Rhodes estate should compensate white framers, not Mugabe

Compensation to white farmers for Zimbabwean land should be based on proper historic analysis that gives due credit when necessary but also brings the United Kingdom to the table as a responsible party. The issue was land tenure in 1979, now it has shifted to land compensation. All parties have a shared responsibility.

An international conference similar to the Lancaster House Agreement , Pretoria Accords for example, may bring all interested stake holders to the table to address compensation including the United Kingdom, any solution that does not involve the UK is lacking in its legal reasoning. If present Zimbabwean government can agree with opposition to revisit the constitutional framework that birthed Zimbabwe, perhaps that country might address some overhanging issues and promises can be made for the 2018 election.

Constitutions and Treaties are amended all the time, and Zimbabwe should be given the same opportunity to address problems remaining from the Lancaster House Treaty. The issue that remains is final payment of the dispossessed white farmers, the current UK government cannot refuse to dishonor its 1979 agreement on the basis of a change in internal party politics of the UK. A government treaty with another nation is operative outside of the sitting parliament, otherwise the whole integrity and contractual nature - as good as my word - basis, of the legal system will collapse. Tony Blair, then United Kingdom Prime Minister refused to compensate white farmers unless stating that his government had nothing to do with Lancaster House. This level of dishonesty is remarkable given that British descendants would like to hold future post-Mugabe governments accountably for compensation.

The Treaties between Native Americans and the US government are an exception and not a norm because they occur between a Nation (tribe), and a country, a defeated Nation for that matter! In this case, Zimbabwe and the United Kingdom are two countries who agreed on certain bilateral obligations.

Perhaps, the United Kingdom could pass its obligations to pay farmers in Zimbabwe under the Lancaster House Accord to the late Cecil John Rhodes' Estate, who had a hefty hand in Rhodesia. The very symbol of Zimbabwe's Romanesque political heritage - the stone Chapungu, or eagle was stolen and kept in Rhodes' house, Groote Schuur, in Cape Town, until the fall of Apartheid in 1994. Under Rhodes, Rhodesia was conceived and became a settler colony - there is a history of crimes against humanity in Rhode's settler colony, and war crimes by Mr. Rhodes himself, that do not need to be documented here in the interest of civil standards of taste and civility. Mr. Mugabe's crimes pale in the face of Rhodes' documented modus operandi.

Zimbabweans should not pick up the bill for Rhodesia. Land is still largely a Rhodesian created problem and not solely a Zimbabwean solution; there is a basis to address this within the LHA which transferred power to Zimbabwe. And Rhodesia was an extension of the United Kingdom, as history tells us. It was the then British Monarch represented by Prince Charles that handed power to Mugabe and not the Rhodesian government; a rare feat for an African country, to achieve such independence from both the settler and the settler's Crown by guerrilla warfare. Ian Smith called it - The Great Betrayal.

This principle of justice against the Rhodes Estate is known as disgorgement of unjust enrichment, and results in a constructive Trust for any third party - here, the white farmers. It is the Rhodes Esate which has the money to pay white farmers, not the new Zimbabwean government post-Mugabe. A properly drafted amendment to the '79 Lancaster House Accord should solemnize this in writing! Zimbabwe's opposition should be strategic enough, not to inherit a debit ridden and litigious Zimbabwe, they should insist that Mugabe make promises in writing as an amendment in the Lancaster House Accord; and also agree on election reform for 2018 monitored by non-regional groups - The Carter Foundation, United Nations, The Elders etc.

Interesting enough, Jimmy Carter as the then US President had broken the grid lock between Zimbabwean guerrillas on one side, and the Rhodesian government on one side, at the Lancaster House talks in London, on the issue of land compensation by suggesting an international fund. Perhaps, Mr. Carter can play a similar role, 37 years later, as a mediator between Zimbabwe and the United Kingdom, a a prelude to elections?

To inherit a bill from Zanu PF would be a worthless victory at the ballot box for any Zimbabwean political party, it could lead to a nostalgic return of Zanu PF styled politics in the follow up election; subsequently this back and forth, between die-hards and progressives will ruin Zimbabwe in the long run.

In the alternative, Zimbabwe should file litigation against the United Kingdom in the International Court of Justice (ICJ) in the Hague for breach of the Lancaster House Accord. This lawsuit addresses breach of an international accord, as well as breach of a promise by the United Kingdom. At the end of the day, the most culpable party would be Cecil Rhodes, who directed and funded white colonialism in Southern Rhodesia, his Estate has both the money and good offices to compensate white farmers.

There is a desire to write about Zimbabwe in an isolated era approach, the Mugabe rule syndrome. Before there was Mugabe, - Zimbabwe was Rhodesia, and Rhodesia's history is equally important in understanding what's going on there presently.

Ken Sibanda is an American Constitutional attorney born in Qunu, South Africa. Known affectionately as "Tecumseh," he was written extensively for numerous world publications on democracy and the rule of law. He is the author of "International Constitutional Law: Peace Accords, Most recently he directed the movie: 1948.