By Ivy Shamiso Chimedza and Fadzai Traquino
Heated Debates have recently ensued on various media platforms on whether “white farmers should be compensated for land expropriation” this article seeks to analyse the issue of compensation from a constitutional and legal perspective. As stated in the Transitional Stabilisation Programme (TSP) (October 2018-December 2020), the Government of the Republic of Zimbabwe under the New Dispensation, is committed to finalise compensation to all former farm owners who were affected by the Land Reform Programme. This is being done in accordance with the country’s Constitution and Zimbabwe’s obligations under the Bilateral Investment Promotion and Protection Agreements (BIPPAs). In pursuance of this agenda government has set up , the Ad Hoc Compensation Working Group, comprising Government officials and representatives of former farm owners, is currently working towards the computation and establishing the Compensation Quantum figure for farm improvements based on an agreed method of valuation. Government has also allocated $53million in the 2019 National Budget for interim advance payments. These interim advance payments will be made to former farm owners affected by the land reform program and who are in financial distress.
Citizens however continue to question “What does the Law say?” and is the “Government of Zimbabwe obligated to compensate white farmers for expropriation of farms during the Land Reform Programme?” “What is the contribution of the direct beneficiaries of land reform ?’
There is no obligation to compensate former white farmers for land acquired during the fast -track land reform programme as stated by the Constitution ;Section 72 Sub section 4(a)-(b) provides that ‘All agricultural land which was acquired for resettlement and other purposes 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. This directly applies to the land which was expropriated under the fast track land reform programme.
However, there is constitutional reference to compensation former white farmers for land expropriation for improvements effected on the land before its acquisition.
The Constitution of Zimbabwe states that ;Section 72(3)(b) provides that “where agricultural land, or any right of interest in that land is compulsorily acquired for a purpose referred to in subsection 2; no person may apply to the court for 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 applications.”
Furthermore one of the mandates of the Zimbabwe Land Commission is to provide “ fair compensation payable under any law for agricultural land and improvements that have been compulsorily acquired”.
Issues related to land expropriation and compensation thereof are not unique to Zimbabwe but are subject to discussion in a number of countries . International and Regional frameworks that Zimbabwe is a party to require that changes in who holds which lands and how they acquired it, land tenure and expropriation in particular, should be in accordance with both national and international law, as well as human right principles.
Zimbabwe can be guided by (i) International/intergovernmental conventions, principles and declarations (covering aspects of land tenure changes) (ii) International voluntary standards and guidelines (IFC Performance Standard 5 ) (iii) Private and sectoral standards and guidelines , guidelines provided by the Draft Protocol on Fair Compensation .These frameworks try to give guidance in responding to four questions which are central in the challenge of how to determine what compensation should be paid, namely (i) who qualifies for compensation, (ii) which losses should be compensated, (iii) in which form and (iv) what amount is appropriate.
How should the amount of compensation be determined?
The Draft protocol on Fair compensation makes reference to the general standard of valuation of assets which is set by the International Valuation Standards Counsel which does not specify specific approaches to valuation, but instead stimulates “states and other parties” to “develop and publicize national standards” in accordance with international guidelines (par. 18.4) . The FAO’s Land Tenure Study refers to national legislation: “Most laws on compulsory acquisition broadly define equivalent compensation with reference to market value or ‘just compensation’.” (par. 4.12); “If market value is the basis of compensation, legislation should clearly state what is understood by market value.”
The absence of a clear framework of land resettlement and compensation in Zimbabwe could be one of the reasons why citizens have a lot of unanswered questions . Government could take advantage of this opportunity to consider developing a comprehensive framework for land compensation that also safeguards the rights of indigenous people occupying state land under the Communal Lands Act where predominately women are affected.
Land is and will continue to be expropriated as a result of 1) growing extraction of natural resources (e.g., mineral resources, timber, plantation and other commercial agricultural development), 2) expansion of infrastructure (e.g., dams and roads) and 3) urban and rural redevelopment 4) industrialization, 5) urbanisation (which often necessitates transformation of land from agricultural to residential use)
Considering the trajectory of Zimbabwe Vision 2020 and the desire for middle income status land redistribution in Zimbabwe is inevitable in the not so distant future . “Part of these land tenure changes involve expropriation and can put the livelihoods and way of life of local communities and individuals at serious risk.” Inconsistent and/or unclear laws, non-compliance with existing laws, and a lack of guidance have often led to a deterioration of the situation of affected people and violations of human rights. It is therefore important to strongly consider developing an inclusive and comprehensive framework for compensation.