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This article participates on the following special index pages:
New Constitution-making process - Index of articles
The good, the bad, and the unworthy: Zimbabwe's draft Constitution
and its implications for land policy
March 10, 2013
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
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will bear in mind this sacred principle, that though the will of
the majority is in all cases to prevail, that will to be rightful
must be reasonable; that the minority possess their equal rights,
which equal law must protect, and to violate would be oppression."
~ President Thomas Jefferson's first inaugural address, 4 March
On the 6th February
years after the formation of a Government of National Unity,
Constitution was laid before Parliament and unanimously approved
by the House of Assembly and the Senate. The parties that negotiated
Political Agreement (GPA) are urging the people to vote 'Yes'
in a referendum on this proposed Constitution before it becomes
our fundamental law. In this paper I explore those sections relevant
to land policy, especially sections 296 and 297 on establishing
a Land Commission and its role to conduct land audits; and section
72 governing rights to agricultural land. Section 72 is controversial
because it incorporates key provisions from the previous constitution
that were struck down by the SADC Tribunal on the basis that they
were discriminatory and inimical to international law and the rule
of law. The paper concludes that compromises made between political
parties have produced a patchy charter with a mix of good and bad
clauses. But the draft Constitution also includes provisions that
make it unworthy of a democratic society based on justice, equality
and the rule of law.
The draft Constitution
brings together what had been two related but disparate land policy
issues: the establishment of a Land Commission, and the carrying
out of a land audit. Section 297(1)(b) now makes the Zimbabwe Land
Commission responsible for conducting audits of agricultural land.
When originally conceived, both the Land Commission and the land
audit were to be independent, impartial and technically sound in
order to bring sanity to an otherwise deeply politicised and polarised
issue. The paper therefore explores the background and need for
a Land Commission and a land audit.
the draft Constitution separates general Property Rights  from
Rights to Agricultural Land . Its provisions governing Property
Rights hold that no person may be compulsorily deprived of their
property unless i) they are given reasonable notice, ii) they are
paid fair and adequate compensation, and iii) the acquiring authority
applies to the courts to confirm the acquisition if it is contested
[71(3)(c)]. If the court does not confirm the acquisition, a person
may apply to the court for the prompt return of their property.
It also allows a person to challenge in a court of law the legality
of the acquisition, the amount of compensation, as well as ask for
prompt compensation. Yet none of these rights are protected regarding
Rights to Agricultural Land.
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