White farmers compensation gets murkier

Zimbabwe's ministers of Land and Finance issued a joint statement on the farm compensation issue on September 3, 2020, a month after the controversial signing of the Global Compensation Deed between the government and two farming organisations on July 29.

The statement's purported objective was to clarify the situation with regard to land tenure and compensation since there is a high degree of confusion, both locally and internationally, as regards the agreement and the actual legality of the "deed".

However, the arrangements continue to remain opaque and are cause for mounting concern.

There are three categories of former farmers listed in Zimbabwe's constitution of 2013, which itself has a number of anomalies and contradictory clauses.

"Non-indigenous" farmers, i.e, white farmers, even though many were third and fourth generation farmers who were totally committed to their country, had been given title to their land and had invested extensively.

Furthermore, most of the farms had been purchased after independence in 1980 and had been issued with certificates of "no present interest" by the government, confirming that the government had no interest in their land for resettlement.

There were approximately 4 500 commercial farmers on the land prior to 2000 when the farm invasions began.

According to the constitution, they are only entitled to compensation for "improvements" on their farms and not for the land.

"Indigenous" Zimbabweans implicity refers to black Zimbabweans, although the constitution avoids clarifying this racial distinction.

The government has recently claimed that 440 indigenous-owned farms were "acquired" during fast-track land reform although no lists have been made available for public scrutiny. According to the constitution, they are entitled to compensation for both improvements and for the land.

"Foreign" farmers' land ownership rights were covered under bilateral agreements signed by Zimbabwe with other countries. According to the constitution, they are entitled to compensation for both improvements and for the land.

Foreign nationals whose countries signed bilateral investment treaties such as Bilateral Investment and Protection Agreements (BIPPAs) and Bilateral Investment Treaties (BITs) with Zimbabwe include primarily Germany, the Netherlands, Switzerland and Denmark.

Contrary to reports in the media, no bilateral investment treaty was ever signed with Britain.

These BIPPA and BIT properties, following high-profile international court cases, have been now been catergorised as being "protected" and their owners are theoretically able to claim back their land which was nationalised.

However, the fact remains that many of the invasions and takeovers of these BIPPA and BIT farms - as well as numerous other commercial farms across Zimbabwe - were executed with extreme brutality, causing severe injuries and in some cases costing the lives of farmers and their workers.

According to international law, compensation for moral damages can also apply.

In the von Pezold case, which was taken to the International Centre for Settlement Disputes (ICSID), which is part of the World Bank Group, the ICSID Tribunal found in 2015 that the "settlers" (invaders) had kidnapped, threatened, and physically attacked the claimants and their employees.

The ICSID Tribunal held that, even if the Zimbabwean government was not directly responsible for these attacks, the failure of the police to prevent them over the course of several years would fall short of a state's obligation to provide full protection under the law.

The ministers' joint statement does not give any concrete assurance regarding restoration of property rights - or change anything materially to bring investment and production in the agricultural sector, which is in increasingly dire straits.

The United Nations warns that by December 2020, 10 million of Zimbabwe's estimated 14 million population will require food aid to avoid starvation.

Zimbabwe has been reliant on imports and international food aid since 2001, the year after the farm invasions began.

Furthermore, there is nothing in this statement which brings confidence that government will restore the rule of law, notably in respect of land title, unless white farmers, who were born in the country and have Zimbabwean passports, are correctly re-categorised as "indigenous" according to the internationally accepted definition.

Another key issue of contention is the fact that the government is still failing to comply with the judgement of the regional human rights court, the Southern African Development Community's Sadc Tribunal, in the Campbell case judgement of November 2008.

The Tribunal ruled in the Campbell case - Mike Campbell (Pvt) Ltd et al v Republic of Zimbabwe - that the government violated the organisation's treaty by denying access to the courts and engaging in racial discrimination in the confiscation of land in the "land reform" programme in Zimbabwe.

Despite a statement by the then Lands minister in 2016 that the fast-track land reform programme was over, farmers continue to be harassed and criminalised for the "crime" of farming.

One farmer known to Sadc Tribunal Rights Watch has been in and out of court on 136 occasions regarding his precarious tenure on his farm.

He, like many others, still has a jail sentence hanging over him for committing the "crime" of farming and producing food for the country.

The reality of the land reform programme in the 2000s was that it was "politically expedient at a time when President Robert Mugabe and his Zanu-PF party were facing an unprecedented threat from the [newly formed] Movement for Democratic Change party" as opposed to the "colonial imbalances" narrative.

Ben Freeth
Sadc Tribunal Rights Watch