Land Reform in Zimbabwe has been highly controversial. It has led to Zimbabwe’s economic and social collapse. The invasion of the largely white-owned farms, accompanied by violent evictions and wholesale and wanton destruction and looting in 2000, led to a crisis between the judiciary and the executive that resulted in most of the judiciary being forced out of office. In Mike Campbell (Pvt) Ltd et al v the Republic of Zimbabwe, (hereinafter referred to as Campbell) which consisted of 79 applicants, the Tribunal of the Southern African Development Community (SADC) in its judgement, held by a majority of four to one that Zimbabwe’s Land Reform programme was in breach of the SADC Treaty provisions which are binding. Mike Campbell chose to approach the tribunal mainly because there were no domestic remedies in Zimbabwe as a result of Section 16B of the Constitution of Zimbabwe. Section 16B of the Constitution of Zimbabwe (Amendment No.17, 2005), hereinafter referred to as Amendment 17 provides as follows:
16B Agricultural land acquired for resettlement and other purposes
(1) In this section ‘
‘acquiring authority’ means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;
‘appointed day’ means the date of commencement of the Constitution of Zimbabwe Amendment (No.17) Act 2005
In 2007, Mike Campbell filed an application with the Southern African Development Community Tribunal (the Tribunal) in challenging the acquisition of agricultural land in Zimbabwe known as Mount Carmell in the District of Chegutu. An application was filed in terms of Article 28 of the Protocol on the Tribunal (the Protocol), also read with Rule 61(2)-(5) of the Rules of the SADC Tribunal (the Rules) for an interim measure restraining the Respondent from removing or allowing the applicants to be removed from their land. In Mike Campbell (Pvt) Ltd et al v the Republic of Zimbabwe it was submitted that:
(a) Zimbabwe acted in breach of its obligations under the SADC Treaty by enacting and implementing Amendment 17
(b) All land belonging to the Applicants which had been compulsorily acquired by Zimbabwe under Amendment 17 was unlawfully acquired since the Minister who carried out the compulsory acquisition failed to establish that he applied reasonable and objective criteria in order to satisfy himself that the lands to be acquired were reasonably necessary for the resettlement purposes in conformity with the land reform programme
(c) Applicants were denied access to the courts to challenge the legality of the compulsory acquisition of land
(d) The Applicants suffered racial discrimination since they were the ones only whose lands have been compulsory acquired under Amendment 17 and
(e) The Applicants were denied compensation in respect of lands compulsorily acquired for them
It was held that Zimbabwe is in breach of its obligations under Article 4 (c) and Article 6 (2) of the SADC Treaty. Zimbabwe was directed to take all necessary measures to ensure that no action is taken pursuant to Amendment 17 in interfering with the peaceful residence by the applicants and Zimbabwe was asked to pay compensation to the three applicants namely Christopher Mellish Jarret, Tengwe Estates (Pvt) Ltd France Farm (Pvt) Ltd. The provisions that were violated were from African Charter, the SADC Treaty and the International Covenant on Civil and Political Rights. These provisions were violated by ‘infringing the right of access to court, interfering with the independence, competence and institutional integrity of the SADC Tribunal, terminating existing procedure and vested remedies, violating the rule of law and trespassing the doctrine of separation of powers.’
There are international instruments that make specific mention of the right to own property, the 1948 Universal Declaration on Human Rights (UDHR) Article 17 provides that ‘everyone has the right to own property’ and that ‘no one shall be arbitrarily deprived of his property.’ Having attained the status of international customary law, this provision in the Universal Declaration on Human Rights should secure property rights. However, it fails to address comprehensively the scope of this right by failing to define what constitutes ‘arbitrary deprivation.’ Shirley provides an interesting analysis by arguing that where land acquisition has been authorised through constitutional amendments and legislative action, due process may be all that is needed to satisfy Article 17 of the UDHR, however distorted such ‘due process’ may be. The International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), Article 1 has been referred to regarding the racial discrimination. Similarly, in Campbell the applicants raised an issue concerning the actions of the Government of Zimbabwe regarding race and ethnic origin as it was directed at white farmers.
This thesis will evaluate the expropriation of land in Zimbabwe and the significance of the Campbell case.
Chapter I: Zimbabwe as a colony
(i) Expropriation of Land
Zimbabwe’s history plays a major role in shaping the country’s current situation. The history of conflict of land in Zimbabwe commenced with colonialism in 1890 of the Ndebele Kingdom by the British settlers when the land between the Zambezi and the Limpopo rivers was given to the British South African Company headed by Cecil John Rhodes. Between 1894 and 1895 Native reserves were created for Africans to keep them separate from their white counterparts. This land distribution marked the beginning of segregation and forced removals of blacks from their ancestral land. The 1893 invasion of the Ndebele Kingdom by the British led to the creation of the Gwaai and Shangani reserves. Despite uprisings against the forced removals to the reserves, the local African population was defeated and subdued in the Matabele uprising of 1893 and the first Chimurenga of 1896-1897. The first Chimurenga was the war of liberation to end colonial rule. During the colonial era, various legal instruments were enacted giving legal control of the land to the new settlers. The objective of the legislation was to strengthen white dominion over the most fertile and economically important land while maintaining the African population as the labouring class. Land was expropriated from the Africans and given to the white settlers without any compensation. In the 1918 case in Re Southern Rhodesia, the Privy Council confirmed that all unalienated land belonged to the British Crown and that the land expropriated from Africans was terra nullius, that is, owned by any person because the local tribes were not sufficiently civilised to have developed any recognisable property rights over the land. The Privy Council came to the conclusion that ‘whoever now owns the unalienated lands, the natives do not.
The next sixty years saw the emergence of the Land Apportionment Act 1930 and the Land Tenure Act 1969. The Land Apportionment Act 1930 propelled the country’s 48 000 Europeans (of who 11 000 were settled on the land) were given on average 1 000 acres per head of the population. Their share was greater than that of the one million still predominantly rural Africans who had only 29 acres per head of population. The purpose of the Land Tenure Act 1969 is to ensure that ‘each race shall have its own area’the interests of each race shall be paramount in its own area’neither race may own or occupy land in the area of the other race except by permit, which shall be issued of refused by a Minister of Government when it seems in his opinion desirable.
(ii) Negotiations to end Colonial Rule
In terms of seeking a resolution to the crisis in Zimbabwe at the time, the land reform of Kenya was influential. Kenya had had a comparable land problem, and guerrilla war fuelled by land grievances made a clear case for intervention in pre-independence Zimbabwe. In Kenya, the British sought to diffuse the situation by buying out white farmers and making UK??500 million available for land acquisition and support. A similar situation was sought for Zimbabwe. During secret negotiations in the mid-1970s, an Anglo-American fund for Zimbabwe was promoted. This fund, which the British agreed to contribute UK??75 million, would be used to buy out white-owned farms. United States hinted it would contribute an extra US$200 million to the fund, but it failed to materialise.
Fuelled by the political events and related problems arising from the Boer controlled Witwatersrand goldfields in the Transvall, Cecil John Rhodes, the Prime Minister of the Cape, and through his British South Africa Company (BSAC), became fixated with the idea of developing a second Witwatersrand (Second Rand) to the north of the Limpompo river. The Rudd concession of 1888, fraudulently obtained from King Lobengula, became the vehicle through which colonialists obtained mineral rights in Mashonaland. The concession provided Rhodes with the impetus to obtain a Royal Charter in 1889 , which among other things, granted the BSAC authority to administer and govern the region that encompasses present day Zimbabwe. The Charter was granted notwithstanding King Lobengula’s protestations that he had been deceived.
The Rudd Concession was countered by the Lippert Land Concession of April 1889, which reflected competing European interests and German interests and aspiration to acquire territory. This concession was fraudulently obtained from Lobengula. With the connivance of the British Government and without Lobengula’s knowledge, the Lippert Concession was soon purchased by the BSAC. By the time the Company bought the Lippert Concession it had already made extensive land awards to the settlers in Mashonaland.
Disenchanted at the non-existence of the Second Rand in Mashonaland and the assumption that there existed more gold reserves in Matabeleland, the BSAC on a flimsy pretext, invaded Matabeleland in 1893, destroyed Lobengula’s Kingdom, seized and plundered cattle and other livestock and property and subdued the populace. The Company set up a ‘Loot Committee’ which determined that settlers who participated in the war would be rewarded with a free farm measuring 3000 morgen (6 350 acres) anywhere in Matabeleland however with no obligation to occupy the land. Each man was also guaranteed 15 reef and 5 alluvial gold claims, while the loot-Ndebele cattle had to be shared in half one going to the Company and the remaining half being divided equally among the men and officers.
(iii) Agreement on reform of land and underwriting by British government
During the Lancaster House Agreement , Lord Carrington, the British Foreign secretary and chairman of the Lancaster House constitutional conference made it clear that the British had decided to grant independence to Rhodesia under the same conditions it had done other African countries. The Lancaster House negotiations began in 1979. The Lancaster House Agreement was named after the mansion in London where negotiations took place. Its purpose was to discuss and agree on a ceasefire and elections leading to lawful independence under black majority rule. Colonial Rhodesia had declared independence from the United Kingdom in 1964 and was governed by white minority rule. The Lancaster House Agreement brought, together with a ceasefire agreement from the armed wings of ZANU and ZAPU, a means of orderly transition from white- minority to black-majority rule. By the time these negotiations got underway, a change in government had occurred in the United Kingdom. The development fund, which had been mooted in previous discussions during Lancaster, was used as bait to bring the liberation movements to an agreement with the Rhodesian authorities. In the end, the offer of the fund was withdrawn and the UK offered a compromise solution through which it would underwrite half the cost of resettlement in exchange for guaranteeing existing property rights in New Zimbabwe. The Zimbabwe government would have to match that funding to make up the full cost of the program. In 1980, the United Kingdom pledged an initial amount of UK??20 million.
Since Zimbabwe gained its independence in 1980, the government of Zimbabwe has embarked on a programme of Land Reform with the aim of re-dressing the socio-economic imbalances created during colonial times. This policy of social justice led to the redistributing of agricultural land from commercial farmers, overwhelmingly belonging to white minority, for resettlement by black subsistence farmers. The initial policy was based on a willing buyer and willing seller basis, but a perceived lack of progress led to the adoption of a series of legal measures to expedite the implementation of this process. Thus in 1990 the right to property, guaranteed by S.16 of the constitution, was amended to facilitate the expropriation of land. Between 1980 and 1990 the Government managed to acquire only 3.5 million hectares and resettled 71,000 households. The communal areas still remained congested, overstocked and overgrazed. Further, the Land Acquisition Act 1992 authorised the acquisition of land for resettlement purposes. The Land Acquisition Act 1992, following the introduction in 1990 of Constitutional Amendment 11introduced legal instruments which had the effect of freeing the Government from the willing seller/willing buyer clause. The process remained slow, cumbersome and expensive largely because of commercial farmers’ resistance. A good example is when the Government designated 1451 farms for compulsory acquisition in December 1997 a total of 1393 objections were received which 510 were upheld.
Chapter II: Operation in practice of legal policy of land redistribution
The Land Acquisition Act 1992 also gave the government strengthened powers to acquire land for resettlement, subject to the payment of ‘fair’ compensation fixed by a committee of six persons using set (nonmarket) guidelines, including powers to limit the size of farms and introduce a land tax. A 1994 Land Tenure commission also recommended that the best way to achieve vital redistribution was through a land tax, though no tax was in fact put in place. Despite the new laws, the government land acquisition and resettlement in practice slowed down. In the first decade of independence, the government acquired 40 percent of the target of eight million hectares, resettling more than 50,000 families on no more than three million hectares. By the end of the second decade of independence, the pace of land reform had declined. Less than one million hectares was acquired for distribution during the 1990s and fewer than 20,000 families resettled.
Budgetary allocations showed that land acquisition was not a government priority during these years. By the end of what became known as ‘phase one’ of the land reform and resettlement programme in 1997, the government had resettled 71,000 families (against a target of 162,000) on almost 3.5 million hectares of land. Only 19 percent of this was classed as prime land, and the rest was either marginal, or unsuitable for grazing or cultivation. About 400 black elite farmers were leasing 400,000 hectares of state land, and about 350 black people had bought their farms.