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Good faith: Zimbabwe's obligations under international law to acquire land and pay just compensation
Dale Doré, Sokwanele
January 29, 2013

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This paper is part of the Zimbabwe Land Series
- View index to Mandi Rukuni's articles here
- View index to Dale Dore's articles here

Executive Summary

What is meant by 'good faith' when acquiring land? And what is just compensation? This paper is a search for answers to these questions. It begins by examining the fundamental principles enshrined in international laws, conventions and treaties to which Zimbabwe is bound and obliged to honour. These provide a benchmark against which to evaluate Zimbabwe's own laws and practices governing the compulsory acquisition of land and compensation. Three fundamental rights take centre stage: the right to fair compensation and prompt payment; the right to the protection of the law and a fair hearing in a court of law; and the right not to be discriminated against on the grounds of race or colour. The rulings of Zimbabwe's Supreme Court governing these rights are compared with those of two international Tribunals: the SADC Tribunal and the International Centre for Settlement of Investment Disputes. Before drawing conclusions and making recommendations, the paper dwells briefly on the government's responses to the judgments of these international courts.

1. International Law and Principles

International Law, Conventions and Treaties

What is international law?

The International Law Association defines 'general customary international law' as a rule or principle that is widely, consistently and uniformly practiced (such as diplomatic immunity), which gives rise to legitimate expectations in the future. This law is binding on all States, whether or not a particular State believes or consents to the rule. In other words, it is not necessary for the consent of a State for it to be bound by a rule of international law. The main rule of international law considered in this paper is that just compensation for compulsory acquisitions must be based on good faith, due process, and the genuine value of the land acquired by the State.

While many rules of international law are customary, others have come into force through declarations and resolutions of the General Assembly of the United Nations. Foremost amongst these is the Universal Declaration of Human Rights, including:

• The right to own property and not to be arbitrarily deprived of it, as enshrined in section 16 of Zimbabwe's constitution
• The right to the protection of the law and to be heard in an independent and impartial court of law, which forms part of section 18 of our Constitution, and
• The right not to be discriminated against on the grounds of race or colour, enshrined as section 23 of the Constitution.

These rights also form part of the African Charter on Human and Peoples Rights to which Zimbabwe has acceded and is therefore bound.

Zimbabwe has also entered into treaties that are governed by international law, such as the SADC Treaty and Bilateral Investment Promotion and Protection Treaties with various States, including The Netherlands and Germany. As such, Zimbabwe is bound by the Vienna Convention on the Law of Treaties. Two articles of the Convention are particularly pertinent. The first is that every treaty in force is binding upon the parties to it and must be performed by them in good faith. The second is that a party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Zimbabwe is also bound by the United Nations resolution on State Responsibility for International Wrongful Acts. If Zimbabwe is responsible for wrongful acts, then the Pinheiro Principles on restitution for displaced persons apply. The first principle holds that displaced persons who have been arbitrarily or unlawfully derived of their housing, land or property have the right to have them restored, and are entitled to full and effective compensation.

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