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Land tenure dilemmas in Zimbabwe

A key question for policymakers today is what tenure system makes sense for the new configuration of land, livelihoods and production after land reform? What tenure and land administration arrangements will assure tenure security, encourage investment and boost production?

Unfortunately, much of the debate on this issue starts from ideological assumptions about what is claimed to be the ideal tenure type, rather than the basic principles which should guide the choice of administrative and legal arrangement for ensuring tenure security. Instead it’s better to start from defining key principles and move towards a pragmatic assessment of options and trade-offs.

This blog lays out the argument for a multiform tenure approach for Zimbabwe. This is not a new argument at all. Professor Mandi Rukuni and the Presidential Land Tenure Commission of 1994 presented a similar case. Five years ago I prepared a briefing note on land tenure dilemmas in response to the on-going confusion on this topic, drawing on discussions with Sam Moyo, Prosper Matondi and others. I have linked to this in previous blogs. This blog presents a version of it again, as the debate on land tenure continues today with a similar lack of clarity.

Seven key principles

What should be the key features of a new tenure regime? Here are seven principles, drawn from the wider international discussion on the topic:

Democratic accountability to allow for state intervention to shift the configuration of tenure in line with national economic and development goals, in the face of dynamic change in technology or economic conditions and when market mechanisms are insufficient (for example, to facilitate a shift to a large-scale freehold system under conditions of full industrialisation and urbanisation in order to assure national food security)

A flexible market in land – including sales, rentals and leases – to allow trading up and down in land size in line with investment and production capacity and skill (although with regulation by the state – see 4 and 5, below).

Facilitation of credit and investment through the provision of land as mortgaged collateral and the provision of bank credit guaranteed against land, combined with other credit guarantee mechanisms (for example, linked to farm equipment, livestock, buildings, urban assets etc.)

Regulation against capture by elites or speculative investors to avoid inefficient and inequitable consolidation of land holdings and land disenfranchisement, especially of the poor and women (for example, the danger of mass sales and rapid speculative land accumulation by local or foreign elites/companies in times of economic hardship, and the reversal of redistributive gains).

Guarantees of women’s access to land, as independent, legally-recognised land holders, with the ability to bequeath, inherit, sell, rent and lease land (for example through requirements for joint recognition of land holdings in leases, permits and titles, as well as administrative mechanisms to ensure equitable treatment of land issues).

A low administrative burden – both in terms of technical complexity and overall cost – of cadastral surveys, land registration and land administration more broadly.

Revenues through survey, title, lease and permit fees and setting incentives to discourage underutilisation through land taxation is an important condition for an effective land tenure regime.

There is broad agreement on the desirability of each of these seven principles, and a wider recognition from international experience of their importance. However, there are more questions about their practicality and feasibility, and the pragmatic trade-offs between each given administrative and technical capacities in land administration.

In Zimbabwe existing legislation allows for a wide range of potential tenure types, ranging from freehold title to regulated leases to permits to communal tenure under ‘traditional’ systems. All have their pros and cons. Any one or combination can offer a guarantee of secure property rights under particular conditions. There is thus no ‘gold standard’ or assumed ‘evolution’ towards an ideal, as is sometimes suggested. Instead, the debate about the appropriate tenure regime must start from principles in context, and draw conclusions about the best way forward from an analysis of the trade-offs between options under the particular circumstances currently pertaining.

For example, policymakers must ask, given the available resources and capacity for land administration, can the appropriate level of tenure security be achieved through lower cost means? Or, given the dangers of rapid land appropriation, what minimal safeguards need to be deployed which do not undermine the capacity of credit and land markets to function? Or, what other legal or financial assurances and coordination mechanisms must be added to ensure that private credit markets function effectively? These are very real dilemmas and are encountered the world over, especially in relatively resource poor settings where capacity is underdeveloped. A debate that is constructed around the false promise of an ideal may actually act to undermine opportunities and stall agricultural growth.

Tenure trade-offs

How do different tenure arrangements perform against these key principles? Table 1 offers a preliminary assessment, based on both Zimbabwean and international experience.

Table 1: Trade-offs in tenure design principles

  Freehold title Regulated leasehold Permit system Communal/traditional tenure
Democratic accountability to state None Yes Yes Limited
Flexible land markets Yes Yes Yes Informal only
Credit and collateral Yes Yes Requires additional instruments for collateral guarantee Requires alternative credit/micro-finance support mechanisms
Regulation against capture No, although potentials for statutory restrictions on sales Yes Yes Limited regulatory reach
Preferential women’s access None Potential lease condition Potential permit condition None: traditional patriarchal biases
Administrative cost Very high High Low None
Revenues and incentives Survey, land registration, title fees/Land tax Lease fees/land tax Permit fee/land tax Limited potentials

 

Depending on the legal and administrative regime or the interpretation and practice of ‘customary’ or ‘traditional’ tenure, for example, there are of course large variations in the reality of different tenure types in practice. But despite such variation there are some common features. Freehold tenure for example is always administratively cumbersome, expensive to implement and reliant on market forces with limited opportunities (assuming the rule of law is adhered to) for state intervention to limit consolidation or shape market incentives. On the other hand, communal, customary or traditional systems have advantages of decentralised operation and low cost, but there are limits on the ability to assure security of tenure through legislative means and a limited regulatory reach of the state.

Of course any tenure regime is only a legal/administrative procedure, and must function in a wider political-social-economic context. The lessons of the past decade show vividly that tenure insecurity does not necessarily derive from the nature of the regime, but from the wider political setting, the capacity to administrate land and the ability to assure a rule of law. When these very basic governance conditions are not in place, then no tenure regime can assure security. Indeed, in 2000 was those with freehold tenure that have been the least secure, and those with communal tenure that have been the most secure.

Ways forward

The new Constitution commits to a reestablishment of transparent administrative procedures, the stamping out of corrupt practices and mechanisms for compensation, all in a secure legal framework. With this essential precondition in place, the discussion on land tenure options can take place more effectively – and in relation to a set of clear principles of the sort outlined earlier.

The big question now, is what makes sense given the current situation, and given available administrative resources and capacity constraints? What tenure regime will help get agriculture moving and investment flowing, and support the new agrarian structure?

With the appropriate regulatory conditions attached as part of revisions of legislation and with a land administration streamlined system developed (neither of which exist to date), the above table suggests that the leasehold and permit systems offer considerable promise for the Zimbabwe situation for the A2 and A1 areas respectively. This would allow for the issuing of leases on surveyed A2 farms (perhaps with varying lengths and conditions to incentivise investment and production) and upgrading ‘offer letters’ in the A1 areas as part of a comprehensive, area-based land registration exercise.

Indeed such solutions reflect international thinking on this issue, where low cost land registration and administration approaches based on leases and permits have been shown to be highly effective in relation to the range of principles identified above. This does not mean that freehold tenure is not an option in some instances, particularly in urban/peri-urban settings. But full freehold does not seem to offer the right combination of features for the present situation for most rural agricultural settings. Such a solution to current tenure dilemmas also does not preclude a reform of communal tenure, perhaps extending versions of the approach developed for the A1 areas to the communal lands over time. As the 1994 Land Tenure Commission argued, hybrid approaches that offer the best of customary, communal tenure arrangements, but with new forms of tenure security offered through legally binding arrangements may be of great importance in such areas.

For now, though, the priority must be the A1 and A2 areas. This represents a substantial area of land, and a considerable number of people/land units, and a core national land asset in need of regularisation. Assuring tenure security in these areas must be the first priority (although the prior step remains addressing the compensation issue of course). This must be driven by a discussion based on clear principles, rather an ideological positioning, and an eye to rapid, effective implementation, rather than inappropriate ‘gold standard’ ideals.

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

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Zimbabwe’s elections 2013: more confusion, more uncertainty

Zimbabwe’s trauma continues. The Zimbabwe Election Commission has announced a landslide victory for ZANU-PF. ZANU-PF reportedly took two-thirds of the parliamentary seats and President Mugabe won 61% of the presidential vote, with Morgan Tsvangirai picking up 34%. MDC-T has called the elections ‘a sham’, ‘a farce’, ‘null and void’. GNU education minister, David Coltart, argued that “Zimbabwe has been subjected to electoral fraud on a massive scale”. Tendai Biti called it all a ‘loquacious tragedy’.

Meanwhile, the official observers from SADC and the AU have called the election ‘peaceful, credible and efficient’, ‘free and peaceful’, reflecting ‘the will of the people’, with high turnouts and orderly voting. Some have called for a rejection of the ballot and the staging of mass resistance. Baba Jukwa, the massively popular Facebook avatar with 350k ‘likes’ who claims he is a disaffected ZANU-PF insider, has declared war.

We will never know the ‘true’ results, although as last time there was probably a rural-urban and regional split, with more of a balance overall than any political grouping claims. Both main parties naturally proclaimed before the poll that they were likely to be certain victors. Results of prior opinion polling were mixed, although pointing towards a rehabilitation of ZANU-PF and disillusionment with the MDC’s performance in government. Meanwhile, the MDC and the allied NGO groups long before the elections pointed to the potential for electoral fraud, and the cynical manipulation of the vote.  While unlike 2008 there was thankfully minimal violence during the election period, the Zimbabwe Election Support Network argued that there were major problems with the process, including:

  •  Voters’  roll discrepancies
  • Intimidation
  • Late  opening of polling stations
  • Slow pace of assisting aspiring voters in some urban polling stations
  • High number of assisted voters recorded in rural areas
  • Shortage of ballot papers in some wards
  • First time voters denied the chance to vote as they were not appearing in the      voters’ roll and their registration slips had missing ward details.

A joint statement from the NGOs rejected the election results. The AU observer team also expressed ‘grave concerns’. The UK and the US have also called the elections ‘flawed’. China, India, South Africa and others have remained silent so far, although this is how it was reported in the China Daily and The Hindu.

The scale and implications of the problems remain unclear. Claims and counter claims are being made. In a small country, rigging the vote by over a million is a hell of lot, especially consistently across presidential, parliamentary and council elections. The turnout was high at around 3.5m, making it even more challenging. Maybe they did win as many had expected, but perhaps not by as big a margin as declared.

However, suspicions of foul play are running high. ZANU-PF is a sophisticated and ruthless operation. Such suspicions are increased by bizarre rumours about dodgy security companies, Israeli pens in the voting booths where the ink disappears, special ballot papers with watermarks with crosses against ZANU-PF already inserted and a specially imported Chinese solution for removing the pink ink from voters’ fingers. No-one really knows what happened; and we probably never will.

The final tallies are being published (check here and here for details), but the scale of the ZANU-PF win is clear. What is for sure is that the disputes over the results will run and run, with legal challenges to follow. If the confusion and uncertainty persists, the tentative recovery that had been nurtured since 2009 may be quickly wiped out if a new government does not move quickly to assure investors, donors and others.

What to make of it all? I am unsure, but here are a few quick reflections and some links to some interesting sources and commentaries that I have found over the last few days.

The rehabilitation of the image of ZANU-PF and President Mugabe in particular has been striking. For example on a flight from Addis to London, a colleague of mine was handed a copy of the New African, with a special glossy insert feature on Zimbabwe. It had articles from all the leading presidential candidates, but in the small print you could see that it was produced by the Ministry of Information. The message was clear: Zimbabwe was back on track, and Mugabe was in charge.

The MDC formations meanwhile were floundering. While having some successes in government – notably on the economy (under Tendai Biti) and in education (under David Coltart) – in many people’s eyes they had been tainted by power, lacking ideas and vision, and reverting to the corrupt practices that they had criticised in opposition.

The election manifestos of the main parties (ZANU-PF, MDC-T, MDC and ZAPU) were predictable enough, but none really fired people’s interest. The issue of land was of course ever-present in the electioneering discourse, deployed in particular by ZANU-PF to bolster its nationalist and rural credentials. The MDC groupings, even after over a decade, sadly still failed to offer a convincing alternative narrative on land and rural development.

Of course the elections were not being fought on such policy issues. Those opposed to ZANU-PF however failed to broker a coalition of opposition, and the vote was often divided, particularly in Matabeleland, but also in some urban centres, including Masvingo. David Coltart of MDC-N for example lost his seat to a MDC-T candidate. Political and personal differences, combined with narrow regionalism and factionalism, provided a perfect opportunity for ZANU-PF, despite it also being divided and weak.

This was Zimbabwe’s first electronic, Internet age election. There was hope that these mechanisms – checking voter registration, crowd mapping election violations, posting votes, monitoring election sites and mapping results – would bring greater transparency and accountability. There was an impressive array of engagement, from the 7000 ‘citizen monitors’ deployed by the ZESN to the websites of  Sokwanele, MyVote and Simukai. Twitter and Facebook pages have gone wild, with intensive commentary and debate not least via the Baba Jukwa pages.

But, in the end, it didn’t seem to have an impact on the legitimacy and credibility of the process. Too many questions remained unanswered, and confusion still prevails, as the various ‘independent’ observers and monitored contradicted each other, declaring either the elections broadly free and fair or discredited by foul play.

The international media has as a result of all this also been deeply confused. No-one is quite sure what to make of it all. As Andrew Harding of the BBC commented, there is now a battle over the narrative of the election, not the specific results. Some of the media had decided what the narrative was before it was held, but there has been some thoughtful commentary too. Lydia Polgreen of the NYT was typically nuanced, bringing in the land dimension into one of her pieces. The FT had a good article on the key role of the military. David Smith of the Guardian had a few good pieces too. Also, African Arguments posted several good commentaries in the build up, including by Brian Raftopolous and Simukai Tinhu. And then there were the bloggers and the twitter sphere, with #zimelection carrying all sorts of commentary and links; some sensible and sound, some weird and whacky.

The political uncertainty that these elections have delivered means that, sadly once again, the immediate future is in the balance. Whoever individual Zimbabweans voted for, the final overall outcome may not be what anyone wanted – which was peace and stability. As a friend commented on the phone from Gwanda just now: “It’s trouble again”.  Let’s hope that a spirit of accommodation and compromise prevails.

In the next period at least, ZANU-PF can organise the succession from Mugabe from a position of strength, and the opposition will have to regroup again, probably under new leadership. The political landscape has certainly changed with this election, but the full implications still remain unclear.

UPDATE: Since this blog was published there have been two very good comment pieces in the Guardian by Knox Chitiyo and Blessing Miles Tendi. Both are well worth a read:

http://www.theguardian.com/commentisfree/2013/aug/05/zimbabwe-inconvenient-election-truth

http://www.theguardian.com/world/2013/aug/05/robert-mugabe-zimbabwe-election-zanu-pf

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

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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

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Geographies of violence in Zimbabwe

Lloyd Sachikonye has written several powerful articles and books on violence in Zimbabwe. His book, ‘When a State turns against its citizens: 60 years of institutionalized violence in Zimbabwe’ is particularly important. It documents what happened particularly around the elections in 2008, and how state led terror, deeply embedded in a particular political culture, was unleashed on the population. While graphic and harrowing, the book, as many accounts, gives the impression that this is what happened everywhere. In fact, there is an important geography of violence in Zimbabwe, which requires explanation, and this explanation helps us to nuance and differentiate are accounts of recent Zimbabwean politics in important ways.

There is little doubt that state-led violence, largely perpetrated by agents of ZANU-PF, increased during the 2000s, and peaked in particular around the 2008 elections. But there has been less commentary on the geography of violence – where it happened, and why. The uneven distribution of violence – including 161 cases that resulted in death – is highlighted in the dramatic maps produced by civil society monitoring groups and reproduced on the Sokwanele website. As these maps graphically show, violence of all sorts was massively concentrated in Mashonaland Central and East (1341 cases, around 60% of the total for the country), with ZANU youth being the main perpetrators. Masvingo, bar the series of incidents associated with election intimidation by war veterans in the communal area, Zaka, was by comparison relative unscathed.

It is this geographical difference that reflects the very different perceptions of politics in the country. As discussed in other blogs, our study has been accused of underplaying violent state politics as a factor in land reform, but even the civil society and human rights group monitoring even at the peak period in 2008 shows how limited this actually was in the province. We just reported what we found, and it seems to reflect what other data shows. But this is not to undermine or dismiss the 33 incidents (including 8 deaths) that were recorded in Masvingo province. Nor is this to suggest that the Mashonaland violence was isolated or unusual: it wasn’t – it was systematic and terrifying. However, it does push us to – yet again – nuance our analyses by place and time.

History is particularly important. Different provinces and districts have had very different political histories. The contrasts between Mashonaland and Matabeleland are obvious, usually cast in starkly defining ethnic terms. But Manicaland is different again, as is Karanga or Shangaan Masvingo. But even within these areas, there are further differences reflecting long-standing divides in political formations, histories of the liberation war and affiliations to particular leaders. This is not the place to go into these, as they are immensely complex and require the sort of detailed district histories that Terence Ranger commented on in his review of our book. Only with these histories do we get a sense of the social and political history of particular places, and how this affects contemporary patterns of politics, patronage and violence.

Ranger is therefore absolutely right that the Masvingo story is peculiar and particular – just as every area of Zimbabwe is in one sense. And the more fine grained you go, each village and farm is different in other ways, as we explained in our brief histories of jambanja farm invasion experiences. So explaining the politics of land acquisition, who benefited and why requires this sort of analysis.

Arnold Chamunogwa has completed a fascinating MA thesis at IDS at the University of Sussex, using different theories of politics to explore the different dynamics and outcomes in three different cases all recently presented in the Journal of Peasant Studies special issue – in Goromonzi near Harare (based on the PhD work by Nelson Marongwe), Chipinge in Manicaland (based on the work of Phillan Zamchiya) and Masvingo province (based on our work). He argues that theories of ‘instrumentalisation of disorder’ (drawing on Patrick Chabal and Jean-Pascal Deloz among others) characterises some areas, while theories of ‘neo-patrimonialism’ (based on work by Nicholas van der Walle and others) characterise others, and in other areas theories of ‘informal politics’ (based on arguments by David Booth, Richard Crook, Christian Lund and others) are more appropriate explanations. These politics emerge from particular histories, social configurations, state relations and experiences of land reform, as well as the particular characteristics and values of the farm systems concerned. The experiences in Goromonzi, Chipinge and Masvingo were as a result very different.

That’s no surprise, I hear you exclaim! Well in a way, no. But it’s important to point out, and the theorisation is helpful to differentiate between different forms of politics in practice – none conforming to the standard liberal good governance mode. So why then did ‘the instrumentalisation of disorder’ dominate in Mashonaland Central and East? This was the core of the Zezuru support base for ZANU PF, and with Goromonzi so close to Harare, there were rich pickings for the elite who were able to create disorder actively and manipulate the process, grabbing land as a result. In Chipinge, with a different political configuration and a historically strong opposition from ZANU Ndonga, a political-bureaucratic network formed to allocate high value land to try and consolidate ZANU PF support, attempting to create a support base in the midst of opposition, ousting land invaders in the process. By contrast, in Masvingo a more informal politics emerged, particularly around the invaded A1 and informal farms where a mix of people were involved, led by war veterans and traditional leaders. The factional politics of Masvingo meant that the imposition of a strong centrist party line was impossible, and locally negotiated solutions emerged. In all settings, attempts at political capture were incomplete, often failing dramatically, and war veterans and others who led invasions often turned on leading party officials attempting to grab land, accusing them of undermining the objectives of the ‘Third Chimurenga’. Politics, as ever, was highly contested, yet the styles and patterns differed due to very particular, and often very long-term socio-cultural and political histories of the different sites.

As we assess the changing nature of Zimbabwean politics, it is important to take these differences into account, and avoid the generalisations that so much commentary resorts to. Just as Zimbabwe as a whole is not explained by what has gone on in Masvingo, so too is the wider political story not explained by referring only to Mashonaland and the highly contested farms near Harare. Explaining this diversity in the geographies of violence is not to condone it, but it does help explain why the recent past has been experienced so differently in different places across the country.

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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