In the last #BigSaturdayRead, I discussed the issue of land compensation in Zimbabwe. I presented the current legal reality and argued that, contrary to what the Zimbabwe government has said in recent years, the land issue is far from settled and remains a contentious issue because of the outstanding issue of compensation. I used two cases, both relating to land protected under Bilateral Investment Protection and Promotion Agreements (BIPPAs), in which Zimbabwe lost legal battles at the International Centre for the Settlement of Investment Disputes (ICSID). These two cases alone left Zimbabwe with a bill nearing a quarter of a billion dollars in compensation and legal costs. This financial burden has been underplayed by the government, but will weigh heavily on the shoulders of future generations.
This week, the International Monetary Fund (IMF) reported that the Zimbabwean government had indicated an intention to “improve the business environment, including by a transparent and consistent application of their indigenization policy and a new comprehensive land reform program. The latter would include a framework for land compensation”. Further, it exhorted the Zimbabwe government “to resolve outstanding land issues swiftly”. These intentions by government and exhortations by the IMF are happening within the context of Zimbabwe’s desperate efforts to re-kindle its broken relationship with the West and international financial institutions in response to the dire economic circumstances the country is facing.
Nevertheless, both politically and economically, the issue of land compensation is more complicated than is reflected in a purely legal analysis. To extract and separate it from the political and historical context does little to find a lasting solution to the challenges around this issue. This article is an extension from last week, placing the matter into its political and historical context, in order to identify the broader issues that need to be attended to do find a satisfactory solution. While there’s a general understanding of the plight of landowners who lost their properties during the government’s Fast Track Land Reform Programme (FTLRP) from 2000, most Zimbabweans are conflicted over the issue of compensation. While some support compensation there are also some who hold the view that there should be no compensation for land. There is also a belief that the burden of compensation should be borne by the former colonial power. This position is reflected in Zimbabwe’s new constitution, at the instigation of ZANU PF.
Further, there is also a widely-held sentiment among ordinary Zimbabweans that the taxpayer should not have to bear the costs of compensation given that the taxpayers are descendants of people who were driven away from those lands during the colonial era. The view is that it would be double-jeopardy: their ancestors lost the land and now they have to pay for it through compensation. Such sentiments tend to cut across current party political affiliations. Indeed, it is not uncommon to hear staunch opponents of President Mugabe and ZANU PF making an exception on the issue of land, arguing that while they disagree with the method they agree with the principle of land redistribution. Indeed, parties to the Global Political Agreement, which established the Government of National Unity in 2008, agreed that the land reform exercise was ‘irreversible’. The opposition, which had previously campaigned against the violent farm takeovers in the 2000s, was eventually forced to concede that a land revolution had taken place and was a fait accompli. Indeed, the idea of being perceived to oppose land reform became a serious political liability for the opposition, especially in the eyes of the regional African community. In short, the land issue remains complex, and to find a lasting solution, it has to be viewed beyond the narrow lens of legalism.
My thesis is that the land question will never be satisfactorily resolved unless the country adopts an holistic approach that takes into account both the legal and historical aspects of the land. This is not a case against compensation. It is a case in favour of a broader approach to compensation that takes into account the burden of history.
I have already argued, in
