Land reform and the question of property rights

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Stembile Mpofu

In July 2015 the SADC Tribunal awarded Benhard von Pezhold and Others US195 million as damages for the land expropriated during Zimbabwe’s Land Reform Programme. The Zimbabwe government was ordered to pay the money within a period of 90 days. The government was found to be in breach of the bilateral investment treaties that it had signed with Germany and Switzerland. The tribunal found that the von Pezholds had been treated unfairly and inequitably with regard their foreign exchange earnings. An additional and very significant finding of the tribunal was that the Zimbabwean government had expropriated the land because of the colour of von Pezhold’s skin. A few weeks ago on November 21, 2018 the Annulment Committee constituted under the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), turned down the Zimbabwe government’s application to have the tribunal award of US195 million annulled, thus bringing the issue of Zimbabwe’s land question back into the spotlight.

Unbeknownst to many Zimbabweans the land issue as considered in this judgment and others made by the SADC Tribunal during this time period, sit at the core of the sanctions imposed upon Zimbabwe by the United States. According to ZIDERA, Zimbabwe must enforce the SADC tribunal judgments on land before sanctions can be lifted. A provision of the Act reads:

“It is the sense of Congress that the Government of Zimbabwe and the Southern African Development Community (SADC) should enforce the SADC tribunal rulings from 2007 to 2010, including 18 disputes involving employment, commercial, and human rights cases surrounding dispossessed Zimbabwean commercial farmers and agricultural companies.”

Underpinning these rulings and conditions is Article 17 of the Universal Declaration of Human Rights. Which declares, “ Everyone has a right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.”

In conformity with these demands Zimbabwe’s 2018 Budget sets aside 52 million dollars to begin compensating those commercial farmers whose land was expropriated. This move has been taken at the same time that the South African Parliament is debating the issue of amending their Constitution to allow for the expropriation of land without compensation. Namibia intends to embark on the same route with regards their land.

These developments bring to the fore the question of the protection of property rights and in that the upholding of human rights. As we consider the sequence of events in Zimbabwe over the last 20 years and the fact that indeed the international laws governing these rights have been considered and enforced, one is forced to begin to think of the intent of these laws. The legal system that Zimbabwe and other African nations function under is one that was imposed by European colonisers who invaded Africa in the last 200 years. The laws that were crafted and enforced in the colonized territories were very different from the laws that were in force in Europe. A different philosophy and standard informed the laws of the colonised territories. The tenets of justice and equality did not underpin these laws; they were informed by the thinking that indigenous people should not have access and power over the resources they were found in possession of when the Europeans arrived on African soil. The laws that were put in place were intended to disenfranchise the indigenous people and ensure that power and access over resources accrued to the colonising country and its citizens.

The fact that these laws were preceded by the physical subjugation of the people of Southern Africa through wars and genocide points to the fact that the people of the region had autonomy and ownership of their land and its resources. They attempted to protect their right to ownership of their property and did not want it to be arbitrarily removed from their stewardship. They attempted to retain their rights, which were the same rights as those enshrined in the laws of the European countries colonising them. These same rights were subsequently placed in the Universal Declaration of Human Rights in 1948 flowing from the laws obtaining in European countries but not what was in force in their colonial territories. Once subdued the colonial authorities proceeded to put in place laws that situated power to access and control all resources in their own hands. These same laws were crafted to exclude the indigenous people. Expropriation of the land and all other resources was carried out based on the colour of a person’s skin as was found by the SADC Tribunal in the von Pezhold case.

The underlying philosophy of these laws and their intent is illustrated in a judgment made by a Southern Rhodesian Court upholding the summary dispossession of the Ndebele people from their lands in Matebeleland, it read:

The estimation of the rights of Aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usage’s and conception of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferrable rights of property as we know them.”

This thinking informed the crafting of every aspect of the legal system that determined how a colonised country functioned. Where the estimation of rights of the people living in those countries was determined by the colour of their skin. As the countries of the SADC region negotiated their right to independence after armed struggle, the colonial authorities insisted on property rights being enshrined in the constitutions of the newly independent countries. This was to ensure that the economic structure and the privileges that had been constructed by these colonial laws remained in place.

The legal systems inherited by African countries that include Zimbabwe, South Africa and Namibia are underpinned by the intent to disenfranchise the indigenous people of those nations. They are not rooted in fairness or equality and as a result should not be enforced without consideration of their historical context. The land issue, which is essentially an economic issue, has a place where it begins. To disregard this beginning and arrive at legal judgments like those reached by the SADC Tribunal is in effect perpetuating a system rooted in racism and injustice. It amounts to the total disregard of the rights of Africans on the one hand and the full acknowledgement of the rights of those who implemented the colonisation project. It begs the question, whose human rights are more important than the other? It makes one ask, at which point in this story can we consider that human rights were violated? Was there a violation of human rights at the beginning of the story when indigenous Africans had their land expropriated based on the colour of their skin? Or did the violations of rights only take place at the point where von Pezhold had his land expropriated based on the colour of his skin?

The revision of the Constitutions of Zimbabwe, Namibia and South Africa has predictably met with resistance from the former colonial powers because the current structure defining property rights protects their economic interests. This is the reason why sanctions have been put on Zimbabwe by the United States and why South Africa is being warned against instituting land expropriation without compensation.

There is a grave lesson in this for Africans and African governments going forward. We must relook at the systems we have inherited from colonial governments and change the areas that are underpinned by the motive to exclude and disenfranchise the indigenous people. We must begin to interrogate these systems with a critical eye and be able to assess whether or not the causes we are advancing in our various sectors as lawyers, economists or accountants speak to the tenets of justice and fairness. We must have the creativity and courage to challenge and change systems where we find that the interests of the majority of people are not being met. So when we advocate that property rights in Zimbabwe must be restored, are we willing to define this right in a way that does not necessarily conform to what was enshrined in a system whose intent was to exclude the majority of the country’s citizens?

There is a tendency to copy and replicate what we have been taught in our schools and universities and very little desire to interrogate and challenge the legal and economic status quo. How many Zimbabweans are aware that at the same time Zimbabwe began its land reform process, Scotland was crafting its own Land Reform Act. The Scottish land reform process was designed to move away from the feudal land system to a community based land ownership system, with similarities to how Africans managed land use before colonisation. And yet here we are as African lawyers and economists continuing to advocate for a system that does not benefit us collectively. We are not using our knowledge and skills to wake up to new possibilities and create something new for our country, our continent and ourselves. We choose to advocate and support court judgments and sanctions that advance the agenda and interests of those that have benefited from the privileges bestowed on them by an unjust and unfair system.

As Zimbabwe faces its US195 million-dollar bill for damages to von Pezhold and others, perhaps our Zimbabwean human rights lawyers should consider supporting their government to make its own claim for damages incurred during the colonial project. If the loss of land, livestock, lives and livelihoods were to be quantified I suspect the amount would likely cover the US195 million-dollar bill for damages. In fact US195 million is likely to constitute a tiny drop in the ocean of what is owed to the people of Zimbabwe. We must begin to cultivate a culture where we advance our own agendas as Zimbabweans and as Africans. We must ensure that in our quest for development we are not misled into advocating for systems that undermine things that are in our own best interest.