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BSR: On the issue of Land Compensation

The last month has witnessed two significant developments concerning the Land Question in Zimbabwe. The first was the signing of the Global Compensation Agreement between the Government of Zimbabwe and representatives of former farmers. These former farmers were dispossessed of their properties in the 2000s during the Fast Track Land Reform Programme (FTLRP). The purpose of this article is to examine these two landmark events, the reasons behind them and the implications in the discourse on land and politics in Zimbabwe.

Three categories of former farmers

The first port of call is the Constitution of Zimbabwe as the supreme law of the country. The Constitution recognises three categories of former farmers regarding land reform and compensation.

Non-indigenous Zimbabwean farmers

First, there are Zimbabwean farmers (often referred to as white farmers) who lost their properties during the FTLRP. For convenience and in light of the language used in the Constitution, they may be referred to as "non-indigenous former farmers". This is because there is a category that is referred to as "indigenous" farmers.

Where land was acquired from this category of farmers, they are only entitled to compensation for improvements on it. This is stated in section 72(3)(a) and section 295(1) and ((2) of the Constitution. As for the land itself, the Constitution places the obligation to pay compensation for it upon the "former colonial power". This is stated in section 72(7) of the Constitution. These are the farmers covered by the Global Compensation Agreement, which was signed in July 2020. The total bill for that compensation package is US$3,5 billion.

Indigenous Zimbabwean farmers

Second, some farmers are referred to as "indigenous Zimbabweans" under section 295(1) of the Constitution. These indigenous farmers are entitled to compensation for both land and improvements if the State compulsorily acquired their land during the FTLRP.

The difference in the treatment of former farmers in the first and second category is clearly based on race. It is founded on the assumption that all indigenous farmers owned their land lawfully and legitimately which entitles them to compensation, while all non-indigenous farmers in the first category were odious beneficiaries of a racially-driven colonial land distribution system. No allowance was made for those non-indigenous farmers who may have bought their farms after independence just like their indigenous counterparts.

During the constitution-making process, the MDC argued for the recognition of this category of non-indigenous farmers who were just as affected as their indigenous counterparts, but ZANU PF would hear none of it. These farmers find themselves in the first category, entitled only to compensation for improvements but not for the land itself. This remains a sore spot for these former farmers who are lumped together with so-called beneficiaries of the colonial system.

Foreign Farmers

The third category of farmers is those whose land ownership rights were covered under bilateral agreements between Zimbabwe and another country. We may refer to these as foreign former farmers. A foreign country would have signed a Bilateral Investment Promotion and Protection Agreement (BIPPA) with Zimbabwe. Such agreements protect the property rights of each country's nationals when they invest in the other country.

Therefore, Zimbabwe was under an obligation to protect the property rights of these foreign farmers. However, because the FTLRP was chaotic and driven by political expediency, the Zimbabwean Government paid no regard to the bilateral agreements. It refused to listen to advice. The opposition urged caution and care in the method of implementation. All farms owned by white farmers were invaded and occupied, often violently. Section 295(2) of the Constitution provides that such farmers must be compensated for both land and improvements.

Therefore, of the three categories of farmers affected by the land reform programme, two of them are entitled to full compensation for both land and improvements from the Government of Zimbabwe. These are the indigenous farmers and foreign farmers. The final category, of so-called non-indigenous Zimbabwean farmers, is only entitled to compensation for farm improvements from the Government of Zimbabwe. If they want compensation for the actual land, the obligation is placed on the United Kingdom.

One of the ironies of this categorisation is that foreign white farmers got more protection than white Zimbabwean farmers. Interestingly, a white farmer in the first category could lay a claim for protection as a foreign farmer under the third category, if he could prove that he is a national of a country with which Zimbabwe has a BIPPA. Ironically, ZANU PF always said it would not pay compensation because the white farmers were "foreigners". Suppose they were British, as ZANU PF insisted. In that case, they could now claim compensation for both land and improvements as foreign farmers! These are some of the contradictions of a complex political process.

Significantly, the Constitution requires that any compensation to these former farmers "must be assessed and paid in terms of an Act of Parliament" (section 295(4)). In other words, Parliament must be involved in the process. This is the constitutional position.

The trouble with the agreements

First, the Global Compensation Agreement represents the Government's attempt to compensate Zimbabwean farmers who are categorised as non-indigenous. The massive $3,5 billion bill is for farm improvements. Several issues arise from this deal:

Illegality

As it stands, the process is illegal because it is in breach of the Constitution. As already stated, section 295(4) provides that any compensation must be assessed and paid in terms of an Act of Parliament. There is no such Act of Parliament. The reference to a Statutory Instrument issued in march is irrelevant because an Act of Parliament is a different legal instrument. The Government has referred to the Global Compensation Agreement, details of which remain a secret. It has given out summaries but not the agreement itself. There is a lack of transparency.

Lack of transparency

The lack of transparency raises questions over the list of beneficiaries of the compensation award. Zimbabweans are sceptical because of past experiences where politicians and their associates have unfairly benefited from publicly-funded schemes. The lists of beneficiaries have been kept secret. The worry is that unscrupulous politicians and their associates may be among the list of beneficiaries of the land compensation agreement. This is problematic in a country where political elites are deeply corrupt. This could be easily cleared by disclosing the list of beneficiaries. Otherwise, they will loot in the name of non-indigenous former farmers, just like they looted under the Farm Mechanisation Scheme.

Beneficiaries must pay

Besides, there is concern that taxpayers are being asked to pay the enormous bill for improvements when the individuals who benefited from those improvements exist and have the capacity to pay. There is no reason why ordinary taxpayers should carry the cost of individuals who have made and continue to make private profits from these improvements. These improvements include livestock and plants and crops which were harvested by beneficiaries. It is only fair that the direct beneficiaries of those farm improvements must pay their fair share to compensate the farmers they dispossessed.

Circumventing the law

There are also concerns that without clarity and transparency on the valuation of the "improvements", the compensation could actually be for both land and improvements, contrary to the law. This can easily be cleared by enhancing transparency. This is precisely why the Constitution requires the assessement and payment of compensation to be done through Parliament and with oversight by the representatives of the people. As it, these are private agreements between political elites and the former farmers. Elitist deals risk rejection by the ordinary people.

What does "restoration of title" mean?

In regards to indigenous and foreign farmers covered by BIPPAs, the Government has now agreed that they can apply "for restoration of title" to the land that was acquired from them. The Government commits to "grant their applications where circumstances presently obtaining on the ground permit the restoration of their land to them". Suppose the situation on the ground does not allow for restoration. In that case, the Government says it will offer them alternative land elsewhere as restitution. Several issues arise concerning this category:

In the first place, the language used by the Government is vague. It says that the former farmers may apply for "restoration of title". But what exactly does that mean? Does it mean the farmers will now exercise ownership rights to the land, because that is the "title" they had before the dispossession? At law, the reference to title is generally taken as a reference to ownership. If so, how does this sit with the existing constitutional provisions which provide that all agricultural land which was acquired by the State is State land?

Section 290 of the Constitution makes it clear that all land that was acquired during the FTLRP "continues to be vested in the State". What then is the "restoration of title" that the Government is referring to in its press statement? Section 293 allows the State to alienate agricultural land. However, the statement is vague. In the same paragraph, it refers to 'restoration of their land to them" unclear as to whether this is a restoration of title or mere occupation. The vague and casual approach to such a matter suggests that the Government is not serious, and this is yet another gimmick. If the State is returning to a system of privatising agricultural land, having realised the weaknesses of nationalisation, then it should be bold and clear about it. The problem is that the Mnangagwa regime lacks ideological clarity and confidence.

ZANU PF misled the people

The second issue concerns the Government's about-turn concerning the issue of returning land to former farmers. No amount of sophistry can hide the fact that by committing to restore former farmers to their land and to remove resettled farmers, the Government is doing what it alleged it would never do. This is what the Government says in its latest statement:

"In this regard, in order to allow former farm owners in this category to regain possession of the pieces of land that were acquired from them, Government will in the appropriate circumstances, revoke the offer letters of resettled farmers currently occupying those pieces of land and offer them alternative land elsewhere".

To the resettled farmer, this is an ominous message: the Government will revoke the offer letter and bring back the former farmer because their Government has agreed to it. This is why some are already charging the Government with "reversing the land reform programme". This is because the Government often used strong political rhetoric arguing that the MDC wanted to reverse the "gains of the land reform programme" by "returning land to the white man". This was all expedient political rhetoric which was cheered by ZANU PF supporters, but it has come full circle.

It has taken ZANU PF 20 years to eat humble pie and try to take corrective measures. However, it lacks the humility to accept failure or even to explain to resettled farmers why it is taking this major step which it had previously vowed it would never do. For years, they made the opposition look like its reason for existence was to reverse the land reform programme; their election campaigns were based on this rhetoric.

Why is he avoiding Parliament?

ZANU PF's response is that they are only complying with the Constitution, which requires them to pay compensation to the dispossessed foreign and indigenous farmers. However, as already pointed out, the Government violates the Constitution, which requires compensation to be assessed and paid in terms of an Act of Parliament. Also, whereas compensation was envisaged in monetary terms, the act of actually returning the land and removing resettled farmers is a step further than was ever contemplated.

This is bound to bring the ZANU PF regime into a head-on collision with the community of resettled farmers. The message will filter into these communities that their pieces of land are now at risk. This will bring more uncertainty into a sector that is already reeling. There is a good reason why designers of the Constitution gave a role to Parliament in this process. It is to ensure transparency, accountability and participation of the people's representatives in the assessment and payment of compensation. However, even with a two-thirds majority, Mnangagwa is avoiding Parliament. Why is he bypassing Parliament?

The first reason might be that he is unsure that his MPs would support his policy of returning land to the former farmers and removing resettled farmers. He might face resistance in a Parliament that is dominated by his party. He realises that this policy measure has a political cost which he wishes to avoid.

The second reason is that he simply has no regard for Parliament. It's a body that he takes for granted and doesn't care about because his party already dominates it anyway. He probably knows that he can always go to Parliament and present the deals as a fait accompli. He has no need to consult them; they will just do whatever he wants.

Whatever the reason, by resorting to executive measures and issuing executive statements, Mnangagwa's actions are unconstitutional without an Act of Parliament. Whether he is scared of resistance in Parliament or he has no regard for it, he must nevertheless ensure that the proposed compensation is assessed and paid in terms of an Act of Parliament. It is a matter of law, not personal decree.

Exclusion of labour

One of the conspicuous omissions from this flurry of activity by the Government concerning land compensation is labour. There is virtually nothing that the Government has done or said concerning farmworkers, whose livelihoods were destroyed by the chaotic land reform programme. There hundreds of thousands of victims who don't feature at all on the government radar. There are legitimate questions raised from the zone of labour when they ask why the Government is so keen to cater for the farmers but has no word on the farmworkers.

Priorities

There are also practical issues. The country has been on the brink of collapse for some time. The public health system is broken. More than 8 million people are food insecure, according to the World Food Programme. The country is broke. It has vast arrears at multi-lateral and bilateral creditors. Zimbabweans are asking where the money is going to come from given the national dilapidation. The regime is probably hoping that compensating former farmers will endear it to the West. It has always believed that targeted sanctions are because of the land reform programme and the Government's refusal to pay compensation.

Conclusion

The land reform programme in the 2000s was politically expedient at a time when Mugabe and ZANU PF were facing an unprecedented threat from the MDC. The handling of the compensation issues is driven by political expediency. Therein lies the problem. The policy is vulnerable to the whims of the leader at any given time. Whoever comes after Mnangagwa might have his opposite approach. The sector will always be at risk of uncertainty and change in policy. The current processes show that the Land Question is far from ended. It will be with us and with future generations simply because politicians favour expediency. Mugabe was desperate for domestic support; Mnangagwa is desperate for acceptance by the international community. The naive and gullible will buy this political gimmick. Wiser heads will tread with caution.

WaMagaisa

wamagaisa@tutanota.com

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