1.     Fresh Farm Invasions

 

Over the past 12 months The Commercial Farmers’ Union has witnessed, including the period since the inception of the GNU, a steady continuation of, and in some cases escalation in, state inspired violent and unlawful disturbances on commercial farms. The general attitude of the GNU to this, as evidenced by utterances from the Prime Minister Morgan Tsvangirai and Minister Welshman Ncube, has been to downplay the incidents and in so doing appear to accept  the current status quo on commercial farms as being the result of a legitimate and fair legal process. That status quo referring to a situation where farmers are allowed to be driven off by beneficiaries on the basis of:

a)      A previous listing of their farm(s) in a Government Gazette, and

b)      The existence of an offer letter issued at the sole discretion of a Minister or Land officer in favour of a beneficiary in respect of the listed farm(s) in question.

c)       Fraudulently generated offer letters.

The impact of this attitude is to condone not only the current unjust legal position within the laws of Zimbabwe, but also the violent and /or other unlawful activities on the part of beneficiaries who hold offer letters. Further compounding this untenable arrangement is the tradition which has developed within the ranks of the Zimbabwe Republic Police (ZRP), namely that if a matter can be classified as “political”, as is the case with all matters relating to land, then this will exonerate them from any deliberate failure to carry out their constitutional duties. This has effectively left commercial farmers and commercial farm workers unprotected by the law, which has been the case since March 2000.

Tied to this is the fact that many of the remaining approximately 400 commercial farmers who continue to occupy and use their farms (many of which have been substantially downsized on a prima facie voluntary basis with no compensation being received), face prosecution and potential imprisonment. The directives, statements and other activities of various key members of the Zimbabwean justice delivery system, for example the Attorney General and the Chief Magistrate, with regard to guidelines for the “fast tracking” of prosecutions of commercial farmers, lead to a conclusion that these farmers will be presumed guilty until proven innocent. This position is totally contrary to the fundamental human rights of these individuals. If this were not enough a significant number of judicial officers who preside over cases involving commercial farmers, including the Chief Justice himself, are beneficiaries of the land reform programme. An analysis of recent Supreme Court and High Court decisions regarding issues such as land reform and contestation of election results show the extent to which the overall independence of the judiciary has been completely compromised in favour of “ruling party” interests.  Annexure 1 clearly indicates that once a beneficiary has arrived on the farm, it is inevitable that a disruption will follow.

2.     Offer Letters

 

It is pertinent to expand on the concept of “offer letters”. There appears to be a broad misconception that offer letters constitute a legal entitlement to land and are issued in accordance with the laws of Zimbabwe. This is not necessarily the case. There is no clear legal frame work governing the issue of offer letters. The GoZ purports to issue offer letters in terms of the Agricultural Land Settlement Act [Chapter 20:01]. This Act empowers the Minister to issue leases for state land.  An offer letter is merely a precursor to the issue of such a lease. Section 9 of the Act requires that all applications for state land be reviewed by the Agricultural Land Settlement Board and the Minister may only issue leases after considering the Board’s recommendations. The Minister and Government have consistently ignored these provisions. This means that potentially all offer letters issued are illegal because the Government has acted outside of the scope of its powers in terms of the relevant legislation (ultra vires).  Indeed, in practice offer letters are prepared on mass for “approved” beneficiaries (the vast majority of whom are members of Government, the security forces, the civil service or employees of Government owned companies) and signed by the Minister. A beneficiary who has received an offer of a lease for state land (i.e. an offer letter) is not entitled to take up occupation of property which is not vacant particularly in light of the afore mentioned.

3.     A2 Applications

Farmers were told that farms were available (or allowed to be retained) on a one-man-one farm and non-racial scenario and were encouraged to make applications to the Minister through the A2 application forms. A general response was received from the ministry acknowledging receipt of all the applications, yet no individual has received confirmation or rejection of their application.  Although the exact figures are currently unknown we believe somewhere in the region of 800 applications were made. There is known to be much agricultural land which has been abandoned and unutilised in Zimbabwe during the course of the fast track land acquisition programme. However, our farmers who have the knowledge and experience in high volume and high quality commercial production are being denied access and use of this valuable commodity. Full production of this land would alleviate the necessity for the constant importation of essential food to Zimbabwe by the donor community.  

4.     The SADC Tribunal

 

Further, the SADC tribunal ruling of the 28^th of November, 2008, in the Campbell case, which effectively struck down Zimbabwean Constitutional Amendment number 17 (the legal basis relied upon by government for all acquisitions of white owned commercial farms) on the grounds that it denies commercial farmers affected by land reform their fundamental rights to seek legal redress and to not be discriminated against on the basis of race.  This judgement is immensely significant particularly for the following reasons:

a)      It recognises the legitimate and unequivocal property rights of white commercial farmers, and also, expressly, their right to full and fair compensation in the event of expropriation by the state, without regard to arguments of historical imbalances or any liability on the part of the former colonial power.

b)      It is a judgement made by a court of peers (i.e. 5 judges from neighbouring SADC states) and therefore it is more likely that it will be seen as even more patently absurd that the judgement is inevitably portrayed by certain sections of the inclusive Government as neo colonial machinations by western powers bent on reversing the gains of independence.

However, it is unfortunate that this ruling has been and continues to be treated with contempt by the Government of Zimbabwe. Government’s position on this judgement was made clear by disparaging and contemptuous comments made by President Mugabe at his birthday celebrations in February this year. The tribunal has since held, on the 5^th of June that the Government of Zimbabwe is in contempt of court and referred the matter to the SADC summit in the hopes that appropriate action will be taken with regards to enforcement of this decision or any appropriate sanction, by the other SADC states. In September Minister of Justice and Legal Affairs Patrick Chinamasa, who is, with his wife, a beneficiary of the Land Reform Programme, purported to withdraw Zimbabwe from the SADC Tribunal. This move has received broad condemnation from almost all quarters including many eminent associations forming part of the Legal fraternity. The Minister’s withdrawal is particularly outrageous especially as the rest of the Unity Government was not even consulted before he took action.

      Documentation proving SADC Tribunal has jurisdiction over Zimbabwe available upon request.

 

5.     Prosecution of Farmers and Farm Workers

In 2005 amendment Number 17 was made to the Constitution of Zimbabwe which unilaterally, by the stroke of a pen, declared all land that had been issued with a section 5 order of the Land Acquisition Act, became State Land – albeit without compensation. Furthermore, the right to contest this in court was removed, which is unconstitutional. Government’s action resulted in property rights and security of tenure in Zimbabwe’s agricultural sector being removed. However, a legal procedure still had to be followed in order to evict farmers from their homes and businesses.This was covered in the Gazetted Land (Consequential Provisions) Act, (ruled illegal by the SADC Tribunal) which is being used in the courts to prosecute and evict the farmers. Although only 6 farmers have so far been convicted and evicted through such prosecutions a further 154 farmers and 8 farm workers are currently either being prosecuted or are on remand awaiting prosecution. In early February 2009 the Attorney-General, magistrates and police held meetings across the country during which they discussed a document titled, “Handling Land Cases”, which amounted to a mass prejudgment of all land cases as it undermined the independence of the judiciary. It is alleged that both magistrates and state prosecutors were instructed to fast track all land cases to evict the farmers. Furthermore they were instructed to listen to no other legal argument except why the owner had no offer letter; permit; or land settlement lease.This has caused huge instability in the agricultural sector because nobody knows when his day in court will be. What has been noticed is that the majority of the prosecutions against farmers are being illegally initiated and motivated by the actual beneficiaries.Apart from the loss of production, which the prosecutions or threats of prosecutions, is causing, the cost of defending the individuals in court, is huge. In a number of cases, where the farmer cannot be found to serve a summons his staff are brought to court, and in a number of cases have appeared without legal representation and have been summarily evicted.Much time and money is being wasted in the courts which could rather be used to produce food to feed the people of Zimbabwe.Annexure 2 provides insight to the court proceedings and the outcome thereof.  Annexure 3 is a summary of farm disruptions recorded. 

6.     Cabinet Memorandum

The content of a memorandum to Cabinet, which was written by Minister of Lands and Resettlement, is of serious concern indeed.Although much of the memorandum contains information recorded on 2007, and is out of date and incorrect, the intent shown by the proposals therein cause much doubt on the sincerity of the current Inclusive Government to follow the guidelines signed in the Global Political Agreement.Furthermore, it recommends the increased prosecution of farmers as well as the disregard for current Bilateral Investment Promotion and Protection Agreements and foreign investment.       Copy of the document available upon request. 

7.     Joint Monitoring and Implementation Committee

Although the technical committee has visited a number of problem areas on the farms it is believed that they are yet to fully understand and separate the legal rights of farmers from the political rhetoric. This is actually slowing down the resolution of problems on farms and is particularly worrying now that (previously untouched dairy and conservancy farms) are being targeted.JOMIC seems to lack authority as they have failed to offer any permanent or swift resolution to the crisis. 

8.     Land Audit

The failure to initiate a comprehensive and impartial land audit as directed by the GPA is viewed as a major impediment to progress in the resolution of both the land crisis and lack of production on the remaining farms.Although not directly stated in the GPA there is a tacit suggestion or expectation that once the audit started there would be a moratorium on new offer letters being issued, disruptions and the prosecution of farmers under the Gazetted Land (Consequential Provisions) Act. 

9.     Law and Order

There is a continued differentiation by Police officers in alleged crimes committed against our farmers by either beneficiaries or hired youth and alleged criminal actions by beneficiaries or other members of the public.There are many cases of assault, robbery and malicious damage to property which are not being investigated as they are termed as “political” or “land” crimes which are mostly not dealt with by the police.  

10     A New Constitution

 

Mention must be made of the process of Constitutional reform envisaged in Article 6 of the Global political Agreement which has begun in a highly politically polarised environment, where after the despicable state sponsored political violence of June 2008, a now traumatised populace finds that rights to freedom of expression, assembly and an open and free media are still woefully inadequate. This procedure envisaged in Article 6, which purports to drive a people driven constitutional making process, is far from perfect and has been justifiably criticised by many sectors of Civil Society, most notably the National Constitutional Assembly (NCA) and the Zimbabwe Confederation of Trade Unions (ZCTU). Despite these criticisms, it is apparent that many are determined to force this process to take place. It is however also clear that the timetable as laid out in Article 6 of the GPA is not feasible and this can only provide scope for further delays by those bent on destroying hopes of a new constitutional order. However, despite all odds against success, at the very least a sense of hope that a process of change has begun can be drawn from the fact that the blatant attempts by elements within ZANU (PF) to either highjack or derail the process have had only limited success. Yet, it is patent that any birth of a new just and fair constitutional dispensation and culture of human rights will only follow on from a tortured and painful labour.

11    Forging a Way Ahead

 

In order to forge a way forward with regard to Zimbabwe’s agricultural sector the Commercial Farmers’ Union has been exploring potential solutions particularly regarding the elements of both compensation and restitution of our members and past members which we feel are an essential component of recovery. To this end as a point of departure we have felt it necessary to consult our farming community with a rough proposal in order to achieve a broader buy in from farmers. The proposal if properly conceived and enacted could provide a platform on which the agricultural sector and Zimbabwe as a whole could begin to recover.

It must be emphasised that this is a draft proposal and that all ideas and figures included are subject to negotiation and constructive input from all stakeholders in order to build and finalise a concrete and workable plan will be welcomed. It is our firm belief that if a solution can be found Zimbabwe once again can take its place as one of the leading agricultural producers in Africa.

12     Conclusion

There is currently insufficient stability in the agricultural sector to encourage any substantial investment to produce sufficient food to satisfy the requirements of the country. The land situation appears to be intentionally unresolved and kept in an unstable situation in order for it to continue to be used rather as a political tool than as a sustainable means of strategic food production or exporter of quality products.For us to move forward we need political goodwill and an immediate moratorium on offer letters and disruptions and the cessation of the prosecutions against the remaining farmers.

The inter relationship between industry and agriculture in Zimbabwe is very close.  About 60 percent of industry is Agro based while the agriculture sector used to consume about 20 percent of the total output of industry.  Today this figure is much lower and the effects of a skewed Land Reform Program have been notably visible with drastic declines in both the industrial and agricultural sectors.

Annexure 4 similarly illustrates the impact of the Land Reform Program in contributing towards GDP.

Thank You.

 

For any further information please do not hesitate to contact the following people:

Ø  President                    Deon Theron                  [email protected]             0912246 233

Ø  Director                      Hendrik Olivier           [email protected]                 0912 235 640

Ø  Vice President           Charles Taffs                  [email protected]           011 406 373

Ø  Vice President           Louis Fick                       [email protected]              011 216 062

Ø  Legal & Compensation Advisor  Marc Carrie-Wilson         [email protected]            0912 865 199

Ø  Data & Legal Assistance    Mike Clark               [email protected]         011 603 427

Office Number:  309800 – 19