The so-called 'landmark' ruling
of the SADC Tribunal is hilarity compounded. It stretches incredulity that white
farmers expect their vast acres of prime arable land which their forebears had
acquired at gunpoint, prior to establishing an apartheid state, to be
repatriated on account of a 'racially discriminatory' land policy. It redefines
hypocrisy, it really does.
When Blair's Labour came to power in 1997 they soon disowned their, and by extension the UK's, commitments to fund land reform in Zimbabwe, as accepted under the terms of the 1980 Lancaster House Agreement, by arguing that they were a 'working class movement' unlike the Conservatives who were derived from the 'landed propertied class'. Why, they must have argued, should the British taxpayer be forced to bail out the Rhodesian unilateralists?
And so, with a vanishingly negligible degree of moral introspection a conclusion was drawn that this historical party difference somehow absolved them of their obligations to prevent a bloody agrarian revolution. This shift in position became clear even before the 2000 Fast Track Land Resettlement as evidenced by their 1998 Donor's Conference assertion that compensation was 'beyond the capacity of any individual nation'.
Talk about cleaning your hands of Empire.
Anyway, I actually agree with Claire Short; there shouldn't be any question of compensation. The British South Africa Company conquered on behalf of the Crown via their Matlin inspired machine-gun massacre of the Shona/Ndebele uprising of 1897 and then sold concessions to Rhodes brigands - who ever since have enjoyed the fruits of the land's produce. If objective justice were a tangible entity the 'compensation' would be the other way round. In fact, were it up to me I'd have blocked their passage, swathed them in chains and demanded a 100 years servitude from them and their offspring.
After the expiry of the ten-year 'willing-seller-willing buyer' clause, land reform proposals in the Zimbabwean parliament have, by necessity, involved the abrogation of private property rights - a fact, cynically deployed by would-be donors to forestall correcting an historical injustice.
'We can scarcely fund a programme that contravenes our own laws on private property', remarked the US ambassador at the time.
The current constitution of Zimbabwe was compiled under the scrutiny of British negotiators and representatives of the former Rhodesian government at the Lancaster talks and thus bears the imprimatur of a colonial era 'compromise document'. In certain cases it inevitably repudiates any democratic expression of majority will such as its early stipulation that whites should hold 20% of parliamentary seats despite being a less than 1% minority.
This is in addition of course to the provisions that delayed redistributive land reform. Most sides of the political spectrum, barring the white-dominated Commercial Farmer's Union, were naturally unhappy with these origins which is why in the recent Government of National Unity power-sharing agreement there are provisions to draft a new Constitution, one that acknowledge the fundamental right and duty of the Zimbabwean people to make a Constitution 'by themselves and for themselves' and that the process must be 'owned and driven by the people and must be inclusive and democratic'.
Nevertheless, though many of the eighteen amendments to the present Constitution have reflected the changing contours of the struggle to reclaim formerly dispossessed lands it has always been the case that property rights whilst normatively consistent with international standards may in certain cases be subordinated to the public interest. This arises from the somewhat unique circumstances of Zimbabwe's inheritance of skewed and unsustainable patterns of land ownership. Thus the section on Agricultural Land Required for Resettlement has become somewhat bulkier over the years but its main tenets were already in place prior to the 16th amendment of 2000;
"(1) In the assessment of any compensation that may be payable when agricultural land is compulsorily acquired for the resettlement of people in accordance with a programme of land reform, the following factors must be regarded as of ultimate and overriding importance;
(a) before Independence the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation;
(b) the people consequently took up arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;
(c) the former colonial power has effectively repudiated Zimbabwe's just claims for reparations;
(d) the people of Zimbabwe must therefore be enabled to reassert their rights and regain ownership of their land."
Now, if we move to the post-2000 amended version we see that the passage which deals explicitly with the rights of property - to wit Section 16 Protection from deprivation of property there is written;
"(1) Subject to Section 16A, no property of any description or interest or right therein shall be compulsorily acquired."
In other words, Zanu-PF were not 'flouting' the Constitution's protection of 'private property rights', but were, on the contrary, using successive amendments both to protect normative property rights whilst advancing legislation aimed at reversing inequitable patterns of land distribution derived from colonial times.
As mentioned, the entire thrust of the sections pertaining to property rights were always predisposed to subordinating those rights to the greater public interest which in Zimbabwe's case meant the transference of small-holder farmers from the increasingly degraded communal areas or Tribal Trusts Lands to the more sustainable natural regions in the highlands occupied by the white commercial farmers. No changes introduced by a successful referendum would have altered this fundamental fact.
Of course the question may be asked whether ZANU-PF had a mandate from the people to pursue fast track land reform; ie. compulsory acquisition? If you look at the proposed constitution of Feb 2000 (which was defeated 54% to 45%) you will see that there were many changes which were being made; including a limitation to two Presidential terms. The general confusion wrought by the multiplicity of changes is reflected in the low turnout - half those who voted for the parliamentary elections - and is reminiscent of the failure of Chavez's first attempts to extend his terms in Venezuela. Voters don't respond to this type of change en bloc, as Ireland witnessed with the Lisbon Treaty.
Likewise, with this type of referendum there are no shortage of analysts who will pretend to be able to read the minds of the electorate and tell us all why they voted in such and such fashion. If it was such a setback for Zanus platform of land redistribution then why did they win two thirds of the vote in the subsequent senate and parliamentary elections? One reason springs to mind; they green-lighted accelerated land reform.
The Zimbabwean judiciary, in fact, have been at the forefront of the Chimurengan struggle, being arguably the principal agent used to facilitate redistributive land reform. Their rulings have constantly thwarted appeals made by the Commercial Farm Worker's Union to have their lands restored. Moreover, they have done all this in accordance with their obligations under the Constitution by invoking the overriding importance of the clauses in Section 16A to which I have just alluded.
In fact, the Attorney General has over a hundred prosecution cases before him as we speak for white farmers who have refused to vacate their property. A more competent line from an anti-ZANU perspective would be to highlight the 2001 expansion of the Supreme Court with three judges who had received allotments from the FTLR - and then to question their impartiality bonafides when it comes to ruling on such cases!
It is a little surprising then that the argument is often invoked that juridical independence has been compromised on the fictitious assumption that their rulings have been ignored by the GoZ, when in fact the higher benches have been front-loaded by ZANU party faithful - though it is questionable to what degree any actor may be said to be independent in near civil war conditions. This to me is a case of all hands to the pump, a high stakes game - that has led to a dangerous cleavage, one only recently abated by the formation of a Government for National Unity.
It is true that early headlines, desperate for an internal confirmation of the inherent wickedness of the Mugabe regime generally ran blurbs like 'court rules land grabs illegal' or 'land occupations unconstitutional'. However, a reading of the ensuing fine print would quickly reveal that in each specific case there had been a failure on the part of occupiers or their land agents to adhere to certain protocols whose breach had been deemed either unconstitutional or contrary to some other aspect of Zimbabwean law.
In fact, most of the international press made this assumption with the November 2000 Supreme Court ruling on the legality of occupations, choosing to interpret it as a definitive rejection of the repossessions. Then Information Minister, Johnathan Moyo, had to confirm subsequently in a BBC interview that he was surprised by press reports that the Supreme Court had declared the land programme illegal. All that the ruling confirmed was that the resettlement programme should proceed in accordance with the laws of the country - just like any other activity. How else do we explain so much store been placed on the ruling of the SADC Tribunal if not the acknowledgement among white commercial farmers that their own judiciary has failed' to protect them?
What has been the real effect of these reforms in terms of the patterns of land distribution? What we do know to a great degree of certainty is that the FTLR of 2000-03 has created a deep structural shift both in the nature and composition of land ownership and in a reorientation of the domestic and export markets for agrarian produce. One of the least surprising elements is that intimidation and violence were eventually required to achieve this.
We also know that prior to FTLR some 4,500 white commercial farmers controlled a third of the country's land under freehold tenure, or about 42% of its agricultural and 70% of its best arable land. We know that this land was situated in the best natural regions with higher levels of rainfall, infrequent drought and developed systems of irrigation with dams and so forth.
We also know that in these commercial areas of around 11 million hectares there were significant reserves of under-utilised land of some 5 million hectares either lying fallow; abandoned by absentee landlords or devoted to eco-tourism projects such as private ranches. Land sold post-independence to US multinationals or foreign investors that has been since expropriated may well be protected under the African Growth and Opportunities Act or other like schemes that provide insurance for Foreign Direct Investment. There have also been cases of some black farmers losing their farms in the commercial areas and this has been variously put down to allegations of 'fronting' for white shareholders, ownership of multiple plots or simply stemming from a parochial dispute over rival claims.
However, the principle target and the overwhelming source of land seizures has been the white commercial farmers. Moreover, the lack of continuity between the present incumbents and the original white settlers has been somewhat exaggerated. The post-independence exodus of white Rhodesians, some two thirds of the total white population, was not matched by the white farming community of whom only one third left the country; many selling not to foreign buyers but to their own peers eager to further consolidate their holdings.
All in all, in fact, the post-independence environment was conducive to business as usual with the feared pogroms against whites failing to materialise. As Chris McGreal put it recently, whites;
"... kept their houses and their pools and their servants. The white farmers had it even better. With crop prices soaring they bought boats on Lake Kariba and built air strips on their farms for newly acquired planes. Zimbabwe's whites reached an implicit understanding with Zanu-PF; they could go on as before, so long as they kept out of politics".
In fact, by 1989 CFU president John Brown was prompted to say;
"This is the best government for commercial farmers that this country has ever seen".
However, my main concern was the conditions that prevailed in the former Tribal Trusts Lands into which the majority black population had been forcibly sequestered. In these communal areas where a system of customary tenure prevails, which prevents the raising of collateral to secure loans, the soils are granitic and sandy, deficient in organic matter, sulphur and phosphate. They are also highly leached, being low in base nutrients and minerals necessary for plant growth. In addition to which they are located in the worst of the natural regions with low intermittent rainfall and a high susceptibility to seasonal drought. Their marked deterioration over the years have been meticulously documented by regional agronomists and were becoming increasingly incapable of sustaining the livelihoods of their some 1.2 million households.
Holdings here averaged 3 hectares compared to the commercial areas 2,500 hectares. The World Food Programme estimates that even under optimal conditions less than a hectare is 'unsustainable'.
Now, the FTLR programme categorised two types of beneficiaries;
A1 - intended to address the needs of the landless, land short and congested households i.e. the rural poor, including communal farmers, some former farm workers and some urban poor and ..
A2 - people with resources and the capability of undertaking farming with minimal assistance from the government.
It is this latter portion which have received all the headlines and from whom the accusations of 'cronyism' are derived whilst the former, the vast majority of beneficiaries, have received little or no attention at all. Obviously, 'people with resources' who avail of FTLR redistribution are, by definition, supportive of land seizures but obviously for the land programme to actually work somebody of means needs to step into the vacuum and try to maintain production output.
By November 2003, when the smoke had settled, smallholder (A1) allocations were granted to 130,641 families on 6.5 million hectares and commercial (A2) beneficiaries amounted to 20,400 farmers on 2.5 million hectares. This means that the overwhelming majority - almost 90% of beneficiaries - have been the poor and the land short whilst the numbers of white commercial farmers have fallen from 4,500 to 400 and the lands they controlled from 11 million hectares to 2 million hectares.
It has also been calculated that due to this retrenchment households in the stressed communal areas, thanks to their departed cousins, have increased their holdings by an average of 1.5 hectares. These figures represent to me the principle good that has emerged from this whole sorry saga and make nonsense of the claims that redistribution was not the motivating force behind the Chimurenga.
When Blair's Labour came to power in 1997 they soon disowned their, and by extension the UK's, commitments to fund land reform in Zimbabwe, as accepted under the terms of the 1980 Lancaster House Agreement, by arguing that they were a 'working class movement' unlike the Conservatives who were derived from the 'landed propertied class'. Why, they must have argued, should the British taxpayer be forced to bail out the Rhodesian unilateralists?
And so, with a vanishingly negligible degree of moral introspection a conclusion was drawn that this historical party difference somehow absolved them of their obligations to prevent a bloody agrarian revolution. This shift in position became clear even before the 2000 Fast Track Land Resettlement as evidenced by their 1998 Donor's Conference assertion that compensation was 'beyond the capacity of any individual nation'.
Talk about cleaning your hands of Empire.
Anyway, I actually agree with Claire Short; there shouldn't be any question of compensation. The British South Africa Company conquered on behalf of the Crown via their Matlin inspired machine-gun massacre of the Shona/Ndebele uprising of 1897 and then sold concessions to Rhodes brigands - who ever since have enjoyed the fruits of the land's produce. If objective justice were a tangible entity the 'compensation' would be the other way round. In fact, were it up to me I'd have blocked their passage, swathed them in chains and demanded a 100 years servitude from them and their offspring.
After the expiry of the ten-year 'willing-seller-willing buyer' clause, land reform proposals in the Zimbabwean parliament have, by necessity, involved the abrogation of private property rights - a fact, cynically deployed by would-be donors to forestall correcting an historical injustice.
'We can scarcely fund a programme that contravenes our own laws on private property', remarked the US ambassador at the time.
The current constitution of Zimbabwe was compiled under the scrutiny of British negotiators and representatives of the former Rhodesian government at the Lancaster talks and thus bears the imprimatur of a colonial era 'compromise document'. In certain cases it inevitably repudiates any democratic expression of majority will such as its early stipulation that whites should hold 20% of parliamentary seats despite being a less than 1% minority.
This is in addition of course to the provisions that delayed redistributive land reform. Most sides of the political spectrum, barring the white-dominated Commercial Farmer's Union, were naturally unhappy with these origins which is why in the recent Government of National Unity power-sharing agreement there are provisions to draft a new Constitution, one that acknowledge the fundamental right and duty of the Zimbabwean people to make a Constitution 'by themselves and for themselves' and that the process must be 'owned and driven by the people and must be inclusive and democratic'.
Nevertheless, though many of the eighteen amendments to the present Constitution have reflected the changing contours of the struggle to reclaim formerly dispossessed lands it has always been the case that property rights whilst normatively consistent with international standards may in certain cases be subordinated to the public interest. This arises from the somewhat unique circumstances of Zimbabwe's inheritance of skewed and unsustainable patterns of land ownership. Thus the section on Agricultural Land Required for Resettlement has become somewhat bulkier over the years but its main tenets were already in place prior to the 16th amendment of 2000;
"(1) In the assessment of any compensation that may be payable when agricultural land is compulsorily acquired for the resettlement of people in accordance with a programme of land reform, the following factors must be regarded as of ultimate and overriding importance;
(a) before Independence the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation;
(b) the people consequently took up arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;
(c) the former colonial power has effectively repudiated Zimbabwe's just claims for reparations;
(d) the people of Zimbabwe must therefore be enabled to reassert their rights and regain ownership of their land."
Now, if we move to the post-2000 amended version we see that the passage which deals explicitly with the rights of property - to wit Section 16 Protection from deprivation of property there is written;
"(1) Subject to Section 16A, no property of any description or interest or right therein shall be compulsorily acquired."
In other words, Zanu-PF were not 'flouting' the Constitution's protection of 'private property rights', but were, on the contrary, using successive amendments both to protect normative property rights whilst advancing legislation aimed at reversing inequitable patterns of land distribution derived from colonial times.
As mentioned, the entire thrust of the sections pertaining to property rights were always predisposed to subordinating those rights to the greater public interest which in Zimbabwe's case meant the transference of small-holder farmers from the increasingly degraded communal areas or Tribal Trusts Lands to the more sustainable natural regions in the highlands occupied by the white commercial farmers. No changes introduced by a successful referendum would have altered this fundamental fact.
Of course the question may be asked whether ZANU-PF had a mandate from the people to pursue fast track land reform; ie. compulsory acquisition? If you look at the proposed constitution of Feb 2000 (which was defeated 54% to 45%) you will see that there were many changes which were being made; including a limitation to two Presidential terms. The general confusion wrought by the multiplicity of changes is reflected in the low turnout - half those who voted for the parliamentary elections - and is reminiscent of the failure of Chavez's first attempts to extend his terms in Venezuela. Voters don't respond to this type of change en bloc, as Ireland witnessed with the Lisbon Treaty.
Likewise, with this type of referendum there are no shortage of analysts who will pretend to be able to read the minds of the electorate and tell us all why they voted in such and such fashion. If it was such a setback for Zanus platform of land redistribution then why did they win two thirds of the vote in the subsequent senate and parliamentary elections? One reason springs to mind; they green-lighted accelerated land reform.
The Zimbabwean judiciary, in fact, have been at the forefront of the Chimurengan struggle, being arguably the principal agent used to facilitate redistributive land reform. Their rulings have constantly thwarted appeals made by the Commercial Farm Worker's Union to have their lands restored. Moreover, they have done all this in accordance with their obligations under the Constitution by invoking the overriding importance of the clauses in Section 16A to which I have just alluded.
In fact, the Attorney General has over a hundred prosecution cases before him as we speak for white farmers who have refused to vacate their property. A more competent line from an anti-ZANU perspective would be to highlight the 2001 expansion of the Supreme Court with three judges who had received allotments from the FTLR - and then to question their impartiality bonafides when it comes to ruling on such cases!
It is a little surprising then that the argument is often invoked that juridical independence has been compromised on the fictitious assumption that their rulings have been ignored by the GoZ, when in fact the higher benches have been front-loaded by ZANU party faithful - though it is questionable to what degree any actor may be said to be independent in near civil war conditions. This to me is a case of all hands to the pump, a high stakes game - that has led to a dangerous cleavage, one only recently abated by the formation of a Government for National Unity.
It is true that early headlines, desperate for an internal confirmation of the inherent wickedness of the Mugabe regime generally ran blurbs like 'court rules land grabs illegal' or 'land occupations unconstitutional'. However, a reading of the ensuing fine print would quickly reveal that in each specific case there had been a failure on the part of occupiers or their land agents to adhere to certain protocols whose breach had been deemed either unconstitutional or contrary to some other aspect of Zimbabwean law.
In fact, most of the international press made this assumption with the November 2000 Supreme Court ruling on the legality of occupations, choosing to interpret it as a definitive rejection of the repossessions. Then Information Minister, Johnathan Moyo, had to confirm subsequently in a BBC interview that he was surprised by press reports that the Supreme Court had declared the land programme illegal. All that the ruling confirmed was that the resettlement programme should proceed in accordance with the laws of the country - just like any other activity. How else do we explain so much store been placed on the ruling of the SADC Tribunal if not the acknowledgement among white commercial farmers that their own judiciary has failed' to protect them?
What has been the real effect of these reforms in terms of the patterns of land distribution? What we do know to a great degree of certainty is that the FTLR of 2000-03 has created a deep structural shift both in the nature and composition of land ownership and in a reorientation of the domestic and export markets for agrarian produce. One of the least surprising elements is that intimidation and violence were eventually required to achieve this.
We also know that prior to FTLR some 4,500 white commercial farmers controlled a third of the country's land under freehold tenure, or about 42% of its agricultural and 70% of its best arable land. We know that this land was situated in the best natural regions with higher levels of rainfall, infrequent drought and developed systems of irrigation with dams and so forth.
We also know that in these commercial areas of around 11 million hectares there were significant reserves of under-utilised land of some 5 million hectares either lying fallow; abandoned by absentee landlords or devoted to eco-tourism projects such as private ranches. Land sold post-independence to US multinationals or foreign investors that has been since expropriated may well be protected under the African Growth and Opportunities Act or other like schemes that provide insurance for Foreign Direct Investment. There have also been cases of some black farmers losing their farms in the commercial areas and this has been variously put down to allegations of 'fronting' for white shareholders, ownership of multiple plots or simply stemming from a parochial dispute over rival claims.
However, the principle target and the overwhelming source of land seizures has been the white commercial farmers. Moreover, the lack of continuity between the present incumbents and the original white settlers has been somewhat exaggerated. The post-independence exodus of white Rhodesians, some two thirds of the total white population, was not matched by the white farming community of whom only one third left the country; many selling not to foreign buyers but to their own peers eager to further consolidate their holdings.
All in all, in fact, the post-independence environment was conducive to business as usual with the feared pogroms against whites failing to materialise. As Chris McGreal put it recently, whites;
"... kept their houses and their pools and their servants. The white farmers had it even better. With crop prices soaring they bought boats on Lake Kariba and built air strips on their farms for newly acquired planes. Zimbabwe's whites reached an implicit understanding with Zanu-PF; they could go on as before, so long as they kept out of politics".
In fact, by 1989 CFU president John Brown was prompted to say;
"This is the best government for commercial farmers that this country has ever seen".
However, my main concern was the conditions that prevailed in the former Tribal Trusts Lands into which the majority black population had been forcibly sequestered. In these communal areas where a system of customary tenure prevails, which prevents the raising of collateral to secure loans, the soils are granitic and sandy, deficient in organic matter, sulphur and phosphate. They are also highly leached, being low in base nutrients and minerals necessary for plant growth. In addition to which they are located in the worst of the natural regions with low intermittent rainfall and a high susceptibility to seasonal drought. Their marked deterioration over the years have been meticulously documented by regional agronomists and were becoming increasingly incapable of sustaining the livelihoods of their some 1.2 million households.
Holdings here averaged 3 hectares compared to the commercial areas 2,500 hectares. The World Food Programme estimates that even under optimal conditions less than a hectare is 'unsustainable'.
Now, the FTLR programme categorised two types of beneficiaries;
A1 - intended to address the needs of the landless, land short and congested households i.e. the rural poor, including communal farmers, some former farm workers and some urban poor and ..
A2 - people with resources and the capability of undertaking farming with minimal assistance from the government.
It is this latter portion which have received all the headlines and from whom the accusations of 'cronyism' are derived whilst the former, the vast majority of beneficiaries, have received little or no attention at all. Obviously, 'people with resources' who avail of FTLR redistribution are, by definition, supportive of land seizures but obviously for the land programme to actually work somebody of means needs to step into the vacuum and try to maintain production output.
By November 2003, when the smoke had settled, smallholder (A1) allocations were granted to 130,641 families on 6.5 million hectares and commercial (A2) beneficiaries amounted to 20,400 farmers on 2.5 million hectares. This means that the overwhelming majority - almost 90% of beneficiaries - have been the poor and the land short whilst the numbers of white commercial farmers have fallen from 4,500 to 400 and the lands they controlled from 11 million hectares to 2 million hectares.
It has also been calculated that due to this retrenchment households in the stressed communal areas, thanks to their departed cousins, have increased their holdings by an average of 1.5 hectares. These figures represent to me the principle good that has emerged from this whole sorry saga and make nonsense of the claims that redistribution was not the motivating force behind the Chimurenga.
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