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Reality dawns on new lease holders
Shakeman Mugari, The Zimbabwe Independent
December 01, 2006

http://www.theindependent.co.zw/viewinfo.cfm?linkid=11&id=9222&siteid=1

THEY were launched amid fanfare, and President Robert Mugabe said they were a "landmark event in the history of the country" as he handed them over to elated new farmers.

But three weeks on, the excitement is dying down. The farmers are beginning to wake up to the limitations of the new lease documents they received from government on November 16. A close reading of the document shows that it neither fully guarantees security of tenure nor can it be used as collateral to get loans from banks.

Financial risk experts say the lease document is full of vague and loose legal statements that pose a serious potential risk to any financial institution that may want to accept it as collateral.

They say the lease is flawed and porous, opening it to political abuse by government. They say even the security of tenure that the leases were initially thought to provide is under threat from clauses that give too much power to the government as the lessor.

Section 20 of the lease says government can cancel the lease at any time under conditions it deems necessary. "The lessor may, at any time and in such manner and under such conditions as it may deem fit, repossess the leasehold or any portion if the possession is reasonably necessary in the interest of defence, public safety, public morality, public health, town and country planning or the utilisation of that or any other property for purposes beneficial generally or to any section of the public."

Lawyer Chris Mhike said such sections scare away banks from lending to holders of such leases.

"That clause is dangerously wide because it wipes away the same concept of security of tenure that it is seeking to entrench for the benefit of the farmers," Mhike said.

"The inclusion of wide and vague provisions in legal documents and instruments is unreasonable and untenable in any democratic society," he said.

Mhike said it was sad that a "government that pledged to be revolutionary should give its citizens rights that are less than the ones that the coloniser gave to himself".

The document goes further to erode the security by stating in sections 23 that government shall not be obliged to pay or compensate the farmer for improvements that it has not approved. That means a farmer can be booted out of the property with nothing.

"This means that government has the right to compulsorily acquire developments effected by the farmer under the flimsy reason that they have not been approved," said Mhike.

Bankers are worried that the lease is not transferable without permission from government.

An official from a local commercial bank said the fact that the lease cannot be transferred and the right of government to repossess the property make it impossible for banks to consider it as collateral.

"It’s very difficult because it does not give us the guarantee that the bank will be able to recover its money if the farmer defaults on the loan payment," said the official.

The previous leases that were held by farmers before the land reform could be auctioned if the farmer failed to pay. The new owner was entitled to utilise the farm for the remaining portion of the lease’s duration.

Most banks have already given the lease document a wide berth as a security asset.

But the scandal goes beyond land. Section 9.5 says no farmer shall sell five heads of cattle without offering one to government. "Any group of five or more head of cattle reared or pastured on his or her leasehold at any time, the leaser shall, in writing, offer one in five head of cattle from such group to the lessor (government)," says the lease.

It states that government shall have the first right of refusal to buy the cattle. If government fails to take up the offer the farmer is prohibited from selling the cattle at a price higher than what the government was prepared to pay for them.

Simply put, this means that government is not only controlling the price of cattle but is also giving itself the right to buy 20% of national herd at a price that it sees fit.

The saddest part of the document, experts say, is that it does not leave room to the farmer to challenge the cancellation of the lease.

Amendment 17 of the constitution says farmers shall not bring to court land issues involving government. This means that farmers can lose their land and improvements on it without any alternative for redress at law.

Human rights lawyer Otto Saki said the lease does not have checks and balances to deter government from using its authority to prejudice the farmer.

"Such a document could be used as a political tool by government to dispossess people who are perceived as not loyal to the party," said Saki.

Even more worrying is that past experience with regard to land has shown that government can tamper with tenure laws when it suits its agenda.

For instance, after failing to win court cases against white commercial farmers, government went on to amend the constitution which effectively nationalised the land.

Saki said like most laws that have been created in the past six years, the lease does not provide the required checks and balances that protect the farmer.

"Because it lacks the required checks and balances to avoid abuse, there is nothing that can stop the government from cancelling the lease at any time especially when it is armed with such dangerous Acts as Amendment number 17," said Saki.

"For example there is nothing that can stop the Minister of Agriculture from cancelling a farmer’s lease to bring in his connections."

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