Tag Archives: dale dore

Zimbabwe has a new Constitution, but disputes over the land provisions continue

On March 16th, Zimbabweans voted on a new Constitution in a national referendum. The voting was largely peaceful, and the turnout higher than expected, with over 3 million people voting. With all major parties supporting it, the result was a resounding 93% ‘yes’. This endorsement paves the way for elections in the coming months. It is also an important signal that a new commitment to moving forward has been reached, one that international donors have agreed to respect with the removal of further ‘sanctions’.

The Constitution is naturally a compromise document, one hammered out in parliament by all the parties. It involved wide consultation, with inputs from the public. Given Zimbabwe’s immediate political past, it is in many respects a remarkable achievement. It is of course rough at the edges, and not everyone agrees with every section, but it now does exist, and should, in my view, by celebrated.

Of course one of the controversial areas has been the issue of land (see earlier blog). Some are very unhappy about the provisions, blaming the MDC in particular for conceding too much. Ben Freeth, the former farmer activist, is particularly outspoken. In a slightly more considered contribution, Dale Dore asks, can the new Constitution bring about a just, legal and transparent land policy? He answers, “The prospects, unfortunately, look decidedly bleak. Chapter 16 entrenches the outcome of land invasions and the seizures of farms and property. The draft Constitution also retains provisions under section 72 that are inimical to international law, human rights and the rule of law”.

What then are Dore’s complaints? He argues that the separation of provisions on property rights from rights over agricultural land is a big mistake, as the section on agricultural lands restricts rights, running against natural justice. He is particularly concerned about the long-talked about Land Commission, as he thinks it will not have teeth, and will be easily captured. He notes:

The most important retreat, however, has been to make the Land Commission an advisory body to Government rather than an independent parastatal organisation with executive authority. The Commission may make recommendations on a host of issues – including land tenure and compensation – but it lacks any real powers of implementation or teeth for enforcement. Decisions governing land remain firmly in the hands of the President and his appointed minister”

While Section 297(6)” tries to give the impression of independence and impartiality”, he argues that this is not sufficient. This he worries will mean that a Land Audit, also a requirement in the Constitution, will not be fair, as it will be overseen by the Commission.

Overall he argues, that the section on land – Chapter 16 – “maintains all the discriminatory provisions governing farmland found in the current Constitution”. He argues that there will be inadequate notice of compulsory acquisition and that compensation will be paid for improvements only, and not the full value of the land. He objects to the proposed dispute settlement mechanism, arguing runs against basic principles of ‘rule of law’, being an administrative not judiciary process. He argues that, as a result, the Constitution is not in line with earlier rulings by the now disbanded SADC Tribunal ruling. Yet, as I and others have commented before, this obsession with this particular ruling forgets that the proposed constitutional provisions are actually in line with much international practice, and perfectly compatible with ‘the rule of law’, as long as the rules and regulations are abided by. This of course is the critical point. The test will be in the practice, and the demonstrated impartiality and effectiveness of systems of land acquisition, compensation and dispute settlement. Given recent experience, Dore and others are right to be concerned, but have no real argument for rejecting the provisions as a whole.

Before jumping to excessively negative conclusions, we have to understand the political context for the new Constitution, in order to judge it properly. In a heated debate at the end of February on the new Constitution, chaired by Violet Gonda in the Hot Seat slot on SW Africa Radio, Professor Brian Raftopoulos commented:

“Well I think the first thing to point out is that this constitution was a central part of the mediation process. It was always therefore going to be a compromise document and part of a broader process of trying to establish the conditions for a free and fair election – which was the original objective of the SADC mediation. There’s clearly things in the constitution which are problematic; there’s also things which I think establish a very good basis for moving forward and I think that as part of a long term process of discussion between the parties which was established through the mediation, it’s a step forward and one should look at it as that”.

On land, he notes:

“This land process has produced many contradictory results. As recent research shows, it hasn’t been the complete failure people thought it was but at the same time it hasn’t ended the land question. It’s raised a whole series of new issues, which are going to confront Zimbabweans throughout – for the coming decades. So this issue hasn’t been resolved and there are harder questions ahead”.

Of course the land question is not going to be fully resolved by the Constitution. But hopefully the Constitution sets the basic parameters: the land reform is not reversible; rights to land are circumscribed by the state to avoid abuse; compensation for improvements are offered if land is acquired by the state; land administration and distribution is overseen by a competent authority in the Land Commission; and abuses are corrected through a transparent Land Audit. All of these provisions are actually good ones, and compatible with international practices, but will only work if the appropriate political and administrative conditions apply. Given recent experience, this is of course a concern, and why a wider political resolution of the on-going political impasse in Zimbabwe is so urgently needed.

However, given that it has now been approved by the referendum, and given that the Constitution represents an important moment in the mediation process to create such political conditions, surely its basic principles need now to be respected. Sure, there will be need for working out the details of the Commission, the Audit and the associated regulations to govern any land administration processes, but the overarching basis for these, surely, is now set.

Or is it? Dale Dore refers to a discussion with a ‘senior MDC politician’ who noted that: “The MDC had to make compromises. If it conceded to ZANU(PF) on the land issue, he said, “so what?” Anyway, he added, land is not a major issue for the great majority. The issue of land and land policy was something the MDC could fix once in power”. This seems more like a threat to unravel things that have been agreed, even as reluctant compromises. In an email exchange on Dore’s piece as part of probably the most bizarre email list I am copied in to, Eddie Cross MP, the MDC’s Policy Coordinator General (who supported a yes vote with 10 reasons), commented on 10 March, “Excellent as usual – but so long as everyone understands that this was the main focus of concession to the views of Zanu PF in the negotiation and was a compromise – it is not the final word on the issue of agricultural land”.

Yes the Constitution is a compromise. Yes it emerged through negotiation between parties that did not agree. And, yes, it is not the final word. As Brian Raftopolous pointed out in the SW Africa Radio discussion, “there are still a lot of issues around the land [issue] which wouldn’t necessarily be dealt with simply through the constitution – issues which will have to be dealt with through legislation coming afterwards and through political and technical processes that need to take place in the aftermath of what has happened”.

But does this mean that the basic tenets of the Constitution should be dismissed? Technical and administrative details will be required of course, but should a party go into an election essentially saying that key sections are up for grabs? What if ZANU-PF said the same? There would, quite appropriately, be uproar. Equally, for the resumption of international development assistance to be conditional on changes to the now approved Constitution, as Dale Dore seems to suggest, would be madness.

The new Constitution, with its inevitable flaws, now at last provides the basis for moving forward: hopefully towards the removal of sanctions and free and fair elections in a few months time. This is by no means assured, and the unlawful arrests of MDC officials and their lawyer, Beatrice Mtetwa, does not bode well, with a return to ‘brute power’ suggested by some. But equally we cannot succumb to fatalism, a trait so common among the commentariat. Let us also hope that after the elections, the parties respect the Constitution and the painful, slow, but ultimately successful, process of creating it, with all its difficult compromises, was not in vain. A process of healing, compromise and looking to the future is what all Zimbabweans need above all. If any party comes into power and rips up sections of the Constitution they don’t like, is this a good result? For this reason, I, for one, would favour another coalition government; one that, this time, is genuinely committed to national unity and development, so the spirit of compromise with all its awkwardness and faults, embedded in the Constitution provides the basis for a brighter future.

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

7 Comments

Filed under Uncategorized

After the land reform: what next?

This was the title of a talk I gave at the SAPES Trust in Harare on 13 November, as part of the SAPES Policy Dialogue series organised by Ibbo Mandaza.

It was a well attended event, and it generated some interesting debate. The session was chaired by Mandivamba Rukuni and the discussant was Charles Mangongera, Director of Policy and Research of the Movement for Democratic Change. The dialogue was attended by the Minister of Lands, Herbert Murerwa, as well as the President of the Commerical Farmers Union, Charles Taffs. In addition, there were many researchers, activists, donors, diplomats and others present.

I mentioned this event in a recent blog responding to Dale Dore, and a number of people have asked if it was recorded. It fortunately was, and the audio recording can be listened to here. This starts with my 45 minute presentation (after a few seconds of noise!). The discussant’s comments follow and then there is an open discussion, which concludes with some comments from the minister.

My powerpoint slides can be viewed also (zimbabwe land reform Harare SAPES Trust Nov 12), and if you listen to the audio, you can probably guess when the next slide is due.

The presentation aims to lay out a vision for ‘what next?’ after land reform, and provides the outline of an agenda for investment and support by government and donors alike.

Let me know what you think.

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

Leave a comment

Filed under Uncategorized

A growing evidence base: yet more inconvenient truths

Last week in the latest of the Sokwanele “land debate” contributions, Dale Doré used his slot to critique our work in Masvingo. Since the publication of the book, Zimbabwe’s Land Reform: Myths and Realities, exactly two years ago we have had plenty of reviews, and a number of critiques. Most common is the refrain, that Masvingo is different to other areas (of course it is: see the blog on Masvingo exceptionalism). Others have focused on the credentials and backgrounds of the research team, while others have questioned our sampling and methodology. Still others have called us names familiar to the discourse from the liberation struggle (sell-outs, collaborators, sympathisers, liberals, apologists and so on). Others have been plain bonkers or simply abusive, and I won’t share these, in case there is a family readership of this blog.

All this shows the heated nature of the debate, and frustrations felt. Doré’s piece focuses on methodology, while offering no new data to counter our arguments. He questions our approach to the study of complexity in particular which aimed at discovering emergent patterns from diverse data, arguing instead for a model-driven reductionism. In this regard he has problems with our chapters on labour and markets, suggesting that they are neither novel nor revealing. Well, others disagree, and so do I. This data offers, I would argue, fundamentally new insights into labour regimes and market processes, which have not been discussed before, and certainly both chapters analyse the processes and outcomes in great detail. The frustrations Doré feels may be due to disciplinary preferences (he’s an economist), but exploring patterns and processes on the ground in great detail, I believe has important merits, and reductionist approaches may do violence to the complexity observed.

Also, as part of his methodological assault, he disputes our use of baselines against which change is measured. But if you read the book you can see we were careful on this – using data on nearby communal areas, the past work of Bill Kinsey and colleagues on old resettlements, and the limited available data on the production and economics of commercial farms. And in relation to the baseline costs on investments, I am afraid he missed the detail in the footnotes which contains all the assumptions: the analysis cannot thus so easily be dismissed as ‘sheer nonsense’ Doré goes on to accuse us of simply creating ‘straw men’ myths to ease the flow of our narrative. This is an argument I have heard before. Surely, people have argued, no-one ever believed these myths! Well, just take a look at any media commentary, donor document and many academic pieces and you will see these myths (and many more) are alive and well. A particularly pure form appeared in the press recently penned by UZ Professor Tony Hawkins if you need convincing further. Later, in the piece Doré also accuses us of lack of triangulation, an approach to probing the robustness of data. Triangulation may be of methods (and we used every method, qualitative and quantitative, we found appropriate) or of cases (and again the site comparisons, within and between clusters, was central in the book), although we do admit that we did find it difficult to gain perspectives from former farm owners and workers, despite many attempts. Finally, Doré accuses us of making ‘egregious’ ‘false claims’ about the process of land reform. Again, I beg to differ. Our book offered the stories of what happened on 16 farms – all were different (as is clear from studies from elsewhere). The simplistic picture Doré paints, backed up not by empirical information but by broad proclamations, is not enough to understand the diversity of settings, processes and outcomes of Zimbabwe’s land reform.

Two years on (and why did it take this long for this review to emerge?), we actually have many more cases to compare with, improving possibilities of triangulation. In several talks last week in Harare I presented the following map, showing all the studies I know about which have looked at what has happened in the new resettlements since 2000. These include our Masvingo studies (green), the African Institute of Agrarian Studies district level research (purple), the Ruzivo Trust studies (now a book, yellow), the Livelihoods after Land Reform small grant studies (light blue) and a growing number of PhD studies (pink), some which were reported on in the Journal of Peasant Studies special issue. It is an impressive array, with pretty good geographical coverage, although clearly still some gaps. This is definitely an incomplete picture, so please let me know if you are doing something that is not captured here, as it is an important base for comparative analysis and reflection, both on commonalities and differences.

While there are important variations across sites, there is an emerging, common story that Doré and others still find difficult to accept. These are indeed inconvenient truths. The accumulating and converging evidence points to the following:

  • A1 farms are doing relatively well (although could do better), with a solid ‘middle farmer’ group within them who are reinvesting profits from agriculture in their farms. By contrast, A2 farms have struggled, although things have improved since the end of hyperinflation and in the multicurrency environment since 2009. They have been greatly assisted by contract farming arrangements that have provided much needed capital and inputs.
  • Private and community investment in the resettlement areas is significant, especially in the A1 sites. But more needs to be done, with clear needs for public investment in infrastructure.
  • Capture of farms by high level, politically-connected elites has taken place, and this varies between different parts of the country, especially in relation to proximity to Harare. However even in these areas, the dominant story remains small and medium scale A1 and A2 farmers. A1 farmers, particularly on land that was invaded and occupied, are largely from nearby communal areas and small towns, while A2 farmers are predominantly former or serving civil servants, teachers and business people, with urban connections.
  • The potential for production across the resettlements is far from being realised due to inefficiencies in input markets, a lack of credit and rural finance and the high costs of transition in infrastructure, and up and downstream industries. However, production has not collapsed, and is booming in some commodities and areas. Markets may be informal, but they generate employment and spin-off benefits from economic linkages in an area.

There are nuances and variations – yes complexity – but the picture is increasingly clear, as are the policy challenges. The now infamous five myths we set out to examine in Masvingo are rejected countrywide, although with important qualifications – as indeed we offered in the 288 pages of small type in our book for Masvingo.

In stark contrast to the Dale Doré diatribe on the Sokwanele site, at the SAPES Trust Policy Dialogue I spoke at last week, I was pleasantly surprised by the tone of the discussions. A sense of pragmatism and realism prevailed (mostly). The room was packed, with over 100 people attending from all sides of the debate – the CFU was represented in force, including the current President, as was the MDC, with the Director of Policy and Research, Charles Mangongera, offering the discussant’s comments. And representatives from the Ministry of Lands were there too, including the Minister, Herbert Murerwa. Mandi Rukuni chaired the debate superbly, and it was clear that there was more agreement than many would expect.

As Zimbabwe moves into a new phase, and a new election settlement some time next year, the more consensus building and solid debate around facts and evidence that occurs the better. Ibbo Mandaza’s SAPES Dialogues are good examples of such fora. Sadly unfounded accusations and gratuitous swipes, as in some of Doré’s piece, are not.

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

8 Comments

Filed under Uncategorized

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

2 Comments

Filed under Uncategorized