The current land debate has made it mandatory to re-examine the constitution in regards to land ownership, agriculture, African values, land management law and the land narrative, which governs the country of Zimbabwe.
For the purpose of clarity and for those readers, who do not have access to the Constitution, the following is the aggrieving clause that is causing consternation reads as follows:
16A Agricultural land acquired for resettlement
(1) In regard to the compulsory acquisition of agricultural land for the resettlement of people in accordance with a programme of land reform, the following factors shall be regarded as of ultimate and overriding importance
(a) under colonial domination 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 people of Zimbabwe must be enabled to reassert their rights and regain ownership of their land;
and accordingly—
(i) the former colonial power has an obligation to pay compensation for agricultural land compulsorily
acquired for resettlement, through an adequate fund established for the purpose; and
(ii) if the former colonial power fails to pay compensation through such a fund, the Government of
Zimbabwe has no obligation to pay compensation for agricultural land compulsorily acquired for
resettlement.
(2) In view of the overriding considerations set out in subsection (1), where agricultural land is acquired compulsorily for the resettlement of people in accordance with a programme of land reform, the following factors shall be taken into account in the assessment of any compensation that may be payable:
(a) the history of the ownership, use and occupation of the land;
(b) the price paid for the land when it was last acquired;
(c) the cost or value of improvements on the land;
(d) the current use to which the land and any improvements on it are being put;
(e) any investment which the State or the acquiring authority may have made which improved or enhanced the value of the land and any improvements on it;
(f) the resources available to the acquiring authority in implementing the programme of land reform;
(g) any financial constraints that necessitate the payment of compensation in instalments over a period of time; and
(h) any other relevant factor that may be specified in an Act of Parliament.
[Section inserted by section 3 of Act 5 of 2000 – Amendment No. 16]
16B Agricultural land acquired for resettlement and other purposes
(1) In this section “acquiring authority” means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;
“appointed day” means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17) Act,2005.
(2) Notwithstanding anything contained in this Chapter
(a) all agricultural land
(i) that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under
section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7, being
agricultural land required for resettlement purposes; or
(ii) that is identified after the 8th July, 2005, but before the appointed day, in the Gazette or Gazette
Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural
land required for resettlement purposes; or
(iii) that is identified in terms of this section by the acquiring authority after the appointed day in the
Gazette or Gazette Extraordinary for whatever purpose, including, but not limited to
A. settlement for agricultural or other purposes; or
B. the purposes of land reorganization, forestry, environmental conservation or the utilization of
wild life or other natural resources; or
C. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subparagraph A or B; is acquired by and vested in the State with full title therein with effect from the appointed day or,
(a)in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and
(b) no compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.
(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land –
(a) shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;
(b) may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.
(4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(a)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and registering in the State title over the land.
(5) Any inconsistency between anything contained in
(a) a notice itemised in Schedule 7; or
(b) a notice relating to land referred to in subsection (2)(a)(ii) or (iii);
and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.
(6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land.
(7) This section applies without prejudice to the obligation of the former colonial power to pay compensation for land referred to in this section that was acquired for resettlement purposes.
[Section inserted by section 2 of Act 5 of 2005 – Amendment No. 17]
The entitlement of monetary compensation – albeit “for improvements on the land” and not for land itself, is clearly articulated in the Constitution and said to be legally binding, has become the most contentious and sensitive clause that requires clear and sober articulation to the Zimbabwean citizenry.
Due to the COVID-19 imposed lock-down regulations of 2020, most of the constitutional debate and so- called critical discussions are taking place online.
This has isolated and excluded the voice of the people; particularly the majority of rural voters, who do not have access to newspapers, let alone digital media, social media, smart phones and/or computers.
Moreover, the Constitution is written in the tongue and legal jargon of the “former coloniser” and in many instances is not clear to the majority of Zimbabwean indigenous citizenry, as evidenced by the recent uncoordinated communications on land reform and compensation in the public domain.
Zimbabwean indigenous communal people, who are the rightful custodians of the land and derive their livelihood solely from communal agriculture and cattle ranching and small livestock husbandry to sustain the welfare of their families and communities need absolute clarity on the Constitution and land laws.
Similarly, most Zimbabweans, who are agrarian by nature, residing in the cities, are not always cognisant of parliamentary deliberations even though parliamentary debates are broadcast weekly live on radio.
The question is: do ordinary Zimbabweans know or understand parliamentary procedures or know how to lobby to their parliamentary representative? Most of whom only appear at election time.
While knowledge of the Constitution and parliamentary debate is taken for granted by the few law-enlightened citizens of the country; the reality on the ground, as I have recently discovered, is starkly revealing.
The ordinary, very literate people are not aware of their constitution or its meaning.
For purposes of clarity, let us re-examine what a Constitution is.
In simple terms, a constitution, in this instance a national constitution, is a national legally binding decree that states the fundamental principles on which a state, province, county, kingdom or republic such as Zimbabwe is governed-especially when considered as embodying the rights of its citizens – the general populace of the state – mutemo we nyika nekodzero dzevanhu vemu matunhu ose eZimbabwe.
In Zimbabwe, national governance is premised on the legal statute that embodies the principles and laws governing the land.
A constituency is the body of voters, who elect representatives to a legislature in parliament.
The people of a constituency, vanhu vemuduhnu, are entitled to vote for a representative of their choice, who are bound by the laws expressed and stipulated in a constitution.
A legislature is a body of persons vested with the authority to make, amend and repeal laws in parliament.
Needless to say, parliament is the assembly of legal representatives of a particular group of people, province or district, and is often the supreme legislative body of a nation – vabati vemitemo yenyika.
A chamber of parliament is a legislative, deliberative, judicial and administrative assembly of representatives for the people.
A constitution can be defined as “the supreme national law which has among its essential functions, the distribution of political power between the state and society as well as the various branches of government”.
Here a constitution can be seen as a sovereign authority with constitutionalism as the driving and defining legal instrument, legitimising the exercise of state power in the three hierarchies: the executive council, the legislative body and the judicial organs of governance.
What is constitutionalism?
Constitutionalism is the political system of governance carried out in accordance with a constitution.
Did the people, specifically rural people, clearly understand its structures and legal implications when asked to comment on the New Zimbabwe Constitution when it was being drafted?
Obviously not, or we would not be having this misperception today!
The land question in Zimbabwe is still a raw nerve for the majority and needs to be articulated and explained meaningfully to the layman to comprehend.
The rural constituency, which comprises over 70 percent of the voting majority in Zimbabwe, is thus a very important voice that has historically been muzzled in national issues-an inherited colonial anomaly and as such deserves urgent redress for the sake of African-centered democracy and national progress.
Needless to remind one, the same rural population were instrumental in the deliverance of Zimbabwe from the bondage of colonisation during the Zimbabwe War of Liberation – The Second Chimurenga.
The dearth of understanding of the constitution, (the nation’s most important legal documents), also points to the fact that our education system has failed to explain the basic legal understandings of the laws that govern Zimbabwe, especially the land.
In fact, a cursory overview of the education curriculum clearly reveals the glaring lack of content and pedagogy on what constitutes the land or what legal instruments govern and protect it and its citizenry- particularly so the scholars, who are looked upon as the future patriots of the nation.
A home-grown Zimbabwean Constitution was drafted in 1999, under the auspices of a Constitutional Commission appointed in 1998. It was amended in 2005 (up to and including Amendment No. 17), and in 2013.
All Zimbabweans are bound by the rules and regulations enshrined in the national constitution and should treat it as a living standard and template for public conduct, particularly those who are elected for the smooth running of national affairs.
It is also a set of principles that balances social expectations, economic and social rights with good political governance.
In a summation it is the adherence to the fidelity to life under a given law.
A national constitution, however, should be flexible and dynamic in nature and subject to change over time in response to the needs of the people and must be recognised as the primary point of reference for governance in society.
Constitutional renewal is the process of reexamining, reviewing, reevaluating, amending a constitution for clarity and adaption to prevailing socio-economic milieu, new technologies and new global governance trends.
Constitutionalism, democracy, and indigenous African communal governance inherited from the Great Zimbabwe traditions of devolution in the traditional courts of the MaDzimbahwe context convened at a Dare, or Communal Council of Elders, have much in common.
They embraced the goodwill of society, the people’s consensus and communal endorsement for the development and progress of society as a whole.
The voice of the elders at the “Dare” in our Zimbabwean bygone era represented the voice of the people.
“La voce del’popolo e la voce di Dio”- The voice of the People is the Voice of God.
That is what our Constitution embraces.
A wholly indigenous-centered constitutional renewal in Zimbabwe is due. Dr. Tony M. Monda is Zimbabwean Socio-Economic analyst and scholar. He is currently conducting Veterinary Epidemiology, Agronomy and Food Security and Agro-economic research in Zimbabwe and Southern Africa. He is a writer, lecturer and a specialist Post-Colonial Scholar, He holds a PhD and a DBA (Doctorate in Business Administration) in Post-Colonial Heritage Studies. E-mail tonym.MONDA@gmail.com