Zimbabwe’s Government Takings: The Need for Undeniable and Equal Rights to Property.

By Chad Antuma

Prior to enacting its 2013 Constitution, Zimbabwe was in political and economic upheaval. Notably, Zimbabwe was going through a period of hyperinflation where the Zimbabwean dollar was estimated to have lost 99 percent of its value. Some commentators believe that the root cause of this period of hyperinflation and political trauma was the lack of private property rights. Beginning in 1980 when President Mugabe came into power, the government began seizing commercial farms and other private property in an official policy effort to provide indigenous black farmers with property to work and grow crops on. These land grabs, without compensation, were most prevalent in the early 2000s when Mugabe ordered 4,500 commercial farms to be sized and given to his political pals. All of this culminated into an economic depression which scared off investment in the Zimbabwean economy. These deprivations and acquisitions of property without compensation were deemed to be clearly authorized under the 1980 constitutional framework.

Today, even with a constitutional right to property under the new constitution, a landowner’s security in agricultural property is at risk of deprivation or acquisition without compensation. Legal scholars commentating on the new constitution are divided as to what property rights private non-agricultural landholders have. There is agreement that landowners must be compensated for acquisitions of personal property. Section 71 (3) of the constitution states that “no person may be compulsorily deprived of their property,” except in certain circumstances. However, in the same section of the constitution uses “acquisition” interchangeably with “deprivation.” The split opinions are on whether the constitution commands compensation for both deprivations and acquisitions of personal property.

While the constitution does provide safety for property owners from government acquisitions of their property, what happens if the landowner is only deprived of their property, must they be compensated? This question remains to be answered, but brings up new questions as well, what is deprivation of the property; would the government benefit, in the way Mugabe’s officials did in the past, from merely depriving people of their property; and will these new property rights draw in the investment that Zimbabwe needs to advance economically? I think most will agree that investors need to be reassured, after the years of land grabbing, that their investment will at least be safe from being procured from the government. Without that reassurance, there will be significant concern that the Zimbabwean government will return to its land grabbing days under the Mugabe regime.

With President Mugabe’s recent choice to resign, Zimbabwe held elections and chose a new president for the first time in 37 years. The new president, Emmerson Mnangagwa, has declared that the controversial land takings that took place under Mugabe’s rule will not be reversed and affirmed that the in modernizing the agricultural industry the “government will continue to facilitate the enhanced processing and value addition of our resources.” This ominous statement should leave agricultural investors with a reason to stay far away from Zimbabwe’s farmlands and probably from Zimbabwe property in general.

Governmental takings will likely remain to be a foremost concern for non-indigenous peoples of Zimbabwe, but there are other property rights at stake in private rights to property affecting the indigenous people of Zimbabwe. Widows, yes widows, are fighting an uphill battle to claim real property that should be transferred to them without much effort. Despite the affirmative declaration in the Zimbabwe constitution that everyone has a right to hold and acquire property, certain groups, including widows of deceased landowners, are struggling to keep property that they should be legally entitled to. Many courts are choosing not to recognize woman’s rights to the very property that they have lived in and maintained while their husbands were alive. The new constitution does demand equal protection of the laws for women, which does include protection of property rights. However, this right to property has been difficult to exercise at best, and men and families of the deceased have been successfully usurping land from widows with ease. This indifference the government has been showing to its new constitution should leave all property owners in Zimbabwe uneasy about their new property rights.

Further, the Zimbabwean Constitution provides another equal protection and non-discrimination clause that should protect non-indigenous people from the laws. Clearly, this has not been the case in the past, non-indigenous landowners have been subject to discriminatory laws since the beginning of the Mugabe administration, and are certainly subject to agricultural land grabs today. This is not likely to change. In fact, it is likely to be repeated in other parts of Africa, specifically, reports state that South Africa will soon be facing problems with a similar land grabbing policy.

Until a standardized system of property rights recognition has been fully integrated and litigated outside investment into the Zimbabwean economy should remain thin. Unless Zimbabwe takes more affirmative action toward recognition of everyone’s property rights or a method of international enforcement is developed, Zimbabwe will continue to be labeled the land grabbing nation that it pretends it isn’t.