conduct may not be unconstitutional.

Clause 4.29 (4) essentially confirms the legality of the land reform programme carried out to date. It confirms that all land so far acquired by the state under the current Constitution is owned by the State (this is also restated in Clause 16.3 in Chapter 16) and that no compensation will be paid for it except for improvements. It appears this statement is made out of abundance of caution, to ensure that the issue of whether compensation or payable for land and improvements or for improvements only in regards to land that has already been acquired is beyond any doubt.

Under this clause farmers who lost their title to land in the land reform exercise post-2000 will not be able to claim compensation for land except for improvements. Constitutional Amendment No. 17 was designed to apply retrospectively in order to give a cloak of legality to the land acquisitions that had taken place under the Fast Track Land Reform Programme. Clause 4.29 simply restates what was provided for under Constitutional Amendment No. 17, thereby confirming the retrospective application of the law.

The clause also ousts the jurisdiction of the courts in land-related matters, contrary to Clause 4.26 of the same draft Constitution, which guarantees the right to a fair hearing and states in paragraph (3) that “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”. Further, it violates Clause 4.25 which protects the right to fair administrative conduct. Clause 4.25 states in paragraph (1) that “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. It will be impossible to seek recourse for unfair administrative conduct by the state if the courts are not permitted to entertain cases relating to land acquisition.

Former Colonial Power’s Obligations

Paragraph (7) and (8) are restatements of the political statement by the Government of Zimbabwe in its acrimonious bi-lateral dialogue with the British Government in respect of land. It makes reference to “the obligation of the former colonial power to pay compensation” for land acquired for resettlement purposes. It states that “the former colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose” and that if the former colonial power fails to pay compensation, the Government of Zimbabwe does not have that obligation. This reflects the dominant argument advanced by ZANU PF over the years, namely that the obligation to pay compensation for land acquisitions falls on Britain as the former colonial power.

Overall, it is a reflection of the dispute between the ZANU PF Government and the British Government dating back to 1997 when a dispute emerged over the funding the land reform programme after the New Labour Government announced a change of approach to the funding, a move that incensed the Mugabe regime. However, as the Zimbabwe constitution is not binding on Britain, the clauses do not, of course, serve any legal purpose except that it is a political statement in the continuing dispute over land reform. To that extent, draft Constitutional clause is no more than an instrument of political negotiation between Zimbabwe and Britain over the land reform programme.

The same political statement is stated in Chapter 16 which also deals with agricultural land. The principles to guide policies on agricultural land are stated with a view to “redress the unjust and unfair pattern of land ownership that was brought about by colonialism”. However, there is an important addition in that the policies must also be designed to “bring about land reform and the equitable access by all Zimbabweans to the country’s natural resources”. It is important to recognise that land reform is continuing exercise. The fact that there is redress of the colonial land set up does not necessarily signal the “end of history” in regards to land reform. The draft Constitution acknowledges the need for equitable access by “all Zimbabweans” to land and natural resources. It is a subtle acknowledgement that post-colonial land reform exercises may also lead to inequalities which may also require redress. It is important to clarify that redress is not just over colonial land inequalities based on race but also over post-colonial land imbalances and injustices based on multiple indices including class, political affiliation, ethnic, gender, regional, race, etc.

Compensation for acquisition of previously-acquired agricultural land

Chapter 16 attempts to deal with the land reform programme that has already taken place. The issue is dealt with in categories of persons based on race or nationality.

• First, Clause 16.8(1) states that an “indigenous Zimbabwean” whose agricultural land was acquired by the State is entitled to compensation from the State for the land and any improvements on the land. Therefore for the so-called indigenous Zimbabweans, they are entitled to full compensation for both land and improvements. However, the term “indigenous Zimbabwean” is not defined which makes the scope of its application vague and uncertain.

• Second, persons whose acquired agricultural land was guaranteed or protected by bi-lateral agreement between the Government of Zimbabwe and the government of a foreign country, is entitled to compensation from the State for the land and any improvements in accordance with that agreement. For these persons, mainly foreign landowners benefitting from such agreements, they are entitled to full compensation. Each of the farmers who were affected may therefore have to check and determine of they fall within this privileged class of farmers who are entitled to full compensation.

• Finally, any other person whose agricultural land was acquired by the State is entitled to compensation from the State only for improvements that were on the land when it was acquired. This means if you are not an “indigenous Zimbabwean” or a farmer whose land was protected by a bi-lateral agreement, you are basically restricted only to compensation for improvements. The thinking behind this is probably that those who are not “indigenous” enough or are not protected by bi-lateral agreements, are beneficiaries of colonialism and compensation should only be for improvements, with any claims for land being directed at the former colonial power.

However, closer analysis demonstrates that this categorisation for purposes of compensation is too simplistic and punishes otherwise innocent parties whose only weakness is that they are either not “indigenous” or not protected by bi-lateral agreements. For example, it excludes a person who bought agricultural land from another person under a “Certificate of No Present Interest” issued by the Government. The law after independence was that a person wishing to sell land had to make the first offer to the government. The government had the right of first refusal. The government could accept the invitation and buy the land or it could issue a Certificate of No Present Interest, essentially saying it did not have interest in buying the land. This meant the land could be sold to the buyer. Now, this person may have no link or connection whatsoever to colonialism and the policies that led to imbalances. He could be a person from Austria who chose to come to Zimbabwe and bought land on the open market. Now, if the land was not protected under a bilateral agreement between Austria and Zimbabwe, this person is exposed to land acquisition without compensation. This is notwithstanding that when he bought the land the Government of Zimbabwe gave him the go-ahead to buy – paying for both land and improvements. Refusal to pay full compensation to such a person is hard to justify or defend.

Inconsistency in Compensation Provisions

There is also the challenge of reconciling provisions for compensation under Chapter 16 and provisions for acquisition under Clause 4.29 in the Bill of Rights. As we have observed, there is no provision for compensation for land for compulsory acquisition under Clause 4.29 and Chapter 16 only applies to land acquired“before the effective date”, that is, land acquired before the adoption of the Constitution when the new Constitution becomes operational. What this means is that even for an “indigenous” person or a person whose land is protected by bi-lateral agreements, if land is acquired after the effective date, there will be no compensation for the land whereas by contrast if the land was acquired before the effective date, they would be entitled to compensation for it under Chapter 16. It means even for these privileged persons, they are better off if their land is acquired before the effective date of the Constitution than if it is acquired afterwards. The rationale for this differential treatment is not clear nor is its justification.

Security of Tenure

Clause 16.4 protects the continuing rights of persons currently occupying or using agricultural land under a lease or other agreement with the State. Clause 16.5 states further that the State must take appropriate measures “to give security of tenure to every person lawfully owning or occupying agricultural land”. This is important for two reasons:

• First, it enjoins the state to ensure that there is security of tenure in agricultural land. It makes economic sense to protect security of tenure in agricultural land. It assists in accessing the finance and credit markets while also giving greater incentive to farmers to engage in long term, sustainable and capital intensive farming.
• Second, in referring to lawful ownership, the draft Constitution confirms that not all agricultural land will be state land. It is an acknowledgement that there will be agricultural land which can be “owned” by individuals. Indeed, Clause 16.6 provides that the State “may alienate for value any agricultural land vested in it, whether through the transfer of ownership to any other person or through the grant of a lease or other right of occupation or use …” Owners or occupiers will also be allowed, subject to any limitation imposed by the law, “to transfer, hypothecate, lease or dispose of his or her right in agricultural land”. Retaining the possibility of ownership of agricultural land and the ability to exchange or transfer rights is important for the value of agricultural land as well as accessing the finance and credit markets. Accessing such markets is important for investment in agriculture which could boost financing and productivity.
• Nevertheless, because of Clause 4.29, which allows the State to acquire land by merely publishing a notice in the Gazette, it means that the ownership rights that the State may confer will still be very limited. Persons will always be at risk of losing their “ownership” rights by the mere act of publication of a notice; they will not be entitled to challenge the decision in the courts of law – these factors and more negate the very purpose for which ownership may be conferred. It’s fair to say that ownership of agricultural land purportedly provided for in this clause is no more than illusory.

Multiple farm ownership

Clause 16.6 also reaffirms the commitment to prevent multiple farm ownership. It states in paragraph (2) that the State “may not alienate more than one piece of agricultural land to the same person and his or her dependants”. This remains a serious problem in the aftermath of the FTLRP and calls for a land audit to fulfil the “one-person one farm” principle have not yielded results. Whether or not this succeeds will depend on the Land Commission created under Chapter 16 part of whose mandate is to carry out land audits and promote fair and equitable land redistribution.

Conclusion

The provisions on agricultural land are reflective of the continuing challenges relating to the Land Question. They are largely a reflection of the position that has been taken over the years, particularly since 2000 in respect of agricultural land. However, the inconsistency between the idea of conferring ownership rights and retention of the overriding power of the state to acquire land by the mere act of publication of a notice and the denial of access to the courts also demonstrate policy inconsistencies over the Land Question. The different approaches to land acquired before and after the effective date, even from the specially privileged indigenous or foreign persons protected by bi-lateral agreements also demonstrate policy inconsistencies on this important question. Like the Lancaster House Constitution, these clauses do little to resolve this perennial difficult question.

waMagaisa (2012)

This information reflects my personal views and not the views or opinions of any person or organisation with whom or which I may be remotely associated. Anyone who wishes to use this information commercially or otherwise, should seek my express permission prior to using it, and may be asked to make a modest contribution to charity for use of this material. Email: [email protected]