Tag Archives: compensation

Panic, privilege and politics: South Africa’s land expropriation debate

South Africa’s land reform policy is a mess. A combination of incompetence, poor policy and scandal have meant that there has been little progress in years. The parliamentary High Level Panel report effectively dissects the problems. But in recent days, the land issue, always bubbling under the surface in South Africa’s unresolved post-apartheid settlement, has burst into the limelight.

By announcing the intention to change the Constitution to allow for ‘expropriation without compensation’, the ANC has tried to steal the thunder of maverick radical Julius Malema and the Economic Freedom Fighters party. Last week a motion was approved in Parliament with the full backing of new president, Cyril Ramaphosa.

There has been panic and outrage. The white privileged classes are shocked. Sections of the international media are apoplectic. Capital has warned of the worst. The rand has taken a knock on the markets. And the newspapers and airwaves are full of vivid commentary of impending doom. And – yes of course – Zimbabwe is once again being deployed in South Africa’s political discourse as the example of how bad it can become. This is just like Mugabe’s land grab, which can only result in poverty and disaster. And on, and on, with all the usual myths and stereotypes being trotted out.

More sane commentary points out of course that this is more about political power plays than any big change. Listen to an excellent interview with Ruth Hall, and further commentary here and a useful round-up here.

Unlike the EFF, which is calling for land nationalisation, the ANC has made no mention of such a move. To allay fears, they’ve announced that expropriation without compensation would only take place only if food security and the wider economy was not threatened. Quite how this would be assessed is anyone’s guess.

And, in any case, as Adv. Geoff Budlender, the DG of Land Affairs from 1994, and many others point out, the existing 1996 Constitution in section 25(3) allows for expropriation anyway, with ‘just and equitable’ compensation. Any change therefore would be largely symbolic not substantive. Even Julius Malema says ‘no-one will lose their houses!

The problem in the past has been that the ‘willing seller-willing buyer’ approach has been the policy default. This has meant a slow pace of change and high costs when ‘market prices’ are paid, as in the notorious R1 billion originally proposed payout in the Mala Mala case. Shifting the balance towards expropriation, away from only a reliance on the market may change the dynamic of land reform for the better. Debates must follow as to what just and equitable compensation would be. Sometimes it will be zero; in most cases not.

One of the foci for outrage and panic has been the presumed assault on the unassailable ‘property rights clause’, a key element of the negotiated settlement of 1994. In South Africa, this is an ideological lynchpin; an almost religious conviction that the world would collapse if there was any change in freehold property rights. Again, as discussed many times on this blog before, these arguments are replete with myths; ones that keep being repeated in Zimbabwe. For example, see these recent pieces by John Robertson and Eddie Cross, offering textbook repetitions of the same problematic arguments seen in South Africa in the past weeks.

Under the new proposals, a framework of property rights would continue to exist but the conditions would change, just as they have in Zimbabwe. A new post land reform framework can continue to be the basis for investment, finance and successful agriculture. Indeed, as it does in many other parts of the world without the weird hang-ups that are the legacy of southern Africa’s settler past.

It is this past that is swirling around the debate in South Africa. Race, white privilege and the unresolved questions of redistribution following the end of apartheid are all central. As Ben Cousins points out, those who are suffering the most from expropriation without any hint of compensation are poor blacks in places like Kwazulu Natal, where chiefs, holding state land in trust in the communal areas, are complicit in massive expropriation for mining, housing and other grabs. This seems not to be part of the debate, as it’s framed as an assault on historic white privilege.

Seen through this lens, the pleading of the (mostly) white farmer lobby or the business community is simply an argument for continuing special treatment that started with colonialism. The big mistake of their Zimbabwean equivalents from the 1980s, and particularly in the late 1990s, was the abject failure to accept that change was long overdue and then not engaging with the process fulsomely and positively, so shifting the narrative.

With the Motlanthe High Level panel report out, a political debate raging and a new president, this should be the moment in South Africa to change the discourse on agriculture and land reform, after so many years in the doldrums.

Unlike in the 1990s in Zimbabwe, this must mean everyone engaging in a national dialogue. One of the best contributions in the furore last week in South Africa was from Sue from Somerset West who called into Eusebius McKaiser’s talk show, proclaiming emotionally that not all whites are against land reform, and that grappling with white privilege is vital. A brave and powerful intervention.

The lesson from Zimbabwe for South Africa is not that land reform is a disaster. Far from it – it is essential for economic renewal and central to moving on from the past. Agrarian reform in post-settler economies must deal not only with economic reconfiguration, but also fundamental changes in institutions and outlook for a new era.

Hopefully this is the moment for South Africa – at last – to confront these tough transitional issues, now 24 years on.

This post was written by Ian Scoones and first appeared on Zimbabweland.

Thanks to Ben Cousins and Ruth Hall for sending on links. Photo from flickr, CC via Government ZA




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Zimbabwe urgently needs a new land administration system

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REUTERS/Siphiwe Sibeko

This is the second in a short series of articles produced for The Conversation on the land and agricultural development challenges for the post-Mugabe era. See the first one on compensation in last week’s post.

Zimbabwe urgently needs a new system of land administration to harness development in the agricultural sector. The country’s land use and ownership have been significantly reconfigured by the fast-track land reform programme undertaken during Robert Mugabe’s rule.

Today, following the land reform of the 2000s, Zimbabwe has an agrarian structure that’s made up of small, medium and large farms, all under different forms of land ownership. A landscape that used to be dominated by 4,500 large-scale commercial farmers is now populated by about 145,000 smallholder households, occupying 4.1 million hectares, and around 23,000 medium-scale farmers on 3.5 million hectares.

Knowing exactly who has land and where is difficult. Illegal multiple allocations combine with unclear boundary demarcations and an incomplete recording system. Many new land owners don’t have formal documentation and lack leases or permits confirming ownership. There is a great deal of uncertainty given the often haphazard, sometimes corrupt, approach to land reallocation that took place under the land reform programme.

Given that the landscape is very different to what went before, a new system of land administration is urgently needed.

Promise of change

In his inaugural speech, Zimbabwe’s new president, Emmerson Mnangagwa, declared that land reform was both necessary and irreversible, and acknowledged some big, outstanding challenges.

A new land administration system for the post-land reform era is long overdue. Paying compensation to former owners is a vital first step. This has to be combined with a comprehensive land audit to weed out those failing to produce, or those illegally holding more than one plot, alongside allocating leases and permits to those in land reform areas, and attracting investment into agriculture as the mainstay of an ailing economy.

Both compensation and audit processes will inevitably throw up disputes. A fair and transparent system for rapid resolution is required, including the establishment of an independent Land Tribunal. Alternative dispute resolution processes at a local level will hopefully avoid the dangers of the courts getting clogged with numerous cases.

An audit also has to be linked to land registration, and an effective, but low-cost, land information management system. Following registration, legal recognition and formal documentation of land ownership is essential, as land tenure security is vital for future investment.

Many forms of tenure

Some believe that the only solution is individual freehold titling, as land is otherwise seen as “dead capital”. But this is mistaken, as other forms of land tenure can offer security, spurring investment, if the institutional, legal and political context is right.

As argued in 1994 by the Rukuni Commission, a major review of tenure policy in Zimbabwe, a multi-form tenure arrangement makes most sense. In some settings, communal tenure regimes are best, allowing flexibility and broad access. In others, a simple permit system can allow registration. In others, a leasehold arrangement can offer security and collateral, while regulations can offset land concentration and assure access for certain people.

Occasionally freehold title may be appropriate if a completely free market in land is required. However, titling schemes are notoriously expensive to deliver, open up multiple disputes and are difficult to regulate to ensure more equitable ownership structures, including land ownership by women.

Financing is essential

To pay land taxes, mortgages or compensation payments, the land must be productive, and this requires finance. Finance for agriculture has been missing in recent years.

Great efforts have been made to ensure that the 99-year lease for medium-scale commercial farm land (known as A2) is bankable, and cannot be withdrawn arbitrarily. It seems that, at last, the Zimbabwe Banking Association is in agreement. This will allow the release of private bank finance, as land can be used as collateral.

For those without land leases, other types of collateral can also be used, including assets such as livestock, vehicles or buildings. Alternative sources of farm finance include commercial crop contracting, partnerships and joint ventures or government backed loans.

All these financing models have shown some promise in Zimbabwe in recent years, with crop contracting at the core of the smallholder tobacco production success story. Contracting arrangements are also extending to other crops. Joint ventures, including partnerships with Chinese investors and former commercial farmers, have also been emerging in a number of under-capitalised medium-scale farms.

“Command agriculture” – a public-private input supply scheme – has been a flagship project led by the new president and the military. It has helped to revitalise maize and wheat production, especially on larger farms with irrigation infrastructure. Questions are however raised about longer-term sustainability of such subsidised financing.​

Sustainability is key

Getting a new land administration system working is a huge task. All the elements have to work together – from audit to valuation to compensation to dispute resolution to issuing land tenure documentation to financing – and back again.

And this is not just a one-off task to resolve the current mess. Land disputes will continue, audits will need to be repeated, and new leases and permits and sources of finance secured. For this reason any new system must be sustainable, both administratively and financially, and not reliant on external donor finance. Taxes, rents and compensation repayments need to be paid back into a land fund, which in turn supports the system for the long-term.

Testing this all out at a district level before rapidly rolling it out across the country is an urgent task for Zimbabwe’s new Land Commission. Elaborating a new land administration system is long overdue. Such a system will help the country get over the post-land reform impasse, resolving outstanding land issues and getting much-needed investment flowing into the agriculture sector.

The ConversationOnly with this working well – as countries in East Asia recognised when they undertook land reforms decades ago – will the full benefits of Zimbabwe’s land reform be realised.

Ian Scoones, Professorial Fellow, Institute of Development Studies, University of Sussex

This article was originally published on The Conversation. Read the original article.

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Settling the land compensation issue is vital for Zimbabwe’s economy

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REUTERS/Siphiwe Sibeko

Zimbabweland kicks off 2018 with three articles republished from a series coming out in The Conversation, each on commenting on different land and agriculture policy issues under the post-Mugabe dispensation. This is the first.

In his inaugural address the new President of Zimbabwe, Emmerson Mnangagwa, confirmed that land reform was both historically necessary and irreversible. He also made a commitment to compensate farmers who were forced off their land during the fast track land reform programme of the 2000s.

Many international commentators read this as a sign of a more inclusive stance that could benefit economic recovery. Indeed, the recent reinstatement of an evicted white farmer is perhaps an indication that things are changing.

Mnangagwa has no option but to tackle land reform if he’s serious about getting Zimbabwe’s economy back on track. This is because agriculture continues to play a significant role.

Zimbabwe’s major land reform, starting in the year 2000, resulted in around 6,000 farms owned by about 4,500 farmers and companies being taken over. Former owners, most of them white commercial farmers, were evicted, sometimes violently.

Today around 145,000 households occupy 4.1 million hectares under smallholder resettlement schemes. Another 3.5 million hectares are used by about 23,000 medium-scale farmers.

One of the new government’s major policy priorities has to be to get agriculture moving as a motor of growth. The long-running issue of outstanding compensation payments has meant that international donors and financiers have not engaged with land reform areas, missing out on supporting major development opportunities.

Agriculture remains a mainstay of Zimbabwe’s economy. People on the resettlement farms are producing significant quantities of food and other agricultural products. For example, in the last season over half of the 2.2 million tonnes of maize produced in the country, as well as 60% of total tobacco output worth nearly USD$350 million, came from land reform areas. These numbers make it clear how vital they are to Zimbabwe’s struggling economy.

Fixing the system

Former commercial farmers held land under freehold title. In some cases bilateral investment agreements, mostly with European countries, also governed ownership. Yet, as part of the reform, land was expropriated by the state and allocated to new users. Initially this was done without regard to these rights.

The lack of redress, and the ongoing contestation over ownership of land, has caused uncertainty. This in turn has affected growth and investment. Many western countries have refused to undertake work in these areas, linked to a wider sanctions regime.

Resolving the compensation question is vital for seeking a way forward for Zimbabwe’s agricultural sector.

Of course offering compensation is not a new policy. Compensation for “improvements” on the land has been on offer for years. It was reconfirmed by the 2013 Constitution, negotiated by all political parties.

To date around half of all farms acquired during land reform have been valued by the government. In parallel, others have been valued by private surveyors and ValCon, an organisation backed by former large-scale farmers.

So far around 250 compensation settlements have been reached, amounting to a payment of around USD$100 million.

For farms where land was acquired under bilateral investment treaties, compensation for both land and improvements must be paid, adding to the costs.

What’s been missing has been the capacity to undertake valuations of the remaining farms; the funds to pay compensation; as well as the political will to see it through.

This may now have changed under Mnangagwa. A commitment has been made to a process of auditing, valuing and paying compensation, linked in turn to the issuing of 99-year leases and permits to use the land.

Who will pay and how?

The total compensation bill is likely to run into several billion dollars. Who will pay – and how – are the big questions.

A mix of payments across different liabilities will be required.

There will be private components, such as equipment that a new farmer is using, that will have to be paid off by larger-scale farmers. This payment can be done over many years through mortgaging arrangements, with upfront payments by the state to former owners.

For smallholder farmers, the “improvements” designed for large-scale farming have been less useful. And their ability to pay is much less. Here state or aid funding of compensation will be required.

Other public assets – such as a dam, a road, a building now being used as school or as an extension workers’ house – are more appropriately paid off by the state, or as part of a donor-financed or debt-rescheduling scheme.

Quick resolution is essential

Nearly 18 years after the land reform most evicted farmers want a quick, pragmatic solution. This has dragged on for too long. Former white farmers are ageing and are in urgent need of pension support. Others have moved on to different businesses or left the country. This is about acknowledgement, reconciliation and justice.

In a period when there have been currency changes, hyperinflation and dramatic shifts in the economy, valuation will always be an approximate science. While some will continue to contest the land reform in whatever court or tribunal that will hear them, most want resolution – and soon.

Resolving the compensation issue is essential not only to provide redress for those who lost their farms, but also to reduce uncertainty, encourage investment and unlock potential for growth and development.

The ConversationMnangagwa’s commitment is a good sign. But it now needs to be seen through, and urgently.

Ian Scoones, Professorial Fellow, Institute of Development Studies, University of Sussex

This article was originally published on The Conversation. Read the original article.

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Two speeches for ‘new era’ Zimbabwe

From http://www.zimbabwesituation.com

Over the last few weeks I have been in Zimbabwe, visiting our field research sites in Mvurwi, Matobo and Masvingo. It has been an exciting period, with fast-moving developments. The euphoria of November has given way to the realism of December, and with this some emerging sense of what the ‘new era’ might bring.

Two speeches have dominated the news – first the inauguration speech by President Mnangagwa and, second, the budget speech last week by reinstalled finance minister, Patrick Chinamasa. Of course actions must follow words, but overall I find the tenor and content broadly positive, and I remain cautiously optimistic that a corner has been turned.  In this blog, I will offer some excerpts from and comments on both, focusing only on land and agriculture issues.

The inauguration speech was well crafted, aimed to send messages to different audiences from each paragraph. Following a respectful acknowledgement of the former president Robert Mugabe, he rejected the sanctions imposed on the country, creating a ‘pariah state’. He argued for letting ‘bygones be bygones’ and for the need for everyone to accept the historical realities and politics of the country, particularly in relation to land reform. Land – and the irreversibility of land reform, but the importance of investment and effective utilisation – was emphasised right up front in the speech in the following important passage:

“…given our historical realities, we wish the rest of the world to understand and appreciate that policies and programmes related to land reform were inevitable. Whilst there is a lot we may need to do by way of outcomes, the principle of repossessing our land cannot be challenged or reversed. Dispossession of our ancestral land was the fundamental reason for waging the liberation struggle. It would be a betrayal of the brave men and women who sacrificed their lives in our liberation struggle if we were to reverse the gains we have made in reclaiming our land. Therefore, I exhort beneficiaries of the Land Reform Programme to show their deservedness by demonstrating commitment to the utilisation of the land now available to them for national food security and for the recovery of our economy. They must take advantage of programmes that my Government shall continue to avail to ensure that all land is utilized optimally. To that end, my Government will capacitate the Land Commission so that the commission is seized with all outstanding issues related to land redistribution”.

The following comment on compensation was the one that was picked up by the international press. It of course represented no shift in position, as compensation for ‘improvements’ on the land (but not for the land itself) has long been accepted, although payments have been extremely slow:

“My Government is committed to compensating those farmers from whom land was taken, in terms of the laws of the land. As we go into the future, complex issues of land tenure will have to be addressed both urgently and definitely, in order to ensure finality and closure to the ownership and management of this key resource, which is central to national stability and to sustained economic recovery. We dare not prevaricate on this key issue.”

Reference to the ‘laws of the land’ clearly relates to the Constitution, which as an all-party agreement confirmed this policy position. What was different in this speech was the tone, and the public commitment. While policies may have not changed, the PR machine and sense of urgency clearly has. This is excellent news, given that compensation has long been a major outstanding issue, preventing closure on the land reform, and resulting in on-going sanctions being applied around still ‘contested land’.

While the inauguration speech was inevitably thin on detail, more was offered in the budget statement last week. Chapter 7 focused on ‘support for agriculture’, with the budget rather optimistically expecting the sector to grow by 15.9% on the back of a really good season. Re-emphasising the importance of agriculture in the President’s inauguration speech as the ‘mainstay’ of the economy, issues of land utilisation, land tenure and boosting production were emphasised.

Chinamasa’s statement summarised the challenges of ‘new farmers’ thus, “On average, the new farmer had been encountering constraints which became a hindrance to full productive utilisation of the land, bordering around capacity, resources, and elements of insecurity over tenure. The result was much idle farmland, and unaccountability on the part of the farmer with regard to use of acquired land holdings for farming in support of domestic food security, supply of agro-inputs and exports”.

A number of remedies were offered:

On land tenure: “To give confidence to beneficiaries that their occupancy is guaranteed, and cannot be withdrawn willy-nilly, through the indiscipline of either youths, political leaders, traditional leaders or senior officials, Government is undertaking to institute measures to strengthen the legal standing of Offer Letters and 99 Year Leases. This enables the much needed farm investments, improved utilisation of land and, therefore, production”. This is good news, and also a relief that the lease/permit option remains preferred over a mad titling spree advocated by some. The budget emphasised the need to speed up farm valuations and surveys, so that the issuing of leases can be speeded up, supported by the Surveyor General (and drones!).

On land audits and under-utilised land: Through the process of land auditing “issues of multi-farm ownership, idle land and under-utilisation of land are going to be identified. Idle land represents dead capital and promotes speculative tendencies, if not checked on the part of the land holders. As a result, the economy loses on optimal agricultural production”. The Zimbabwe Land Commission is charged with this responsibility, and the budget speech urged the long-awaited audit to move forward.

On Command Agriculture: “The thrust is on full, efficient and sustainable utilisation of allocated land, for increased investment on the land and production”. The role of ‘anchor companies’ (such as Sakunda) as part of a strategic public-private partnership is emphasised,. Such companies provide “access to capital and markets, sharing of best practices, farming knowledge and transfer of expertise, mutually beneficial to both parties. More specifically, the identified anchor companies have the critical roles of providing access to capital, training the small scale farmers and coordinating marketing, including exporting”. Interestingly, Command Agriculture is seen as a “transitional inception intervention”. There is a recognition that, pending allocation of leases and the release of private finance (especially for the A2 farms), collaborative financing models, involving the state and the private sector are needed. “In the interim, the new farmer would need to be incubated as they learn the ropes and overcome learning-by-doing inefficiencies that entail yields lower than would obtain with best practices, making a case for transitional producer prices higher than import parity levels.” As discussed in an earlier blog, a key issue is how long – and how politically necessary – such an ‘interim’ phase is required, as the cost of defaults and $390 per tonne of maize is huge.

On ‘leakages’ and abuse: An extended section of the speech focused on leakages in the Command Agriculture and Presidential Inputs Scheme, recognising the problems of corruption that have been widely reported. A decentralised electronic data management is proposed, along with the capacitation of Agritex offices and ‘command centres’. Investigations of abuse are promised, whereby “culprits will be quickly brought to book”. Clearly Command Agriculture is a high-profile plank of economic policy for the ‘new era’ (at least for now) – extending from maize and wheat to include soy beans and livestock in the coming season. In line with the wider rhetoric around stamping out corruption, military discipline and well-designed logistics operation will be applied it seems, with Air Marshall Perence Shiri firmly in charge.

On loan repayments: The budget speech highlighted (in the context of course of a very good rainfall season) the loan repayment pattern of Command Agriculture. For maize, “loan recoveries are running at 66%, with the Command Agriculture Revolving Fund registering repayment receipts of US$47.4 million in loan recoveries from farmers. This is against an anticipated repayment target of US$72 million. Out of the 50 000 farmers contracted to produce maize under Command Agriculture, 33% fully paid their loan obligations, with 22% having partially paid their obligations, while recoveries others are being made as they deliver to GMB.” A broadly similar pattern is reported for wheat. Let’s see what the final figures are once all crops are delivered, but for a state loan scheme such returns are not bad, although clearly could be improved, with over 10,000 farmers not having paid anything by 23 November. To that end: “To encourage our farmers to continue paying back their debt obligations, all fully paid farmers are being prioritised in accessing inputs under the 2017/18 Command Agriculture programme.” This sort of financial discipline is encouraging, and is certainly reflected in conversations I had with a number of A2 farmer beneficiaries of the scheme who are committed to repayments, and are actively being chased for them, despite their apparent status or political connections.

On private finance: With Command Agriculture presented as temporary, what alternatives are suggested? “As we move forward, private sector and commercial bank finance will be required to fully take up its rightful role of adequately underpinning agriculture, particularly, A2 commercial farmers”. For this, the A2 99 year lease is seen as crucial, although continued politicking around this continues. For smallholders, contract farming arrangements are highlighted.

On compensation: Not much detail was offered here, other than a recommitment to paying compensation in line with the Constitution. The statement indicated monies were to be set aside, both for normal compensation and for those areas appropriated that were under bilateral investment treaties. The amounts were however not specified; clearly there is hope that donor support and debt rescheduling will help.

In sum, the policy directions proposed by both speeches are certainly on the right track. The opposition complained that their ideas had been stolen, highlighting a converging consensus on many policy issues. The challenge will be to make the grand ambitions happen, so far with extremely limited resources; although of course with the hope of new injections of donor funds and lines of credit. Central to the challenge for land and agriculture will be to combine all elements in a new, effective land administration and financing/support system. The new minister of Lands, Agriculture and Rural Resettlement and his team, as well as the independent land commission, all have their work cut out. Hopefully some of the ideas shared in this blog and from our research over the years will help in charting a way forward.

This post was written by Ian Scoones and first appeared on Zimbabweland


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Compensation following land reform: four big challenges

Paying compensation following land reform is perhaps one of the most pressing and emotive land policy issues in Zimbabwe today. Delays have caused uncertainty and limited agricultural investment, undermined trust and prevented international re-engagement. Valuation and paying of compensation needs to be dealt with urgently.

With any compulsory acquisition – whether through land reform, or through expropriation for mining or urban development in communal areas or from freehold land – comes the responsibility to pay compensation, and the associated liability is taken on by the state. This is formally acknowledged in Zimbabwe’s new Constitution, but the practice of compensation in Zimbabwe has been found wanting.

Beyond the importance of political recognition of this as a priority, there needs to be a set of practical responses that help build trust between the different parties. This blog is one of an occasional series (for example, here) on priorities for the new Zimbabwe Land Commission, established by the Constitutional settlement. Here are four important challenges around compensation.

First is the methodology for valuation. The Constitution, agreed across political parties, specifies the obligation of the state to pay for ‘improvements’ (and only for land held under investment treaties). This is reiterated in the Zimbabwe Land Commission Bill. However, given the delays in implementing the approach there are many disputes about how such improvements are valued, and what improvements constitute, and who is responsible for them. This results in wildly variant estimates of the total liability, with the ranges of US$2-10 billion being presented. However there are fairly standard approaches to valuation available, and much international experience for dealing with different types of valuation, and depreciation including in volatile currency environments. Key outstanding issues relate to how responsibilities for compensating given ‘improvements’ are allocated. For example, a dam may be both a public and private asset – with water ‘owned’ by ZINWA, the dam infrastructure by the farmer, and the use of the water spread amongst a variety of users in a catchment.

Second is the state’s capacity for valuation. Here there remains wide dispute about appropriate methods, and the scope and comprehensiveness of the existing valuations as well as capacity to conduct and validate them, while maintaining a reliable assets database. The pace of official valuations is a real problem, and parallel initiatives have emerged. To date the government’s response has been piecemeal and slow, with individual farms being processed in ways that does not result in an overall strategic response. At current rates, it would take over 20 years for all farms in the country to be valued to allow compensation to be paid. Limited staff are available in the Ministry of Lands for valuation purposes, and equipment is limited and outdated. Mechanisms for self-financed surveying were proposed by the Minister of Finance in 2014, but private surveyors must work closely with government for such surveys to be accepted. This is not yet the case with valuations. There are major capacity constraints in implementing the process that need urgent attention. Formally transferring tenure, paying compensation and formalising new uses through leases or permits has to happen in one go, as new investments and funding flows are often conditional on all aspects being addressed.

Third is the process for dispute resolution (see next week’s blog). This requires clarification of the administrative process and the rights to recourse. The proposed Bill helps in this regard. Notice and gazetting is required, followed by a process of valuation and the option for arbitration in an administrative court. However while the procedure is specified the capacity to implement this in a way that all parties trust remains open to question. Given the importance of speeding up the process (and so likely increasing the number of disputes needing speedy resolution), there is a clear need for a time delimited administrative solution to deal with the process. The establishment of a specialist tribunal under the Land Commission, may alleviate capacity limits and improve the process’ transparency and legitimacy. Current provisions for dispute resolution are clearly inadequate.

Fourth is the funding of the process. In the context of the on-going fiscal constraints of the Government of Zimbabwe, there is limited capacity to pay for compensation, even if there is a willingness to do so. There is therefore a need to disaggregate the liability and define a series of mechanisms for paying it off. Improvements may include private goods acquired by individual farmers (such as farm machinery, buildings, irrigation equipment etc.), public productive goods (such as wider infrastructure, including roads, dip tanks, dams and so on), and public social goods (including those buildings now converted to schools, clinics, government offices/accommodation, trading centres). This is particularly the case on A2 land, but may relate to public housing for former farm workers on A2 land, as compounds are converted.

There is a clear assumption that land reform farmers will contribute through land rentals, and the purchase of some of the assets found on their farms with A2 farmers paying substantially more than A1 farmers. However, given the public developmental benefits of land reform, the state and development partners can be expected to pay for public productive and social components, including as part of debt clearance and development funding arrangements. The Bill establishes a Land Fund through which this can operate, and provides a channel for investment by development partners in public good/developmental aspects, so as to ensure a fiscally feasible response, given current constraints. In turn, a key challenge will be to ensure revenue flows from new farms are sufficient to pay rentals and so contribute to the fund to pay compensation. The fiscal sustainability of the process for both farmers and the state is crucial, and argues for a speedy resolution so that compensation is paid, new ownership and finance arrangements are established and farms increase productivity to pay contributions – together with the state and other development partners – in order to pay off the liability within a reasonable timeframe.

In order to speed up the process, there is an important imperative to boost capacity for implementation and financing. This requires a one-off effort, together with the establishment of a longer term system. The enhancing of survey and valuation capacity in the Ministry of Lands and the Surveyor General is a priority, together with the establishment of an independent Land Tribunal (operational for a time-limited period, say two years) under the Zimbabwe Land Commission to hear dispute cases, and deal with these swiftly, without them clogging the court system, and overwhelming administrative capacity.

Novel approaches to financing are required that see addressing the outstanding liability from land reform as part of debt restructuring and refinancing of the productive economy. Disaggregating the costs into private and different types of public cost will clarify who has to pay what, and this can be managed through an integrated system under the proposed Land Fund, involving all parties – private farmers, banks/financiers offering loans/mortgages, the government and development partners and international banks/finance institutions.

Ensuring a swift move from acquisition to valuation (via dispute resolution if required) to compensation and then issuing of leases or permits is crucial. This must be a central part of any land administration system for the future, and the backlog created by lack of action in the past 17 years must be dealt with urgently. Issuing of leases, for example, will allow for security of tenure and so potential for new financing, and then payment of rentals which in turn will replenish the Land Fund. Paying compensation must be seen as part of a wider strategy for refinancing the economy and increasing its productive, developmental potential, as well as addressing outstanding debts – including around land – is part of this. This is an urgent, and long overdue, priority.

 This post was prepared by Ian Scoones and appeared on Zimbabweland. It is part of an occasional Zimbabweland blog series on priorities for the new Zimbabwe Land Commission.

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The MDC-T’s Agenda for Real Transformation (ART): why the land and agriculture sections need more thought

A few weeks back, the MDC-T organised a policy conference to discuss their new 247 page policy document, ART – the Agenda for Real Transformation. There is much to commend in this document, and the commitment of the MDC actually to discuss policy is heartening. There has been a serious dearth of policy discussion across the past decade, and this is a valuable attempt to get to grips with some of the really pressing issues any government will face. In a pair of Hot Seat radio interviews with Violet Gonda, Tendai Biti, the MDC-T’s Secretary General and current finance minister in the GNU discussed the contents (listen or review transcripts here and here).

The overall vision is “a modern, healthy, functional, integrated democratic developmental state with a vibrant, socially just green economy that takes pride at leaving no one behind”. No complaints with that. Equally, the sections on security sector reform, mining revenues, industrial cluster development, strategic infrastructure investment, social services and more are all good contributions. But sadly the sections on agriculture and land are rather poor, suffering from a combination of inconsistencies, confusions, inaccurate data and poor analysis. Why is it that after so long (the policy has taken apparently two years to produce, based on consultations across the country, page 2), the MDC has not been able to get to grips with the agriculture and land, and come up with a more coherent policy position?

I guess it reflects the lack of capacity and the background of the leading players. Tendai Biti himself is a lawyer, and not versed in issues of agronomy or land administration, while other leading lights, Morgan Tsvangirai included, come from an urban, labour union background. Those with a rural brief include Eddie Cross, whose view on private property is informed by right-wing think tanks such as the Cato Institute with which he has been associated, and Roy Bennett, who comes from a commercial farming background, and does not seem to recognise the potentials of the land reform. There are of course other lobbyists and funders in the local and international community who continue to be committed to a reversal of the land reform, arguing that it has had few if any benefits. So anyone trying to draft rural policy for the MDC is severely handicapped by these limits and competing pressures.

What then does the policy say? I am not totally clear of the document’s status, as it does not appear on the MDC website, so I presume it remains a draft. If the number of typos that are present is anything to go by, I assume this to be the case. So accounting for this provisional basis, what can we glean?

First, and significantly, the document incontrovertibly states (again) that the land reform is not reversible. It also sets out some laudable principles for a land policy, including: equity in access and distribution; efficiency in its utilization; accountability in its management; transparency in the conduct of its governance; legitimacy in the eyes of the Zimbabwean public; participation by Zimbabweans of all classes, gender and ethnic backgrounds and security for all who make their living from the land. Overall, the policy aims to create “a new order of economically viable, market-directed commercial farmers, with the family farm as the basic model”. All good, sensible stuff.

However, it then goes on to characterise the process of land reform after 2000 (again) as chaotic, with poor outcomes, using the standard international media narrative, with little acknowledgement of the research that has shown a more complex story. This in turn frames the document. For example, on page 44:

“After 10 years of chaotic land invasions and the illegal dispossession of the majority of commercial farmers, only a tiny proportion of the target of 8 million hectares has been lawfully taken over and the rest lies largely deserted and unproductive. The farms have been taken over by a political elite that has been unable to maintain production and has presided over the decimation of the capital infrastructure that had existed on the farms prior to the FTLRP….As a consequence agricultural production has declined by nearly 80 per cent, exports have plummeted and nearly 70 per cent of all foodstuffs are being imported. Some 400 000 farm workers have been displaced with their families plunging nearly 2 million people into destitution and homelessness”.

Here in a few sentences are all the myths we highlighted in our book presented in condensed form: that the reform was ‘chaotic’ and solely instrumentally led by ZANU-PF, the land lies largely idle and unproductive, that only the elite cronies have taken over, infrastructure has been decimated and that production (in general) has collapsed, with two million people being projected into destitution and homelessness due to farmworker displacement. All of these statements are not based on the accumulating evidence. The pattern is variable, but there are some clear trends, now from numerous studies, and this sort of statement, that frames the overall response, just does not add up.

Having set this (inaccurate) picture up, the policy proceeds to outline what the responsibility of an MDC government should be: essentially to reverse this (bad) situation. There is the usual list of things to do, including infrastructure development (notably irrigation), fertiliser and input supply and new technologies (including genetically modified crops). There is a modernising zeal to the narrative – new technologies and investment will come to the rescue. In a Tony Blair style incantation, Biti in his Hot Seat interview identified a key solution as “research, research, research”, and claimed that maize would soon be produced at 12-15 tonnes a hectare (even under a MDC government, somewhat unlikely!) Many of the suggestions (especially small scale irrigation) are sound, but of course this perspective fails to address the past critiques of top-down, technology-driven modernisation of agriculture, from the Native Land Husbandry Act onwards – see for example the work of Jos Alexander or Mike Drinkwater, among many examples.

More importantly, the document fails to develop a vision for land and agriculture that takes the new agrarian structure into account. Framed in terms of righting the wrongs of the Fast Track process and providing a technical solution, rooted in a market oriented approach, it does not examine how small, medium and large scale estate agriculture might operate together and how a territorial, regional approach might contribute to integration, adding value and generating multiplier effects. The AFD/DBSA report of last year offers some sensible pointers that could have been taken on, as does the most recent World Bank report on agriculture, and of course we offered our own suggestions based on a decade of work in Masvingo in the final chapter of our book (for a summary, see the blog next week).

Where the document is accurate in its assessment is in its commentary on wider industry connections and economic linkages. It notes:

The [fast-track land reform] programme failed to support the newly settled farmers with skills, equipment, finance and marketing opportunities….this had serious ramifications for the entire economy as backward and forward linkages ..Consequently, this had multiplier effects on agro-based industries..

The document proceeds to identify the importance of off-farm linkages:

“the MDC government will protect the people on the land, while it develops complementary strategies for non-farm economic activities that tap into agriculture.” (p.50)

These are important commentaries, although without much detail of how it will be done in the context of the new agrarian setting. The agriculture section of the document, does not really engage with this at all, simply listing types of intervention, without an overall strategy.

Overall, the policy’s framing is very much one centred on macro-economic restructuring, and economic growth. While positioned in terms of a ‘developmental state’ argument (one of Biti’s familiar refrains), the details seem more old-fashioned Washington Consensus – get the market fundamentals right and all will follow (there is much talk of ‘market flexibility’, ‘opening up for business’ and so on). That this approach has been so massively discredited seems to have passed the drafters by. It may be appealing to the international community, including potential donors and investors, but will it work, and perhaps even more significantly will it be acceptable to a population already starkly divided by haves and have nots, and having suffered years of financial mismanagement – from ESAP to Gono’s casino economy? This contradiction was not lost on the Secretary General of the Zimbabwe Congress of Trade Unions, Japhet Moyo, who launched an attack on the document at the conference, something that clearly did not please the party hierarchy.

The free market ideology that Moyo objected to also pervades the discussion of land, particularly around tenure. The policy announces a programme of what Biti terms ‘giving title’ in his Hot Seat interview transcript: “Number three, give title, give title to everyone who owns land right now. Give title, Zanu PF is refusing to give title even long leases because it is using land as a political field”. But it’s not at all clear what this really means, as while the document refers to the intention “to design and universalize a system of tenure” (p. 48) across all land categories in order to deliver, it argues, security of tenure, opportunities for collateral and so on, in other sections there are commitments to some form of village tenure in communal areas, leases in resettlement lands and freehold tenure elsewhere.

Underlying this all is the familiar argument about the importance of private property rights (title, title, title). This has of course been long challenged, both in Zimbabwe and beyond. There is no strong evidence that there is an automatic causal relation between private property rights and economic growth and investment, despite the influential arguments of de Soto and others. Instead the relationship between property rights, investment and economic growth is much more complex, and is conditioned by wider factors, such as political stability, the investment environment, local institutional arrangements for land access, and so on. Embarking on expensive cadastral surveys and land administration exercises is very often a big mistake, as study after study has shown. There are plenty of other routes to the same end that are more effective and cheaper. As Professor Rukuni (and many, many others) have long argued, a differentiated response is required that accepts multiform tenure, but does not go down the risky route of mass land titling.

In other areas, there is confusion too. The policy position on compensation seems to contradict the newly agreed Constitution, by arguing that compensation must account for not only ‘improvements’ but the land itself, across all areas, and not just investment areas (BIPPAs). It’s not totally clear in the document, but Biti in his Hot Seat interview, seemed to confirm this impression. Equally the policy suggests leases will be issued in A1, A2 and old resettlement areas and “leaseholders will be required to contribute to the payment of compensation to the original owners in order to legalise such arrangements” (p. 54). Despite the very sensible formula propounded by Professor Rukuni again, and largely agreed by key stakeholders, the MDC seem to have backtracked on this, opening themselves up to a long and protracted process that will be difficult to resolve sensibly. This strikes me as a big mistake, as most players want a quick resolution to this crucial issue, with compensation paid swiftly on the basis of a clear formula.

Other areas of land policy repeat existing policy, and the Constitutional provisions, including allowing for land ownership by all Zimbabweans, whatever their racial origins, the requirement for a land audit, the establishment of a Land Commission, a restriction on maximum farm sizes and a limit of one farm owned per person. All of this is at least notionally accepted by all actors. The challenge for an incoming government will be to implement these provisions, and it is good that the MDC-T is committed to doing so.

If the document is a draft and discussions are ongoing, then there is a chance presumably to debate, adapt and change the document. It is good that it is out in the open and can be subject to scrutiny. Indeed it is the only policy prospectus from across the political parties that is available. However, it does need some serious further thought.

This post was written by Ian Scoones and originally appeared on Zimbabweland


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Whose law counts? Legal contests over land in Zimbabwe

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.

This post was written by Ian Scoones and originally appeared on Zimbabweland


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