Nature of Land Tenure systems in Zimbabwe

By Sir Colins

The greatest challenge you will ever face is that of expanding your mind. It’s like crossing the great frontier. You must be willing to be a pioneer, to enter uncharted territory, to face the unknown, to conquer your own doubts and fears. But here’s the
good news. If you are the affected resident, Academic, Student, Activist, Traditional Leader, Parliamentarian and Mr Government you can change your thinking, you can change the colonial hangover the country Zimbabwe is facing right now by rethinking the brain.

In Zimbabwe, there is ample historical and contemporary evidence of developmental projects not significantly benefiting most communities. For instance, the relocation of the Gwembe Tonga Community between 1957 and 1958 to Binga in order to pave way for the construction of Kariba dam, the relocation of the Marange Community in Manicaland to Arda Transaction, and the recent Chilonga residents in Chiredzi paving way for the grass project by a local white owned company.

While I am conscious of the idea that relocation of communities may be inevitable, I feel such actions should take into account constitutional provisions, regional and international best practice.

One of my favorite words is options. Anyone who knows me well understands that I don’t like being “fenced in.” But my desire for options is driven by more than just the desire to avoid mental claustrophobia. It’s driven by the desire to increase my
capacity. The more time goes by, the more I want to explore creative options and the less I want to rely on someone else’s system.

In light of the human security approach, I decide a comparative approach with the need to view impacts of the developmental projects holistically;
Security of tenure of communities is increasingly becoming an issue on the agenda on many African constitutional democracies and not limited to the Southern African region.
The broad continental challenge is ensuring that such vulnerable Communities requires that consideration is given to the broad perspective in ensuring that such vulnerable Communities Land use Rights are not further violated by state and it’s strong business partners. This is envisaged in the African Commission for Human and People’s Rights (ACHPR) that seeks to ensure the protection of communities rights to Land.The ACHPR provides opportunities upon which communities can protect their land rights given that SADC Tribunal will now only be able to hear cases between nation’s.

Zimbabwe has a plethora of legislation that has a bearing on communal land where most communities reside. These include the Agricultural Land Settlement Act (CAP 20:01), Communal Land Act (CAP 20:04), Rural Land Act (CAP 20:18), Rural District Councils Act (CAP 29:23) Traditional Leaders Act (CAP 29:17), Environmental Management Act (CAP 20:27), Land Acquisition Act (CAP 20:10), Mines and Minerals Act (CAP 21:05)and the Deed Registries Act (CAP 20:05).

The Communal Land Act (CAP 20:04) and Land Acquisition Act (CAP 20:10) are the two main pieces of legislation with a direct bearing on communities residing under the customary land tenure system.
The foundation of existing land tenure rights in Zimbabwe is within Germanic and Roman Dutch Law that provides the owner with use, transfer, exclusion and enforcement rights.
User rights give the owner of such rights the power to grow crops, trees, establish structures, and derives economic benefits from the use of such land.
Transfer of the rights permits the owner to sell, mortgage, hypothecate or rent the land in question.
Exclusionary rights give the holder the power and the mandate to exclude all other person’s from enjoying all other benefits that the land tenure rights bring forth.
Enforcement Rights; this is the power to apply legal, institutional and administrative provisions in the law that recognize these laws.

The application of the law has constantly reiterated communities having usufruct rights whereas ownership rights rest with the state.
The Constitution of Zimbabwe offers greater opportunities for the protection and interpretation of the usufruct rights. Usufruct rights provided both under contract and statute should now be equally protected by the property clause and certain procedures followed.

Developmental projects inevitably deprive communities residing on such land. As such, the affected communities must be given reasonable time and notice, fair and adequate compensation for their Property developments irrespective of the fact that they do not own the land. In instances of disputes emanating from the state, developer and Community, the community members themselves have the capacity to approach the court of law, commissions established by the Constitution and with the support of public interest organisatios seek protection against violations of such rights in the court of law.

The ultimate objective of the Constitution is to ensure that every citizen enjoys equal benefits considering the constitutional provisions. Accordingly, customary land tenure though not recognised under the Deed Registries Act should be equally protected.

What’s troubling is the gap between the magnitude of our challenges and the smallness of our politics and the lawmaking processes. The strategy of racial isolation commanded political, financial, and social circles and was upheld by enactment, for example, the Land Apportionment Act of 1930 and the Land Tenure Act of 1931 which differentiated land as being European or African. The urban, mining and prime cultivating country ranges were assigned for Europeans.
The Indigenous blacks possessed the more peripheral Tribal Trust Lands (TTL), later renamed as Communal Lands. A 1953 record from the Government of Southern Rhodesia, characterized the premise of neighborhood government as “a honest to goodness group or its creation. what’s more, [that] no meaning of local government is more suited or direly required in Africa than that of a group building organization” (Government of Southern Rhodesia, 1953).

SirColin believes “Life is a great big canvas and you should throw all the paint on it that you can”? I like the intent and exuberance of those words, but I don’t think that advice is very good unless you want a mess. A better thought is to make Land Tenure a homegrown masterpiece, which requires much thought, a clear idea, and selection when it comes to what paint you put on the canvas. How do you do that? By doing the important things every day.
I quote one of my favorite Writer and philosopher Henry David Thoreau who wrote, If one advances confidently in the direction of his dreams, and endeavors to live the life which he has imagined, he will meet with a success unexpected in common hours. He will pass an invisible boundary; new, universal, and more liberal laws
will begin to establish themselves around and within him; and he will live with the license of a higher order of beings.

SirColin believes in putting poor people first; in which community members must fully participate in what is being planned and implemented for them. In fact they must be the actual agents of change in the community initiatives and interventions. For community members to fully participate, they must be engaged in a dialogue with planners of various community initiatives and community members themselves to identify issues that affect them, who to engage and solutions to solve such problems. Without mobilizing community members informed participation, capacities, energies, and without increasing their knowledge and skills, no initiative can yield any impact if it’s eluding the vulnerable and marginalised.

I discovered it wasn’t a matter of physical strength, but a matter of
psychological strength. The conquest lay within my own mind to penetrate those barriers of self-imposed limitations and get to the good stuff—the stuff called potential, 90 percent of which we barely use.” If you want to tap into that unused 90 percent, ask “How can I?
A community dialogue is a process of joint problem identification and analysis leading to modification and redirection of community and stakeholders actions towards preferred future for all. A community dialogue is an interactive participatory communication process of sharing information between people or groups of people aimed at reaching a common understanding and workable solution. Unlike debate, dialogue emphasizes on listening to deepen understanding. It develops common perspectives and goals and allows participants to express their own views and interests.

The various challenge of community’s land tenure rights in the wake of increased developmental projects must be guided by international guidelines and principles that can aid in strengthening the land rights of Communities including the United Nations Basic Principles and Guidelines on Development Based evictions and displacement, and the African Union Conversation for the protection and assistance of internally displaced persons in Africa.

Gravely concerned that colonialism elevated private tenure as the best and superior of land tenure and this position has remained unchanged even after Independence.

Justice begins where inequality ends.

I rest my pen!

Authored by: Colin Simbarashe Nyangani aka SirColin
Community Development Consultant

@ SirColin Personal Mastery Coaching

Check out Colin Simbarashe’s Nyangani’s profile on LinkedIn https://www.linkedin.com/in/colin-nyangani-297a88136


Tendai Guvamombe
the authorTendai Guvamombe