All denied security of tenure over land

All denied security of tenure over landJanuary 5, 2010
Jupiter PunungweIN reply to my recent posting on the land issue, one reader stated that “The land issue has been politicized. It’s Mugabe who directs his courts on what to do and say and hence my concern at the independence of the Zimbabwean judiciary.” It seems this reader believes the problem is merely that of Mugabe telling judges what judgments to pass. This reader is falling into the exact trap that I tried to warn against in my earlier blog article. He is focusing on Robert Mugabe and ignoring some obvious deficiencies that are hard-coded into our constitution and laws. These will allow any ruling politician to grossly interfere with security of tenure on land. The politician does not even have to tell the judiciary what judgments to pass. This particular feature was originally designed into the colonial laws to dis-empower the natives, leaving only whites protected from the whims of politicians. In the year 2000 Mugabe expanded the power of politicians over land. Constitutional Amendment No 17 removed legally guaranteed security of tenure for all land owners. While Mugabe introduced that particular amendment, it can still be used by any politician long after he is gone.This lack of security of tenure has been used extensively by politicians in Zimbabwe’s past. It was first used to force Africans into native reserves, by the Southern Rhodesian and Federation politicians. It was subsequently used against the Tangwena people by Ian Smith. Then Mugabe expanded the law to dis-empower all land owners not just the natives alone. He used it extensively against white farmers. In a clear example that constitutional deficiencies work long after politicians who designed them have gone, the portion from colonial times is now being used against the Chiadzwa people. This is a full three decades after the end of colonialism. If a man starts a fire, the problem is not just the man who started the fire, but the fire itself. To tackle the fire you don’t pour water on the man, but on the fire. If you leave the fire and chase after the man only, even after you catch the man, the fire will still be burning. Security of tenure should not be contingent upon the whims of politicians even for villagers. In colonial times, whites were given security of tenure in form of deeds of grant (title deeds). For natives it was deliberately left contingent upon the whims of then white politicians. You can see the effects of that colonial design today. Whites can fight for their land in court. I am sure you are all aware of the numerous cases the white farmers have brought before the courts, and ones they have taken as far as the SADC tribunal. All that is possible, because they have or had deeds of grant, which serves as proof in the eyes of a court under the Roman-Dutch system law that they own or owned the land. The same is not possible for residents of former native reserves like the Chiadzwa people or the Tangwena people. They have nothing to prove that they own the land. In fact they were allowed to stay on the land ‘upon the grace’ of the owner, originally the Queen and now the government of Zimbabwe. With Constitutional Amendment No. 17 of 2000, which gives government the right to acquire anybody’s land without compensation, Mugabe effectively placed all security of land tenure in Zimbabwe upon the whim of politicians. A provision in that amendment, gives the state right to acquire any land it wishes without consent or compensation. That provision was ramroded by Mugabe into the draft constitution of 2000 which was put up for referendum. It placed responsibility for compensation on the British. That had not been included in the original draft by the constitutional commission for which Jonathan Moyo was spokesperson. The sole reason I did not vote for the 2000 draft constitution was that clause giving government the right to acquire any land without consent or compensation. I specifically recognized that it legally placed all security of tenure, even for titled land, upon the whim of politicians. Previously on the residents of the former native reserves, had been denied security of tenure. Other than that I would have voted for that constitution.I must admit my reasons for that switch were entirely selfish. My grandfather owned titled land in the former native purchase areas. Thus the provision placed my family’s land (of direct personal benefit to me) under the threat of politicians. I did not vote against the draft constitution just for reasons of showing Mugabe the finger as most seem to have done, but for reasons of direct personal interest to myself. As far as I know Mugabe has not acquired any land in the former native purchase areas. Most of the smallholdings are the size of current A2 scheme allocations anyway, meaning that it’s not really logical to subdivide them. However the provision means that any future politician can make life difficult for any landowner and the latter would have scant legal protection. Any politician can use the provision simply for purposes of harassment. The victim will not have any legal recourse. In contrast, the so called experts on constitutional matters at the time, the NCA and the then united MDC, merely opposed the draft constitution because they felt it left the President with too much power and would have allowed the person of Robert Mugabe another two terms. For their specific cause, wrestling power from Mugabe that draft would have constituted a strategic bridgehead was paramount. It would have limited Mugabe’s term. His opponents campaigned against the draft largely for purposes of showing Mugabe the finger. As of this moment Mugabe’s term is still not legally limited in any way. His powers have not been reduced in any significant way. The process that is under way now is contingent upon his personal agreement and upon the agreement of the Zanu-PF party. In short the MDC and the NCA are fighting battles now that they had won in 2000. At that time, they simply did not have the vision and wisdom to recognize the victory and its importance to their cause. If I was them, I would have voted for that constitution and continued pressurizing for more amendments. They were like a hungry man being offered half a loaf, and refusing it because they wanted nothing less than two loaves. They let go the bird in hand. Ten years later, they still haven’t caught the two that were in the bush.As I have oft stated they do things for the sake of merely opposing whatever Mugabe agrees to or says, including that which would benefit them. In short they don’t have a vision of their political role beyond perpetual anti-Mugabe militancy. Even now after they have agreed to join him in government, they are still trying to practice anti-Mugabe militancy simply for the sake of it, not as a tactic to achieve any strategic goal. It is almost like these people want Mugabe to stay because if he goes they wouldn’t know what to do for their political careers.It is also astounding that many of the people, who vehemently and intensely express opinions on constitutional and political matters, do not even recognize many of the subtle technicalities ushered in by various political and legal developments. They have extreme difficulty establishing a logical and well reasoned link between technical/political issues and real life. For example I am astounded that after years and years of debate on the land issue, many people are still not aware of legal situation of the residents of communal lands. Many people seem not aware that land reform goes well beyond the size of the plot available to the average black family as compared to the mammoth farm available to the average white family. This also holds true for many who support Mugabe’s land reform policies. Many are merely happy to be given access to bigger plots without being given long term security of tenure. They do not recognize the disadvantages of not having security of tenure especially with respect to the modern money and capital based economic model.One of the few points that Finance Minister, Tendai Biti, and his sworn antagonist Gideon Gono, the RBZ governor, seem to agree on is their call for banks to increase lending to industry and farmers. Yet none of the two ever meaningfully addressed the issue of collateral security on the loans. Banks need assurance that they can recover their money in the event of borrowers failing to repay the loans. Fixed property, including land, is an important part of the collateral guarantee. The collateral value of land is dependent on legally guaranteed security of tenure. Constitutional Amendment No 17 removed that legal guarantee. In short farmers cannot take their title deeds or offer letter to a bank and ask for a loan, because the government can at any moment take the land and allocate it to someone else. The borrower no longer has the means to pay back the bank because they can’t farm anymore. The new owner is not obliged to pay anything to the bank. The government has abrogated itself of any responsibility to compensate and hence provide something the bank can be paid with. The British government upon which responsibility for compensation has been placed by Zimbabwe law has not even agreed to be involved in the matter. In fact British contemporary thinking, as expressed by Clare Short’s letter to Mugabe, is that they have washed their hands of all the sins of their forefathers, never mind that they are still enjoying the benefits. Let me repeat. Land reform is not just about Mugabe grabbing land. It is not just about people getting bigger plots and farms. Security of tenure for all classes of people is a key component.That security should not be dependent upon the whims of politicians in any way.