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The good, the bad, and the unworthy: Zimbabwe's draft Constitution and its implications for land policy
Sokwanele
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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"All, too, 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 1801

Executive Summary

On the 6th February 2013, four years after the formation of a Government of National Unity, a draft Constitution was laid before Parliament and unanimously approved by the House of Assembly and the Senate. The parties that negotiated the Global 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.

1. Introduction

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.

More controversially, the draft Constitution separates general Property Rights [71] from Rights to Agricultural Land [72]. 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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