Land and the new Zimbabwe Constitution - Lloyd Msipa

ZIMBABWEANS are on the verge of writing a new Constitution. The last substantive Constitution of Zimbabwe was the Lancaster House Constitution. It was foisted on the country through a rigorous process of negotiations and compromises between our former colonisers and our then new crop of leaders that led the war of liberation for Zimbabwe.

The residual document, the Lancaster house Constitution, has been our supreme law for the last thirty years with nineteen amendments to date. Zimbabweans are in agreement that this document has outlived its usefulness. Zimbabweans are currently consulting on the possible contents of a new constitution.

What is significant with this new constitutional consultative processes currently taking place in Zimbabwe and indeed abroad is that Zimbabweans have this tremendous opportunity to craft their own supreme law taking into consideration our tumultuous history over the last thirty years. No peoples in Africa have thus far had the opportunity to redress post-colonial land imbalance by way of a constitution, which is the unique situation Zimbabweans find themselves in.

Our history as Africans and indeed the history of Zimbabwe is rich with lessons of which this new constitutional consultative process must take cognisance of. The protracted war of liberation in Zimbabwe was a war brought about by the uneven distribution of land and other resources amongst the indigenous citizenry. Most of the injustices we are currently wrestling with emanate from this legacy.

Following the colonisation of Zimbabwe, the indigenous citizenry were removed from the most arable land in Zimbabwe and relegated to the so-called Tribal Trust Lands. These were sandy small plots of land that were not suitable for any form of commercial farming. This scenario of colonial subjugation became the epicentre of the fight for land and for Zimbabwe’s resources in general.

The Constitutional consultative processes currently taking place must prioritise and clarify the legal position regarding the ownership of land in Zimbabwe. There are many reasons why I think this is the most important issue the new constitution needs to address.

In the first instance, by taking into account that the identity of any country is grounded on its land, it naturally follows that the identity of Zimbabwe, and indeed that of other African countries, cannot be divorced from its land. The war of liberation in Zimbabwe was itself premised on the imbalance in the ownership of land.

Post-independence, where it was clear that the economy of Zimbabwe was largely agricultural based, 70% of all the arable land continued to be owned and controlled by a mere five thousand white commercial farmers. Now the prevailing situation of a legal tug of war between Zimbabwe’s former white farmers and the Zimbabwe government, in relation to the legality of the SADC Tribunal, is a result of this ongoing conflict over the land issue.

It is in this respect that the methodology used to determine ownership of land in Zimbabwe needs to be inputted into our supreme law -- the Constitution of Zimbabwe. The challenge and question that comes to mind is how we will write this into the constitution equitably without further alienating other citizens who are “citizens by colonisation”.

In all fairness, the indigenous black Zimbabwean population represents at least eighty percent of the population of Zimbabwe. In this regard, a constitutional provision on land ownership reflecting this demographic reality needs to be put in place, and has to ensure that land is continually and fairly accessible to all indigenous Zimbabweans and held in trust for future generations.

What are the advantages of having such a provision in the Constitution?
We have a generation insisting on completing the liberation struggle by seeing through land redistribution, but it is unfortunately slowly reaching its natural life-cycle and a new generation that wants to embrace globalisation and is unwilling to endure the discomfort such a position inflicts on the country by way of the sad reality that as the land changes hands, pre-existing partnerships with international players also dissolve.

The above has been obvious with the retreat of international investors from the country, organised bad publicity in defence of the status quo, an unwillingness to help the nation find its way through this necessary and new situation. Hence this generation seems unwilling to protect this legacy. In the long term will it pay off?

The land re-distribution exercise embarked upon by the Zimbabwe government post 2000 has had its takers and also at the same time there are those hell-bent on reversing it to the detriment of the indigenous populace. Some of those bent on reversing the gains of land reform are unfortunately sons and daughters of the soil.

The current land ownership is currently held in place by sheer political will and this will in the long run prove not to be sustainable. The Land Reform Act, in particular under 16B of the Constitution of Zimbabwe (Amendment No 17, 2005), has been the subject of legal challenges at international institutions like the SADC Tribunal.

Of late, the same institutions have pronounced decisions that are not tallying with the national psyche. This is potentially fresh ground for future conflict amongst Zimbabweans themselves. In this instance between Zimbabweans who stake their claim on the land by virtue of being indigenous to the land, and those that have acquired their citizenship through “colonisation”.

It is, therefore, important that the constitutional consultative processes currently underway factor in this reality. It represents a clear and future danger if it is not adequately clarified in the new constitution.

My proposal would be to have a provision in the constitution that limits ownership of land percentage-wise between indigenous Zimbabweans and those who came to be Zimbabweans by other means.

For example, land ownership in Zimbabwe for non-indigenous Zimbabweans should be limited to plus or minus twenty percent. This inputted into the Zimbabwe constitution will go a long way in making sure that we have put paid to this emotive issue. After all, no minority anywhere in the world has ever owned 70 percent of the arable land.

Secondly, the new Constitution needs to clarify the position of land ownership under national law, as it relates to international law. The Zimbabwe constitution (current amended version) leaves a lot to be desired as it does not clarify Zimbabwe’s obligations under international law. This has provided numerous loopholes in land litigation cases.

The United Kingdom became a member of the European Union in 1973. This did not mean that European law was to automatically take precedence over British national law. The British parliament needs to sit and come up with an enabling legislation allowing whatever provision signed for to take effect. What this means is that the British parliament is superior to Brussels. Zimbabwe needs to adopt its own ways to which our constitution, the national law, relates to international law and our treaty obligations.

Lastly, the new Constitution of Zimbabwe needs to make more use of entrenchment clauses to guard against arbitrary amendments. This is particularly important when it comes to the provision on land ownership in the new constitution.

An entrenchment clause will make it difficult or next to impossible to make certain amendments on the constitution once it has been written. The entrenchment clause may be made to require consent from various parties that may include a two thirds majority in both houses (Senate and Legislature) and the consent of the people of Zimbabwe by way of a referendum.

For example, if as Zimbabweans we are in agreement that non–indigenous Zimbabweans’ ownership of land be limited to twenty percent, then an entrenchment clause should be used to protect this constitutional reality.

Any attempt to amend the constitution that goes against the spirit of a valid entrenchment clause would render it unconstitutional. Given the history of Zimbabwe and the general resistance by minority Zimbabweans against the land reform exercise, it is justified to protect the rights of the majority of Zimbabweans, especially when it comes to land ownership by way of a constitutional provision.

Lloyd Msipa is a Zimbabwean lawyer based in the United Kingdom. He can be contacted on e-mail lmsipalaw@googlemail.com

More young Zimbabweans needed to enter mainstream politics –Lloyd Msipa

In a recent radio interview in Tanzania, the Deputy Prime minister Professor Arthur Mutambara decried the mediocrity that characterizes African politics in general and Zimbabwe in particular. His assessment of the African political landscape could not have been far from the truth. In fact this observation, I am convinced came in the back drop of the recently held parliamentary elections in the United Kingdom. These elections ushered in the youngest Prime minister in over two hundred years of British politics David Cameron, the leader of the conservative party aged 43.

The elections as we are all aware were characterized by high levels of polarity amongst the electorate following the expenses scandals that rocked West minister. This scandals did not spare any of the political parties, be it labour the conservatives or the liberal democrats. Of most importance to the subject matter is that the elections resulted in a hang parliament, in which none of the three major political parties managed to garner the 326 parliamentary seats required to form a majority government.

The result was the formation of a coalition government between the conservatives and the liberal Democratic Party with David Cameron, the leader of the conservatives becoming prime minister and Nick Clegg the leader of the liberal democrats taking up the position of the deputy prime minister.

What is important to note from this is that, whilst the politicians were bickering on who should form the next government; the civil service swiftly moved in and facilitated high level negotiations between the three parties. And forty eight hours later the country had a new government in place.
Now, if we drew a parallel with our own situation in Zimbabwe after the March 2008 elections, it seems the Deputy Prime minister has made an interesting observation that requires further interrogation. Our politics are most definitely mediocre. They are characterized by politics of personality and this engenders mediocre. The leader of the political party is central to both government and civil institutions. There is no clear demarcation between state institutions, political parties, civic institutions in Zimbabwe.

Zimbabwean civil and political institutions need to be brought to life. And the only way this can become a possibility is if there is a sudden avalanche of new, young political players that enter mainstream politics.

Zimbabwean political parties across the political divide are bottled necked at the top. The reason for this bottle neck is because there is no sufficient movement at the bottom of all these political parties to unsettle those at the top to move on. Politics does not attract many Zimbabweans despite many having gone through programs in political science at the University of Zimbabwe and elsewhere. This has resulted in the political parties being identified with the leaders that have occupied that space for many years. For example it is a truism that one can not imagine a ZANU PF without President Robert Mugabe. And equally true one can not imagine an MDC without Morgan Tsvangirayi. To demonstrate the extent of personality politics the latter is referred to as MDC-T. What does this say about our politics? Can you imagine the labour being called New Labour- G (Gordon Brown) our politics are dominated by personalities instead of the political party as an institutions being stronger than the individual.

Zimbabwe needs a new breed of politicians that will take Zimbabwe beyond the politics of personalities. We need to usher in a new politics that is based on institutions being stronger than the personalities that lead them. For example, if Zimbabwe had strong institutions by way of the civil service, the inconclusive election outcome of March 2008 would not have required SADCC or the AU to settle the differences.

In the United Kingdom for instance power passed within labour, a political party, from Tony Blair to Gordon Brown. And when the labour party got less votes in the recently held parliamentary elections, Gordon Brown, the leader passively resisted to hand over power, the political institutions moved in swiftly to usher him along. This only happened because the mechanisms within the labour party to replace him were already in motion the moment he lost the majority seats in the House of Commons to rival parties as the leader of the party.

Even closer home, the Africa National Congress (ANC) party recalled a sitting president from his position. This is the strength we need to cultivate in the new political culture of Zimbabwe, strong institutions. The need for new young players in Zimbabwean mainstream politics is a prerequisite for this to happen. It is not possible for Zimbabweans to expect the current crop of elderly politicians to do this, MDC, ZANU PF or otherwise.

As young Zimbabweans we need to move beyond the politics of blame, excuses, violence, fear and realizes that we are the masters of our destiny. We need to move and take up the challenge of entering politics in our country. Zimbabwe needs young and brilliant minds that will move swiftly to put in place civil and political institutions that are independent of the various political parties. This will make politics more attractive for future generations to come. There are sufficient young and brilliant Zimbabwean minds sitting both at home and in the Diaspora that need to make a conscious decision to enter politics and become part of the solution.

The question we need to consciously ask ourselves is: How long can we rely on external organizations and governments to help us govern our own country? One can count the number of young politicians in Zimbabwean mainstream politics in one hand as compared to the large number of geriatrics that occupy the rest of mainstream politics. By entering mainstream politics in large numbers we will nudge the old generation to move on. Large numbers of young politicians will make it increasingly more difficult for our leaders from yesterday to hang around longer than is necessary to do so. Power struggles within political parties will fast become a thing of yesterday as leaderships in political parties change hands more frequently.

The entry into mainstream politics by young Zimbabweans in large numbers will transform our politics from mediocrity to excellence. As Hobbes once said, “As in the case of all human dilemmas, the anger, heartache, and despair is for the most part entirely too self-conscious. It is no one man's responsibility to make the world safe for democracy, but everyone's to make it safe for unself-conscious acts of compassion and charity. "Don't be afraid," Siddhartha Gautama (Buddha) said,” of doing good."