COMMENT Lena Scheibinger 21 May 2021
Former settler colonies in Southern Africa like Zambia, Zimbabwe, Namibia and South Africa are characterized by former unlawful land seizure resulting in contemporary unequal distribution of land property and related economic power. In Zimbabwe, during British colonial rule about 6,000 large scale white farmers and a few foreign agro-industrial corporations controlled the fast majority of primary land, water resources and natural reservoirs, while constituting the minority of the total population.[1] After the country’s independence in 1980, discussions to redress the legacy of apartheid and correct racialised land ownership imbalances emerged. For this purpose, the government under long-time ruling president Robert Mugabe commenced to implement a Fast Track Land Reform Programme (FTLRP) based on a series of amendments to the constitution. Notwithstanding of aspects of configuration and implementation this and similar initiatives rise the question whether land redistributions are an appropriate tool to restore continuing economic and social inequalities or rather a violation of the right to property. Do they form a gesture of restitution and reconciliation or an act of dispossession, or both at the same time?
By applying the entitlement theory by US-American philosopher Robert Nozick the law professor Benedict Chigara[2] argues that only a person who had gained a holding according to the principle of justice in acquisition is entitled to that property. Consequently, land that was forcibly confiscated without consultation or appropriate compensation, as was often the case under colonial rule and the associated conception of indigenous land as terra nullius, must not be protected under law. In a nutshell, farmers cannot assert a claim on property if an initial entitlement is missing.
The contrary position assesses land redistribution in most constellations as compulsory expropriation and therefore as an infringement of the right to property. This argumentation was also supported by the SADC tribunal in the ground-breaking case Mike Campbell and Others v Republic of Zimbabwe (2008)[3] in which the court upheld the applicants’ position. In their lawsuit, white farmers had described themselves as the victims of an indirect racial discrimination as de facto merely white farmers were concerned of the Amendment Act No. 17 and deplored that they had been denied compensation for confiscated land. By its verdict the court rejected the historical background underpinning the contentious constitutional amendments which authorised the government of Zimbabwe in September 2005 to nationalise large-scale farms to facilitate land redistributions.[4] In August 2010, the complex litigations between the government of Zimbabwe and the SADC Tribunal, in which the former argued that the judgement of the court is not binding as its founding protocol has not yet been ratified by two-thirds of state parties, led to the suspension of the court. Conversely, Zimbabwe again became the target of international criticism as well as economic sanctions.
Overcoming the residues of colonialism and the manifestations of its enshrined racial hierarchisation often depends on affirmative action and radical changes. However, the parameters of wide-ranging initiatives must be well measured and all consequences must be equally considered. With regard to land issues, a satisfactory solution for all involved stakeholders seems to have not been found yet.
Further Reading
Akinola, Adeoye, Irrshad Kaseeram and Nokukhanya Jili (eds.) 2021: The New Political Economy of Land Reforms in South Africa. London: Palgrave Macmillan.
Melber, Henning 2019: Colonialism, Land, Ethnicity, and Class: Namibia after the Second National Land Conference. Africa Spectrum, Vol. 54 (1), pp. 73-86.
Muzvidziwa, Joe 2019: Mixed Responses from the International Community to Zimbabwe’s Post 2000 Fast Track Land Reform: Why? Journal of Governance and Development, Vol. 15 (1), pp. 19-35.
Sippel, Harald 2017: Land Matters in Namibia. The Issue of Land and the Constitution. In: Horn, Nico and Manfred Hinz (eds.): Beyond a Quarter Century of Constitutional Democracy. Process and Progress in Namibia, pp. 158-171.
Streater, Reginald 2018: Zimbabwe’s Struggle to Break the Chains of Colonialism. Self-Determination, Land Reform, and International Law. Temple International and Comparative Law Journal, Vol. 33 (1), pp. 119-171.
[1] Moyo, Sam and Walter Chambati 2013: Introduction. Roots of the Fast Track Land Reform in Zimbabwe, In: Moyo, Sam and Walter Chambati (eds.): Land and Agrarian Reform in Zimbabwe. Beyond White Settler-Capitalism. Harare: African Institute for Agrarian Studies, p. 1.
[2] Chigara, Benedict 2017: Incommensurabilities of the SADC Land Issue and Nozick’s Entitlement Theory. African Journal of International and Comparative Law, Vol. 25 (3), pp. 295-325.
[3] Mike Campbell (Pvt) Ltd. and Others v Republic of Zimbabwe, SADC Case No. 2/2007 (28 November 2008).
[4] Chigara, Benedict 2017: Incommensurabilities of the SADC Land Issue and Nozick’s Entitlement Theory. African Journal of International and Comparative Law, Vol. 25 (3), pp. 295-325.
