Why we need a new constitution

THE Supreme Court made a “landmark” ruling last week on white commercial farmers’ property seized by government in 2004 in terms of the Acquisition of Farm Equipment (or) Materi

al Act.

The farmers had argued that the seizure of their equipment was in breach of the Zimbabwe Constitution, in particular that the seized equipment had benefited only a few individuals instead of the public generally.

The farmers also contested the quantum and rate of compensation for the equipment so seized, saying the period taken by the acquiring authority to compensate them was “unreasonable” and the amounts not enough.

In his judgement, Chief Justice Godfrey Chidyausiku said no law had been violated in the acquisition of the farmers’ equipment as this was done for the benefit of the general public. “It is on this basis that I am satisfied that the compulsory acquisition in terms of the Act is for a purpose beneficial to the public generally or to a section of the public,” he said.

On compensation, he said: “The payment, in view, has to be made within a reasonable time. Whether payment will be one lump-sum or in installments is something the constitution chose not to prescribe.”

The Supreme Court ruling is remarkable more for its implications than what it actually says. The law is so vague that extraneous factors can be adduced to demonstrate why the compulsory acquisition of private property was for the benefit of the public.

In this case the justification for the seizure of the farmers’ equipment was not because they had violated the law or done anything illegal, but that government, of its own volition, embarked on the land reform programme in 2000 allegedly for the “benefit of the public generally or a section of the public”. Realising that it didn’t have adequate resources to equip those who had allegedly benefited, it turned on the weakest group which already owned equipment and seized it. And we are told this is lawful.

Having decided that the forcible acquisition of private property was lawful if it covered for government’s lack of proper planning and adequate preparation, the Supreme Court did not find it necessary to inquire whether indeed the equipment so seized benefited the public “generally”. The white farmers have a reasonable suspicion that their equipment was seized for the benefit of a few politically-connected individuals (“a section of the public”) rather than a representative sample of the public.

It would help if the court had tried to verify who in fact is using the equipment forcibly acquired by the government.

The ruling on compensation also takes a convenient if less vexatious assumption in the constitution. First, there is no time limit to what constitutes “a reasonable time”. Second, it is vague on what constitutes “adequate or fair” compensation. Third, the constitution does not prescribe whether “payment will be in one lump sum or in installments”.

It is our considered view that all the three observations above make a compelling case for why Zimbabwe needs a new, people-centred constitution — not in the populist political sense, but to address real inadequacies in the basic law. All the three observations demonstrate that the constitution is meant to serve the interests of the state at the inestimable prejudice of the private citizen.

First, why should private property be seized to fill a gap created by lack of proper planning by the state in the resettlement programme? If the state had made adequate planning and preparations to equip its land beneficiaries, white farmers would have been left with equipment they could no longer use and would therefore probably decide to dispose of it at commercial rates to the highest bidder on the market.

Second, why is “a section of the public” so vague that mainly those closely-connected to politicians benefit from private property seized in the name of “the public” generally? Why also are the courts not compelled to find out who is using the private property seized in the name of the public before making a final determination?

Third, in Zimbabwe’s inflationary environment, there is no denying that time is of the essence in dealings involving monetary compensation. This means “a reasonable time” must take into account the fast pace at which our currency loses value. Any delay means the appellant is irreparably prejudiced while the state benefits from its ineptitude.

Finally and deriving from the above, given the rate of inflation of over 8 000%, an unfair or inadequate compensation paid in installments means the farmer who lost his property in 2004 may never be restored to the state he would have been had his property not been enforcibly taken away and he had been left alone to choose how he wanted to dispose of it. In sum, the ruling shows that Zimbabwe’s constitution is an inadequate guarantor of private property rights. It is a huge deterrent to private investment and we can thank the white commercial farmers for helping expose this. We hope those calling for a new constitution learn something from this Supreme Court judgement.

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