Coldham, Simon

English

SOAS Research Online

Journal of African Law, 45, 2 (2001), 227–229  School of Oriental and AfricanStudies. Printed in the United Kingdom.STATUTE NOTEL A A A, 2000 (Z)Since Zimbabwe became independent in 1980 the issue of land reform and,in particular, the issue of land acquisition and redistribution has seldom beenoff the political agenda. For the first ten years of independence there wereconstitutional constraints on the acquisition of land for resettlement purposes,but the National Land Policy of 1990 set out plans for an accelerated programmeof resettlement. In order to achieve its ambitious targets the government ofZimbabwe saw the need to strengthen its powers of compulsory acquisition bothby amending section 16 of the Constitution1 (which provided strong protectionagainst the compulsory acquisition of property) and by enacting the LandAcquisition Act2 to provide a statutory basis for the new policy. These reformswere extremely controversial both inside and outside the country and a clauseexcluding the right to fair compensation for expropriated land was droppedpartly in response to international pressure.During the 1990s, for a variety of reasons (not least a rapidly deterioratingeconomic situation), the acquisition of land for resettlement programme laggedfar behind the targets set in the National Land Policy, and in the run-up to thegeneral election in 2000 the land reform once again became a highly chargedissue. Before the elections the ZANU (PF) government amended the Constitutionand after the elections the same government (now with a much-reduced majority)amended the Land Acquisition Act, both measures designed to expedite the landreform programme. It is the purpose of this note to examine these changes.3The principal effect of the constitutional amendments is to place on Britain(“the former colonial power”) the responsibility for establishing a fund forthe payment of compensation for agricultural land compulsorily acquired forresettlement and at the same time to relieve the government of Zimbabwe ofany obligation to pay such compensation.4 Even where compensation is payablefor the land, there is no requirement that it should be “fair” or “adequate” orrepresent the market value of the land. Indeed an assessment must take intoaccount a wide variety of factors including “the history of the ownership, useand occupation of the land”, “the resources available to the acquiring authorityin implementing the programme of land reform” and “any financial constraintsthat necessitate the payment of compensation in instalments over a period oftime”.51 Constitution of Zimbabwe Amendment Act (No. 11), No. 30 of 1990.2 See Simon Coldham, “The Land Acquisition Act, 1992, of Zimbabwe”, (1993) J.A.L. 82; GinoNaldi, “Land Reform in Zimbabwe: Some Legal Aspects”, (1993) 31(4) Journal of Modern AfricanStudies 585; Isaac Maposa, Land Reform in Zimbabwe, Catholic Commission for Justice and Peace inZimbabwe, 1995.3 In the meantime the extra-legal acquisition and redistribution of commercial farms have tosome extent pre-empted the introduction of the new regime.4 S. 16A(1) of the Constitution inserted by the Constitution of Zimbabwe Amendment (No. 16)Act, No. 5 of 2000, s. 3.5 S. 16A(2).[2001] J.A.L.Statute Note228With the constitutional amendments in place it was now open to the governmentto amend the Land Acquisition Act. This was done with a certain haste.6 Ratherthan enact a new acquisition law, the government rushed through, with minimaldiscussion, a large number of amendments to the 1992 Act. The most controversialof these amendments related to compensation. As under the previous law, theassessment of compensation is to be carried out by the Compensation Committeeafter it has received a preliminary estimate of compensation prepared by adesignated valuation officer.7 However, the principles upon which compensationis assessed are new. In the absence of any special fund being established byBritain, compensation is payable only for “any improvements on or to the land”,and not for the land itself.8 While the assessment must take into account “theage, nature and condition of the improvements” as well as a number of factorsrelating to specific kinds of improvement, it remains unclear how an improvementis to be valued.9 As under the 1992 Act, there is provision for an appeal to theAdministrative Court against the assessment made by the Committee, but onlyon the basis that the Committee did not observe any of the principles set out inthe Act.10 There is no appeal on the basis that the assessment was not “fair”.Indeed, given the political and economic constraints to which the governmentof Zimbabwe is currently subject, it seems unlikely that compensation paymentsfor improvements will be generous.11 Finally, it should be emphasized that theseprovisions apply only to the acquisition of agricultural land for resettlement.There is no obligation on the government to show that the land is suitable forresettlement; indeed, it appears that all rural land falls into this category.12Although the provisions regarding compensation were the ones that attractedmost publicity, the Act contains several amendments intended to remove bottle-necks and to put land reform on the “fast track”. One notable example is theabolition of the land designation procedure. This procedure, introduced in 1992,was designed to facilitate the acquisition of large blocks of land for settlementschemes as well as to aid planning. There might be good reasons (typicallyfinancial) why the government could not acquire immediately a large block ofland; instead it could designate the land for acquisition within ten years. Whateverthe merits or otherwise of the designation procedure, it became redundant when6 It may have been seen as a matter of political necessity. As the Minister of Justice said in thedebates: “The sad thing is that there would be other processes to deliver a solution.” ParliamentaryDebates, Vol. 27, No. 26, Col. 2593 (31 October, 2000).7 The Compensation Committee has been enlarged. Whereas under the 1992 Act it consisted ofthree public officers (ex officio) together with not more than three other members appointed by theMinister of Lands, it now consists of six public officers together with not more than five othermembers appointed by the Minister. Land Acquisition Act s. 29(A).8 Land Acquisition Act s. 29C(1).9 The principles are set out in Part I of the new Schedule to the Act. Compensation is clearlynot based on the original cost of making the improvement nor on the estimated cost of making theimprovement at the time of the notice of acquisition. Moreover, to value improvements by subtractingthe value of the unimproved land from the value of the improved land would be problematic.10 S. 29D. Appeal lies to the Supreme Court.11 Whereas under the 1992 Act at least half of the compensation payable should be paid at thetime the land is acquired or within a reasonable time thereafter, under the new section 29C(3) onlyone quarter is payable at that time, a further quarter being payable within two years and the balancewithin five years.12 In the debates on the Bill the Minister of Justice stated: “It depends on what settlement schemeyou apply to any piece of land. Wild life management and farming can be a settlement scheme. . . .There is no land here which is not suitable for agricultural purposes.” Parliamentary Debates, Vol. 27,No. 26, Col. 2669 (31 October, 2000).Vol. 45, No. 2 Statute Note 229the government had the power to acquire land without compensation except forimprovements.Controversial though they may be, these amendments to the law undoubtedlymake it much easier for the government to acquire land for resettlement purposes.However, in the short term at least, land redistribution will result in a loss ofproduction and may destabilize agricultural investment, employment, foodsecurity and export earnings. Moreover, the settlement schemes of the 1980sand 1990s have a rather uneven record and it is likely that in the longer term,without proper planning, without infrastructural investment, without security oftenure and without appropriate criteria for the selection of settlors, these schemesare unlikely to prosper, let alone to solve the problem of poverty and landlessnessin the Communal Areas. The compulsory acquisition of land may be mucheasier today, but, in the political and economic circumstances in which Zimbabwecurrently finds itself, the effective redistribution of land would appear to be stilla long way off.S C

Land Acquisition Amendment Act, 2000 (Zimbabwe)

Abstract

Similar works

Full text

Available Versions

SOAS Research Online

Crossref