FUNGAI CHIMWAMUROMBE
In a bid to address the mistakes that Zimbabwe made upon attaining independence, the Zimbabwean government has promulgated land laws that sought to address these blunders.
Government is still making efforts for the redistribution and reallocation of land in the country for the governing and for protection of ownership of agricultural land.
The main focus of this article is an insight of the critical new land laws in Zimbabwe which include the Land Commission Act [Chapter 20:29], Land Commission (Gazetted Land) Disposal in Lieu of Compensation) Regulations SI 62/20, Rural Land (Farm Sizes) (Amendment) Regulations SI 41/20.
The writer, in the future, will explain more in detail these laws hence the reader must take this article as just an introduction on this topical issue.
The Land Commission Act [Chapter 20:29]
This Act was enacted for the establishment of the Land Commission, its functions, its powers, and the law relating to sharecropping, security of tenure, disputes relating to the property of the deceased, the protection of certain rights as well as the issue of the so called land barons.
The purpose of the Land Commission as laid out in the Act includes to provide for the acquisition and the disposal of State Land as well as to provide for the settlement of persons on land and the alienation of agricultural land.
It was also enacted to provide for the control of the subdivision and lease of land for farming and other purposes.
The Zimbabwe Land Commission is empowered by the Act to perform the following functions; to ensure accountability, fairness and transparency in the administration of agricultural land that is vested in the State, to conduct periodical audits of agricultural land, to make recommendations to the Government regarding the acquisition of private land for public purposes, and for equitable access to and holding and occupation of agricultural land.
The Act has vests some powers in the Minister responsible for land issues, who is the Minister of Lands, Agriculture and Rural Resettlement. The Minister should not exercise bias or injustice in carrying out his mandate when it comes to State Land.
For the Minister to exercise his powers, the Act stipulates that he has to consultant the Commission.
An example of such powers is that the Minister is empowered to sell, lease or otherwise dispose of state land but he can only do so after consultation with the Commission. This is because the Zimbabwe Land Commission is not assumed to be a political body but rather an independent body therefore can only give rational and impartial decisions.
Security of Tenure
The most important thing in land issues is creating an enabling environment that boosts confidence and security, therefore, the need to make land tenure policy our objective.
While the context of land reform has been characterised by political conflict and social and economic contestation, the tenure reforms should aim for decisiveness in guaranteeing the rights of newly settled farmers and ensure that the rights are legally protected against social and political whims. The Act however does not completely guarantee the security of tenure.
It partially provides for security of tenure under 99-year leases which can be said to be an equivalent to ownership because they last for a life time and also deeds of grants that give total ownership. Permits, offer letters and other leases do not give ownership, they only give rights for holding.
However one would say that the Act does not guarantee for security of tenure in the sense that the President is empowered by the Act to retake the land at any time and under such manner and under such conditions he may deem fit. It is imperative to note that the President can only retake the land under the Act for State, Local Authority or for public purposes only not for any other purposes.
Agricultural land of the deceased.
In relation to agricultural land of the deceased or people that cannot help themselves, the Act allows that they may be represented by a legal practitioner of their choice at their expense or to be represented by a member of the family or any other person the Commission considers suitable to represent her or him.
This provision upholds the constitutional right to a fair hearing and to legal representation. It is of great importance to note that access to justice and right to fair hearing are the bedrock for the success of democracy in any nation.
This is because access to justice and the right to a fair hearing are the most important aspects of the Rule of Law in any democracy in modern form of Government which stresses political equality and individual liberties.
Criminal Sanctions
Right to silence has not always been a practical reality for the accused in Zimbabwe whether in a Criminal matter or a Civil matter. It is reasonable that persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure.
The supposition that only a person before the Land Commission Act is to be guilty of an offence for not speaking freely to the Commission is an unreasonable provision because people can choose to remain silent for various reasons. This provision is an infringement of the right to silent of the accused that is enshrined in the Constitution therefore the need to be aligned to the Constitution.
Transfer of Rights in Land
The Land Commission Act prohibits the cessation of rights by anyone without the consent in writing from the Minister. This has been prohibited by the Act because it has also resulted in the dilapidation of farms and have caused a great economic meltdown as farms are no longer used for their initial purposes but have been turned into residential areas as a result of the housing schemes by land barons and local authorities conniving to rip off desperate home-seekers through setting up dubious housing schemes.
Most of the farms are now derelict as a result of land cessation. One can safely say that this is the reason why the Act has abolished cessation of rights without the approval by the Minister.
Further, sharecropping is a widely recognised practice that involves farming, depasturing of livestock on land belonging to others. The Act allows for land owners to permit occupation on a share cropping basis but only with the approval of the Minister. Permitting occupation on a share cropping basis without the approval of the minister is a criminal offence under the Land Commission Act.
However sharecropping is beneficial to the economy of the country as the land owners who have no experience in agriculture can allow others with more skill and resources to utilize the land.
Sharecropping is a good exercise as there is no up-front cash payment needed by farmers. It means that sharecroppers would only need to pay the rent during the harvesting season.
Sharecropping increases the land acreage and thereby increasing the production of crops.
Immunity of the Commission
Lastly, the Act provides for the immunity of the Land Commission or any member of the Commission in respect of anything that is done in good faith and without gross negligence.
While it is accepted that the intention of this provision is to protect the Commission from distracting litigation while performing their legitimate and constitutional mandate and duties, one then must consider how easily this provision could be abused by those protected under it.
It is important to note that the Commission or member of the Commission can also be corrupt in exercising its duties. Though this immunity clause is not absolute the conditions that one can bring an action against them are vague and insufficient.
The Act specifically says that the Commission is immune to any legal proceedings in respect of anything which is done in good faith and without gross negligence.
One would say that this provision is vague in the sense that it is difficult to prove that the Commission acted in bad faith and that it has exercised gross negligence in carrying out its mandate.
Because of the immunity from any legal proceedings, whether civil or criminal, it is likely that this clause will foster corruption and there is need to extent the conditions under which the Commission can be brought for legal proceedings to include corruption because there is an opinion that, while holding office, the members of the class protected by the immunity clause can “do and undo” as they see fit and not be held accountable.
Returning of acquired land to indigenous and citizens of a Bippa or BIT country their previous acquired farms
The enactment of SI 16/2020 Land Commission (Gazette Land Disposal in lieu of Compensation) Regulations, 2020 bought the much-awaited joy to the indigenous persons and individuals who were citizens of a BIPPA or BIT country, who are now able to repossess their farms since the government opt for disposal in lieu of compensation.
Section 4 and 5 of the SI 16/2020 provides for the persons who should apply as well as the application procedure. Private companies and partnerships of indigenous individuals who previously owned farms that were acquired are also eligible to lodge application for the repossession of their farms.
Those applications shall be lodged to the Minister of Lands, Agriculture, Water and Rural Resettlement who shall pass on to a Committee that will make a decision.
Those who wish to apply for the repossession of the farms should submit
a) A copy of the deed of grant or title Deed as lease with option to buy:
b) Identity documents
c) Bilateral Investment Promotion and Protection Agreement (BIPPA) or Bilateral Investment Treaty (BIT) relevant documentation including corporate structures of the citizens under these arrangements.
d) Proof of purchase of the farms which are under the lease to buy agreements.
It is critical to note that section 9 of the regulations makes it clear that the alienation of the farm shall be final settlement of any claims that the applicant/farmer may have made to the state in respect of compensation.
It is important to note that, those who were compensated, are not eligible to the alienation process. However it is not yet clear on what will happen to those not fully compensated to those aggrieved by the compensation ratios.
Further, there is need for a review of the statutory instrument if regards should be taken to the fact a minimum survey with the previous farm owners demonstrated that they are not keen to return to the farms which had since changed the form and status.
New rules of acquired land size.
SI 41/20 was enacted in a bid to rationalise land and redistribute land by the government through minimum land sizes. Section 3 of SI 41/2020 thus provides that;
“No person shall own a farm situated in (a) Natural Region I if the size of the farm exceeds two hundred and fifty hectares; or (b) Natural Region II if the size of the farm exceeds five hundred hectares; or (c) Natural Region III if the size of the farm exceeds seven hundred and fifty hectares; or (d) Natural Region IV if the size of the farm exceeds one thousand five hundred hectares; or (e) Natural Region V if the size of the farm exceeds two thousand hectares.”
This redistribution has been criticised by many farmers who are productive on their land and has done massive investments ever since they acquired the land. It also brought in some discomfort as to the settlement of the land reform programme.
It is very clear that exceptions to the application of this statutory instrument is necessary.
Fungai Chimwamurombe (pictured below) is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889.
