Land and the Constitution

The new constitution was adopted in 2013, after long, hard negotiations. It has some interesting things to say about land. The relevant extracts (Part 2, section 4.29 and Chapter 6) are below. Some highlights are:

– Access to agricultural land is seen as a ‘fundamental right’: “Every citizen of Zimbabwe has a right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of agricultural land regardless of his or her race or colour”. The draft notes that, following colonial occupation and the liberation war, “the the people of Zimbabwe must be enabled to re-assert their rights and regain ownership of their land”.

– Amongst the general principles for land use, the draft argues that “the allocation and distribution of agricultural land must be fair and equitable, having regard to gender balance and diverse community interests” and that “the land tenure system must promote increased productivity and investment by Zimbabweans in agricultural land”. Gender balance in land distribution is an interesting Constitutional principle, although nothing is specificied about how it will be brought about, and the comment on ‘tenure systems’ again does not specify and particular form of property rights, as some have argued for.

- Continued rights over land occupied under existing policies (presumably referring to the Fast Track Land Reform) are assured, and the draft emphasises the importance of tenure security (again not specifying what form of tenure) for those occupying land with the following statement: “The State must take appropriate measures, including legislative measures, to give security of tenure to every person lawfully owning or occupying agricultural land”.

– Under the proposed Constitution, compulsory acquistion of land, and transfer of title to the State, is allowed for public purposes including resettlement, but compensation on improvements, but not the land, must be paid. The draft goes on to note “the obligation of the former colonial power to pay compensation for land”, but indicates that the Zimbabwean state has no such obligation. In other words, in practice there is no expectation of compensation for land, but only improvements, except for land protected by investment treaties and owned by foreigners (BIPPAs), where compensation for land and improvements is required.

– The Constitution proposes the establishment of a Zimbabwe Land Commission which the government of the day will have a constitutional obligation to ensure that it “is able to exercise its functions efficiently and independently”, and that the membership (specified in the draft) should act fairly and impartially. A key role of the Commission will be to carry out periodic land audits. The Constitution specifies the one farm policy quite precisely in the following statement: “The State may not alienate more than one piece of agricultural land to the same person and his or her dependants”, suggesting that multiple farms held within a family (even under various holding companies) are unconstitutional.

Overall, these seem to me to be good constitutional provisions, and should help the country move forward, consolidating the land reform and dealing with the outstanding issues of tenure security and compensation in a clear and transparent manner. Having an independent commission to oversee audits will be important also. I am not a lawyer so cannot comment on the drafting, but if this is a cross-party consensus is looks to be a very positive step. There will be objections, and no doubt numerous wrangles about ‘fair’ compensation, and whether farms are owned legitimately and are sole properties, but it does provide a clear framework, although of course the details will have to be worked out.

PART 2 FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

4.29 Rights to agricultural land

(1) In this section—

―agricultural land‖ means land used or suitable for agriculture, that is to say for horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry, including—

(a) the keeping or breeding of livestock, game, poultry, animals or bees; or

(b) the grazing of livestock or game;

but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey.

―land‖ includes anything permanently attached to or growing on land;

―piece of agricultural land‖ means a piece of agricultural land registered as a separate piece of land in a Deeds Registry.

(2) Where agricultural land is required for a public purpose, including—

(a) settlement for agricultural or other purposes;

(b) land reorganisation, forestry, environmental conservation or the utilisation of wild life or other natural resources; or

(c) the relocation of persons dispossessed as a result of the utilisation of land for a purpose referred to in subparagraph (a) or (b);

the land may be acquired by the State by notice published in the Gazette by the acquiring authority and identifying the land, whereupon the land vests in the State with full title with effect from the date of publication of the notice.

(3) Where agricultural land, or any right or interest in such land, is compulsorily acquired for a purpose referred to in paragraph (a), (b) or (c) of subsection (2)—

(a) no compensation is payable in respect of its acquisition, except for improvements effected on it before its acquisition;

(b) no person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application; and

(4) All agricultural land which— 41

(a) was itemised in Schedule 7 to the former Constitution; or

(b) before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;

continues to be vested in the State, and no compensation is payable in respect of its acquisition except for improvements effected on it before its acquisition.

(5) As soon as practicable after agricultural land is acquired in accordance with subsection (3), the officer responsible for the registration of title over land must, without further notice, effect the necessary endorsements upon any title deed and entries in any register for the purpose of formally cancelling the title deed and registering the State’s title over the land.

(6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy agricultural 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 has been acquired for resettlement purposes.

(8) 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 must 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;

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.

CHAPTER 16 :AGRICULTURAL LAND

16.1 Interpretation in Chapter 16

In this Chapter—

―agricultural land‖ has the meaning given to it by section 4.29.

16.2 Principles guiding policy on agricultural land

In order to redress the unjust and unfair pattern of land ownership that was brought about by colonialism, and to bring about land reform and the equitable access by all Zimbabweans to the country’s natural resources, policies regarding agricultural land must be guided by the following principles—

(a) land is a finite natural resource that forms part of Zimbabweans’ common heritage;

(b) subject to section 4.29, every citizen of Zimbabwe has a right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of agricultural land regardless of his or her race or colour;

(c) the allocation and distribution of agricultural land must be fair and equitable, having regard to gender balance and diverse community interests;

(d) the land tenure system must promote increased productivity and investment by Zimbabweans in agricultural land;

(e) the use of agricultural land should promote food security, good health and nutrition and generate employment, while protecting and conserving the environment for future generations;

(f) no person may be deprived arbitrarily of their right to use and occupy agricultural land.

16.3 Continuation of rights of State in agricultural land

(1) All agricultural land which—

(a) was itemised in Schedule 7 to the former Constitution; or

(b) before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;

continues to be vested in the State.

(2) Any inconsistency between anything contained in—

(a) a notice itemised in Schedule 7 to the former Constitution; or

(b) a notice relating to agricultural land referred to in subsection (2);

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such a notice, does not affect the operation of subsection

(2) or (4) or invalidate the State’s title to the agricultural land concerned in terms of those provisions.

16.4 Continuation of rights of occupiers of agricultural land

Subject to this Constitution, any person who, immediately before the effective date, was using or occupying, or was entitled to use or occupy, any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date, in accordance with that lease or other agreement.

16.5 Security of tenure for occupiers of agricultural land

The State must take appropriate measures, including legislative measures, to give security of tenure to every person lawfully owning or occupying agricultural land.

16.6 Alienation of agricultural land by State

(1) The State may alienate for value any agricultural land vested in it, whether through the transfer of ownership to any other person or through the grant of a lease or other right of occupation or use, but any such alienation must be in accordance with the principles specified in section 16.2.

(2) The State may not alienate more than one piece of agricultural land to the same person and his or her dependants.

(3) An Act of Parliament must prescribe procedures for the alienation and allocation of agricultural land by the State, and any such law must be consistent with the principles specified in section 16.2.

16.7 Alienation of agricultural land by owners or occupiers

Subject to any limitation imposed by law, an owner or occupier of agricultural land has the right to transfer, hypothecate, lease or dispose of his or her right in agricultural land.

16.8 Compensation for acquisition of previously-acquired agricultural land

(1) Any indigenous Zimbabwean whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State for the land and any improvements that were on the land when it was acquired.

(2) Any person whose agricultural land was acquired by the State before the effective date and whose property rights at that time were guaranteed or protected by an agreement concluded by the Government of Zimbabwe with the government of another country, is entitled to compensation from the State for the land and any improvements in accordance with that agreement.

(3) Any person, other than a person referred to in subsection (1) or (2), whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State only for improvements that were on the land when it was acquired.

(4) Compensation payable under subparagraphs (1), (2) and (3) must be assessed and paid in terms of an Act of Parliament.

16.9 Establishment and composition of Zimbabwe Land Commission

(1) There is a commission to be known as Zimbabwe Land Commission consisting of—

(a) a chairperson appointed by the President after consultation with the Committee on Standing Rules and Orders; and

(b) eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. 127

(2) Two members of the Zimbabwe Land Commission must be nominated by the Council of Chiefs.

(3) Members of the Zimbabwe Land Commission must—

(a) be chosen for their integrity and competence in, and knowledge and understanding of, the best practices in land management and administration; and

(b) reflect the diversity of Zimbabwe’s population, in particular its regional interests and gender balance.

16.10 Functions of Zimbabwe Land Commission

(1) The Zimbabwe Land Commission has the following functions—

(a) to ensure accountability, fairness and transparency in the administration of agricultural land that is vested in the State;

(b) to conduct periodical audits of agricultural land;

(i) the acquisition of private land for public purposes;

(ii) equitable access to and holding and occupation of agricultural land, in particular—

A. the elimination of all forms of unfair discrimination, particularly gender discrimination;

B. the enforcement of any law restricting the amount of agricultural land that may be held by any person or household;

(iii) land usage and the size of agricultural land holdings;

(iv) the simplification of the acquisition and transfer of rights in land;

(v) systems of land tenure; and

(vi) fair compensation payable under any law for agricultural land and improvements that have been compulsorily acquired;

(vii) allocations and alienations of agricultural land;

(d) to investigate and determine complaints and disputes regarding the supervision, administration and allocation of agricultural land.

(2) In discharging its functions, the Zimbabwe Land Commission must be guided by the principles set out in section 16.2.

(3) The State and all institutions and agencies of government at every level, through legislative and other measures, must assist the Zimbabwe Land Commission in carrying out its functions and must protect its independence, impartiality, integrity and effectiveness.

(4) The Government must make adequate and suitable provision, through legislation and other appropriate means, to ensure that—

(a) the Zimbabwe Land Commission is able to exercise its functions efficiently and independently; and

(b) persons employed by the Zimbabwe Land Commission carry out their duties conscientiously, fairly and impartially.

Land and the Constitution

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