This Article has been written in response to a number of Questions relating to specific clauses in the draft Constitution.
The draft constitution requires careful evaluation and CFU are working on a reasoned and critical appraisal. However in general terms commercial farmers need three things: 1. Fair quittance to enable them to regain lost dignity and live reasonably, 2. an end to discrimination and a dispensation that treats them as equally valuable citizens, 3. Inclusion that creates equal opportunity for a younger generation.
On balance the draft doesn’t guarantee any of these three sector specific requirements. Considering that the listing of 800 properties for acquisition on 27th November 1997 triggered a collapse of the stock market which halved investor value in a day, only a restoration of trust in property rights can hope to deliver real investor confidence. Much damage has been done by the state giving itself the right to take an individual’s property away by simply publishing the details in the news paper.
1. Does the Chapter on land or agriculture clearly cater for your rights in terms of compensation?
In short our rights are limited in terms of the constitution and such rights as are acknowledged are not guaranteed.
In general terms there is no adherence to the principle of equivalence in the event of compulsory acquisition and subsequent compensation i.e. no worse and no better off before or after the event. The right of appeal is clearly ousted and provides no opportunity for review.
The terms of compensation are to be determined by an as yet unseen act of parliament.However if such Act is consistent with current provisions as regards compensation, it will be nigh impossible to get agreement between those who have lost property and the government.
The entrenchment of clauses that rely on pre independence land issues and an argument with Britain are clearly outside the control of farmers who are due compensation. This same provision in the last and rejected constitution was used as whip to beat us. You may recollect the FTLRP was unleashed as a result of a perception by Government that white farmers were behind the rejection of the draft constitution in 2000. That strategy sought to demonize us as a group and set the ground for a prolonged persecution of many loyal citizens simply on the basis of race. The consequences for the whole nation have been far reaching to say the least. Whilst white farmers suffered huge losses, the destruction of an industry that employed a significant number of people and underwrote the livelihoods of many in both down and upstream industry has been colossal. Clearly the country’s isolation has been in part due to this and therefore dealing with this issue is only a part of a far larger package that the nation must deliver. How it is dealt with equally provides a signal to broader issues. The proposed provisions ensure that dispossessed farmers still remain hostage to a side disagreement with Britain. One might ask: Is it fair to punish the children when the parents fight?
What is also an issue is the failure to consider Government’s own continued registration and permission for the transfer of land after independence and after the end of restrictive clauses in the Lancaster house constitution had expired. Should investments made entirely post independence following a call to reconstruction and reconciliation be targeted in such a manner?
The separation by class of persons due compensation into three categories effectively gives differential rights to people who invested under similar conditions. Only in the case of foreigners are rights fully recognised; however even in the case of BIPPAS there is no evidence to support the full ratification of previous agreements in terms of domestic law. Government has already avoided compliance by questionable requirement that Parliament ratify international agreements entered into by the Executive. The same applies to the domestication of the much publicized challenge to the FTLRP that was heard by the SADC tribunal.
We believe it is questionable to distinguish citizens on the basis of indigenous or other criteria; since 1980 it has been anathema to regard racist policy or behaviour as legitimate in Zimbabwe. To assess the value of a citizen simply by colour is the direct impact of this clause and does no good to the cause of liberation or history; the liberation war, after all, was fought for all and not just some. A considerable number of Indigenous people whose property was acquired are hardly treated better than others; there is no provision for restitution and whilst they will be paid for land, other issues such as the consequential losses caused by disturbance and the passage of time are not dealt with in common with other provisions. This is hardly acceptable given the fact that they have been replaced by individuals with similar classification who will be permitted to remain without question, this remains contentious given the provisions of the GPA in regard to displacement.
2. Does the draft guarantee the property rights of Farmers?
The rights of occupiers are above those of farmers. Clearly objective criteria should be set for the continued occupation of current beneficiaries. Many competent farmers, agricultural graduates and farm workers were excluded in land allocation. In addition there is no provision for review in the case of farmers who complied with all requirements of the land reform but who were none the less unlawfully evicted. The past ouster of the Administrative court by the introduction of Amendment 17 is moot; hundreds of cases where farmers made very reasonable offers to downsize their farms were simply disregarded. Past experience would question a process that seeks to isolate Agricultural Land from the general provisions relating to other property. Communal farmers also have massive concerns as regards property rights that should be addressed, these are not dealt with and this land falls outside the remit of the proposed Land Commission. The Commission’s roles and responsibilities whilst outlined are not guaranteed.
There are some aspects that would imply a restoration of some rights lost through fast track, in particular as relating to access to land, however, again there is no guarantee that such rights can be achieved. This particularly so, as there are restrictive clauses that would entrench discrimination that is perceived as fair.
3. What is your view of the constitutional guarantee of property rights of land occupiers?
Current permits, including the 99 year lease, are conditional documents that can be withdrawn and give little permanent security. Such insecurity is bad for investment. At the same time many beneficiaries are not farmers and much of the land remains unproductive. One of the criteria in the past for the identification of land for acquisition was that of absentee land lords, we have many absentee beneficiaries. There has been no objective review of the largely partisan process of land allocation that has taken place. To fail to review this from a number of objective criteria and simply to endorse the rights of current occupants whilst ignoring the exclusion of other qualified and experienced applicants is questionable.
There is no clarity on the alienation of state land to current occupants for value. Should Government seek to dispose of land at a discounted value or at no cost to current beneficiaries and then simultaneously transfer rights to market the property, there is a clear possibility that a national resource will be transferred to a limited number of people without due regard to the national interest. The State will still be left with a compensation bill to meet; why should it be left to the taxpayer to foot such a bill when individuals have been able to manipulate access in a very lumpy fashion? Clearly legislating and expecting Britain, a third party to pick up the cost, without any bilateral agreement to do so is also problematic.
There are substantial numbers of commercial farmers and others who applied for land in accordance with laid down procedure; however their applications have been sidelined by a non transparent and frequently corrupt process. Some few white commercial farmers have been promised Offer Letters, though this appears not to have occurred except in a very small number of cases.
Due process in the allocation to current beneficiaries has not been transparent or accountable and no rights to current beneficiaries should be conferred until a proper independent and comprehensive audit is carried out. Hearings with previous owners would be a valuable contribution. Occupations were effectively accompanied by the suspension of some people’s rights and the condonation of impunity to others; to automatically confer property as a reward for occupation is therefore questionable. There are numerous legal impediments to this considering the vast amount of litigation that accompanied this process and many court orders are yet to be honoured. At the same time it is clearly necessary to ensure that genuine farmers are given secure and bankable tenure to empower them. This was one of the pillars of commercial agricultures success in the past. However such transfer should be accompanied by fair quittance to former owners, no reasonable provision for such has so far occurred twelve years after the onset of FTLRP.
4. Any on the land question other comment regarding the position of the draft constitution in relation to your position.
The draft constitution will ensure that the GPA proposed audit is avoided and a status quo is entrenched. It also seeks to circumvent its obligations under international law. In a process of recent history that was so thoroughly mired by not only institutional but also behavioral disregard for the fundamentals of justice, it is questionable to simply open a new chapter without an objective review of what has happened. The country is asked to accept as water under the bridge what has happened in particular regard to land; provisions seek rather to contain terms and fallout from that episode rather than to chart a constructive and enabling way forward. The result is that investors and citizens and observers will question the desire of the state of Zimbabwe to provide a truly enabling environment for progress. There is a need for dialogue on an acceptable package of principles to take the process forward to a satisfactory conclusion. Until this is achieved the country’s collateral value and its ability to generate recovery will be hampered.
Resolving issues in a fair way is clearly in the country’s interest; however the principle question that will be in people’s minds when they move to accept or agree on this constitution will be much broader. Clearly the document has considerable faults and is at odds with many issues raised by concerned citizens, there are constituencies far larger than our own who will feel excluded and discriminated against as currently constituted. Nonetheless the question will be: does this guarantee to move us all closer to a better situation than the current dispensation? Sadly both the past and present experience of Zimbabwe since independence has seen too many parallels with the injustices of the pre independence period , the opportunity to truly move forward and deliver on the principles of the liberation war remain subverted largely by the vested interests of its key proponents.
Given the current budgetary constraints that Government must eat what it kills in order to balance its books, what it has in recent time done is taken and killed more than it can pay for; if it can’t make recompense to the owners of what it has taken and eaten it had better find some way forward other than blaming someone else or expecting only it has the right to determine fair value!!
Whilst the whole process is clearly surrounded in emotion and differing perspectives, our clear objective is to resolve the land issue in a way that does justice to all Zimbabweans.