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Big Saturday Read: Land & the compensation question in Zimbabwe –burden of history

Alex T. Magaisa

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On 21 September 2015, a Cape Town property at 28 Salisbury Road in the suburb of Kenilworth owned by the Zimbabwean government was auctioned for R3 760 000. The purpose of the court-sanctioned auction was to settle a debt owed by Zimbabwe. The circumstances leading to the debt were as follows:

In 2008, a group of white commercial farmers, whose farms had been expropriated by the Zimbabwean government during the Fast Track Land Reform Programme (FTLRP), won their case at the Southern African Development Community (SADC) Tribunal. After finding against the Zimbabwean government, the SADC Tribunal made an order for compensation and for costs of litigation in favour of the claimants. The Zimbabwean government refused to comply with the judgment.

The victorious claimants went on to register the SADC Tribunal’s judgment in South Africa. They did this to enable them to enforce the judgment in that country, attaching and selling property owned by the Zimbabwean government in South Africa if they could find it. The SADC Tribunal did not live much longer, with Zimbabwe instigating its dissolution in the wake of those land cases, arguing that it had overstepped its mandate. Nevertheless, in the case of Government of Zimbabwe v Fick in 2013, the Constitutional Court of South Africa confirmed that the SADC Tribunal’s judgment could be registered and enforced in South Africa and that the Zimbabwean government was required to comply.

It was under these circumstances that the Cape Town property was auctioned by the Sheriff. Some saw it as a victory for the rule of law. Although the amount raised from the auction was hardly enough to cover the claims of the 80 farmers who launched the legal action, the case was been seen as a “symbolic victory” for the white farmers who lost their properties during the country’s FTLRP, which started in 2000. Others, however, saw it was a back-door attempt to undermine the Zimbabwean government’s FTLRP. With options closed under Zimbabwean law, and unable to approach Zimbabwean courts for relief, the dispossessed farmers had to forum shop. At the SADC Forum, they found a favourable venue. Amendments to the SADC Protocol establishing the SADC Tribunal have since closed this route. But as I demonstrate in this article, there is another forum which has been used to secure relief, one that the Zimbabwean government is unable to bully as it bullied the SADC Tribunal.

In any event, the sale of the Cape Town property was an embarrassing moment for the Zimbabwean government, which tried frantically to prevent the transaction before finally giving up. The government knew the symbolic significance of the property’s sale to settle a compensation order in favour of the white farmers. It went against its long-held position that it would not pay compensation for land acquired under the FTLRP, except for improvements. In any event, the Zimbabwean government isn’t used to being forced to comply with court orders, less still to pay damages for any rights violations. Its attitude in this regard was summed up in a 1986 speech by President Mugabe, when was still the Prime Minister. After government was ordered to pay compensation for a human rights violation, he said:

“If government − and I want to say this as a matter of principle − were to be awarding damages and paying huge sums of money that are involved in these cases, some of which are of a petty nature, government would in my view be using the taxpayers’ money wrongfully… [W]here people take advantage of our liberal situation to go to court and win on technicalities, they should not expect that government is going to use the people’s resources to enrich them…”

Therefore, the Zimbabwean government has gained notoriety for refusing to pay damages ordered by the courts. This intransigence is backed up by the State Liabilities Act, a piece of legislation that protects State property from attachment and sale to satisfy unpaid debts. This usually leaves victorious litigants at the mercy of State discretion. This is yet another instrument which fuels a culture of impunity in Zimbabwe.

No wonder then that the SADC Tribunal’s judgement was given short shrift. Nevertheless, the Zimbabwean government had not anticipated that the matter would take a different course once the judgment was registered in South Africa and this is precisely what happened in this matter, leading to the sale of the Cape Town property. A principle had been established: despite the political rhetoric that Zimbabwe would not pay compensation for land, the game was completely different in the international legal arena. This is the reality that we Zimbabweans must deal with rather than burying heads in the sand.

Separating political rhetoric from legal reality

I have cited this case for a very simple reason: contrary to what Zimbabwean politicians often say at political rallies, the country’s legal challenges regarding the land issue are far from over. For years now, Zimbabwean politicians have presented the land issue as a closed chapter. But this political rhetoric is at odds with the legal reality. As I shall demonstrate in more detail in this article, the fact is that Zimbabwe continues to incur losses and judgments, accumulating mounting debts. The principal argument is that the political rhetoric over compensation for land in the last 16 years conceals a more complex legal reality which government pretends not to see or simply does not want people to see. In short, the government is not telling people the truth about the financial implications of the FTLRP.

Before I proceed, I must make some important clarifications regarding what this article is about and what it is not about. I offer this guidance because I know the land issue is a highly emotive matter that divides opinion in Zimbabwe and beyond. This article is less about the politics of the land issue, and more about its legal aspects. It is not an analysis of the pros and cons of the FTLRP. It is not about whether Mugabe is a hero or a monster. It is not an assessment of the rights or wrongs of what took place during the FTLRP. It is not an assessment of the justifications or condemnations of that process. It is also not about its successes or failures. All these are important and deeply attractive issues for discussion. But the remit of this article is limited to the legal realities of the compensation issue and its implications for present and future generations: what is the position and what does it mean for Zimbabweans? That said, a discussion of the political question over who must pay for compensation is inevitable in an essay of this nature and, accordingly, I will consider it here.

Brief historical overview

An article on the land issue would be incomplete without historical context. It is common cause that the land issue in Zimbabwe is a legacy of the colonial era and that from the very early days of white settler colonialism, land has been a highly-contested issue.

In Re Southern Rhodesia (1918)

Over the years, I have observed that not many Zimbabweans are aware of a landmark judgment passed by the Privy Council (the judicial committee of the British House of Lords) in 1918, one that would have profound implications for land ownership in Zimbabwe. This case, In Re Southern Rhodesia (1918) was about the question of legal title to land in Southern Rhodesia. The dispute centred on the question of ownership of land that was still unalienated – to whom did it belong? Did it belong to the British South Africa Company (BSAC), the company founded by Cecil John Rhodes, which had administered the territory under Royal Charter? Did it belong to the British Crown? Or did it belong to the “natives” (the Africans)? In a landmark decision, the Privy Council decided that the land belonged to the Crown, but it awarded compensation to the BSAC to cover costs incurred during its administration of the territory. As for the Africans, the Privy Council decided that they had no title to the land, and that their system of land rights, whatever it was, had been replaced and superseded by a new and superior system of property rights.

The landmark case not only legitimised the expropriations that had already taken place but also set the tone for what was to follow. In 1930, the Southern Rhodesian government enacted the Land Apportionment Act, a draconian piece of legislation which legalised and institutionalised racial segregation between the white settlers and Africans. It also led to more expropriation of land. This would continue over the years, with more laws such as the Land Husbandry Act, 1951 and the new Land Tenure Act, which in 1969 replaced the Land Apportionment Act.

Lancaster House

When the Lancaster House Agreement (LHA) was signed on 21 December 1979, one of its primary functions was to preserve the land ownership status quo. The conference did not question the rule of law implications of what had transpired during the colonial era. Rather, it accepted the established order, with its inherent inequalities, as normal and deserving of protection, imposing restrictions on possible reforms, particularly in the first decade of independence. While the liberation movements, negotiating under the PF, tried to put up a fight, they discovered that there was no appetite, even among their allies, to cause a breakdown in the Lancaster House conference over the land issue. I have already articulated in a previous essay the factors and pressures that led to the compromises at Lancaster House. Needless to say, the LHA left an important matter without a satisfactory resolution and, therefore, postponed a major problem.

What the LHA provided for was that land redistribution in the first decade of independence would be based primarily on the “willing buyer-willing seller” principle. If government wanted to acquire land compulsorily, it could take underutilised land but only on condition that it promptly paid adequate compensation. Landowners had the right to challenge both the acquisition and the compensation in a court of law. These provisions could not be amended until 1990 at least.

The Britain-Zimbabwe fallout

Progress on land reform was slow due to a number of factors, but this is a subject for a future essay, perhaps a follow-up to this article. I should point out here, however, that Britain, the former colonial power had been providing financial support for land reform but stopped this funding in the early 1990s. The relationship between the Zimbabwean and British governments suffered a spectacular collapse after Tony Blair’s New Labour took office following victory over the Conservatives in 1997. A letter written by Clare Short, the Secretary for International Development at the time, to the Zimbabwean Agriculture Minister, Kumbirai Kangai, has become a symbolic point of that breakdown. In that letter, Clare Short essentially rejected Britain’s responsibilities for the colonial era and the undertakings of the previous Conservative government. “I should make it clear that we do not accept that Britain has a special responsibility to meet the costs of land purchase in Zimbabwe. We are a new government from diverse backgrounds, without links to former colonial interests. My own origins are Irish and, as you know, we were colonised not colonisers,” she wrote.

It is generally acknowledged by most observers that this was an ill-judged response. Speaking to Heidi Holland, author of Dinner with Mugabe, Mugabe said of the letter: “That was quite a damning response. It was a very ignorant response. It showed ignorance on the part of New Labour… This was the undertaking of the previous government so why can’t it be your undertaking?” he asked. Zimbabwe had been in negotiations with the John Major’s Conservative government before New Labour came to power. Writing in The Daily Telegraph in February 2015, Boris Johnson, the Mayor of London, stated that this move by the Blair government was an act of betrayal of the LHA. I shall return to this subject later in this article, when I discuss the question of responsibility for compensation.

A Donors’ Conference on land reform convened in 1998 failed to provide a solution to the mounting problem. Pressure for land reform was rising from the war veterans and peasant communities. During that period, the Svosve people had occupied neighbouring commercial farms near Marondera. Government sent the police to remove them. There are conflicting versions as to whether these early land invasions were spontaneous or sponsored by the government. Last year, in an interview with the New African magazine, Vice President Emmerson Mnangagwa suggested that the Svosve invasions were orchestrated by the ruling party: “People may think that the people of Svosve who started it did it on their own. No, it was the party which decided that the time had come to take back the land … it was a party decision” said Mnangagwa. It might be the boast of a politician to claim credit after the fact or there might be some truth in the claim. But whatever, it was, it was an early warning of potential trouble. In any event, those were not the first invasions – there has been some early invasions in the 1980s, which had been similarly put down by the government. Things changed, however, at the turn of the new millennium.

Farm invasions and occupations

In February 2000, just a few days after the Government lost to the “No campaign” in the Constitutional Referendum in which it was pushing for a new Constitution, the invasion and occupation of white-owned commercial farms began. The rejected constitution contained a clause which relieved the government from paying compensation for compulsorily acquired land except for improvements. It also restricted the court’s powers to adjudicate on land issues. Despite the referendum defeat, these amendments were forced into to the constitution anyway on 20 April 2000, at a time when the land occupations were had already started. The purpose was to provide legality to this on-going process. For all the political rhetoric about the irrelevance of the law, government has always been keenly aware of the need to provide a cloak of legality.

In any event, the government refrained from stopping the occupations, despite court rulings that these actions were illegal. The Police Commissioner pleaded lack of capacity, and argued it was a political matter that required a political solution. In the end government actively encouraged and supported the occupations and by the end of the decade, was openly proclaiming victory in the land revolution. Amendments to the constitution in 2000 and 2005 reaffirmed government backing for the land occupations. The 2005 amendment was retrospective, attempting to legalise acts that had taken place illegally before its enactment. In 2001, a newly constituted Supreme Court now led by Chief Justice Godfrey Chidyausiku reversed an earlier decision of the Gubbay-led Supreme Court and declared that the land acquisitions were perfectly legal. Seen as an impediment to the FTLRP, Chief Justice Gubbay and his fellow judges had been forced into early retirement.

I must point out that the FTLRP was indiscriminate, in the sense that it targeted all land under commercial farming regardless of the circumstances under which it had been acquired in the past. Every white landowner was invariably treated as an imperialist who had acquired land by unfair means. Even black commercial farmers were affected, as the case of Edwin Moyo of the vast commercial agricultural enterprise that was Kondozi Estate demonstrates (I understand Moyo has recently published a book narrating his experiences during the FTLRP). Tawanda Nyambirai, is another prominent black commercial farm-owner who lost his properties during that phase. But it is precisely this blanket approach that has come to haunt Zimbabwe, as I will now demonstrate in the two cases that involved foreign nationals who were similarly affected. I wouldn’t be surprised if only a few Zimbabweans are aware of these cases because of the conspiracy of silence orchestrated by the government. Yet, their implications are far-reaching for all Zimbabweans − who deserve to know about them.

The Pezold and Funnekotter cases

Zimbabwe has Bilateral Investment Treaties (BITs) also referred to as Bilateral Investment Promotion and Protection Agreements (BIPPAs) with a number of countries. Among them are Germany, Switzerland and The Netherlands. A BIPPA is an agreement between two states, the purpose of which is to promote and protect investments between their respective citizens. Typically, states undertake to treat each other’s citizens fairly, to protect their investments and compensate them in the event of compulsory acquisition.

The two cases which I discuss in this article involved citizens of Germany, Switzerland and The Netherlands. These foreign nationals had large farming operations in Zimbabwe, which include well-known estates like Forrester Estate, a large tobacco operation in Mashonaland West; and the Border Estate, known by most people as Border Timbers, in Manicaland.

These cases were brought before the International Centre for the Settlement of Investment Disputes (ICSID), an established international arbitration forum where disputes arising from BIPPAs are usually resolved. The first case, Funnekotter and others v Zimbabwe, involved 13 Dutch nationals and was decided in 2009 while the second case, Pezold and others v. Republic of Zimbabwe, involving German and Swiss nationals, was decided in 2015. Zimbabwe lost in both cases. The cases are very similar, the issues for decision were almost identical and the summary here will cover both, pointing out differences only where this is absolutely necessary.

In both cases, the large estates and farms owned by the foreign nationals were occupied during the land occupations starting in February 2000 and were eventually acquired by the state following Constitutional Amendment No. 17 in 2005, in terms of which all agricultural land was nationalised and became state land. Since they were foreign nationals whose countries had BIPPAS with Zimbabwe, the farmers claimed protection of their investments under the BIPPAs. The argument at the ICSID was that by expropriating their properties without compensation, Zimbabwe had breached its obligations under its BIPPAs with Germany, Switzerland and The Netherlands. Zimbabwe tried to argue that the farmers were not covered by the BIPPAs since they were not nationals of those countries, but it failed to furnish proof. It also argued that the compulsory acquisition was lawful under Zimbabwean law.

In both cases, the tribunals had to determine whether or not Zimbabwe had breached its obligations under the BIPPAs. While acknowledging the need to redress colonial land imbalances, the tribunals found that the expropriations of the foreign nationals’ properties without compensation were clear breaches of the BIPPAs. They also held that the expropriations were in breach of international law. The defence of necessity raised by Zimbabwe was rejected. Instead, the tribunal found that the policy was racially discriminatory and a breach of international law.

Compensation awards

In the Pezold case, the Tribunal ordered restitution, which means a return of the properties complete with title to the claimants. In addition, it ordered Zimbabwe to pay damages worth a total of $64,896,339 to be fulfilled within a 120 days of the arbitral award. In the event of failure to return the properties to the claimants, Zimbabwe would have to pay a total sum of $195,001,163 in compensation. This includes a $1 million award of “moral damages” to one of the farmers, which covers the disturbances, pain, suffering and inconvenience suffered during the occupations. In addition, Zimbabwe was ordered to pay 92 per cent of the legal costs incurred by the claimants. The amounts of those costs are quoted in different currencies: £7,149,386.82, US$1,648,851.04 and ZAR609,402.

In the Funnekotter case, the claimants did not ask for restitution so the tribunal did not order a return of the farms. However, it made an order for compensation. The total award of damages for the 13 farms (land and improvements) was $8,000,000. In addition, each of the farmers was awarded $20,000 as compensation for disturbances during the FTLRP. Each party was required to pay its own legal costs, although Zimbabwe was ordered to pay all the tribunal’s fees and expenses and to reimburse the claimants’ expenses in this matter. Furthermore, the award would carry interest at the rate of 10% compounded every six months.

A quick aggregation of these figures shows that this is a lot of money for only two cases involving a small number of affected farmers. It has been said there are similar cases still to be decided and, given these precedents, Zimbabwe is likely to lose all those cases, too. The fact of the matter is that going by these compensation awards, Zimbabwe may have taken back its land − but at huge financial cost. Unfortunately, government underplays this cost even if it speaks about it at all. There has been a conspiracy of silence, a pretence that the land reform exercise has no financial implications. In fact, as these cases demonstrate, the opposite is true.

These misrepresentations are scandalous.

One of the things that has become apparent from these two cases is that the farmers who were dispossessed during the FTLRP are very well organised. They have put together their cases meticulously in preparation for litigation. A key part of these preparations is that they formed a corporate vehicle – the Valuations Consortium – to carry out valuations of their properties. In this way, affected farmers have collected and collated vast amounts of information on the valuation of their properties. In these two cases, the valuations were generally accepted by the tribunals, even with some modifications, while the Zimbabwean government’s ill-prepared valuations were rejected. In one embarrassing moment, the tribunal rejected the Zimbabwean government’s expert on the grounds that he had presented false qualifications. A certain Dr Kanyekanye had been presented as a PhD holder, but the tribunal found that his qualifications were not credible as the institution from which he claimed to have obtained his doctorate was not an accredited university in the UK.

It is also clear that there are two contradictory positions on the issue of the legality of the land acquisitions in Zimbabwe – one at the national level and another at the international level. At the national level, the Supreme Court of Zimbabwe has held in the 2014 case of Forrester v Makunun’unu that the compulsory acquisition of land protected by BIPPAs is lawful under Zimbabwean law. This is the exact opposite of what the ICSID tribunals have held stating that the compulsory acquisitions were unlawful under international law. The tribunals took the same position taken by the SADC Tribunal − that the expropriation was a violation of international law.

The implication of this is that while there is no remedy for claimants under Zimbabwean law, they can still pursue their claims in an international forum such as the ICSID, which is what the claimants in the Pezold and Funnekotter cases did. The fact that Zimbabwe put up a spirited defence in both cases at the ICSID demonstrates that the government takes the international cases seriously. Indeed, Zimbabwe’s attitude to the ICSID is in marked contrast to its contemptuous approach towards the SADC Tribunal, whose judgements it ignored. It cannot afford to ignore the ICSID because of the implications of doing so in the international trade arena. Whereas Zimbabwe could bully SADC and its Tribunal, it doesn’t have the same leverage over the ICSID.

So what if Zimbabwe elects to ignore the ICSID arbitration awards?

The implications of the awards given to claimants at the ICSID in these two cases are that once registered in different jurisdictions where Zimbabwe’s property can be identified, they can be easily enforced. This is why I started this article with the case of the Cape Town property, which was auctioned to satisfy a judgment debt. So, while it might be impossible for the farmers to attach and sell property belonging to the Zimbabwe government in Zimbabwe, state property in foreign countries remains vulnerable unless it qualifies for diplomatic protection. Here, property can include revenue from commercial transactions in international trade deals. It could be minerals, such as diamonds or gold or platinum, which belong to Zimbabwe.

Politicians will not admit that these obligations really exist. They will continue with the false rhetoric, proclaiming before cheering crowds that the land issue is no longer an issue. What is not fair is that all Zimbabweans will have to pay these debts, whereas only a privileged few have access to and are in possession of the reclaimed farms. Those who have the farms should really be contributing more to satisfy these compensation awards. Using taxpayers’ funds is tantamount to forcing ordinary men and women to subsidise the few who occupy the farms. If it wasn’t fair for a few white farmers to occupy the bulk of the arable land, it is surely not fair to ask the majority of Zimbabwean taxpayers to subsidise the few who are occupying the land today.

Chinamasa and the Land Compensation Fund

These legal realities and economic imperatives help to explain the new signals from government that it is setting up a Land Compensation Fund to compensate mainly white farmers whose properties were expropriated under the FTLRP. According to the Finance Minister, Patrick Chinamasa, this fund would be financed by rents and levies from the new occupants of the land, assistance from development partners and donors. Details on the fund remain vague at present. But the mere fact that this concept is being discussed indicates that the government is alive to its obligations, whatever its rhetoric at political rallies. Chinamasa, a lawyer by profession, knows more than most of his colleagues in government the implications of and obligations arising from the ICSID awards against Zimbabwe.

Of course, a major driving influence for this policy change is also economic. Zimbabwe’s economy has been in accelerated free-fall since the launch of the FTLRP in 2000. There was some respite between 2009 and 2013 during the Government of National Unity. But since then, the economy has been weakening at an alarming rate. Struggling to kick-start the economy, and after dabbling in a Look East policy that has so far failed to bear any fruit, the government is trying once again to restore relations with the Western community and multi-lateral funding institutions. However, to reach a successful resolution, Chinamasa knows that the protection of property rights and settling the compensation issue is critical. The FTLRP was seen in the West as a serious challenge to the established economic order, under which property rights are of paramount importance. Therefore, the mooted Land Compensation Fund is part of a strategy designed to restore relations with the West but also to attract foreign investors.

Who must pay for the land?

This article would be incomplete without a word on a question that has dominated the discourse on land compensation in Zimbabwe: who pays for it? The new constitution of 2013 reiterates the position stated in the two amendments in 2000 and 2005, which placed the obligation for compensation for land on the “former colonial power”. Under that clause, Zimbabwe’s only obligation for compensation for land seized from the white farmers is for the improvements they made on the land and not for the land itself. The government’s reasoning behind this approach is that land which was owned by the white farmers was a product of historical injustice under the authority of the former colonial power, which must bear the responsibility for compensating the farmers. This is a unique constitutional provision because it places an obligation on a foreign state, which is not bound by or under that constitution. Therefore, the provision is unenforceable.

Nevertheless, while it is of little legal relevance, the provision can best be understood as a political statement. It is a political statement that reaffirms the position of the Zimbabwean government and the ruling party, ZANU PF, that the obligation to compensate for land expropriation does not rest with the people of Zimbabwe. It rests with the former colonial power. This position is partly based on the belief that the United Kingdom had a colonial obligation to meet the costs of land reform, since the white farmers were generally regarded as beneficiaries of unfair and discriminatory land expropriations during the colonial era. This was, of course, an indiscriminate policy which did not take into account the diversity of land-holders after independence. Some of them were foreign nationals whose farms were protected as investments under BIPPAs – as we have observed in the Pezold and Funnekotter cases above. Also, this policy did not take into account the fact that some of the land had been bought after the government had issued certificates of no present interest.

What really happened at Lancaster House?

To understand the origins of this political statement in the constitution, it is necessary to go back to the Lancaster House Constitutional Conference. But there is controversy over what happened at Lancaster House when it comes to the issue of compensation. The Zimbabwean government has always insisted that there was an undertaking by Britain to fund land reform after independence. However, in recent years, this has been rejected by the British government.

So what really happened at Lancaster House?

Mugabe is quoted in Heidi Holland’s book, Dinner With Mugabe, as saying, “In principle, we never could accept that the people should be taxed to enable them to get the land – which in the first place was taken – back. So the British said yes, but they said there were limited funds which had to be adequate. We had an impasse for about a week. We wanted that question resolved.” He added that the Americans had intervened to break the deadlock and had offered to work with Britain to support land reform. “However, the American public would not want to hear that the funds had been given for the purposes of compensating British nationals in (our) country. The American taxpayer would view the funds as coming out of their pockets and going into the pockets of British farmers.” Mugabe stated that the Americans promised to contribute to the land reform programme and that they had done so “without strings attached” in the 1980s on the back of this undertaking. The British government had also supported land reform in the 1980s. According to Mugabe, the Zimbabwean and British governments had been negotiating a resumption of support when relations broke down in 1997 after the Blair government’s snub.

Writing on the same subject in his autobiography, The Story of My Life, Joshua Nkomo says the Patriotic Front at Lancaster House accepted the deal after much resistance, but only because of pressure on the Patriotic Front and the intervention by the Americans with a proposition for assistance together with the British and other donor countries. According to Nkomo, the Americans said if the British could help buy the land, then US funds could be used to develop it. But they would not be able to use their taxpayers’ funds to compensate owners for not using the land since only underutilised farms could be compulsorily acquired. However, Nkomo adds: “Neither the British nor the Americans would tell us how much they would put up, but the principle [that they would support land reform] was a useful one.”

These statements by the two heads of the Patriotic Front at Lancaster House are corroborated by Sir Shridath Ramphal, the Secretary-General of the Commonwealth at the time, who states that it was agreed: “[The US government] would support the establishment of an agricultural development fund and that they would make a substantial contribution to it; that they would recognise the right of the government after the elections to use this fund to help defray any compensation that had to be paid under the constitution; that the fund would be a responsibility they would accept, providing it was matched by the British government and had an international character.”

What is evident in all three statements is that there was a vaguely worded understanding that there would be Anglo-American support for the land reform programme but also that this was never quantified or clarified in writing. The Patriotic Front had placed a lot of faith in this verbal understanding. One of the legal advisors to the Patriotic Front, Reginald Austin, recalled in evidence to the Africa All Party Parliamentary Group of the UK Parliament (AAPPG) that he had advised the Patriotic Front leaders to formalise the agreement but that this advice had not been implemented. Instead, Joshua Nkomo, whom Austin was directly advising, had told Austin and fellow advisers: “…that the promises of the funds had been repeated and emphasised, but that there would be no written undertaking and no amendment to section 16 [of the constitution which dealt with the right to private property]. The team repeated its advice that section 16 was a fundamental bar to compulsory taking and that the promised funding would not be worth the paper it was written on.” Looking back, the Patriotic Front were naïve not to insist on a written agreement on this issue.

Indeed, it is on the basis that nothing was written down or no amount was specified that the AAPG came to the conclusion in its 2009 report that: “The narrative that Britain betrayed its promise at Lancaster House has no basis as no agreement was reached on land in 1979.” The AAPPG said it had found no evidence that a deal had been reached behind the scenes at Lancaster House or that a specific sum of money was agreed upon for land reform. Interviewed by the AAPPG, Lord Carrington, who chaired the Lancaster House talks, stated that the land agreement was a means to an end rather than an end in itself. It was described as a “gesture” to get the rest of the talks going. In other words, the verbal agreement was merely to facilitate the conclusion of the broader political agreement. As the AAPPG concluded: “The prime objective of Lancaster House was to achieve a political settlement and in order to do this, it was necessary to defer the land issue rather than solve it. There was no final agreement on land reform at Lancaster House.”

On analysis, the point of difference lies in the interpretation of the events at Lancaster House. For the Patriotic Front, the verbal assurance was enough evidence of an Anglo-American commitment to provide funds for land reform. The fact that the assurance was vague, unspecified and open-ended did not compromise the deal. The Patriotic Front negotiators relied more on good faith and the spirit of the verbal undertaking. This explains their failure to heed their advisers’ guidance to put the agreement in writing. This was a gross error of judgment on their part. For the British government, there could be no valid agreement giving rise to legal obligations unless it was put in writing in specific terms, including precise figures. The Patriotic Front should have taken heed of counsel from their advisers that the verbal undertaking meant nothing in light of section 16 in the constitution. They held on to a vague undertaking, but the rights of the landowners were firmly protected in writing under section 16.

Interestingly, one person who seems to share a common understanding with the Patriotic Front that there was an agreement at Lancaster House is London Mayor, Boris Johnson. Writing in The Daily Telegraph in February 2015, Johnson accused Blair’s New Labour government of betraying the LHA. He wrote: “The British government agreed to fund the arrangement, compensating the former colonial farmers for land that they gave up. Under that arrangement, the white farmers were able to survive – more or less; Zimbabwe remained economically viable – more or less. And then in 1997, along came Tony Blair and New Labour, and in a fit of avowed anti-colonialist fervour they unilaterally scrapped the arrangement.” Unfortunately, this is Boris Johnson’s personal opinion and does not represent the British government’s opinion on the matter. Indeed, critics might dismiss it as a cheap point-scoring taunt directed at the Labour party. But it does demonstrate that there is a view among some in the UK that there was indeed an agreement. But should Boris Johnson ever become UK Prime Minister, is there any hope that there might be an understanding that would bring finality to this issue?

Conclusion

Ultimately, the issue of compensation is likely to be on the books for some time to come. While Zimbabwe will protest that it should never have to pay for the land, the problem is that at law, this obligation was left on its shoulders at Lancaster House, without any consideration of the inequitable and unfair circumstances under which the land had been acquired by the landowners in the first place. It was an inherently unfair system which nevertheless received legitimacy by virtue of the compromise deal reached at Lancaster House. Saddled with this legal obligation the new Zimbabwean state has struggled to reconcile competing interests over the land issue. On one hand, it was expected to respect property rights and pay market rates to compensate for expropriation which it could not afford. On the other hand, there were expectations to satisfy the demands of a land-hungry population.

It prevaricated for a long time, threatening action but ultimately doing nothing tangible. The impetus to act only came when faced with the real threat of losing political power when, ZANU PF chose the radical way, dumping the legal protections and leading a land revolution. Constitutional Amendment No. 17 and the subsequent 2013 constitution confirmed the repudiation of the legal obligation to compensate for land expropriations, placing the duty upon Britain.

Nevertheless, as the international cases discussed in this article have demonstrated, this audacious act may have wrested land from the minority white landowners, but it has left the state with an enormous financial responsibility, although to the Zimbabwean public, the government has chosen the ostrich-mentality, burying its head in the sand. That won’t make the debts go away. They will simply mount as interest accrues at a compound rate.

The bill from the two cases is close to a quarter of a billion dollars and this could rise with more cases. Clearly, we have a problem. These debts are not owed by Mugabe or any member of the present government in their personal capacities. They are owed by the Zimbabwean state and ultimately, by the taxpayer. In other words, the ordinary working man and woman – present and future is saddled with these debts. Mugabe and the current crop of leaders will depart one day, but they will not take the debts to their graves. The debts will remain on the books of Zimbabwe; upon the shoulders of Zimbabweans and future generations.

It is important for Zimbabweans to separate political rhetoric from legal reality. People can pontificate and theorise about who is right and who is wrong, but ultimately, it is the future generations that will carry these burdens – long after the generation of present politicians is gone. The auctioning of the Cape Town property last year was an ominous sign.

waMagaisa

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Acknowledgements

In writing this article I have relied on a number of sources:

The Pezold case: http://www.italaw.com/sites/default/files/case-documents/italaw7095_0.pdf

The Funnekotter case: http://www.italaw.com/sites/default/files/case-documents/ita0349.pdf

Land in Zimbabwe: Past mistakes, future prospects – a report of the All Africa Parliamentary Group of the UK Parliament

http://www.royalafricansociety.org/sites/default/files/reports/aappg_report_land_in_zimbabwe.pdf

Boris Johnson’s article: http://www.telegraph.co.uk/news/politics/labour/11428364/Happy-birthday-Mr-Mugabe-with-special-love-from-Labour.html

Heidi Holland, Dinner with Mugabe

Joshua Nkomo, The Story of My Lifel

Land and Agrarian Reform in Zimbabwe : Beyond White-Settler Capitalism. Edited by Sam Moyo & Walter Chambati. Dakar, CODESRIA & AIAS, 2013 http://www.codesria.org/spip.php?article1779

https://zimbabweland.wordpress.com/about/ a detailed blog by Ian Scoones

Various works by renowned Zimbabwean scholar on agrarian studies, the late Sam Moyo

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