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Does the people’s land belong to the state or the government of the day

By Jonathan Maphenduka

IN a recent article I attempted to explain the historical background of land ownership in this country, which was introduced by colonists and has since been inherited and accepted as the norm by today’s rulers of the country.

The colonial precedent, it can be shown, abolished a traditional system that obtained before arrival of usurpers, who enforced the new system using arms of war.

The land was then turned into a commercial asset of the armed usurpers who decided how the rest of the land was to be administered from then on. That had the effect of destroying the people’s traditional way of administering the land authority of the chief’s council.

This colonial principle has been adopted without question in Zimbabwe where an armed group of people, in the name of being the liberators of the people’s land from colonialism, have taken control of the land from the chief’s council.

If the constitution under which the country is administered has a provision that grants to a liberation movement the ownership of land in this country, this provision can be challenged in court.

While it is accepted that the 1979 constitution was a subject of negotiation between the colonial authority and the nationalists, there is nothing to show that the nationalists ever sought to negotiate with the chief’s council to the question of ownership of the land and the manner in which it was to be administered.

In the absence of an agreement between the nationalist and the chiefs’ council, a pertinent question is: how did the nationalist become the sole owners of the land which traditionally belonged to the chiefs’ council?

A fair answer is that the liberation movement derived its right to control land colonial-style through the use of arms of war in the same manner the colonial usurper used their arms to give themselves authority over the chief’s council.

As already stated there is no known record that the liberation movement ever attempted to negotiate with the chief’s council for the liberation movement/government to hold any piece of land for national development. So where does the liberation movement or its government derive the right to usurp land from the traditional control of the chief’s council?

I think it is fair comment to say they derive their right from their weapons of war like their colonial predecessors.

President Emmerson Mnangagwa recently said: “The chiefs control the land in their communal areas, not agricultural land. Agricultural land belongs to government”.

Did anyone grant the chiefs the right and authority to control land in communal areas, to the exclusion of the so-called agricultural which was usurped from the chiefs council?

President Mnangagwa stopped short of explaining the status of resettlement areas but it is clear these areas are treated as agricultural land. The only difference is that they have a village setting.

The right of the British South Africa Company to hold land for commercial purposes was dismissed by the Privy Council in the 1919 hearing to determine the real owners of the land which — in an unnatural circumstance — was granted to the Imperial government which it eventually passed to a responsible government.

One point must be made clear here: the decision of the Privy Council was expedient and should not detract from the authority of the chiefs’ council then and today.

It is noteworthy that the same decision ruled against the Chartered Company that the 70 million acres of in-alienated land did not belong to the Company. In another twist the whole land that in 1923 became the property of the responsible government, was annulled by the 1979 constitution.

We have a situation, therefore, where the colonial usurper turned the chiefs’ council land into agricultural land and the people’s government, without batting an eye lid, has inherited a colonial relic which destroys the chiefs’ council’s authority.

The juggled Privy Council ruling, against their protestations, an obvious and important element the whole question which was that the land belonged to the African people.

This position was confirmed in 1979. And yet this matter had been give undue legal force by the colonial authorities for expedient reasons.

The government is removing people from land in commercial areas to make way for returning farmers. One does not need to be a lawyer to realise that such moves by are in breach of the 1979 constitution, and therefore fraught with injustice.

There was a case of resettled farmers in Chipinge who were required to vacate land to make way for someone who used his undue influence to have the resettled villagers removed under a pretext that they did not have “offer” letters.

It took intervention of the Zimbabwe Human Rights Commission to secure restoration of the poor villagers. One hears a lot of similar cases all over the country who are being removed under the pretext that they did not have offer letters, when in effect the move is designed to make way for returning farmers.

Is it for the government to tell these people to go away so that those whose right on land was annulled under by the 1979 constitution? The excuse being used is that they are not productive. But did the government give them the tools to make them productive?

Can the government condone the blatant subversion of the constitution in this manner? Send these poor people to the wolves, if you like, of returning farmers because it has not prepared them to produce enough food for the country?

I am for orderly distribution of land but not at the expense of those whose right on the land was restored in 1979 and yet they face victimisation by the people’s government.

It is, therefore, arguable that a liberation movement/government cannot justify its holding of land without arrangement with the chief’s council.

In neighbouring Zambia all rural land belongs to the local chief and those who want to utilise it must apply to the chief’s council, an authority that is perpetual and orderly.

I believe that this also the case in Nigeria and Uganda.

There is need for Zimbabwe to study the situation in these former British colonies to find out why their system is so vastly different from our own.

In recent months reports have appeared in the press which suggest that farmers who utilise the sun’s energy instead of coal or hydro-generated power shall be subject to control, even required to pay tax for the solar power they generate for their farming activities.

This is an interesting idea but one that will result in challenges to government to justify taxation of private solar power on farms.

But the government, in this regard, appears to have done its homework well. It will argue that farmers who built weirs to harness water for irrigation are already required to install meters to their irrigation pumps to record the amount of water used.

Government inspectors, therefore, read the meter and the farmer gets a statement.

Not even the fact that government power utilities are failing to supply adequate power for various usages and its inability to provide adequate water for domestic and commercial purposes can be used as an argument to deter government’s determination to tax users in these vital areas of national development.

The government, moreover, does not appear to worry about possible infringement of human rights. But even more important is the government stance which does not take into consideration the impact of these restrictive measures on food production.

l Jonathan Maphenduka is an author and political commentator. He can be contacted on: maphendukajkiye@gmail.com or 263 772 332 404

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