Commercial Farmers' Union of Zimbabwe

Commercial Farmers' Union of Zimbabwe

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The case for continued legal action in Zimbabwe

20 March 2018

 

Dave Conolly, Zimbabwe

 

The case for continued legal action in Zimbabwe

 

I noted with interest that Zimbabwe’s new president, Emmerson Mnangagwa, on a recent state visit to neighbouring Botswana, was asked that if the ruling ZANU-PF party lost the 2018 election, would they abide by the result.

 

The President’s response was, “Of course they would,” after which he raised Zimbabwe’s February 2000 referendum result on a proposed new constitution as an example.

 

We Zimbabweans recall that there was much unhappiness in the country at that time and the problems were all blamed by President Mugabe and his ZANU-PF government on a deficient constitution. Realising the mood, the government conceded to the referendum but then proceeded to manipulate the contents of the proposed new constitution, in particular the need to protect the position of president.

 

Ironically, this was the reason for the escalating discontent, and if the new constitution drawn up by Mugabe and his allies had been approved, a lifelong presidency for Robert Mugabe would have been assured.

 

Again ZANU PF picked up that this would be very unpopular and so they threw in a “sweetener” clause that stated they would give the people the land. The people were not to be fooled, however, and as President Mnangagwa admitted in Botswana, the referendum did not go the way ZANU-PF wanted. 

 

The defeat was unexpected and was taken as a personal rebuff for President Mugabe and a political triumph for the newly formed opposition group, the Movement for Democratic Change (MDC).

 

It is also ironic that it took ZANU-PF 17 years, with massive destruction of property and the displacement of millions of people, to see what the population had realised when they voted in the referendum:  that Mr Mugabe was a liability.

 

With hindsight, we can now unpack whether in fact ZANU did accept the will of the people in 2000. Within a week, Mugabe went to Parliament and said what he could not achieve from the ballot box, he would achieve through Parliament. Mugabe also said there was need to “strike fear into the heart of the white man”.

 

Military Operations

 

The farm invasions:  Within two weeks, farm invasions started. At this point it is interesting to note that these invasions started in Masvingo province, one of Mr Mnangagwa’s strongholds. At the time, Mr Mnangagwa was the Minister of Justice and Legal Affairs.

 

It soon became apparent that the invasions were not an expression of people power, as Zimbabwe experienced on 18 and 21 November 2017 when the people marched together to call for Mugabe’s resignation, and again during the funeral of the President of the Movement for Democratic Change (MDC) party, Morgan Tsvangirai, on 20 February 2018, but a well-planned military operation.

 

The “well-planned military operation” theory began to take hold the following month with the brutal murder of a high profile and highly respected Matabeleland farmer, Martin Olds, on Independence Day, 18 April 2000.

 

As one journalist wrote the following day, 19 April 2000: Yesterday’s political murder [carried out in a hail of bullets and Molotov cocktails]…. sent the signal that President Mugabe’s ruling party, desperate to stay in power, had instigated an armed campaign to kill ordinary people. Until now, political activists, such as David Stevens, the white farmer killed in [north-eastern] Zimbabwe on Saturday [15 April 2000], had been the prime targets.

“Mr Olds’s killing happened only a few hours before the 76-year-old President Mugabe gave a television interview to mark 20 years since the end of white rule. The machiavellian leader had been expected to urge reconciliation and an end to land occupations. Instead, he told white people: “Our present state of mind is that you are now our enemies because you really have behaved as enemies of Zimbabwe. We are full of anger.”[i]

The early, highly strategic farm murders, targeting key farmers in different provinces, certainly indicate a well-co-ordinated and ruthless – but as yet unnamed – military operation.

On 26 August 2001 however, the Telegraph (UK) reported that it had obtained a secret document revealing President Mugabe’s plan to expel all white farmers from Zimbabwe before the 2002 elections.

The Telegraph wrote that “The secret order from Mr Mugabe’s ZANU-PF party to self-styled war veterans outlines the political goals of the campaign against white farmers.

“Entitled Operation Give up and Leave, the document reads: “The operation should be thoroughly planned so that farmers are systematically harassed and mentally tortured and their farms destabilised until they give in and give up.”

“The document was circulated in July [2001], just before the recent round of invasions in Chinoyi, Doma and Hwedza in which many farmers were evicted and farms brought to a standstill by the forced removal of their workers.”[ii]

Operation Gukurahundi: Coming from rural Matabeleland, I had experienced the shear ruthlessness of a ZANU military operation, Gukurahundi, the rural massacres perpetrated by the North Korean-trained Fifth Brigade that took place between 1983 and 1987.[iii] Gukurahundi was declared a genocide by the internationally recognised group, Genocide Watch, in September 2010.

 

Operation Murambatsvina:  Zimbabweans in the cities and towns, rapidly growing strongholds of the MDC party, experienced the trauma of the unannounced and utterly ruthless destruction of their homes by the police and army during winter 2005, Operation Murambatsvina. [iv]

 

Operation Mavhoterapapi (Who did you vote for?):  In the brutal and ruthless presidential run-off election of 2008, rural Zimbabweans in Mashonaland and Manicaland suffered Operation Mavhoterapapi?[v] Operation Mavhoterapapi was launched after the local government, parliamentary and presidential elections on 29 March 2008, in which the ruling ZANU-PF government lost its parliamentary majority for the first time since independence in 1980. Retaliation in the run-off election was strategically planned, swift and devastating.

 

Operation Restore Legacy: The latest military operation in a long line of military operations that Zimbabwe has experienced was “Operation Restore Legacy”[vi] – the forced removal of President Mugabe – which seemly was the first one to have the support of the people, a move with huge strategic value. However, as reality dawns, and as Joshua Nkomo, the late ZAPU leader used to say during the Rhodesian days, “I am not fighting the man, but the system.” Zimbabweans are realising that in fact the system of the last 38 years is fully restored – and the anger among the people is now rising as they perceive once again they have been used and abused.

 

For useful reference material on Zimbabwean military operations, read the following document:

Operation Glossary – a guide to Zimbabwe’s internal campaigns by IRIN, 1 May 2008.[vii]

 

BIPPAs and Compensation

 

During President Mnangagwa’s inauguration address he stated – among many things – that white farmers would be compensated, that Bilateral Investment Promotion and Protection Agreements (BIPPAs) would be upheld, and that Zimbabwe would take its commitments to the Southern African Development Community (SADC) and the African Union (AU) seriously.

 

Since his address, I have been approached by many of my black Zimbabwean friends asking how is it possible that white farmers should be compensated when it seems the victims of Gukurahundi, a declared genocide, Operation Murambatsvina, Operation Mavhoterapapi and the former farm workers are not going to be.

 

My answer has been simple:  while concurring that the victims of any of these military operations deserve full and fair compensation, the difference has been the international legal action and publicity of this action taken by some brave farmers despite huge threats from ZANU, as well as from fellow farmers. It is the resolution of these judgements that hold the key to the flow of international capital into Zimbabwe.

 

Further, I have advised these friends that ZANU is a totally unreliable negotiating partner and while I have stood up for myself and my constituency, I cannot do it for them – but am prepared to fully share my experience. This I have done with my own farm workers who through the legal system have claimed amounts varying from ten thousand to fifty thousand dollars after they were illegally evicted from Centenary farm by Dr Ray Ndhlukula, deputy secretary in the president’s office, on 6 September 2014.

 

I look forward to the day when they receive their payouts from Dr Ndhlukula and will assist them in making sure that this event is fully publicised.

 

My confidence is based firstly on the fact that President Mnangagwa has stated many times that Zimbabwe is open for business and to gain the confidence of capital, it is impossible for him to have people within his own office in contempt of his own law courts.

 

At this point it is worth noting that when Mr Aliko Dangote, a Nigerian billionaire and owner of the Dangote Group, showed an interest in investing in Zimbabwe a few years ago, Dr Ndhlukula was personally assigned to ensure that this investment would take place.  Interestingly, Dangote never invested.

 

Secondly, Dr Ndhlukula owns bankable freehold property in Hillside, Bulawayo and it is widely known that we successfully auctioned off a property in Cape Town belonging to the Zimbabwe Government to settle legal expenses awarded to us that we had incurred during various legal actions. These revolved around the Southern African Development Community’s regional/ international court, the SADC Tribunal, and the registering of the Tribunal’s final judgement in South Africa.

 

Privatising of the Dairy Marketing Board

 

I was fortunate to be the chairman of the National Association of Dairy Farmers during the period that the Dairy Marketing Board was privatised and floated on the Zimbabwe stock exchange as Dairibord (Zimbabwe) Ltd.

 

At this time I worked extensively with the Minister of Agriculture, Kumbirai Kangai. Representing milk producers, I pointed out to the Minister that it was necessary that producers should be able to purchase a meaningful shareholding in the newly listed company so that milk supply would be guaranteed, but for the purposes of competition some producers had come to me and indicated that they would like to be producer processors, but legislation prohibited this.

 

I raised this with the Minister who immediately saw the benefits and worked tirelessly in guaranteeing the shareholding, as well as amending and gazetting the legislation. I am immensely proud that the floatation was one of the most successful in the history of the Zimbabwean bourse and has saved the Zimbabwe government tens of millions of dollars in subsidies, as well as creating tens of millions of dollars in income through dividend and tax.

 

I am also excited when I go into the supermarket and see the world-class dairy products available to the consumer. Kefalos, Dendairy, Kershelmar and Sedgemoor are all producer processor-driven. For me this is an excellent example of how a ZANU minister saw the limitations of the law and changed it, giving the local business sector the confidence to invest and, in turn, creating hundreds of real jobs. It must also be understood that none of these operations had to pay a “facilitation fee” (I call it a bribe) as the enabling legislation ensured that their operations were legal.

 

This period of enlightenment allowed Zimbabweans to believe in themselves and an air of confidence gripped the country. The genie was out the bottle. Sadly, rather than embracing this, ZANU ran scared, an attitude I came face to face with when I sat on a committee called the Zimbabwe Joint Resettlement Initiative (ZJRI).

 

On this committee we interfaced with Ms Olivia Muchena, a minister in the president’s office, and Vincent Hungwe, a senior civil servant. Ms Muchena informed us that they were running a controlled revolution and Mr Hungwe said this would result in ZANU removing every brick from every brick and they would then rebuild their way.

 

Sadly for me, this bought the horrible realisation that ZANU had returned to type. A type I had witnessed during the dark days of Gukurahundi; a type that had degrees in death and destruction, and not one strand of DNA with the ability to build something. I very quickly realised that when the time came to rebuild, Zimbabweans and the world would know the true ZANU and its ideas would have run their course, they would have no part to play in the rebuild. Little did I realise that it would be eighteen years plus before Zimbabwe reached this stage, but I am encouraged by a good friend of mine who reminded me that for former South African President Nelson Mandela, it was twenty-seven years.

 

In my view, a sustainable rebuild will come after the establishment of a bankable property right. And this will only be established with the successful implementation of the judgements already handed down against the Zimbabwe Government. This would also halt the plethora of legal action currently in the pipeline.

 

The situation on Centenary farm and its neighbours

 

My personal situation is that in 2000, I had eight neighbours, all with freehold title. Four of these neighbours were black and four white. Three of the white neighbours have been evicted (even though one should have been protected by the German BIPPA Agreement) and the fourth is hanging on under very trying conditions.

 

The four black neighbours all still remain on their properties, although one did have his property designated, but this was reversed once government realised he was a black Zimbabwean. However all of them live in fear that what has befallen the white Zimbabweans could easily come their way. This reminds me that in fact ZAPU were the first to have their properties stolen.

 

Centenary farm, my property, is still occupied by Dr Ray Ndhlukula, despite there been a contempt of court order against him. Fortunately I have been able to keep a very close record of the loss of income that I have suffered as a result of my not been able to make use of my investment.

 

Is Zimbabwe open for business?

 

On 15 August 2017, I gave notice to the then President, Robert Mugabe, the Minister of Finance and the Minister of Lands that I intended to use the SADC Investment Protocol to claim my losses from the Zimbabwe Government.  This Protocol provides a six-month window period for an out-of-court settlement. The notice expired on 15 February 2018, but, as I expected, the Zimbabwe Government has remained silent.

 

Did someone say Zimbabwe is open for business? It is interesting to note here that Dr Ndhlukula was rewarded by being nominated as the Zimbabwean Ambassador to the United Kingdom. To date – as far as I am aware – Dr. Ndhlukula has not taken up this post.

 

While in Davos, President Mnangagwa passed the comment that he no longer wanted to hear about “black” or “white” farmers but rather just “farmers”. Ironically, this puts him in conflict with Section 72 of the Zimbabwean Constitution of 2013!

 

A month ago I returned from Pretoria after listening to arguments in a case against former South African President Jacob Zuma where it was argued that Mr Zuma had acted unconstitutionally when he signed a protocol altering the terms of reference of the SADC Tribunal. What I found fascinating was the argument presented explaining how the President of a country is the living embodiment of the country’s Constitution.

 

If President Mnangagwa was genuine with his comment in Davos, then he should move with the determination he showed in bringing Amendment 1[viii] to the Zimbabwean Constitution to Parliament by also bringing Amendments 2 and 3 to Parliament. Amendment 2 should be the removal of the Indigenisation Bill, and Amendment 3 should be the scrapping of Section 72.[ix]

 

This would give gravitas to the President’s statement that Zimbabwe is open for business and change the many tentative enquiries into some solid investment. It would also help to start the process of cleaning up Zimbabwe’s tarnished image given that the government remains in contempt of SADC Protocols and innumerable court judgments against it.

 

If a farmer is a farmer – which is as it should be – how can it be that a German or South African farmer is treated differently from me? The Zimbabwe government signed BIPPA agreements guaranteeing that these foreign citizens’ investments would be protected while I, as a white Zimbabwean, can have my investment (my farm) unilaterally taken from me and given to one or more black Zimbabweans. Furthermore, according to the Constitution, I am barred from challenging the government in the Zimbabwean courts.

 

To date the Zimbabwe Government has lost every case that has been brought against it in the international courts and I hear that they are paying out the Dutch farmers.[x] The source of the funding will be of interest, both in Zimbabwe and internationally, and no doubt this will eventually be revealed. I raise this point because, despite President Mnangagwa committing to paying compensation, not one cent has been set aside for compensating dispossessed commercial farmers in this year’s budget.

 

The law has already determined that BIPPA agreements are binding, that the property belongs to the original owner until fair and full compensation is paid and in fact that fair and full compensation should be paid according to international standards. This provides a transparent and binding outcome, not a consensus-driven one that can easily be reneged upon by the Zimbabwe Government.

 

It is common cause that the Zimbabwe Government will need international assistance to settle this bill – and that is the crux of the matter. I have sat on various Commercial Farmers’ Union committees over the last 30 years and every single agreement that has been consensus-driven has been reneged on by a ZANU-PF-led Government.

 

The international community experienced this when, within a week of signing the Lima Agreements[xi], the Zimbabwe Government announced it would be introducing a surrogate currency known as “Bond Notes”[xii].

 

I was therefore very pleased to see that Finance Minister Patrick Chinamasa would not be welcome in Bonn until such time as the Zimbabwe Government had regularised the breach of the German / Zimbabwe BIPPA agreement. Bygones cannot be bygones when legal agreements are ignored.

 

We have now been told that the Zimbabwe Government has just brought together players in the agricultural industry under the banner: “Restore agriculture as an engine of economic growth”.

 

For goodness sake, if Government genuinely believes that agriculture is the engine of the economy and is committed to economic growth, it must pay compensation according to the international judgements that are against it so that whoever is on the land has a bankable property right.

 

If the Government can’t pay fair compensation both for the land and for improvements, it must admit this and restore title to the title deed holders.

 

Based on the conditions that currently prevail on their farms and their own personal circumstances, the owners of the properties will then decide on the best way forward for themselves. Excellent papers have been produced in this regard to facilitate and fast track the process.

 

Then sit back and watch how real jobs will be created, as we witnessed in the dairy industry.

 

Ultimately, this has to be the final outcome – let’s not lose another agricultural season!

 

 

DAVE CONOLLY
OWNER, CENTENARY FARM

ZIMBABWE

 

Mobile:  +263 (773) 454 116

E-mail: centenarya995@gmail.com

 

 



[i]Butchered by a mob, his only crime was to be a white farmer in Mugabe’s Zimbabwe”, The Independent (UK) By Alex Duval Smith in Bulawayo, Matabeleland, 19 April 2000: https://www.independent.co.uk/news/world/africa/butchered-by-a-mob-his-only-crime-was-to-be-a-white-farmer-in-mugabes-zimbabwe-282172.html

[ii]Mugabe’s secret plan to evict all whites”, The Telegraph (UK), 26 August 2001: http://www.telegraph.co.uk/news/worldnews/africaandindianocean/zimbabwe/1338605/Mugabes-secret-plan-to-evict-all-whites.html

[iii] Gukurahundi: a Shona word which means “the early rain which washes away the chaff before the spring rains”, refers to massacres carried out by President Mugabe’s North Korean-trained 5th Brigade in the predominantly Ndebele regions of Zimbabwe most of whom were supporters of Joshua Nkomo, the leader of ZAPU and founding father of nationalist struggle for independence in Zimbabwe, accordingly called Father Zimbabwe. About 20 000 people from Matabeleland and the Midlands died or disappeared in the conflict. The violence ended after ZANU and ZAPU reached a unity agreement on 22 December 1987 that merged the two parties to form one party known as ZANU-PF. In September 2010, the Gukurahundi massacres were classified as a genocide by the internationally recognised group Genocide Watch.

 

[iv]Operation Murambatsvina (Drive out the Filth): In the winter of 2005, the ZANU-PF government launched Operation Murambatsvina, also known as Operation Restore Order. It was officially described as a slum clearance programme that was also intended to flush out criminals. More than 700,000 people were left homeless after houses and shacks were bulldozed, while informal traders’ stalls were demolished and their goods confiscated, leaving them without a livelihood. United Nations Special Envoy Anna Tibaijuka visited Zimbabwe in the wake of Murambatsvina said the operation had breached both national and international human rights law. General Constantine Chiwenga, chief of Zimbabwe’s defence forces, and Augustine Chihuri, chief of police, were directly involved in the planning and execution of the operation. Chihuri reportedly said the operation was to “clean the country of the crawling mass of maggots bent on destroying the economy”. International legal experts view Operation Murambatsvina as a gross violation of human rights and, should Zimbabwe become a signatory to the Rome Treaty, suggest the perpetrators could be tried by the International Criminal Court (ICC).

[v]Operation Mavhoterapapi (Who did you vote for):Operation Mavhoterapapi was launched after the local government, parliamentary and presidential elections on 29 March 2008, in which the ruling ZANU-PF government lost its parliamentary majority for the first time since independence in 1980. The opposition Movement for Democratic Change (MDC) claimed that their leader, Morgan Tsvangirai, won the presidential ballot by the required 50 percent plus one vote, negating the need for a second round of voting. The results of the presidential ballot were not released. ZANU-PF maintained that no presidential candidate obtained the necessary majority, and that a second round of voting would be required. After the poll, the MDC alleged that at least 20 people have been killed in post-election violence, orchestrated by the police, soldiers and so-called war veterans, as part of Operation Mavhoterapapi. There have also been widespread reports of torture, the razing of houses and killing of livestock, perpetrated against people in rural areas suspected of voting for the opposition in the recent elections. The MDC also claimed that Operation Mavhoterapapi was part of a strategy to intimidate people into voting for Mugabe in a possible second round of presidential voting.

[vi]Operation Restore Legacy: This was the military operation which triggered the demise of Robert Mugabe who had been the sole leader of Zimbabwe for thirty-seven years since the country attained independence. The operation attracted significant scrutiny locally, regionally and internationally. The military claimed it was not a coup but the local public, countries in the region and the International community believed it was a coup. The operation started on 13 November 2017 and ended on 18 December 2017.

[vii]Operation Glossary – a guide to Zimbabwe’s internal campaigns” by IRIN, 1 May 2008:

http://www.irinnews.org/feature/2008/05/01/operation-glossary-guide-zimbabwes-internal-campaigns

[viii]The Constitution of Zimbabwe Amendment (No.1) Bill: This Bill seeks to change the appointment procedure of the Chief Justice, deputy Chief Justice and the Judge President of the High Court. Section 180 is being amended to allow appointment to the three offices to be done by the President after consultation with the Judicial Service Commission.Further reading: “Amendment of Constitution should be preceded by serious public consultation”, NewsDay,17 January 2017: https://www.newsday.co.zw/2017/01/amendment-constitution-preceded-serious-public-consultation/

[ix]Section 72 of the Zimbabwe Constitution (2013): This was struck down in its previous form (as Amendment 17 to the previous Constitution) by the Campbell Judgment in the SADC Tribunal.  [Amendment 17 was added to Zimbabwe’s Constitution on September 14, 2005 to vest ownership of certain categories of land on the Zimbabwean government and to eliminate the courts’ jurisdiction to hear any challenge to the land acquisitions.  Commercial farmer Mike Campbell initiated proceedings in court on May 15, 2006, challenging the validity of Amendment 17.] Presentation to US Congress Foreign Affairs Committee by Ben Freeth, 28 February 2018: http://docs.house.gov/meetings/FA/FA16/20180228/106914/HHRG-115-FA16-Wstate-FreethB-20180228.pdf

 

[x]The Dutch farmers’ case:In April 2009, a tribunal of the International Centre for Settlement of Investment Disputes (ICSID) ordered the government of Zimbabwe to compensate a group of 13 Dutch nationals whose farms were expropriated under Zimbabwe’s controversial land reform program. The Dutch claimants in the case, Bernardus Henricus Funnekotter and Others v. Republic of Zimbabwe, said the government was complicit in the invasion of their land.   A Bilateral Investment Treaty signed with the Netherlands should have protected the Dutch investors.  The initial compensation award was €8,2 million Euros (US$9,247 million) but by 2015 it had risen to US$25 million due to interest and costs of the protracted legal battle.

Further reading: “Tribunal orders compensation in Dutch farmers’ claims against Zimbabwe”,International Institute for Sustainable Development (IISD) By Damon Vis-Dunbar, 28 April 2009:

http://www.iisd.org/itn/2009/04/28/tribunal-orders-compensation-in-dutch-farmers-claims-against-zimbabwe/

 

[xi]LIMA Process: Zimbabwe’s debt and arrears clearance plan, known as LIMA, was adopted in Lima, Peru in 2015. Under the Lima plan, Zimbabwe committed to planned simultaneous repayment modalities to the IMF, World Bank and the African Development Bank.  In September 2015, Minister of Finance, Patrick Chinamasa, issued a document titled “Zimbabwe’s strategies for clearing external debt arrears and the supportive economic reform agenda.”

 

Under the Lima plan, Zimbabwe committed to planned simultaneous repayment modalities to the IMF, World Bank and the African Development Bank. The 2015 Lima process, which received support from creditors and development partners, envisaged clearing arrears to the IMF using the SDR holdings, to the IBRD with a bridge loan from a bilateral creditor, to IDA drawing on a turnaround facility, and to the AfDB with the AfDB Pillar II Trust Fund set up for countries’ arrears clearance. Further reading: “Zimbabwe pins hopes on Lima process”, IHT, 29 December 2016: https://financialtribune.com/articles/world-economy/56423/zimbabwe-pins-hope-on-lima-process

 

[xii]Bond Notes: In2016, Zimbabwe introduced bond notes, which officially traded at par with the U.S. dollar and were said to be backed by a $200 million bond from the African Export and Import Bank. However, in April 2017, the IMF warned that Zimbabwe’s “bond note” surrogate currency would not solve its economic problems, and that only comprehensive reforms would address the fiscal crisis. Further reading: “IMF says surrogate currency will not solve Zimbabwe’s economic problems”, Reuters, 24 April 2017:

http://af.reuters.com/article/investingNews/idAFKBN17Q1VJ-OZABS

 

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