LAST week, on 16 March, the government of Zimbabwe published Statutory Instrument (SI) 72A of 2021 (Communal Land (Setting Aside of Land)(Chiredzi) Notice, 2021), which repealed SI 50 of 2021.
Gazetted on the 26 February, SI 50 of 2021 had set aside 12 940 hectares of land in Chiredzi for what was originally said to be a lucerne grass farming venture. The SI required residents to vacate the land immediately.
Days later, on 9 March, SI 63A of 2021 was published to correct certain mistakes that were in SI 50 of 2021.
The new SI 72A of 2021, maintains the original intent, with the land now said to be set aside for an irrigation scheme. What has changed is the removal of the clause requiring the immediate vacation of the land by residents.
As a result, there were some celebratory statements in the aftermath of SI 72A of 2021, celebrating what was seen to be a people’s victory following the widespread pushback mounted against the government’s conduct.
However, we note that those celebrations were premature, and in many ways ill-conceived.
When the government gazetted SI 50 of 2021, simultaneously SI 51 of 2021 was gazetted. SI 51 of 2021 changed designation of the same piece of land from being communal land to being State land. SI 51 of 2021 has not been repealed.
The effect of this is obvious: the land on which the people of Chilonga live has been taken away from them, and is now State land. That same piece of land remains targeted and set aside under the new SI 72A for the purported irrigation project.
What this means is that the people of Chilonga have been divested of their rights to the land, and the land has been transferred to the state. Accordingly, the people of Chilonga remain at risk of eviction and the land becomes open for investment purposes for the purported irrigation scheme for which it was set aside.
The repeal of SI 50 of 2021 has no meaningful effect, and is at best government’s attempt to mislead the nation into believing that it has retreated from its offensive strategy.
We are aware that a number of civil society organisations had challenged the government’s plans.
Those cases are currently falling away on the basis that government has now withdrawn SI 50 of 2021, yet in actual fact, the intent and effect of SI 51 as read together with the new SI 72A, is the same as what was to be achieved under SI 50. The end game being eviction of the people of Chilonga from the targeted piece of land.
The government’s conduct violates sections 56, 68 and 74 of the constitution on equal protection and benefit of the law, administrative justice, and protection from evictions without a court order.
It remains unclear why the people of Chilonga have been targeted when there is other vacant land that could be designated for such a project. As far as we are aware, the people of Chilonga were not consulted and did not provide free and informed consent for the mooted project to continue on their land.
Any eviction of the people of Chilonga from this land which they call home violates section 74 of the constitution, which requires that there be a court order for one to be evicted from their home.
The constitution is the supreme law of the land, and occupies pride of place above all other laws.
Invoking constitutionally questionable clauses of the Communal Land Act does not override constitutional stipulations.
Equally offensive is that while the government proposes to have set aside the communal land to be state land, the authorities have proceeded to invoke the Communal Land Act to set aside the same piece of land for an irrigation project – when SI 51 of 2021 has in effect transformed the land from being communal land.
The Communal Land Act is no longer applicable to this piece of land.
This reveals the extent to which the government is desperately dabbling in illegalities in the manner it is approaching this issue.
Finally, we take note that the government’s conduct in the specific case of Chilonga is not divorced from broader trends of displacement this country has witnessed in the recent past.
This is emerging as a pattern where the government manipulates the absence of security of tenure on communal land holding despite communal land being ancestral land to many of Zimbabwe’s communities.
The Communal Land Act, as it is currently structured, is potentially in violation of the constitution insofar as the President and the minister responsible for the administration of the Act are given certain powers to alienate land from its traditional occupiers and right holders.
Given the above, we make the following demands:
That the government of Zimbabwe immediately and permanently withdraw SI 51 of 2021; and
That the government of Zimbabwe amend S1 72A of 2021 by removing the clause which continues to set aside the Chilonga land for the purported irrigation purposes.
That the government of Zimbabwe start a process to review communal land holding laws, including a wholesale revision of the Communal Land Act, to align it to the constitution, and to give ownership rights and security of tenure to dwellers of communal land. The Communal Land Act was passed in 1982, and needs significant reform to speak to the needs of today.
As civil society, we will continue to engage with the affected communities and with the government to ensure that unjust displacements, evictions and illegal divesting of land rights are halted, in the Chilonga community specifically, and in all communal land nationally.–Crisis Group