Much of the land debate in Zimbabwe has centred on a number of high profile legal cases. The most prominent of course is that brought by Ben Freeth and his late father in law, Mike Campbell. The SADC tribunal ruled in their favour, but the decision was rejected by Zimbabwe and the tribunal was disbanded, and is unlikely to regain significant powers despite a high profile campaign led by Desmond Tutu to have it reinstated.
So whose law counts? National, regional or international, and which courts can adjudicate on what? This is a fairly profound socio-legal conundrum, debated widely by those concerned with legal pluralism and the relationships between international law and national jurisdictions. The Zimbabwe case is thus far from new, but it is important, given the importance laid on ‘the rule of law’ as a building block of an effective economy and democracy. And more pragmatically, resolving the outstanding legal disputes over land ownership must be achieved, if Zimbabwe’s agricultural economy is to move forwards.
In a piece contributing to the Sokwanele land debate, Dale Dore argues that the last decade or so has seen an abrogation of legal principles by the Zimbabwean state, with laws made and broken seemingly at will. Certainly the flurry of legislation on land that has appeared justifying, usually post hoc, state actions is witness to this pattern. Whether the issue is compensation or compulsory acquisition, then a new law to suit the current situation was presented. Of course, the argument runs that this is what elected law makers do, and they are perfectly in their right to do so.
The question though is whether justice is being done, or whether this represented arbitrary, biased law making of the worst sort, without any underpinnings of natural justice. This is certainly Dore’s main argument in his two-part contribution. And he clearly has a point. Following the rejection of the constitution in the 2000 referendum, the President insisted on inserting an amendment (no 16) allowing for compensation only for improvements, and while the High Court regarded the land invasions as ‘illegal’ in 2000, by December 2001, the Supreme Court ruled that Rural Land Occupier (Protection from Eviction) Act, giving rights to land invaders, was lawful and in line with the constitution.
Clearly the law was a mess, and added to that the intimidation and clear political manipulation of the judiciary made much of this a sham. But to suggest that the law and politics and social processes, particularly in times of rapid change, are always separate is also inaccurate. Laws must reflect broad political choices, and more generally the people’s will. If this was not the case, we would be stuck (as we often are) with laws that are outdated, regressive and anachronistic. New laws must though, as Dore argues, reflect the basic principles of fairness, natural justice and so on, but they also must be realistic and pragmatic, and appropriate to the social and political context of the time.
Probably the best way of resolving the detail is to look to the bigger picture. And this is where a Constitution can help. If this is agreed and broadly accepted, this can become the basis on which laws can be assessed. On land, the draft constitution, which of course is still being wrangled over, is quite clear on land, supporting the 2000 position on compensation, and recognising, as the GPA did, the irreversibility of land reform. The published draft has been accepted by the MDC, although Zanu PF continuing to bicker over other aspects. It seems that the land provisions are not part of this on-going wrangle.
This is not to say that there aren’t those who object. In a recent Financial Gazette article entitled, “Draft constitution displeases displaced farmers”, the piece reports on the position of the CFU and the views of Agricultural Recovery and Compensation manager Ben Gilpin, arguing that “The predicament of the former commercial farmers continues unabated as the draft constitution has failed to address the issue of compensation, stripping them of their rights to fair compensation as indigenous Zimbabweans”. The CFU has yet to respond formally, but others have indicated that they will continue the struggle for full rights and compensation elsewhere. Ben Freeth has criticised the MDC, saying that they are misleading people by accepting the draft.
If the Constitution is agreed as currently framed, then these more radical claims will have less force. Yet, Dore argues that the draft constitutional provisions are “conspicuously at variance with international law and offend natural justice”. But this claim can be disputed. International law is not clear on land compensation, and compensations for improvements only is an accepted mechanism elsewhere, and probably the only feasible one for Zimbabwe. As for natural justice this rather depends on the wider consideration: clearly land reform was redressing longer term injustices due to colonialism, and striving for equity through redistribution must be seen as a commitment to justice too. Balancing individual human rights and narrow legal provisions created in another era, with wider commitments to rights, justice and redistribution is not easy, and in the end is a societal and political judgement. Overall, a national political consensus is clearly required on the land issue, and this will require compromises. Holding out on the basis of arguments around the ‘sanctity’ of private property is insufficient, and recourse to an individualistic rights discourse, ignoring the wider social-political context is also inadequate.
What then is the way out of this bind, where, as in the Sokwanele debate as in wider political discourse, the two protagonists talk past each other? A first step must be a new legal framework, based on a democratically agreed Constitution, must be the way forward. Let’s hope that the referendum takes place and that this can form the basis of this, leaving behind the arbitrary manipulation of the law that has characterised the recent past.