THIS article was compiled by the Masvingo Centre for Research Advocacy and Development Trust, an independent community-based civil society institution committed to the development of socio- economic rights and agrarian systems.
THE High Court of Zimbabwe sitting in Harare on 5 January 2022 dismissed an application to have provisions of sections 4 and 6 (1)(b) Communal Land Act, Chapter 20:04, declared unconstitutional.
The case had been taken to court by three members of the Hlengwe Xangani community, an ethnic group in Zimbabwe commonly known as the Chilonga community. The case was reported as “Livison Chikutu and 2 Ors v Minister of Lands and Ors HH 02/22”.
Between February and March 2021, the government issued a series of statutory instruments, the main object of which was to set aside a tract of communal land for the purpose of establishing an irrigation scheme in Chiredzi district.
The land in question has been inhabited by the Hlengwe Xangani (Chilonga) community since way before 1890. The impact of the statutory instruments is that some sections of the Chilonga community might be affected to the extent that they face eviction to pave way for the proposed irrigation project.
The said statutory instruments were made in terms of the Communal Land Act. Section 4 of the law vests all communal land in the President. Section 6 of the same Act
empowers the President to make additions or subtractions from any communal land.
On behalf of the Chilonga community, the applicants alleged that the land in question is not part of communal land envisaged in the Communal Land Act. They base the argument on the fact that their ancestors were not settled through colonialism and that their land was not artificially created and carved out by the Tribal Trust Land Act The crux of the argument is that the land cannot be set aside in terms of the Communal Land Act.
The applicants further agued that sections 4 and 6(1)(b) Land Act have a violent and obnoxious origin. They pointed out that sections 4 and 6(1)(b) of the Act violate their right to life, right to human dignity, right to equal protection of the law and their right to culture and language. They also argued that the proposed action to move them from their ancestral land violates their right to property.
The court accepted that the Communal Land Act and particularly the vesting of title of land in any person other than the occupiers themselves has its origins on the pathological hatred of the aboriginal races by the colonial powers. The court however held that there is nothing unconstitutional by vesting communal land in the President as envisaged in section 4 of the Act.
The court ruled that the fact that the Shangani people inhabited the land in question way before colonisation does not exclude it from the definition of communal land in terms of the Communal Land Act. In simpler terms, the court concluded that the land in question is part of communal land.
The judge observed that whilst the Act has racist origins, at Independence and up to the present day, the government retained the concept of vesting communal lands in the state President.
Justice Joseph Mafusire, who presided over the case, accepted the respondents’ argument that the land is not vested in the President in his personal capacity. For the respondents, the Attorney-General argued that the land is vested by virtue of the powers vested in him as the state President to ensure orderly development of communal land.
Insofar as the setting aside of land is concerned, the respondents had argued that no significant portion of the land occurs without proper planning and consultation with communal leaders and the local authorities and that had been done in the Chilonga case. The applicants were arguing otherwise.
They alleged that no proper consultations had been done. The court concluded that whether or not consultation was done was a question of fact and not a constitutional determination. The case before the court was a constitutional case.
The High Court invoked the political question doctrine. The judge pointed out that the land question was a political question which should be left to the other arms of the government to determine. In simpler terms, the court said the Chilonga case could not be determined by the law and the courts but rather by politics.
At paragraph 14 of the cyclostyled judgment, the court said: “Sometimes politics has to speak first, and only then may the law take over”.
The issue before the court was not whether or not the Chilonga community should be displaced or evicted. The outcome however has a bearing on the ultimate decision to be taken by the government.
Had the court allowed the application, the proposed irrigation project was arguably going to be suspended in the long run. Now that the sections which permitted the President to set aside the land in question has been found not to be ultra vires the constitution, at law there is nothing that bars the government from implementing the project.
In its response to the application, the government said no one is to be displaced as the identified land is largely uninhabited. That a section of the community will be moved is an undeniable fact. The government, through the Attorney-General, says those who might be affected will be relocated and “adequately compensated”.
There are little or no prospects of success in appealing the High Court decision. Hope is now pinned on the compensation undertakings. It was argued that the Chilonga irrigation scheme will be an extension of the Tugwi-Mukosi project.
It is a fact that people who were relocated from Tugwi-Mukosi to Chingwizi were not adequately compensated. It is therefore recommended and proposed that the government adequately compensate the affected people first before relocation to avoid a repeat of the Chingwizi disaster.
About the writer: Masvingo Centre for Research Advocacy and Development Trust is an independent community-based civil society institution committed to the development of socio- economic rights and agrarian systems that enhance equitable land rights and sustainable land use throughout Zimbabwe.
