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By Phillan Zamchiya

Dear Reader, I argue for a moratorium on the continued rise of large-scale acquisitions of customary land for private ‘investments’ in the marginalised rural areas of Zimbabwe to allow for a post-colonial democratic national resolution of the three issues articulated below. The latest such unchallenged trend is epitomised by the recently gazetted Statutory Instrument 50 of 2021. This Communal Land (Setting aside of Land) (Chiredzi) Notice, 2021) by Minister of Local Government, Urban and Rural Development orders about 13 840 people occupying or using 12 940 hectares of customary land in Chilonga communal area in Chiredzi to depart immediately and permanently. This is meant to pave way for lucerne grass farming by Dendairy Private Limited. This is a local company in Zimbabwe which produces dairy products like ice-cream and yoghurt. For emphasis, this is not an isolated case, as land rights holders-vulnerable women and men- living on marginal customary land face similar types of evictions in marginal places like Hwange and Chipinge districts. Now to the reasons.

First, the government is partly basing its decision on a narrow belief that private big estates are the only vehicle for economic transformation despite widespread evidence to their detrimental effects on the vulnerable people’s diverse livelihoods on the African continent. In line with this narrow pathway, the Minister of Local Government, July Moyo, romanticised such land acquisition in Chilonga as a way to ensure big livestock production and generate foreign currency for the nation. Conversely, the government portrays modes of production by the Shangaan people in Chilonga as pristine and unable to drive economic rural development. This approach is problematic because it is premised on a narrow development transition pathway that envisions big companies (like Dendairy PVT LTD) led farming in the countryside as the only viable model. The logic also reflects some of the flawed modernisation narratives of the colonial era, 40 years after gaining independence from British colonial rule. However, from the rich empirical data on livelihoods gathered by Masvingo Centre for Research Advocacy and Development (MACRAD, p.3) the people of Chilonga are already involved in diverse crop farming and livestock production. They are producing sorghum (xibedlani, xitishi and mutode), millet (mahuvu and mpowo), some maize, sweet potatoes, cotton, pumpkins (mandunghu) and groundnuts(timanga). They also own cattle, sheep and close to 100% of the households own goats. Why then would the Government choose to destroy and disrupt the local livelihoods?

One alternative pathway to rural development would also require an emphasis on development projects that ensure that men and women living in rural areas do not lose their customary land. For the avoidance of doubt, this is not an argument to maintain the status quo, or to preserve low productivity in Zimbabwe’s marginalised rural areas. For those who intend to create a strawman, I am not saying private investments in agriculture in the countryside should be eschewed. Rather, I am envisioning an alternative pathway where investments will be directed towards ends that lead to people-centred and people-driven rural development in line with their developmental needs. It is a scenario in which the Ministry of Agriculture, for example, channel massive agricultural investment into the support of diverse livelihoods, crop and livestock farming activities by the people of Chilonga. I am inclined to apply De Schutter (2011, p.262)’s logic in this case. That the people of Chilonga can better be helped by private investments upstream and downstream of their production process of small grains and livestock, focusing on the provision of public goods that can improve productivity and access to markets, and on institutional innovations that can strengthen their position and allow them to obtain better earnings in ways that enable them to reinvest for expanded reproduction and therefore contributing to wider economic development. A moratorium would allow the nation space to envision such alternative rural development models as viable options.

Second, Zimbabwe’s land laws do not explicitly mention the right to consent in line with the universal principle of Free Prior Informed Consent (FPIC) and the national 2013 constitution. A moratorium would allow the Government to entrench the universal right to self-determination in order to protect vulnerable communities such as the people of Chilonga. The current land laws give power to the President, local authorities and traditional leaders and responsible Ministers to act on behalf of men and women who live on customary land. This limits the power of the actual land rights holders to say yes or no to development projects. The outdated Communal Lands Act does not explicitly mention the need to seek consent from the communities. FPIC is an international principle that gives people the right to say yes or no to developmental projects therefore upholding the universal right to self-determination (FAO 2014, p.12). FPIC at a policy implementation level, entails that the rights-holders, men and women, must make decisions free from undue influence, coercion, bribe and fear. Prior means that consent must be sought before the project starts and that there should be sufficient time to decide before the commencement of the investment project. In addition, the rights-bearers must be informed before deciding. That means having accurate, understandable, accessible and complete information about the investment on an on-going basis. Finally, consent refers to the collective decision made by the rights-holders (including women, youths and people with disabilities) which can be a yes or a no, or a conditional yes, and can be revisited during the different stages of the investment project. None of those principles were applied to the vulnerable land rights holders, men and women, of Chilonga.

On a comparative basis, South Africa has an explicit (albeit temporary) law that entrenches the FPIC principle that govern the acquisition of customary land. The Interim Protection of Informal Land Rights Act (IPILRA) of 1996 is meant to protect informal rights to land such as the right to use, gain access to or to occupy land under customary law in the former homeland areas. Consequently, IPILRA requires that the holder of informal land rights must consent to dispose of such a right. Section 4 notes that the land right, ‘… can only be disposed by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate’. South Africa’s jurisprudence has strengthened the right to give consent. In 2018, the North Gauteng High Court ruled that the Xolobeni community in the Eastern Cape, has a right to say no to a mining project, in line with IPILRA and the international principle of FPIC.

Third, even in the context of the Zimbabwean state using its expropriation powers, as happens elsewhere, the current compensation model for customary land reinforces a pervasive neo-colonial policy line that casts land under customary tenure as being of little or no economic value. Or what De Soto (2002) infamously termed ‘dead capital’. A moratorium would allow the nation to revisit the compensation model. Where rural inhabitants have lost land held under customary tenure such as in Chisumbanje for biofuel production or for Tokwe-Mukosi dam in Masvingo, state officials have routinely contended that investors are only obliged to pay for improvements on the land, rather than the land itself. This practice prevails despite the 2013 constitutional recognition of customary land rights. Policymakers mistakenly fail to fully recognize customary land rights because such rights are not formally registered, ultimately depriving affected communities of fair and adequate compensation. However, not only is land undervalued, so too is the value of agricultural and other productive activities such as hunting and gathering by the affected people of Chilonga, in a context where neither the market value nor cost of restoring diverse rural livelihoods is clear. The current trend is one of underplaying losses in the wider ecosystem. Equally important is the understating of non-monetary losses in contemporary compensation models. Non-material losses are central to human development such as cultural rights, identity and citizenship, belonging, history and memory. In Chilonga, there are a number of sacred hills and scared areas such as Chigwejiva Sala for rainmaking ceremonies and cultural activities. All that is not explicitly modelled in Zimbabwe’s current compensation models.

I therefore emphasise the need for the Zimbabwe Government to put a moratorium on rural evictions until the nation can collectively revisit this narrow pathway to rural development based on an envisioned teleological transition to big private investors acquiring huge tracts of customary land in the marginal areas as in the colonial era. A moratorium would: (a) allow the nation to debate and promote an alternative rural development model that protects customary land rights for vulnerable men and women without taking away their land; (b) allow for the entrenchment of the right to self-determination in line with the universal principle of FPIC; and (c) provide space for an evaluation of the current compensation models for loss of customary land, land rights and wider livelihoods and cultural rights.

The three ideas suggested here are not exhaustive but are big propositions that can lead to securing customary land rights for vulnerable women and men in the marginal areas (like the people of Chilonga) and foster inclusive rural development, particularly in the context of a renewed rush for ‘cheap’ customary land in Zimbabwe by local and foreign investors.

Dr. Phillan Zamchiya is a senior researcher at PLAAS.