LAST week two significant milestones were passed by Zimbabwe. One was on the road to justice, the other on the path to bias and inequity. The first was a judgement by the Sadc Court on the appeal by 78 displaced Zimbabwean farmers, and the other a judgement by Zimbabweâ€™s Constitutional Court from one similarly unilaterally ousted farmer.
The Sadc Court, with a clear-cut perception of property and human rights, equity and justice, and an unmitigated regard for the sanctity of international bilateral investment protection agreements entered into by Zimbabwe, unhesitatingly and unequivocally ruled that the 78 farmer appellants have an absolute right to return to their lands, without let or hindrance. In contradistinction, Zimbabweâ€™s Constitutional Court denied the appellant having any right of return to his former farm.
Although the detailed grounds of judgement of the Constitutional Court were not released concurrently with that Judgement, it must be assumed that the court will have had regard to the Constitutional Amendments of 2000, which sought to entrench all right and title in all Zimbabwean non-urban lands in government, negating all previous ownerships as had been corroborated by duly issued title deeds.
These amendments also had a blatant disregard for the innumerable properties which had been acquired prior to 2000 under Certificates of No Interest issued by government.
The fact that such amendments were not recommended by the Constitutional Commission in 1999, but were last minute, governmentally foisted, ones introduced into the commissionâ€™s report and recommendations without the prior knowledge, or concurrence, of the commissioners was deemed irrelevant by the commissionâ€™s chairman, Justice Chidyausiku (who is now the Chief Justice and heads the very Constitutional Court that has issued the judgement dismissing the displaced farmerâ€™s appeal!)
At the time of government initiating its programme of land reform, resettlement and redistribution, it justified doing so upon the fact that for a prolonged period of time the black population had been legislatively barred from ownership of agricultural lands, and upon a specious contention that such lands had been â€œstolenâ€ from the black population by the British colonialists of more than a century ago.
When those colonialists came to the country, the black population, primarily Shona and Ndebele, numbered about 250 000. According to the Central Statistical Office, in 1980 the agriculturally utilised lands in Zimbabwe were 39 070 000 acres (of which 16 350 000 were communal occupancy and usage, 17 100 000 acres were utilised for commercial farming, 920 000 acres were used for forestry, and 4 7000 000 acres for national parks.)
Â Based upon the 1880s/1890s population of 250 000, if the entirety of the lands were stolen from that population, each member of the population, be they adult or child, male or female, elderly or young would, on average, have beenÂ possessed of 156 28 acres! That could not possibly have been the case.
The reality was undoubtedly that the main population numbers were centred upon a few areas of Mashonaland (in proximity to the area now known as Harare) and in Matabeleland (in the surrounds and districts of Gubulawayo), and the majority of the lands of Zimbabwe were unoccupied, unutilised, and not effectively owned by either the Shona or Ndebele people. Whilst there is no doubt that the colonialists expropriated some lands, or â€œpurchasedâ€ them for spuriously token values, the greater portion of the land had no ownership of any nature, and therefore by occupancy the colonialists effectively acquired legitimate ownership.
Admittedly, it was inhuman and unconscionable that in subsequent years the colonialist founded government enacted the abominable, appallingly inhuman and discriminatory Land Apportionment Act, which limited ownership of rural lands to those of caucasian origin i.e. whites, and to others who were not of African origin and descent.
This abysmal, cruel and unjust legislation prevailed for decades, barring any of the black population from land ownership. Therefore, a programme of land reform was critically necessary, encompassing legislation which prescribed no constraints upon ownership founded upon race, and facilitating access to, and ownership and usage of, land by blacks in general, and those previously harshly and contemptuously racially barred there from, in particular.
However, this should have been pursued on a just and equitable basis, devoid of reverse racism, and in a manner that would be economically enhancing, instead of economically debilitating and destructive. Land should have been redistributed in part by the distribution of the vast tracts of land held by the state (exceeding 20 million hectares), and of lands where ownership would be transferred on a â€œwilling buyer, willing sellerâ€ basis. At the same time, complete regard and respect for bilateral investment protection agreements should have been an entrenched element of a land reform programme.
Most important of all, that programme needed to be such as would stimulate expansion and growth of the agricultural sector, instead of grievous contraction to levels of substantial emaciation and collapse. Regard for national food security, for continuance of employment for hundreds of thousands, for foreign exchange generation, and the like, should also have been prerequisites of any Zimbabwean land reform programme.
Moreover, it was preposterous that government continuously contended (as it still does) that total liability for acquisition of lands from whites should be paid for by Britain, and that Britain has reneged on its commitments. This claim is founded upon the baseless contention that British colonialists â€œstoleâ€ all the lands. In addition, in claiming that Britain has not honoured undertakings, government studiously ignores the considerable extent that Britain had funded land acquisition by government during the first few years of Zimbabwean Independence.
In pursuit of its land reform programme, (partially fuelled by its psychotic hatred for Britain, partially by its entrenched land ownership fixations, and partially by the perceived need to compensate Zimbabweans for the consequences of the innumerable economic ills afflicted upon them by government, as well as enriching a chosen few), government has also failed to ensure that land distribution would be to those who would use the lands productively. It also has constantly failed to ensure timeous availability of all necessary agricultural inputs.
Its repeated promises and prognostications of agricultural output upturns recurrently prove to be devoid of any substance. Last year government repeatedly promised â€œThe mother of all agricultural seasons!â€, but failed to disclose that the mother was barren. This year government is again exuding immense, optimistic projections, none of which have any prospect of being realised.
Government should demonstrate, even though belatedly, real intent and purpose for agricultural recovery, concurrently with total respect for justice and for international law and convention.
It must honour the Sadc Courtâ€™s determination, and apply it as a precedent to all like cases. It should work vigorously towards the creation of harmonious inter-racial relationships and support to bring about the regrowth of the agricultural sector. If it would constructively reform its land reform, Zimbabwe would again become the regionâ€™s breadbasket, and its economy would be positively set upon the path to real recovery and growth.
By Eric Bloch