Land Ownership and Land Reform in Zimbabwe

The Native Reserves Order in Council (1898)

The order created the infamous Native Reserves for blacks only. This was in the face of a systematic mass land expropriation by white settlers. To the whites, the Native Reserves were meant to prevent the extinction of the indigenous people while at the same time guaranteeing that settlers got the lion's share of fertile land. The result was that Native Reserves were set up haphazardly in low potential areas which subsequently became the present Communal areas.

Gwai and Shangani were created by this order in council.Earl Grey, who succeeded Leander Starr Jameson as Administrator of Rhodesia, admitted that the Ndebele regarded the Gwai and Shangani Native Reserves as ‘cemeteries’ not suitable for human habitation.^[1]

1890-1920 Period

This was a period of conquest and land expropriation. The BSAC was in the forefront of the occupation of Mashonaland and Matebeleland and the suppression of the first Chimurenga (National Uprising in 1893). These processes were accompanied by the seizure of land and cattle. Racial segregation in the use and ownership of land was introduced at an early stage.

Following the unconditional surrender of the Ndebele indunas and Shona paramount chiefs in 1896 and 1897 and the execution of Paramount Chiefs Makoni, Mutekedza, Mashayamombe and Mashonganyika, as well as of the national spirit mediums of Mkwati, Kaguvi and Nehanda, the British South Africa Company (BSAC) and white settlers became the owners of over 96 000 000 acres (38 400 000 hectares) of land in Southern Rhodesia as a right of a conquest after which all Africans were to be quarantined into tiny islands of ‘native reserves’ far away from all land of potential use to white settlers.The ‘native reserves’ remained the property of the BSAC as a right of conquest.

The Southern Rhodesia Native Reserve Regulations Proclamation of 1910 would in time define ‘Native Reserve’ as: “The property of the British South African Company set apart for the purposes of native settlements exclusively,” but without title or rights to the lands.

By the end of 1902, surveyed ‘native reserves’ had been established throughout Southern Rhodesia and by 1904, they had been allocated to various African groupings. They totalled 38 891 square miles, or 24 890 240 acres (9 956 096 hectares) of land, with an estimated total population of 264 618 Africans.^[2]

In 1898, the Chief Native Commissioner, Herbert Taylor, explained that revealing ‘native reserve’ boundaries to the Ndebele ‘would inevitably lead to a good deal of discontent among the natives as they are much too primitive to understand the portioning out of land’. In Mashonaland, the Native Commissioners for Mazowe and Victoria Districts refused to reveal the boundaries of the ‘native reserves’ until 1908, in order not to ‘worry the minds of the natives prematurely.^[3]

The boundaries of ‘native reserves’ were decided by the BSAC Administration and were never revealed to Ndebele people until 1908 when the Private Locations Ordinance of 1908 repealed the High Commissioner’s Proclamation of 1896

By the eve of World War One in 1914, the apportionment of land was as follows:

• Africans 24 000 000 acres

• The BSAC 48 000 000 acres

• Individual white settlers 13 000 000 acres

• Other Private Companies 9 000 000 acres

During this period, the country's population was as follows:

• African population 836 000

• Whites 28 000^[1]

Even by this early period, only 3% of the population controlled 75% of the economically productive land while 97% were forcefully confined to 23% of the land scattered into a number of reserves.

The Morris Carter Commission 1925

The racial segregation on land was deliberated and recommended by the Morris Carter Commission of 1925. The fertile high rainfall areas became large-scale privately owned farms. In 1931, land was further divided. Africans were restricted to 29 million acres of land. Only eight million acres of land was meant for the natives to purchase, while 49 million acres of land were allocated to the European settlers and about six million acres of land was left undesignated and forests area accounted for three million acres of the land. At the time, the African population had risen to 1,1 million compared to 50 000 whites.

The recommendations of the Morris carter commission influenced the creation of the 1930 land apportionment act that advocated for the two pyramids parrel policy of development, a policy that ensured that Europeans and Africans would develop on a parallel basis.

The Land Apportionment Act (1930)

The 1930 Land Apportionment Act marked another chapter in the white settler’s quest to continue dominance over land. The legislation restricted the rights of the Africans to land ownership to the designated Native Purchase Areas. The racial segregation on land was deliberated and recommended by the Morris Carter Commission of 1925.

The main purpose of the act was to formalise separation by law, land between blacks and whites, and this was after the deliberations and recommendations of the Morris Carter Commission of 1925. The fertile high rainfall areas became large-scale privately owned white farms. In 1931, the act divided the land area in the country as follows:

Land classification Acreage

• Native Reserves 29 000 000 acres

• Native Purchase Areas 8 000 000 acres

• European areas 49 000 000 acres

• Unassigned 6 000 000 acres

• Forest 3 000 000 acres

Population distribution was as follows:

• Africans: 1.1 million

• Whites: 50 000

Native Land Husbandry Act (1951)

The act meant to enforce private ownership of land, destocking and conservation practices on black smallholders. It met mass resistance and fueled nationalistic politics. The law was subsequently scrapped in 1961.

The Tribal Trust lands (TTL) act (1965)

The act was devised to change the name of the Native Reserves and create trustees for the land. High population densities on TTLs made them degraded 'homelands'.

Lancaster House Conference

The Land Debate

In the Opening Speech to the Lancaster House Constitution, the Patriotic(ZAPU and ZANU) Front listed the land question among its nine major issues for negotiation. During the negotiations, the British government insisted on a stringent protection of private property with equally restrict provisions for 'prompt' and 'adequate' compensation in the few cases where compulsory was to be allowed. The Patriotic Front's position was that: every person was to be protected from having his property compulsorily acquired, subject to the right of the government to acquire any property in the public interest; and compensation for property so acquired would be at the discretion of the government.

The Patriotic Front objected to the British proposals as the objective of the struggle in Zimbabwe was the recovery of the land which the people were dispossessed of. The British provisions converted the freedom from deprivation of property into a right to retain privileges and perpetuate social and economic injustice.

The Lancaster House Conference nearly broke-down over the land question. The Patriotic front wanted the British government to provide money to pay compensation. An agreement was reached and the Patriotic Front announced it as follows:

"We have now obtained assurances that ... Britain, the United States of America and other countries will participate in a multinational donor effort to assist in land, agricultural and economic development programmes. These assurances go a long way in allaying the great concern we have over the whole land question arising from the great need our people have for land and our commitment to satisfy that need when in government".

At independence in 1980, 97% of our population (Africans) owned only 45 million acres, slightly under half the total area of 96 million acres, leaving the rest, over half the land area to only 3% of the population (whites). Such imbalances had to be redressed within the confines of the Lancaster House Constitution. Britain pledged to fund the resettlement programme to make sure that provisions for compulsory acquisition without compensation did not go into the Zimbabwean Constitution generally, and in particular through Section 16 which was designed to give total protection to private property.

Due to a variety of reasons, all of which have their roots in the Lancaster House Agreement, the resettlement programme did not perform to expectations. Firstly, under the willing seller/willing buyer principle, land was not offered in sufficient bulk to the government. Secondly, that which was offered to government was the poorer quality land in regions of low rainfall patterns and poor ecological soils. Thirdly, because of the 'fair market price' clause, the government was greatly constrained and there have not been sufficient funds forthcoming to buy the land.

In 1980 the Zimbabwe Conference on Reconstruction and Development (ZIMCORD) conference was held and its stated objective of mobilising support from the international community was for, inter alia, finance for resettlement. Participants in the scheme were Britain, West Germany, the United States of America and others. The aid promised at Lancaster and ZIMCORD was not forthcoming in sufficient amounts to extinguish land hunger. Thus after seven years of independence only 40 000 families of the original 162 000 families were resettled between 1980 and 1987.

Post independent legislation on land

The nationalist movement and the cry for freedom was, among other things, born of the need to change the skewed land distribution pattern in the country. Even during the Lancaster House talks in London in 1979, the land issue was so cardinal to the independence of Zimbabwe that it was enshrined in the constitution of independent Zimbabwe. The negotiating parties agreed that there would be no compulsory acquisition of land but that a willing seller/willing buyer principle would apply for the first ten years.

The Communal Land Act (1981)

The act was designed to change TTLs into Communal Areas which resulted in the shift of land authority from traditional leadership to local authorities.

The Land Acquisition Act (1985)

This act drawn up in the spirit of the Lancaster House Agreement of 1979, (willing seller/willing buyer principle) gave government the first right to purchase large scale farms for resettlement of indigenous people. Largely because of financial constraints, the act had a limited impact on the resettlement programme.

Land Reform and Resettlement Programme

The desire to resettle the landless by the Government has not been fulfilled largely because the government could not acquire land when and where it desired. Landowners were either unwilling to sell or asked for double or triple the prices for their land. Because of the willing seller/willing buyer undertaking, government could only settle 71 000 families out of a targeted 162 000 families between 1980 and 1990.

Meanwhile, the level of congestion reached catastrophic levels. Political pressure for redress mounted, and in some instances, communal farmers settled themselves unilaterally and haphazardly on commercial farms bordering their areas.

Against this background, the government decided to compulsorily acquire land for resettlement using the Land Acquisition Act (Chapter 2010). The act provides for fair compensation for land acquired for resettlement purposes. The landowner has recourse to court if not agreeable to the price set by the acquiring authority.

The Land Acquisition Act (1992)

This act is a follow-up to the 1985 Act and is meant to acquire more land for the resettlement of blacks that are in congested marginal rainfall areas. Implementation of this act is currently underway.

Criteria for Land Acquisition

The land targeted for acquisition was categorised as follows:

• derelict land
• under-utilised land
• land owned by absentee-landlords
• land from farmers with more than one farm or with oversized farms (defined according to what is sustainable under given ecological conditions)
• land adjacent to communal areas.
• Those who feel that their land should not have been designated are asked to submit (to government) their written objections (as per the requirements of the act) within 30 days of the notice to compulsorily acquire being gazetted.

Donors Conference and the Second Phase of the Land Reform and Resettlement Programme (LRRP) September 1998.

The International Donors' Conference on Land Reform and Resettlement Programme in Zimbabwe was held in Harare from 9-11 September, 1998. The objective of the Conference was to inform the donor community on the land reform and resettlement programme and to mobilise support for the same. About 48 countries and international organisations were represented at the Conference.

The donors unanimously endorsed the need for land reform and resettlement in Zimbabwe and affirmed that the programme was essential for poverty reduction, economic growth and stability. They also appreciated the political imperative and urgency of the Land Reform and Resettlement Programme and agreed that the Inception Phase covering 24 months should start immediately.

A number of donors pledged technical and financial support for the programme.

Objectives of the Land Reform and Resettlement Programme

• To reduce the extent and intensity of poverty among rural families and farm workers by providing them adequate land for agricultural use. Communal families have contributed a lot to agricultural produce.

• To increase the contribution of agriculture to GDP by increasing the number of commercialised small-scale farmers using formerly underutilised

• To promote the environmentally sustainable utilisation of land

• To increase the conditions for sustainable peace and social stability by removing imbalances in land ownership

Beneficiaries of the Resettlement Programme

• Communal families selected from overpopulated villages, including ex-farm workers and ex-mine workers.

• People with training or certificates in agriculture or a demonstrated capacity in farming such as Master Farmers and graduates from agricultural colleges.

• Special groups such as women who constitute 51% of the population.

• Indigenous people intent on making a break-through in commercial agriculture.

• The Government Resettlement Models:

The following are the proposed resettlement models to be implemented

MODEL A1 (Villagised)

Each settler is allocated a residential plot and an individual arable plot, with communally shared grazing wood-lots and water points.

MODEL A2 (Self-Contained Units)

Each settler is given a self-contained complete unit with residential, arable and grazing lot.

THREE TIER MODEL

This model was applicable to the drier parts of the country where ranching is the only sustainable land use. The land was divided into three tiers as follows:

• First Tier: Comprising a cluster of villages, with some arable plots and space for social services.

• Second Tier: Each benefiting household keeps a limited number of livestock units for day to day use.

• Third Tier: This is the main grazing area where the bulk of the herd is kept for commercial purposes.

Alternative Land Acquisition and Resettlement Approaches

• Community participation and implementation model

In this model the government acquires the land, and communities plan and execute their own settlement. They are also responsible for obtaining the required planning, technical, and managerial assistance from any source they choose, including government services, NG0s, or the private sector.

Once the government has acquired the land and has selected and trained the beneficiaries, it disburses the remaining balance of the uniform public support to the beneficiary community and lets it plan and execute its own settlement. The balance could be disbursed in tranches, which could be subject to demonstration of progress in planning (to be kept very simple) and execution of the development.

• Private sector approaches

Public support for private sector-initiated approaches would have the advantage of widening the scope and increasing the efficiency of the land reform programme by enhancing the commercialisation of smallholder agriculture, providing land reform beneficiaries with access to the private sector partner's business infrastructure, knowledge and information, and encouraging private sector contributions to the programme.

The potential implementing agencies for the private sector approaches could be: farmers' associations (or their individual members as sellers or developers), commercial banks (or a group of banks), private sector developers, labour unions, churches, women's organisations, and other NG0s. As described above, a potential implementing organisation would first need to have its specific programme proposal screened and be accredited by the co-ordinating entity. The scheme could involve an entire farm or any subdivision thereof.

The total costs (land transactions and development costs) would be financed by the uniform public support and a loan from a private bank, as well as by own equity contributions in cash, kind or labour, and any other private contributions the seller or the beneficiaries may be able to mobilise.

Once the settlement project is developed, it is presented to the bank for financing, either in the form of a group loan, individual loan, or a combination of the two. The disbursement of the public support to the seller of the land, agents, developers, or beneficiaries could be handled by the same bank which provides the loan.

The actual loan terms would be defined by the financial intermediary (bank). The interest rate would be the going market rate for long-term real estate loans as defined by the financial intermediary. A grace period could be granted, two or three years perhaps, and the full term could be around ten or fifteen years.

• Criteria for Land Acquisition.

The land targeted for acquisition was categorised as follows:

• derelict land
• -utilised land
• land owned by absentee-landlords
• land from farmers with more than one farm or with oversized farms (defined according to what is sustainable under given ecological conditions)
• land adjacent to communal areas.
• Those who feel that their land should not have been designated are asked to submit (to government) their written objections (as per the requirements of the act) within 30 days of the notice to compulsorily acquire being gazetted.

Donors Conference and the Second Phase of the Land Reform and Resettlement Programme September 1998

The International Donors' Conference on Land Reform and Resettlement Programme in Zimbabwe was held in Harare from 9-11 September, 1998. The objective of the Conference was to inform the donor community on the land reform and resettlement programme and to mobilise support for the same. About 48 countries and international organisations were represented at the Conference.

The donors unanimously endorsed the need for land reform and resettlement in Zimbabwe and affirmed that the programme was essential for poverty reduction, economic growth and stability. They also appreciated the political imperative and urgency of the Land Reform and Resettlement Programme and agreed that the Inception Phase covering 24 months should start immediately.

A number of donors pledged technical and financial support for the programme.

Objectives of the Land Reform and Resettlement Programme

• To reduce the extent and intensity of poverty among rural families and farm workers by providing them adequate land for agricultural use. Communal families have contributed a lot to agricultural produce.

• To increase the contribution of agriculture to GDP by increasing the number of commercialised small-scale farmers using formerly underutilised

• To promote the environmentally sustainable utilisation of land

• To increase the conditions for sustainable peace and social stability by removing imbalances in land ownership

Beneficiaries of the Resettlement Programme

• Communal families selected from overpopulated villages, including ex-farm workers and ex-mine workers.

• People with training or certificates in agriculture or a demonstrated capacity in farming such as Master Farmers and graduates from agricultural colleges.

• Special groups such as women who constitute 51% of the population.

• Indigenous people intent on making a break-through in commercial agriculture.

Fast track Land Reform Programme

The basis of the Third Chimurenga was to repossess and redistribute large tracts of land from the minority white community into the hands of the black populace who had for long been overpopulated in the infertile and somewhat drought prone areas of the country. Hence the main rationale was to compliment the country’s political independence with social and economic independence through land redistribution. Under the leadership of the then Minister of Agriculture Joseph Made, the government crafted a number of frameworks and policies which governed land redistribution.The Programme, which was launched on 15 July 2000, was designed to be undertaken in an accelerated manner and with reliance on domestic resources. The Programme was a fundamental departure from previous philosophy, practices and procedures of acquiring land and resettling people.

Some 4,500 white farmers were dispossessed, sometimes forcibly, and a million black Zimbabweans were settled on their land. A number of new medium-sized farms were created but by and large the land was redistributed to small-scale farmers – and to people who had good connections to the Mugabe regime.

Policy Framework

Consistent with previous policy pillars, the framework for the Fast Track was based on the compelling national economic and social imperatives, of poverty eradication and faster economic development. With agriculture as the cornerstone of the country’s economy, land was therefore viewed as the engine for economic growth, as per the popular slogan, “land is the economy, and the economy is the land”.^[4]

The Fast Track Land Reform Programme was initially targeted at de-congesting communal lands. In the later stages it was extended to incorporate the creation of an indigenous commercial farming sector. Under the Fast Track Land Reform Programme from 2000, the government target the redistribution of not less than 500 million hectares of land. During this phase, land was acquired compulsory in accordance with the Land Acquisition Act (chapter 20:10) as amended.

One Man One Farm Policy

The Government adopted the one-man-one-farm policy at the inception of the land reform and resettlement programme and continues to uphold this policy. In the case of a single owned farm being acquired due to its being contiguous to a communal area, Government undertook to provide the affected farmer with another elsewhere around the country.

Resettlement Models

In the Fast Track phase, two resettlement models were used, Model A1 and Model A2. Model A1 was intended as decongesting communal lands. Model A2 was aimed at creating a cadre of black commercial farmers and was based on the concept of full cost recovery from the beneficiary.^[4] Settler selection was made on the basis of applications submitted to the Ministry of Lands, Agriculture, Water, Climate and Rural Resettlement.

Third Chimurenga and Sanctions Embargo

It is a general feeling among citizens that the poor and alleged illegal repossession of land by the Zimbabwean government attracted the imposition of sanctions by the European Union. The European Union demonised the Third Chimurenga on the basis that it was done at the expense of Human Rights and individual liberty was compromised in the process.^[5] This resulted in the imposition of travel bans on the bulk of the Robert Mugabe led government. As part of the sanctions, Zimbabwe has also been suspended from financial assistance by the Brettonwood Institutions (IMF and World Bank).^[5]

Companies and parastatals were also barred to conduct trade with American and European enterprises in order to cripple the local economy. The Zanu PF government has churned popular rhetoric emphasising that the sanctions are illegal and they are meant to trigger regime change in the country. However the European Union and denied the illegal overtones of the sanctions and they have categorically described them as simply ‘restrictive’ measures.

Legal battles against Fast Track Land Reform

Mike Campbell

During the early 1970s Campbell, a South African Army captain, had been involved in the Rhodesian Bush War that pitted Rhodesia's mostly white government—50 of the 66 parliamentary seats were reserved for whites—against black nationalist guerrillas. He moved to Mount Carmel farm in 1974. He added a neighbouring plot of land in 1980, following Zimbabwean independence. As well as farming, Campbell set up an extensive nature reserve on the property, replete with giraffes, impala and other indigenous animals. He also created the Biri River Safari Lodge, which became a popular tourist attraction.

Campbell purchased Mount Carmel from himself after independence. (The full title was vested in 1999, when the Zimbabwean government declared no interest in the land.) In July 2001, amid large-scale land invasions by "war veterans", Campbell received a government notice to acquire Mount Carmel in the district of Chegutu, but the notice was declared invalid by the High Court.In July 2004, a new notice of intent to acquire Mount Carmel was published in the official Government Gazette, but no acquisition notice was actually issued. However, two months later, according to court filings, "persons purported to occupy the farm on behalf of Zanu PF spokesman Nathan Shamuyarira, claiming the former minister had been allocated the farm." After three more preliminary notices to take the farm were published in 2004, Campbell applied to the High Court for a protection order.

Amendment 17 was added to Zimbabwe's constitution on 14 September 2005 to vest ownership of certain categories of land on the Zimbabwean government and to eliminate the courts' jurisdiction to hear any challenge to the land acquisitions.Campbell initiated proceedings in court on 15 May 2006, challenging the validity of Amendment 17.[2][9] In December 2006 the Gazetted Land (Consequential Provisions) Act passed into law, requiring all farmers whose land was compulsorily acquired by the government and who were not in possession of an official offer letter, permit, or lease, to cease to occupy, hold, or use that land within 45 days and to vacate their homes within 90 days. On 11 October 2007, before the Supreme Court of Zimbabwe had delivered its judgment in the case, Campbell filed an application with the SADC Tribunal challenging the acquisition by the Zimbabwean government. Subsequently, 77 other persons joined as parties in the proceedings against the government of Zimbabwe.

Mike Campbell, his wife Angela, and their son-in-law Ben Freeth were kidnapped and tortured.

Approaching the SADC Tribunal

On 11 October 2007, Mike Campbell (Pvt) Limited and William Michael Campbell filed an application with the Southern African Development Community Tribunal (the Tribunal) challenging the acquisition by the Respondent of agricultural land known as Mount Carmell in the District of Chegutu in the Republic of Zimbabwe. Simultaneously, they filed an application in terms of Article 28 of the Protocol on Tribunal (the Protocol), as read with Rule 61 (2) – (5) of the Rules of Procedure of the SADC Tribunal (the Rules), for an interim measure restraining the Respondent from removing or allowing the removal of the Applicants from their land, pending the determination of the matter.

On 13 December, 2007, the Tribunal granted the interim measure through its ruling which in the relevant part stated as follow

The Tribunal grants the application pending the determination of the main case and orders that the Republic of Zimbabwe shall take no steps, or permit no steps to be taken, directly or indirectly, whether by its agents or by orders, to evict from or interfere with the peaceful residence on, and beneficial use of, the farm known as Mount Carmell of Railway 19, measuring 1200.6484 hectares held under Deed of Transfer No. 10301/99, in the District of Chegutu in the Republic of Zimbabwe, by Mike Campbell (Pvt) Limited and William Michael Campbell, their employees and the families of such employees and of William Michael Campbell.

Subsequently, 77 other persons applied to intervene in the proceedings, pursuant to Article 30 of the Protocol, as read with Rule 70 of the Rules

Additionally, the interveners applied, as a matter of urgency, for an interim measure restraining the Respondent from removing them from their agricultural lands, pending the determination of the matter.

On 28 March, 2008, the Tribunal granted the application to intervene in the proceedings and, just like in the Mike Campbell (Pvt) Ltd. and William Michael Campbell case, granted the interim measure sought.

Mike Campbell (Pvt) Ltd. and William Michael Campbell case, as well as the cases of the 77 other Applicants, were thus consolidated into one case, hereinafter referred to as the Campbell case – vide Case SADC (T) No. 02/2008.

On the same day another application to intervene was filed by Albert Fungai Mutize and others (Case SADC (T) No. 08/2008). The Tribunal dismissed this application on the basis that it had no jurisdiction to entertain the matter since the alleged dispute in the application was between persons, namely, the Applicants in that case and those in the

Campbell case and not between persons and a State, as required under Article 15 (1) of the Protocol.

On 17 June, 2008, yet another application to intervene in the proceedings was filed. This was by Nixon Chirinda and others – Case SADC (T) No. 09/2008. The application was dismissed on the same ground as in Case SADC (T) No. 08/2008.

On 20 June, 2008, the Applicants referred to the Tribunal the failure on the part of the Respondent to comply with the Tribunal’s decision regarding the interim reliefs granted. The Tribunal, having established the failure, reported its finding to the Summit, pursuant to Article 32 (5) of the Protocol.

In the present case, the Applicants are, in essence, challenging the compulsory acquisition of their agricultural lands by the Respondent. The acquisitions were carried out under the land reform programme undertaken by the Respondent.

References