Tag Archives: Zimbabwe Land Commission

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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The 20 top Zimbabweland blogs of 2017, so far!

It’s the time of year that Zimbabweland takes a break for a few weeks. But it’s also a good time for readers to catch up on what they’ve missed. Here are the posts from this year that have received the most views (and now with all the right links – sorry for those who were browsing earlier in the week). The list starts with a topical one from January, but there are also quite a few from the blog series that have been run this year, based on our on-going research in Masvingo, Mvurwi and Matobo. These have included:

  • A series on the future of medium-sized farms, based on our work in a former ‘purchase area’, and reflecting on the challenges of new A2 land reform farms.
  • A series on young people after land reform, and the challenges of precarious livelihoods, as well as the opportunities presented by the new agrarian structure
  • A series focused on land administration challenges confronting the Zimbabwe Land Commission, including land audits, compensation, dispute resolution and more.

Apart from these, there have been book reviews, summaries of some of our new papers and more.

So far there have been around 35,000 views of the blog this year, covering many posts across the years – and from all over the world. There are now nearly 300 posts to view, so there’s plenty to dig into. Just search! And if you are not one of the 570 people who receive a copy of the post each Monday morning into their inbox, do sign up, or follow me on Twitter @ianscoones, as new blogs are usually highlighted. Happy reading!

  1. View What will the inauguration of President Trump bring to Africa?
  2. View What is the future for medium-sized commercial farms in Zimbabwe?
  3. View Tobacco and contract farming in Zimbabwe
  4. View Zimbabwe’s diamond theft: power and patronage in Marange
  5. View “No condition is permanent”: small-scale commercial farming in Zimbabwe
  6. View Women and land: challenges of empowerment
  7. View How persistent myths distort policy debate on land in Zimbabwe
  8. View Young people and agriculture: implications for post-land reform Zimbabwe
  9. View Medium-scale farming for Africans: The ‘Native Purchase Areas’ in Zimbabwe
  10. View The future of medium-scale commercial farms in Africa: lessons from Zimbabwe
  11. View Beyond the crises: debating Zimbabwe’s future
  12. View How are the children of Zimbabwe’s land reform beneficiaries making a living?
  13. View Underutilised land in Zimbabwe: not a new problem
  14. View What prospects for the next generation of rural Zimbabweans?
  15. View Methods for agrarian political economy: reflecting on Sam Moyo’s contributions
  16. View Compensation following land reform: four big challenges
  17. View Africa must take the lead in addressing global health challenges
  18. View Diverse life courses: difficult choices for young people in rural Zimbabwe
  19. View Land audits: a tricky technical and political challenge
  20. View Land dispute resolution in Zimbabwe

This post was written by Ian Scoones and appeared on Zimbabweland

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Beyond the freehold title obsession: generating land tenure security

 

Zimbabwe has a regime of multi-form tenure, with multiple tenure types associated with different areas of land (freehold, lease, permit, communal and state land). This provides a flexibility in tenure arrangements, with each appropriate to different uses. For any form of tenure the overall objective is security but this can be achieved in multiple ways. The form of tenure must balance administrative complexity and cost of establishment (including cadastral survey, registration etc.) with use.

In Zimbabwe the typical post-settler economy pattern persisted following Independence, with large-scale farms retaining freehold, granted to white settlers during colonisation, while former tribal lands became de jure state-owned lands. These communal areas have de facto rights delegated to local communities (including chiefs), under the oversight of rural district councils. Other areas of freehold title were established in the colonial area, such as in ‘purchase areas’, becoming small-scale farming areas after Independence. Other land was designated as state land including parks, forestry areas and state farms. In the 1980s resettlement areas were established under a restrictive permit system, while following 2000, offer letters (later substituted by land permits) and 99 year leases were proposed, with a 25 year concession proposed for wildlife conservancies.

In line with the Land Tenure Commission of 1994, led by Mandi Rukuni, the challenge today is to clarify overlaps and confusions, and to develop a streamlined administrative system with regulatory oversight for all settings. This is a core challenge for the Zimbabwe Land Commission today, 23 years on. The post-2000 land reform has provided this opportunity for A1 and A2 areas, where permit and lease systems are proposed; although for some A2 areas, leases with options to buy and so transfer to freehold title are offered.

In Zimbabwe regulations exist that restrict multiple farm ownership, and stated policy encourages wide distribution of land, avoiding concentration. While issues of multiple farm ownership remain and regulations continue to be flouted, especially by senior politicians (see earlier blog on audits in this series), the principle is well established, and is based on commitments to social justice and the distribution of national productive assets, and is enshrined in the cross-party agreed national Constitution.

In the past, high levels of land concentration have resulted in political tension and inefficient utilisation of land, as well as land speculation. These inequalities, and many of the problems associated with the lack of regulation in ‘white’ freehold tenure areas, were an important impetus for land reform. But redistribution is only one step, ensuring tenure security following land reform is essential. Despite much evidence that investments in land, particularly in small-scale A1 settlements, has not been hampered by lack of clarity on land tenure and those in A1 areas usually regard their land as secure, a more formalised, accepted system is clearly required.

 Seven principles of tenure design

Here are a number of key principles for tenure design drawing on the international literature (and highlighted in an earlier blog). These are:

Democratic accountability to ensure the representation and participation of critical actors (landholders, farmers’ representatives, etc.) in the land administration system tailored to serve the needs of different forms of land tenure. Democratic control of this is afforded through the state having rights to regulate and intervene in land administration in line with national economic development goals.

A flexible market in land – including allowing 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 below), while providing safeguards against land concentration and multiple holdings.

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. Safeguarding against the danger of mass or distress sales of land and rapid speculative land accumulation by local or foreign elites and companies, in times of economic hardship, and the reversal of redistributive gains is critical in the Zimbabwean context.

Facilitation of credit and investment through the provision of land and other assets 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. – see next section). This entails providing clear rules and regulation of farm investment partnerships, and pooled investment initiatives (e.g. cooperation in irrigation, agro-processing infrastructure etc.); and measures which enhance other forms of cooperation.

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 clearly defined and enforceable requirements for joint recognition of land holdings in leases, permits and titles, as well as administrative mechanisms to ensure equitable treatment of gender related land issues. Supporting the application of laws against discrimination, safeguarding women’s succession rights; and the division of rights on divorce (see earlier blog in this series)

A low administrative burden – both in terms of technical complexity and overall cost – of cadastral surveys, land registration and land administration more broadly. This also entails enforcing the levying of reasonable service charges for costly land titling services (e.g. surveying, valuation, registration, etc.), especially for ‘formalising’ leasehold property rights.

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.

Multiple routes to land tenure security

Land tenure arrangements can be assessed against these key principles. Drawing on a discussion note I did with Sam Moyo some years ago (see earlier blog), the table below offers this assessment, based on both Zimbabwean and international experience. 

 

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

A key design principle is around administrative cost, and so delivery, management and efficiency. There is no point in designing a ‘gold standard’ solution if it cannot be implemented. The bizarre obsession in Zimbabwe with freehold title as the only route to land security – spouted at regular intervals by otherwise knowledgeable commentators and politicians – flies in the face of evidence from around the world. In Zimbabwe currently there are serious challenges of delivery, and a full cadastral survey and allocation of title to every plot in the country as some propose would be complete madness, resulting in massive cost, and a huge escalation of disputes that there would be no capacity to resolve. For lawyers and politicians (and some who combine the two) this may seem the neat option, but for anyone who works in farming areas (or has experience of attempts at this elsewhere, then the prospects are scary.

With appropriate design, leases and permits can offer the same security as title but via a different and much cheaper route that allows regulatory control, and they can be especially beneficial when combined with new approaches to financing (see next week’s blog). As with any form of property right, such rights of course must be upheld in law, and not removed at whim, dependent on political favours and patronage relations. But this is a general condition for all tenure arrangements, and with secure leases or permits, under conditions of accountable and non-politicised land administration (not something achieved in Zimbabwe at the moment of course), land security across a multi-form tenure systems should be possible.

Despite announcements on lease and permit systems for A2 and A1 areas, realising these ambitions on the ground remains a challenge. There is a need to assess realistically the scale of the surveying requirement and the cost and sources of funding this (along with compensation arrangements, see earlier blog in this series) in a systematic way. This could probably form part of a phased district land administration reform scheme (see blog in a couple of weeks for more on this). With options for A2 farmers at least to pay for surveying, this will speed up the issuing of leases, and so the refinancing of farms, as well as creating revenue streams to the state through rentals for further surveying. Fiscal sustainability is a crucial factor in the design of any system, and international experience shows that elaborate titling systems are very expensive.

LIMS: land information and management systems, a key piece of the jigsaw

A new land tenure system needs to be linked to an effective and appropriate land information and management system. Again the same principles apply: this needs to be designed with the real world challenges in mind, as a low cost rather than high end perfect system. Certainly, current efforts to re-equip and develop cadastral survey and land registration capacity is welcome. Fortunately today low cost GPS systems with automated computer upload and mapping services are feasible, and there is capacity in Zimbabwe on this (at the University of Zimbabwe, and elsewhere). A land registry that provides open access information on A1, A2 and other land holding types will be an invaluable resource. However, this must not be developed in isolation and separate from field level implementation, as the system must be functional and useable, and able to be supported from recurrent budgets.

While external donor funding is welcome, the land upgrading support should be widened, and a system must be designed and tested at district level with fiscal sustainability in mind. It must ultimately be able to be funded from land rentals, combined with self-payment for surveys. Rentals will thus result in tangible land administration benefits, especially for A2 farmers, as this will release opportunities for financing/mortgaging/loans (although see below), if clear tenure arrangements are established.

For A1 farms much of the land survey and registration work must be regarded as a developmental public intervention, and will have to be financed from the fiscus with donor support, at least for the first one-off permit delivery. Support for permit issuance needs to be done alongside a defined plan for paying compensation, and based upon establishing new financing arrangements. This financing should be seen as a core part of investments for re-gearing the economy.

An effective Land Information and Management System is a necessary part of this, but this needs to be designed and tested with real world conditions in mind. It needs to be low cost and able to remain funded under expected flows of recurrent budget generated from land rentals. However upfront investment is essential to get things started, and to do the initial survey and lease/permit allocation, and this can be seen as one public cost of implementing land reform. Without securing tenure, and creating an environment for financing and investment, then the flows of revenue that will sustain a land administration system will not emerge. The Lands Ministry and Surveyor General will be able to generate revenues from charging for services (including in urban areas), and also will need to set up a system for the systematic collection of rents in order to ensure fiscal sustainability.

Beyond the freehold title obsession

Zimbabwe needs to get over the idea that freehold title is the solution to all ills. Tenure security can emerge through many routes. An effective, transparent land administration and information management system is essential. Rebuilding the bureaucratic state and depoliticising land is essential. The Zimbabwe Land Commission has an important role in this, and one of its major challenges is thinking through a low-cost, replicable and sustainable system to support the delivery of leases and permits on a wide scale across a huge array of land types and sizes, from relatively large A2 farms to very small plots, including those in urban and peri-urban areas.

As discussed in other blogs in this series, and pursued further next week, through some phased district level initiatives it will be possible to integrate lease/permit registration and the development of a functioning land administration and information system, at the same time as dealing with compensation, and new financing arrangements. Getting such pilots moving soon is a major imperative for the new Land Commission.

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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Land dispute resolution in Zimbabwe

The reconfiguring of land use and ownership through land reform has inevitably generated a range of disputes. Having a clear, transparent approach for dispute resolution is essential. This is a key task for the Zimbabwe Land Commission, as this third blog in an occasional series on priorities for the Commission argues.

The process of land invasion and occupation and then the subsequent planning under the Fast-Track Land Reform Programme has left a legacy of overlapping boundaries, double occupations, evictions (including of farm workers), follow-on invasions and illegal allocation of lands outside the fast-track framework, competing authorities over land, lack of clarity over gendered rights and more. The failure of the land administration system, and the legal framework, to catch up with the realities of land reform even 17 years after the event have compounded the problem. The growth of urban and peri-urban demand for land, including in designated rural areas, only adds to the array of disputes over land being faced. Finding a clear route to addressing this reconfiguration of land rights and disputes is critical.

Zimbabwe’s land is subject to pluri-legal jurisdictions, with overlapping arrangements and often competing institutions. This is reflected in the variety of formal legislative provisions, as well as the intersection of formal and informal (customary) law. It provides for a confusing and complex situation that is often subject to dispute. The Land Commission Bill usefully pulls together a variety of pieces of legislation and the formation of the Commission will provide a single institutional point of reference for these issues. This will undoubtedly help. However, the Commission will have to continue to deal with these issues in practice, and develop ways of approaching dispute resolution in particular in this context. While the proposed Bill offers some formal mechanisms for doing this, how this will actually be done remains unclear.

Potential land disputes arise in a variety of areas:

  • Registration of leases and permits, including the importance of identifying joint rights of spouses (currently only optional, but disputes will be reduced if obligatory, and joint rights are clarified – see blog in this series on women and land)
  • Land audits including the assessment of utilisation and ownership (the latter will be clarified through the permit/lease registration process, and via an open access land registry and associated information system, while some clearer criteria for utilisation requirements are needed for auditors).
  • Compensation and valuation, mostly for large-scale farms, requires a clear approach to valuation, and the option of recourse, but overseen by the state (see blog last week in this series on this theme). Currently there are a variety of interested parties offering their view, and indeed some substantial but non-transparent data. However, all groups need to operate in relation to one system, as accepted by the Constitution. While this is provided for in principle in the new Bill, the practicalities are not yet clarified. As discussed last week, the establishment of an independent Land Tribunal for assessing disputes, operating intensively for a time delimited period, may help to relieve the backlog of claims.
  • BIPPA land (land under international investment treaties) is covered by an international dispute mechanism, and an international tribunal. As many have observed, this is heavily weighted in favour of the investor. International pressure to reform this system, in line with the FAO Voluntary Guidelines, and best practice approaches for land investment by foreign companies and financiers is building, but Zimbabwe has not engaged in this wider debate significantly. This may be an important route to seeking wider experience on land investment, and developing a more effective national approach, and avoiding the legal complications arising from the delayed mediation of the disputes over BIPPA properties. Here too, limited state capacity adequately to value BIPPA farms and to secure adequate legal services to engage the international tribunal, as well as pursue negotiations with the landowners and their national diplomatic corps, has undermined resolution.
  • Land inheritance and succession remains a recurrent issue, and now increasingly in relation to large, valuable properties in A2 areas (see earlier blog on women’s empowerment). The wider law specifies the requirements for this, including the rights of women, however the practices have been less than satisfactory, given the patriarchal domination of legal and administrative processes. Greater clarity in regulations (including naming in permits and leases) will help, but will have to be combined with public education and support to ensure that the letter of the law is followed, and known about.

The experience of national land policies and the establishment of land tribunals in a variety of countries in Africa will be a useful source of comparative experience for Zimbabwe as it establishes the Land Commission. For example in Namibia, recent legislation to facilitate dispute mediation and arbitration to pre-empt costly adjudication could provide useful lessons. There is a key lesson that the policy, commission and tribunal are only the framework,, and the practice – based on local arbitration and mediation – must be evolved on the ground. The principles of collaborative rather than hard law are essential here, and require a (re)training and capacity building among lawyers, as well as administrative officials.

Procedures must be transparent, and garner legitimacy. Any sense of corruption, conflicts of interest and so on would undermine the working of the Commission. A big challenge for the workings of the Commission in practice, particularly in the A1 and communal areas, will be to address how these processes articulate with ‘traditional’ and customary law. This is not tackled in the Bill, as formally in legal terms these do not apply. However, de facto law is pluri-legal, overlapping and conflicting, and so this will have to be addressed. Developing examples, and associated ‘case law’ in pilot cases will be important in this regard.

Given the importance of regularising land administration in the post land redistribution period, a series of decentralised district pilots that deal with all dimensions of land administration within an overarching framework may be the next best step. These can model the functioning of the Zimbabwe Land Commission for the rest of the country and provide the basis for building trust, developing administrative capacity and sharing lessons. How this might work will be picked up in a forthcoming blog in this series.

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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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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Women and land: challenges of empowerment

Rights to land for women have been enshrined in law in Zimbabwe, but the practice of law in reality often has not delivered women’s empowerment and rights. This must change, but how?

Zimbabwe has a range of progressive laws aimed at gender equality on the statute books – notably around marriage, inheritance and succession. These feed through into land legislation and administration, and are recognised in the new Land Commission Bill. These include the recognition that leases and permits should recognise both spouses as land holders. However law in practice may not uphold these ideals. Biases in administrative procedures, competing legal orders in a pluri-legal system, and the resort to ‘tradition’, and the lack of awareness of rights all combine.

Women did gain access to land in their own right at land reform. This was at higher levels than exist in the communal areas, with around 15-20% of all plots in A1 schemes being registered to a woman, compared with typically around 5% in communal areas. Most such female land holders were widows, divorcees and single unmarried women. The possibilities of women’s empowerment in land access through the land invasion and occupation process around 2000 has been widely documented. However, since land acquisition, there has been a reversal of some of these gains, and women have lost out in new allocations due to the patriarchal practices of local administration systems, now combining ‘traditional’ approaches (via chiefs and headmen) and land offices.

Many lobby groups argue that women must be allocated land. Yet, women often recognise the value of gaining access to land and other resources in the context of the marriage contract, making addressing gender equity within joint arrangements just as important. Indeed, a focus on the allocation of plots for women, while essential for some, may miss the point for the many – and divert attention from many other opportunities to protect wider rights and entitlements. While current statutory law notionally provides the basis for women’s empowerment, in practice it often falls short – and this differs between A2 (medium-scale commercial farms) and A1 (smallholder) land.

A number of high profile cases have occurred in relation to A2 farm land, where divorced women have contested the rights of their husbands to hold all the land following separation. Yet these have also shown the limits of the law in practice. This is despite the fact that, in cases of contests over A2 land, where large areas of land are concerned and the case comes to court, there are procedures in law and administrative practice that can be used to address gender inequalities. Even with joint registration, and in the absence of ‘traditional’ customary legal frameworks operating in these areas, the rights of women may not be upheld, either by formal courts or administrative procedures, due to the pervasive patriarchal assumptions around land ownership. This needs to be challenged through the development and documentation of case law and the sharing of effective practice that upholds women’s rights within both the legal profession and within the administrative arms of the Ministry of Lands.

In A1 land, however, the enforcement of statutory law is more challenging. Permit regulations from 2014 again specify the rights of women, encouraging the joint naming of spouses. The regulations specify rights in relation to divorce, and around polygamous marriage. However in practice, very often women’s names do not appear on permits (or their predecessor offer letters). There is no legal requirement for this, as this appears to be a discretionary provision in the implementation process. The point of land registration is an important moment for specifying rights and ensuring joint naming moves from optional to mandatory, but as disputes are dealt with locally within a pluri-legal system, even this move will have to be backed by wider cultural change in a deeply patriarchal traditional and administrative system.

Land reform areas in Zimbabwe are state land, where nationally agreed legislative provisions – around women’s rights, for example – apply. Formally, the state can overrule patriarchal institutions, and can have a role in enforcement. In seeking progressive change in land related policy, such as around women’s empowerment, state ownership is important. The state, unlike in customary land, can take back land and also specify the rights over land for both men and women, without any intermediation by traditional councils, chiefs, or a poorly defined ‘community’. However, in A2 farms, with considerably larger land areas and more capitalised systems of production, there is greater value at play, and the opportunities for the state to override may be less, although formally the state can still intervene. Clarity on roles and responsibilities and a clear administrative framework for land is therefore essential.

To help push administrators and the legal system to recognise women’s rights to land, joint naming of spouses should be a legal requirement, in my view. Equally any wider audit and registration process needs to include a gender audit. As with past public awareness campaigns around marriage and inheritance (such as the 1993 film Neria, written by Tsitse Dangarembga and starring Oliver Mtukudzi), a similar effort needs to mobilised during land audit and registration.

There are real challenges for realising rights in practice, as progressive legislative moves may be undermined by patriarchy in both local communities and administrative systems. This requires reform of administrative processes, the guaranteeing of joint naming on land holding documents and public awareness campaigns.

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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Land audits: a tricky technical and political challenge

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A major task of Zimbabwe’s new Land Commission will be to undertake periodic audits of land and its use nationwide. This is a tricky technical and political challenge.

While there have been a number of formal and informal audits since 2000, none have resulted in much change. Under the Zimbabwe Land Commission bill, audits are supposed to ascertain what is ‘proper use’ that is ‘in the national interest’.

While it is obvious that some areas of designated A2 land are underutilised, should this warrant expropriation and transfer to others, the incentivisation of increased rates of use through land taxation, or transfer to A1 schemes through subdivision? Decisions must rest not only on the land’s status, but also a wider strategic consideration of the appropriate mix of land tenure types and uses in a given area, as well as demand for land. Ensuring criteria and processes are clear, transparent, non-political and effective is vitally important.

Theoretically a land tax should be the most straightforward approach to increase the efficiency of use. This was instituted last year, with payments required since 2007 at US$5 per hectare for A2 farms. This has resulted in many being unable to pay, and an outcry about retrospective payments and the gearing of tax according to agroecological potential, and available infrastructure. The neat theory of land taxation has perhaps inevitably proven more complex in practice.

Over many years, there has been a debate about what are appropriate land sizes for ‘viable’ farming in Zimbabwe. This originally emerged in the colonial era for allocation of farms for whites. It was based on technological norms (seed varieties, application of inputs, mechanisation and irrigation) and an ‘acceptable’ minimum level of income for a (white) farmer, pegged then at the salary of a Permanent Secretary in government.

Some elements of these earlier land size recommendations have persisted, but it is now more recognised that farms represent one part of a portfolio of income from many. The idea of the full-time farmer has long been a myth, but one that has been perpetuated in the folklore. Government land officials and surveyors must accept a variety of sizes, influenced by local pressures on land, the demands for redistribution, and the accommodation of different class interests, including the need to create plots for former farm workers within farms. There is now a huge range of farm sizes across and within natural regions, and a clear minimum or maximum, as notionally stipulated, is not evident.

As discussed last week, what is deemed as ‘utilised land’ is also a contentious area. Major surveys undertaken in the 1980s and 90s took the simple criterion of cropped area for dryland farms, and did not assess the value of the crop. There was a provision for fallow, slope and an acceptance that some farms had large areas of non-arable land, but a simple ratio of cropped area to available arable land provided a consistent indicator. These surveys found that considerable areas of land were not being used, as arable production intensified in smaller areas, and often quite large tracts of land were used for free-ranging cattle as farmers made use of EU subsidies and market access for beef production.

Earlier assessments, however, did not take account of yield levels. In the past, even if underutilised in terms of area, large-scale farms were showing high yields in those areas that were cultivated (e.g. an average of five tonnes per ha for maize), compared to an average of around one tonne per ha for maize in the context of twice as much more land under maize today. Utilisation therefore cannot just use area as a metric, but must also look at intensification. This relates of course also to irrigation capacity.

A key aspect of increasing land productivity is water use, and many A2 farms have under-utilised irrigation infrastructure. Any audit will have to address this. A significant proportion of large-scale irrigation infrastructure outside the estates is in a state of disrepair and is not being used effectively. Some claim that it is not economic to rehabilitate, as the financial costs of rehabilitating and running such irrigation facilities are too high, under the existing credit regime, while the unreliable electricity supply disrupts operations. Also, the type of infrastructure was developed for a different scale of production, and so may not be appropriate today. Assessment of ‘under-use’ of irrigation, while a vital part of any audit, must take into account the economics of irrigation and the need to build resilience in the face of climate change.

There are a number of technical and political challenges for the audit process therefore. Currently, the law is interpreted flexibly in practice, and without rigid land use and farm size guidelines. Subdivision and downsizing is occurring in some places as a response to poor use. A local approach has advantages in providing the possibilities of pragmatic, attuned, context-specific responses; however it has downsides given the potential for corruption and political pressure on flexible administrative processes. Any audit will have to address these dilemmas head on. This cannot be resolved simply by recourse to supposed technical farm size/use regulations or land taxation, but has to accommodate local demands and perceptions. For this reason a local district and provincial implementation process is needed, where lessons are learned as audits proceed.

This post was written by Ian Scoones and appeared on Zimbabweland

 

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