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Why Zimbabwe needs to maintain a multi-form land tenure system
July 17, 2012
This paper is
part of the Zimbabwe Land Series
index to Mandi Rukuni's articles here
- View index to Dale Dore's articles here
recommendation of the Commission of Inquiry into Land Tenure Systems
in Zimbabwe (1994) that I chaired was that Zimbabwe should maintain
a multi-form tenure regime. The commission recommended that each
tenure instrument be made more secure by explicitly identifying
the land rights and ensuring greater continuity of those rights
by the holder. Moreover, legal and institutional provisions and
capacities can enforce such rights for all land, including land
held under customary tenure. In this article I will make recommendations
on how to strengthen the multi-form tenure system and discuss how
this can be applied to improving land investment and values again
in Zimbabwe. Those interested in exploring the principles, theory
and practice in securing land rights for sustainable development
should read my other article.
what conditions is agricultural land bankable?
Banks and financing
institutions look at two main things in financing a farming business:
viability/profitability and collateral security. Viability or profitability
is the first necessary condition for any financing. Farmers with
a track record at a bank can continue to get financing without much
separate or additional collateral security. If a farmer is making
money and his/her business dealings are open to the bank, the bank
will increase their trust of the farmer and their business over
time. Just having a title does not necessarily lead to financing,
particularly for new and inexperienced farmers with no track record
of farming profitably. Banking is ultimately about trust. This point
is crucial to remember in the debate on tenure in Zimbabwe (and
Africa generally), as this debate has become quite ideological.
In most of industrializing Asia, agricultural growth was maintained
at a high level based on small farms with no collateral security
because the business environment and economic policies were favourable.
Banks in Zimbabwe
are also looking forward to the resolution of disputed land, as
discussed in my last article. Government urgently needs to review
and update the land administration systems, so that the government
and local government systems, the judiciary and the finance sector
all have access to one registry and administrative system that is
sufficiently accurate, reliable and decentralized to provincial
and districts centres, where transactions can be completed and disputes
resolved amicably. Tenure security is ultimately about capacity
to protect and enforce land rights.
needs and challenges in reforming tenure
Fast Track land reform program, Government is now seeking to improve
tenure security for the farmers and allow farmers to use their land
holdings as collateral security to raise finance for development
and farming operations. The current 99-Year Lease is still inadequate
for banking purposes. On the other hand, the Government is sceptical
about giving freehold title for the fear that white farmers buying
land again may reverse the gains of land reform. So the question
is "How does policy arrive at a secure tenure that is bankable
whilst at the same time maintaining the gains of land reform?"
Bankability and sustainable development issues also apply to all
other land tenure instruments in Zimbabwe besides the 99-Year Lease.
look at the current tenure instruments
are the current tenure instruments in Zimbabwe:
usufruct on State Land for Communal Areas
Title for some Large Scale Commercial and some Small Scale Commercial
Leases for some Small Scale Commercial farms, and some Large Scale
- 99 -Year
leases for a few so far of the A2 resettlement
- Offer letters
for most A2 resettlement who still hope to qualify for a 99-Year
- Permits for
Model A Old Resettlement and for A1 Fast Track resettlement
and the future consolidated land law(s) will have to be clearer
for every category of land as to what rights the land occupier will
have. Land tenure security can generally be defined as the certainty
of continuous use. To secure tenure, land rights for each category
of land occupier have to be clear and enforceable. Each tenure regime
should enjoy the same 4 categories of rights. What differ are specifics
of each of the 4 categories of rights and how that is administered
BASKET OF LAND RIGHTS includes:
- Use rights:
rights to grow crops, trees, make permanent improvement, harvest
trees and fruits, and so on.
rights: rights to sell, give, mortgage, lease, rent or bequeath
rights: rights to exclude others from using or transferring
rights: refer to the legal, judicial, institutional and administrative
provisions to guarantee use, transfer, and exclusion rights and
to resolve disputes.
can all these tenure instruments be made more secure?
Here are my
recommendations in strengthening further the current instruments:
usufruct on State Land for Communal Areas:
should cease to be State Land and the State should recognise in
the constitution and law, the validity of customary rights as follows:
provisions: The national Constitution should recognise
traditional and customary land rights unconditionally. Whosoever
enjoys such rights can legally claim them even if they do not
hold a formal title, permit, lease, or any piece of paper in order
to own and defend those rights. This is because the traditional
systems know how to recognise customary rights and adjudicate.
don't Westernise customary tenure: Customary tenure
recognises the same basket of rights and is as secure as any Western
title system if its integrity is restored and strengthened. While
land registration may be desirable in the long run, this should
be carried out in a series of well-considered phases so as to
avoid prejudicing those holding customary rights to land. In essence
this is process of registering the customary rights, not changing
the rules of ownership.
capacity of communities to administer and adjudicate:
Before any system of registration can be affected, it is important
to reform the laws and the local administration systems so that
they have the capacity to engage and strengthen customary land
rights systems. This capacity has to be built all the way down
to the community level where traditional systems will continue
to play a central role in administering the system. Community
level land boards and administrative structures are essential
for adjudication and dispute resolution as well as updating the
before systematic registration: Once land administration
capacity is evident at community level and well integrated and
part of the modernized traditional system, then voluntary registration
of land can begin. Land registration is costly for government,
the community and the land occupier, and it is important for Zimbabwe
to avoid systematic land titling, as the costs may outstrip the
benefits. Voluntary registration to start with will eventually
pave the way for comprehensive systematic titling using the evolutionary
principle. GPS and satellite imagery technology has reduced the
cost and speed of titling. The social and community processes,
however, need time and have to be based on principles of mutual
respect, mutual accountability, and mutual benefit between government,
traditional communities, and customary land-rights holders in
Trusts and Foundations: In the medium to long run it
should be possible to offer a Deed of Grant to the Family Trust
or jointly held by spouses for arable and residential land. Inheritance
should be with the surviving spouse and then surviving children
who can anoint an heir or form a family trust or company.
For grazing land and other common land the Deed of Grant should
be made in the name of a Community Trust or Foundation who will
look after the natural resources and pass appropriate by-laws
with the power to exclude other communities.
Councils: The Traditional Councils from village to District
level should be incorporated into the National Judicial system,
including powers to constitute with other local stakeholder representatives,
as a Land Board or Local Administrative Court assisted by Government
officials from Lands, Justice and Agriculture Ministries.
Arable and residential land should be tradable legally only between
dwellers of communal lands.
- No consolidation
of land holdings should be allowed legally until Zimbabwe has
reached a minimum of 50% urban population ratio and until the
national unemployment figures are sustainably within single digit
No sales of customary land to foreigners should be allowed.
Title for some Large Scale Commercial and Small Scale Commercial
tool should be maintained. No sales to foreigners should be allowed.
Foreigners should be allowed short to medium term rental leases
on land with title deeds.
Leases on Small Scale Commercial farms:
Any leases older
than 10 years should be converted to a Deed of Grant without further
delay. The Deed should be granted in the name of both spouses. Where
the original leaseholders are deceased, then the Deed should be
granted in consultation with all surviving children so that either
the grant goes to the heir-apparent child and his or her spouse.
Alternatively, the surviving family establishes a Family Trust or
Company with appointed Trustees or Directors making decisions. This
group of farms all started in the colonial period when black 'master
farmers' where allocated small-scale farms on a short term
lease that they could convert to a title (deed of grant). Although
all of them had the right to convert to title, most did not.
leases for some of the A2 resettlement:
Lease should be strengthened as follows:
previous owner: Quittance will strengthen the 99-Year
Lease by avoiding legal contestation. Since government has to
compensate for 'improvements only', the lease holder
should assist government by contributing at least a portion of
the value of improvements acquired, as well as through annual
rentals, even if initially these are nominal;
a 10-year sunset clause for land development:
The leaseholder should in a maximum of 10 years fulfil State requirements
in land improvements (fence, homestead, water, etc.) to be considered
a serious landowner and farmer.
- If the land
holder fails to fulfil this condition in 10 years then the State
should repossess the land and offers fair compensation for any
- If the leaseholder
wishes to exit before the 10 years then she/he can either sell
the lease to the State for the value of improvements or sell it
to another qualified A2 beneficiary.
the 99-Year Lease so that collateral rights and State
rights have equal recourse at law in foreclosure.
- Sale of
99-Year leases: Sales should be legal and allowed only between
buyers and sellers in the same category of land reform.
consolidation of holdings should be permitted until Zimbabwe
is a fully industrial nation.
letters for A2 resettlement:
Holders of these
should be given the following options:
- Apply for
a 99-Year lease by going through the process discussed above;
- Sell the
Offer Letter either to another willing purchaser who qualifies
- Sell Offer
Letter back to the State for a nominal fee and land to be reallocated
on a stricter basis for qualifying.
for Model A Old Resettlement and A1:
Should be revised
- Deed of
Grant for arable and residential land should be given in favour
of joint ownership by spouses or a family trust. Inheritance should
be with the surviving spouse and then surviving children who can
anoint an heir or form a family trust or company.
- For grazing
land and other common land the Deed of Grant should be made in
the name of a Community Trust or Foundation who will look after
the natural resources and pass appropriate by-laws with the power
to exclude other communities encroaching on their common property.
- The system
of land administration needs strengthening on similar lines to
what I have outlined for Communal Lands so as to pave the way
for voluntary and systematic titling and land registration. This
can happen sooner for resettlement areas.
If we look at
the process of commercialising land, then all resettlement land
should be first and communal land last.
for residential land for rural citizens as part of a "Zimbabwean
deserve to live in a country where there is abundant and affordable
food, and that each family has a home. My recommendation is that
the Government shifts its policy from emphasising expensive urban
housing to encouraging smaller rural settlements. Every Zimbabwe
boy and girl at attaining the age of majority should qualify for
a land grant from the local community in areas designated as "rural
residential areas". The size can vary from 0.1 to 0.4 of a
hectare or so. She or he can apply to any local land board with
automatic title. This is also a way of dealing with the gender balance
in land, affording young Zimbabweans to own their own piece of land
for housing before they get married. Botswana has applied this policy
 Rukuni M. 1999. Land
tenure, governance, and prospects for sustainable development in
Africa. Policy Brief #6. Natural Resources policy Consultative Group
for Africa. Washington DC. Natural Resources Institute.
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