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The Big Saturday Read: Land and the complexities of the rule of law in Zimbabwe

May 6, 2016

 

Introduction

 

In the last #BSR, I discussed the issue of land compensation in Zimbabwe. I presented the current legal reality and argued that, contrary to what the Zimbabwe government has said in recent years, the land issue is far from settled and remains a contentious issue because of the outstanding issue of compensation.

 

I used two cases, both relating to land which was protected under Bilateral Investment Protection and Promotion Agreements (BIPPAs), in which Zimbabwe lost legal battles at the International Centre for the Settlement of Investment Disputes (ICSID).

 

These two cases alone left Zimbabwe with a bill of nearly a quarter of a billion dollars in compensation and legal costs. This financial burden has been underplayed by the government, but will weigh heavily on the shoulders of future generations.

 

This week, the International Monetary Fund (IMF) reported that the Zimbabwean government had indicated an intention to “improve the business environment, including by a transparent and consistent application of their indigenization policy and a new comprehensive land reform program. The latter would include a framework for land compensation”.

 

Further, the IMF exhorted the Zimbabwe government “to resolve outstanding land issues swiftly”. These intentions by government and exhortations by the IMF are happening within the context of Zimbabwe’s desperate efforts to re-kindle its broken relationship with the West and international financial institutions in response to the dire economic circumstances the country is facing.

 

A Complex Issue

 

Nevertheless, both politically and economically, the issue of land compensation is more complicated than is reflected in a purely legal analysis. To extract and separate it from the political and historical context does little to find a lasting solution to the challenges around this issue.

 

This article is an extension from last week, placing the matter into its political and historical context, in order to identify the broader issues that need to be attended to do find a satisfactory solution. While there’s a general understanding of the plight of landowners who lost their properties during the government’s Fast Track Land Reform Programme (FTLRP) from 2000, most Zimbabweans are conflicted over the issue of compensation. While some support compensation there are also some who hold the view that there should be no compensation for land. There is also a belief that the burden of compensation should be borne by the former colonial power. This position is reflected in Zimbabwe’s new constitution, at the instigation of ZANU PF.

 

Further, there is also a widely-held sentiment among ordinary Zimbabweans that the taxpayer should not have to bear the costs of compensation given that the taxpayers are descendants of people who were driven away from those lands during the colonial era. The view is that it would be double-jeopardy: their ancestors lost the land and now they have to pay for it through compensation. Such sentiments tend to cut across current party political affiliations. Indeed, it is not uncommon to hear staunch opponents of President Mugabe and ZANU PF making an exception on the issue of land, arguing that while they disagree with the method they agree with the principle of land redistribution.

 

Indeed, parties to the Global Political Agreement, which established the Government of National Unity in 2008, agreed that the land reform exercise was ‘irreversible’. The opposition, which had previously campaigned against the violent farm takeovers in the 2000s, was eventually forced to concede that a land revolution had taken place and was a fait accompli. Indeed, the idea of being perceived to oppose land reform became a serious political liability for the opposition, especially in the eyes of the regional African community. In short, the land issue remains complex, and to find a lasting solution, it has to be viewed beyond the narrow lens of legalism.

 

Main Argument

 

My thesis is that the land question will never be satisfactorily resolved unless the country adopts an holistic approach that takes into account both the legal and historical aspects of the land. This is not a case against compensation. It is a case in favour of a broader approach to compensation that takes into account the burden of history.

 

I have already argued, in previous articles, that the land question was mishandled at the Lancaster House Constitutional Conference (LHCC) in 1979, which led to the Lancaster House Agreement (LHA). Instead of laying down a system for properly resolving the land question, the LHA perpetuated an uneven system which would prove very costly in later years, the consequences of which are there for all to see.

 

In my view, what happened since 2000 was avoidable, if concerned parties had understood these historical issues and attended to them, instead of burying heads in the sand. I believe countries with a similar history, like South Africa and Namibia have lessons to draw from Zimbabwe’s experience. They can take pre-emptive measures to avoid the destructive path that was taken in Zimbabwe but this requires all actors to have the courage to confront their history.

 

In this article, I develop this argument further and articulate what Lancaster House failed to do and why this omission continues to haunt the issue of land compensation to this day. The principal argument is that while the post-colonial state has quite rightly been accused of violating the rule of law in relation to land, the LHA white-washed violations of the rule of law relating to land during the colonial era, creating a reservoir of resentment and discontent that continues to influence attitudes towards land and the issue of compensation.

 

I will start with a basic outline of the principle of the rule of law. I will show why the principle of the rule of law in relation to land has been viewed with suspicion as an instrument of protectionism for white minority interests in relation to land and why therefore, it has been a victim in the land struggles.

 

Two conceptions of the rule of law

 

The rule of law is widely regarded as one of the great legal principles of a legal system. But although it has been widely used in liberal democratic discourse, it is not amenable to easy definition. Here, I will refer to two conceptions of the principle: a formal and a substantive conception of the rule of law. The difference between these two conceptions of the rule of law is critical.

 

Formal conception

 

The formal conception of the rule of law is the drier and mechanical version of the two.  According to a major exponent of this version, Professor Joseph Raz, the rule of law is just one of the many virtues of a legal system, a “political ideal” which any society may have but must not to be confused with democracy, human rights or justice. In other words, it is misleading to equate the rule of law with democracy.

 

According to Raz, under this formalistic view of the rule of law, “a non-democratic system, based on denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies”. The legal system may be “immeasurably worse…but it will excel in one respect: in its conformity to the rule of law”. Therefore, under this definition the apartheid regime in South Africa or the Rhodesian state or even the new Zimbabwean state would qualify as complying with the rule of law.

 

The formal conception of the rule of law is not concerned with the manner in which laws are made or by whom they are made. They could be made by a dictatorship or by a democratic authority. It also has nothing to do with the content or quality of the law. A law might be unjust, discriminatory, unequal, but it would still be regarded as law as long as it is capable of being obeyed and guides the behaviour of citizens.

 

Furthermore, according to this view, while the rule of law is important, it is not the only or even most important aspect of a legal system. Rather, it is only one among various virtues of a legal system and its importance should not be exaggerated. There may, indeed, be other virtues of a legal system and the rule of law has to compete and be balanced against those competing virtues.

 

In terms of this view, it may be justifiable to prioritise other virtues of the legal system, such as social justice, ahead of the rule of law. This means that where the pursuit of social justice clashes with the rule of law, it does not mean the law is inappropriate simply because it gives priority to social justice.  In this regard, Raz has argued: “One must be wary off disqualifying the legal pursuit of major social goals in the name of the rule of law”. He adds: “Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty.”

 

It is easy to see why the rule of law in this formal sense would bolster the case of those who argue that the new Zimbabwean state acted in terms of the rule of law during the FTLRP. Put simply: the government was pursuing social justice.

 

Substantive conception

 

Subscribers to the substantive conception of the rule of law would be dissatisfied with the formal conception I have just described. They would describe it as “rule by law”. As Mark Ellis, a former head of the International Bar Association (IBA), has written: “A country that has a solid institutional legal framework but fails to protect fundamental human rights is at best a country ruled by the law but should not be considered a country based on the rule of law.”

 

The formal conception of the rule of law is contrasted with the substantive conception of the rule of law, which emphasises the qualitative and substantive content of laws. Lord Bingham, a former UK Chief Justice, was a key proponent of the substantive conception of the rule of law and wrote The Rule of Law, an excellent book on the subject.

 

While the general elements (or sub-rules) of the rule of law set out by Raz and Bingham share much in common, a distinguishing feature of the substantive notion is that the rule of law must provide adequate protection of fundamental human rights and freedoms. In other words, there can be no rule of law if the law does not adequately protect human rights. This is in marked contrast to Raz’s formalist conception, where the content of the law or its quality are irrelevant. The substantive conception of the rule of law depends on the quality of the law.

 

This view finds support from Mark Ellis, who wrote: “It is disingenuous to refer to a country as adhering to the rule of law when it fails to protect fundamental, substantive rights found in international law…Without a strong substantive component that embraces universal principles of justice, the rule of law becomes meaningless.”

 

The rule of law and land

 

I have summarised these two conceptions of the rule of law because they are both very important in our effort to understand the challenges over the resolution of the land question in Zimbabwe. Whenever the land question is discussed, the general view is that the government violated the rule of law, a charge which is often met with stiff resistance by the government and its sympathisers. Interestingly, the critics and government base their argument upon the rule of law.

 

My view is that the difference is explained by the existence of these two conceptions of the rule of law as described above. For the critics of the Zimbabwe government, their argument is based on the substantive conception of the rule of law. On the other hand, the government’s view is based on the formal conception of the rule of law. As far as they were concerned, they were acting in accordance with the laws they set up, even retrospectively.

 

However, for purposes of this paper, I will focus more on the substantive conception of the rule of law. The complexities in the attitudes towards land compensation can be explained by the different treatment of the substantive rule of law on land in respect of the colonial era and the post-colonial era. While the Zimbabwe government has been accused of violating the substantive rule of law in relation to land, the same standard has not been applied to colonial violations of the substantive rule of law in relation to land. It is precisely this different treatment that is the source of controversy and bitter polarity over the issue of land compensation. This has led to the substantive rule of law being viewed with suspicion.

 

Continuities between the colonial and post-colonial state

 

The starting point of analysis involves understanding the continuities between the colonial state and its post-colonial successor in relation to land rights. Both the colonial and post-colonial state have engaged in parallel processes of land grabbing and violent dispossession.  Both the colonial and post-colonial state have paid little regard to human rights and neither has adhered to the substantive rule of law. Yet both the colonial and post-colonial governments would claim they followed the law and that their actions were endorsed by the legislature and the courts.

 

Land grabbing in the colonial era

 

The colonial state would point to the 1894 Matabeleland Order in Council, the 1898 Southern Rhodesia Order in Council, Land Apportionment Act, 1930, the Land Husbandry Act 1951 and the Land Tenure Act 1969 – all pieces of legislation under which land was expropriated from Africans in favour of the new settlers. The state would also refer to the seminal case of In Re Southern Rhodesia (1918), in which the British Privy Council held that Africans had no title to land and that the land belonged to the British Crown.

 

As Dr Mark Nyandoro, an economic historian at the University of Zimbabwe, has stated in his paper on historical land struggles in the Gokwe-Sanyati area: “Land was expropriated from the black people by means of a corrupt, undemocratic and unaccountable process.” Yet, while the colonial laws violated the substantive rule of law, the colonial state would argue that they conformed to the formal conception of the rule of law. They were lawfully made and expressed in neutral language although they were applied against the Africans.

 

Take for example, the Southern Rhodesia Order in Council (1898), widely regarded as the first constitution of the country. In section 83, it provided that Africans could own land in the same way as Europeans, but in practice this was rarely and reluctantly applied. The order, which is generally regarded as the first constitution of Southern Rhodesia, stated:

 

“A native may acquire, hold, encumber and dispose of land on the same conditions as a person who is not a native, but no contract for encumbering or alienating land the property of a native shall be valid unless the contract is made in the presence of a Magistrate, is attested by him, and bears a certificate signed by him stating that the consideration for the contract is fair and reasonable, and that he has satisfied himself that the native understands the transaction.”

 

These clauses give the impression of a fair and equal system of access to land ownership in those early years of colonialism. But in practice, this was a façade which concealed the inherent inequalities based on race. Robin Palmer’s research showed that by 1925, only 14 farms covering an area of 46,966 acres were owned by Africans. Of these, only seven had been bought by black Rhodesians with the other seven owned by black South Africans.

 

The low numbers of farms bought by black Africans at the time was due to limited resources but also because of the “refusal by the BSAC and the SR Government to honour the law”. The Surveyor-General in those early years warned of the dangers of stock-theft, diseases, trespass and molestation of white children. He asked: “Why should we want contact between the two races over and above that brought in the various spheres of labour?” This eventually led to a system of racial segregation under which all African farms were expropriated from their owners under the Land Apportionment Act.

 

In Matabeleland, after the 1893 Rebellion, the Ndebele people were not only pushed to the dry and inhospitable reserves of Gwaai and Shangani, but they also lost their cattle to the new settlers. Chief Mdala of Inisza is quoted in a Report of the Insiza Native Board Meeting on 27 March 1931 as having said: “After the rebellion when we were in the “Gusu” [waterless woodland country north-west of Bulawayo], we were told to return as we would be given land. The promise has not been carried out. The Government has sold the land to the Europeans…” (quoted in Palmer).

 

According to the Native Commissioner in a communication to the Secretary of the Native Reserves Commission on 15 November 1915, Chief Maromo. Whose land had been expropriated by Willoughby’s Consolidated,had complained: “My people are scattering in all directions on account of our land being cut up into farms, there is no room for us on the Reserve… We feel the Government has saddled us with an equally hard yoke that is the partition of our land into farms for living on which we are compelled pay rent…” (quoted in Palmer).

 

These expropriations and evictions continued into the late years of colonialism, as evidenced by the case of the Tangwena people in Manicaland Stephen Matewa’s biography, Man of the People, records an illuminating encounter between a District Commissioner in Manicaland and Chief Rekayi Tangwena, who was leading his people’s resistance against eviction from their ancestral lands to make way for a Mr Hanmer, who was said to have bought the land from the British South Africa Company. The conversation went as follows:

 

District Commissioner: This is not your land. It belongs to Hanmer.

Chief Tangwena: But I saw Hanmer come from England. He found this land here. He found us here. My father was the chief of this land. How come you say it is his land? Where was Hanmer’s father buried?

District Commissioner: He bought the land.

Chief Tangwena: From whom? From whom did he buy the land? My father did not sell him any bit of our land. No one has a right to sell land in our custom.

District Commissioner: He bought it from the British South Africa Company.

Chief Tangwena: From Rhodes. We saw Rhodes when he came here. He was just a traveller on horseback. He did not buy our land. We don’t sell land in our culture. The land belongs to the people, to the community. It is priceless.”

 

In this unique autobiography, compiled posthumously by his daughter Chido Matewa in his voice, Stephen Matewa, gives a vivid account of the harsh encounters between the colonial state and the Tangwena people, including periods when the people lived in the mountains and had their homes and crops burned and destroyed by security forces as they were pushed away from their ancestral lands. This was less than fifteen years before independence.

 

He also writes about the Land Husbandry Act: “But of all the legislation passed by the regime, the Land Husbandry Act touched where it hurt most. The Africans who lived in the Reserves were forced to destock. Cattle were a measuring yardstick of a person’s wealth. So being forced to destock hurt people. On the other hand, the reserves, having poor soils, poor rainfall and shortage of space, could not sustain the population. While Africans destocked, the whites built up their stock very cheaply.”

 

Of course, the overall picture that emerges is that the colonial state was in serious violation of the substantive rule of law. What’s more, its conduct during the 90 years of colonialism was in conflict with basic human rights and freedoms. The colonial state used racial discrimination, force, violence and expropriations without compensation.

 

Land-grabbing in the post-colonial state

 

The events on the farms in the period beginning in 2000 have been well-documented in recent years. Books and films have been written and shown about the FTLRP, which started shortly after the government’s defeat in the Constitutional Referendum in February 2000. The dramatic events were captured by local and international media, as white landowners, their families and workers were harassed and violently ejected from their farms. The war veterans and peasants led the charge, with the active support and encouragement of the government.

 

The constitution was amended twice in five years, in 2000 and 2005, to provide a cloak of legality to the land evictions, which were characterised by violence and chaos. The Supreme Court was reconstituted, with the Gubbay-led Bench replaced by the Chidyausiku-led court. The latter immediately went on to reverse a judgement of the Gubbay court, which had declared the land evictions illegal.  The Chidyausiku court held that the process was perfectly legal.

 

The Rural Land Occupiers (Protection from Eviction) Act was passed in 2001 to protect the occupiers who had taken land from the white farmers. Some white farmers were killed, homes were destroyed and equipment and stock were stolen. The police took no action, with the commissioner of police claiming that they had no capacity and that the land issue was political and needed to be resolved politically. By 2010, 85% of the formerly white commercial farmland had been occupied.

 

The conduct of the government in this period was generally described as violating the rule of law. Upon analysing these two periods, what become apparent is that, when it comes to land, the post-colonial state behaved just like its colonial predecessor. The post-colonial state has justified its conduct on the basis of “recovery” of “stolen land” and decolonisation. Both were repressive, violent and used racist ideology in the land acquisition process. Both claimed a legitimate right to act as they did and justified their use of force. Indeed, both claimed to be acting in accordance with the law, which they assiduously put in place, even in retrospect, to give a veil of legality to their actions.

 

It is also interesting to note that in his 1970s analysis of the land expropriations in the early years of colonialism, Palmer used the term “land grabbing”, arguing that the settlers and the colonial state “grabbed land” from the Africans. Ironically, “land-grabbing” is precisely the same language that has been applied to the actions of the war veterans, peasants and the government of Zimbabwe in the post-colonial state.

 

What emerges from this analysis is that if the post-colonial state has been described as a “land grabber”, so was the colonial state. It is fair to say that land grabbing has been taking place in modern Zimbabwe since the early days of colonialism. It is not a new phenomenon and the state has been at the heart of it. There has been a consistent continuity in the violation of the substantive rule of law by both the colonial and the post-colonial state over a period spanning 120-odd years. Neither the colonial nor the post-colonial state would pass the Bingham test of the substantive rule of law.

 

Different treatment of rule of law violations during the colonial and post-colonial periods

Having established the continuities between the two eras, it is now important to locate the difference because this is the source of the controversy over land, the rule of law and the issue of compensation. As I have already intimated, the problem lies in the differences in the treatment of the substantive rule of law violations between the two eras: colonial and post-colonial. A comparative analysis demonstrates that rule of law violations in the colonial era received favourable and more lenient treatment compared to the post-colonial rule of law violations. It is this difference that has led to charges of hypocrisy on the part of the international community and legal system.

 

The argument that events during the colonial period happened in accordance with low standards is not a good defence when it comes to sanitising colonial-era human rights violations. After all, the Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948 and the Land Husbandry Act was passed just two years after this. The Land Apportionment Act continued in force and its successor, the Land Tenure Act came into force in 1969. Colonial evictions and expropriations took place under these laws.

 

The Tangwena community faced harassment and eviction from their land less than 15 years before independence. In my view, one of the great weaknesses of the LHCC was its failure to deal with the colonial-era grievances over the rule of law violations in relation to land. It is important that we revisit Lancaster House one more time to fully appreciate the nature of this weakness.

 

Lancaster House and the rule of law

 

The LHA endorsed and legitimised a system of land ownership and distribution that was totally at odds with the substantive conception of the rule of law. The LHA did not question the manner and circumstances under which the existing land ownership and distribution system had been established. It accepted as normal and immutable a system that was built upon racial discrimination, unfairness and injustice. It could be argued that the LHA was built upon the formal conception of the rule of law, one that did not question the content or quality of the law relating to land.

 

Nevertheless, while it was built on the formal conception of the rule of law, it demanded the observance of a substantive conception of the rule of law, including a robust set of human rights. In this regard, the LHA forms a watershed between two epochs, one before it − which was based on a formal conception of the rule of law − and one afterwards − which was based on a substantive conception of the rule of law.

 

The new constitution under the LHA made provision for the strict protection of property rights, which ring-fenced land rights acquired during the colonial period. Under S. 16, land could only be acquired by the state from landowners on a willing seller-willing buyer basis, with prices pegged at full market price. The government could compulsorily acquire land if it was underutilised, but again at market prices and with prompt and adequate payment. Landowners had the right to approach the courts of law to challenge the acquisition and the price for the land.

 

These clauses were entrenched in the constitution for a period of ten years, which meant they could not be amended during that period. The effect of these provisions was that any future land acquisition after independence would be subject to protecting the owners’ human rights. This meant the substantive rule of law, which requires the full observance of human rights, would be the standard against which government conduct would be judged in respect of land acquisitions.

 

This, as I have stated, was in marked contrast to the standard against which the conduct of the settler colonial state had been judged at Lancaster House. Here, the violation of human rights in relation to land during the colonial era were endorsed under the formal conception of the rule of law. This is why the substantive rule of law has been viewed as an albatross around the neck of the post-colonial state, constraining it from forging ahead with the its redistributive land policy. It also explains the deep suspicions with which the rule of law and the institutions that sought to enforce it were viewed.

 

These institutions included the Supreme Court of Zimbabwe, local and international non-governmental organisations, intellectual organisations and the media. Together, they were viewed as agents protecting the gains made by the white minority during the colonial period.

 

The forced early retirement of Chief Justice Gubbay is an event that exemplifies the controversies over the conceptions of the rule of law. Gubbay, who had been appointed in 1977 during the colonial regime, had progressed to become the Chief Justice in 1990. In 1991, he delivered an important speech at the opening of the Legal Year in Harare, which I will refer to as the “Essential Features” speech.

 

In that speech, he criticised the government’s proposed constitutional reforms in relation to land and advanced the argument that the constitution was based on certain essential pillars. Amending these pillars would cause the whole constitutional edifice to crumble. He warned that the courts would intervene to protect the constitution in the event of such amendments, which affected its essential features. He argued that this was necessary to protect the rule of law.

 

Gubbay’s speech was interpreted as a pre-emptive strike by the judiciary against the proposed constitutional amendments relating to the right to private property, which the government wanted to use as a gateway to pursue more aggressive land reforms. It didn’t help that Gubbay was the only judge remaining from the colonial Bench. His intervention was seen as a move to protect white landowners’ interests.

 

Indeed, ten years later, in 2001, the Judge President Godfrey Chidyausiku, in an unprecedented attack on his boss, criticised Gubbay for that speech and argued that he had shown favouritism towards the white landowners. Chidyausiku went on to succeed Gubbay after the latter’s early retirement, and reversed his predecessor’s judgment.

 

On reflection, it is clear that the government saw the substantive rule of law, which Gubbay had championed, as no more than an instrument to protect colonial-era privileges at the expense of the demands for redressing colonial land imbalances. It was the rule of law, but it was seen as a partial rule of law which looked after the interests of landed class but disadvantaged the landless.

 

As a result, not only was the institution of the judiciary dismantled, but the jurisprudence which it had created was also replaced. In a previous academic article, I have written about the judiciary as an instrument of land rights recovery, because that is precisely what the Supreme Court under Chidyausiku did. It refused to be constrained by the substantive conception of the rule of law in relation to land, which it regarded as an impediment to the cause of advancing the rights of the landless in respect of land.

 

The LHA failed to address these historical grievances. Instead, it protected gains made by rule of law violations and then went on to ring-fence these gains using the same rule of law it had ignored in regard to the colonial-era violations. This satisfied the minority but left a huge pool of discontentment among the rest of the population. The ZANU PF government would later exploit this discontentment for its own political benefit.

 

A question that even younger generations of Zimbabweans ask is why there was no compensation for colonial era rule of law violations in relation to land. It is a legitimate question, particularly at a time when, as taxpayers, they are required to shoulder the costs of compensating for the post-colonial state’s rule of law violations. It explains the general ambivalence among a younger generation of Zimbabweans to the question of compensation. My view is that the compensation question needs to be looked at more broadly, taking into account these historical issues.

 

Conclusion

 

There are a number of issues arising from this article:

 

First, both the colonial state and post-colonial state have applied largely similar tactics in relation to land. They have been aggressive, violent, racist, discriminatory and partisan.

Second, both the colonial state and post-colonial state are guilty of violating the substantive rule of law in that they have shown little regard for human rights in pursuit of land acquisitions.

Third, both the colonial state and post-colonial state lay claims to acting in accordance with the rule of law, but this is because they would be applying the formal conception of the rule of law.

Fourth, the difference between the colonial and post-colonial state is that one was absolved of its substantive rule of law violations while the other has been legally held to account and is liable to pay compensation.

 

Fifth, it is this difference in the treatment between rule of law violations carried out by the colonial and post-colonial state that is the source of controversy over the agency and utility of the rule of law.

 

It is in light of all this that the issue of compensation has stirred controversy, not just in Zimbabwe but also in states that have gone through similar colonial experiences. In this regard, South Africa immediately comes to mind, but Namibia also faces similar issues. Was it right to sweep the colonial rule of law violations under the Lancaster House carpet? Was it right to demand that the new colonial state and its citizens, the same victims of the colonial rule of law violations, should shoulder the costs of compensation?

 

Finally, I am not arguing that there should be no compensation for the landowners in the post-independence era. On the contrary, I am arguing for a broader view of the notion of compensation for rule of law violations in regard to land, a view that is sensitive to and takes history into account. Why, for example, shouldn’t the Tangwena people make a claim for compensation for human rights violations on account of their violent evictions?

 

In my view, if the compensation issue is looked at more broadly, the rule of law in relation to land will be looked at in Zimbabwe and perhaps in similarly placed African states with less suspicion. Furthermore, the moral case for compensation to the white landowners affected after independence will become more persuasive and less controversial than it appears at present. The land compensation issue is unlikely to be satisfactorily resolved unless both the contemporary and historical concerns over land-grabbing and substantive rule of law violations are settled and this requires the collective efforts of all actors who have been involved in Zimbabwe’s history.

 

waMagaisa

 

Not to be reproduced without the author’s express permission. Email: wamagaisa@me.com

 

I have relied on a number of sources for this article, chiefly the following:

 

Robin Palmer, Land and Racial Discrimination in Rhodesia, Heinemann (1977)

 

Sam Moyo & Walter Chambati 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

 

Steven Matewa, Man of the People. Stephen Matewa Trust (2010)

Mark Nyandoro, Zimbabwe’s land struggles and land rights in historical perspective: The case of Gowe-Sanyati irrigation (1950-2000) http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0018-229X2012000200009

 

Joseph Raz, The Rule of Law and its Virtue (1997) Law Quarterly Review

Lord Bingham, The Rule of Law

 

Paul Craig, Formal and substantive conceptions of the rule of law: an analytical framework. Public Law (1997)

 

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