Opinion / Columnist
Land rights in Zimbabwe, should farmers receive a symbolic $1
27 Aug 2017 at 11:51hrs | Views
This article is part two of an article on current land rights in Zimbabwe. The first article was entitled: Rhodes' Estate Should Compensate White Farmers, Not Mugabe; this article deals with damages and how much should then be paid to the white farmers whether in Zimbabwe or South Africa. Liability, as noted in the first article, lies with either Cecil John Rhodes' Estate (for funding colonization under the banner - Rhodesia) or the United Kingdom (under the Lancaster House Accord).
The legal rule of damages is that whether Zimbabweans take their case to the International Court at the Hague, in protest against the United Kingdom for not honoring the 1979 Lancaster House Agreement or take the white farmers head-on at whatever forum will be established to settle this dispute, the land never had a good title because it arises from political displacement of African territorial homeland. The amount for compensation surely can never include the original stolen land: the Zimbabwean people or government should not pay for land that was stolen and then returned after a protracted bush War to win it back. Should Jews compensate those who stole their artwork during Nazi German for the storage, exhibition, and maintenance fees?
Similar principles of compensation should be applied in court whether they involve Jews or Gentiles; Blacks or Whites; Men or Women.
The Zimbabwean war for liberation was fought for land and this land has been subsequently returned to the rightful owners. Whether it was redistributed the right way or the wrong way after it was returned is a political question of democracy. The main issue is that the treaty clauses of the Lancaster House Peace Treaty were that land be given back to the majority Africans having lost the bush war waged by the Rhodesian Front. It was Zimbabwe that was the victor of that war, not Rhodesia. This was the battle between Zimbabwe and Rhodesia; between Colonial America and Great Britain in 1789... In essence, the bush war culminated in the Patriotic Front defeating the Rhodesian Armed Forces. The Patriotic Front, led by Zanu under Robert Mugabe was voted into government following a free and fair election monitored by the United Kingdom. This culminated in independence, in as much as the United States is now independent of the then Great Britain. A similar scenario: two States fighting over territorial jurisdiction...
The Zimbabwean transition to power followed not a civil war but a revolutionary war that expanded the definition of citizen to include Africans, who were back then seen as infantile subjects. At this time in history, white Zimbabweans preferred to be known as Rhodesians. This is the backdrop to this contentious subject. For 100 years, 1890, to 1980 Zimbabwe was ruled by white settlers but the land has always been a product of African colonization, and African subjugation.
I would like to address the issue of, "we found no one here when we came from Britain." This is perhaps one of the most dangerous doctrines that is circulating around the Zimbabwe / South Africa land rights issue. Unoccupied land within a territory does not mean it does not falll within the jurisdiction of that country. The land that was settled on by the farmers fell within the local African tribal government in the form of chiefdoms. Geography and an understanding of government existed long before white settlers in Africa. For example, Africans knew where the Zulu Kingdom started and ended. As such, unoccupied stretches of land in Zululand in 1820s still fell within that Kingdom, - it was not free land awaiting development. In fact, most of the land acquired by white settlers in Southern Africa as part of the colonization process was initially based on fraudulent treaties that asked merely for "mineral rights." These mineral rights were, in reality, a coded term for land rights and colonist. The white person with the mineral right would use this to say such and such an area belongs to him.
The land in Zimbabwe was never truly the rightful property of white settlers who removed the African because it was based on theft, deception and lies; protected by a white government, and white racism. All this was overturned by the Lancaster House Accord. A treaty that while it was incorporated into the Zimbabwean constitution is still a valid treaty since some of its clauses refer to land, and settled a war between two warring Nation-State parties (Zimbabwe and Rhodesia). Treaties are a valid form of international law and unless annulled by a second treaty remain as such. As I have said in other articles, the United Kingdom and Zimbabwe eventually need to sit down and discuss this issue again.
The only measure of compensation for white farmers is for "land improvement," this is minus the cheap labour, which a constructive trust should be made for the African labourers who worked for close to nothing on the farms. Indeed, the success of the farming in Zimbabwe would not be possible if it were not for the cheap immigrant labour from Malawi, Mozambique and Zambia. Should Jews compensate those who stole their artwork during Nazi German for the storage fees and up keep of these paintings?
The importation of technology into Zimbabwe cannot be compensated because, in all regions, including Asia, shared technology is accepted as part of human co-existence. The white farmers bought machines with the proceeds that were a result of cheap immigrant labourers from Malawi and Zambia. This is the cycle that we have. If you remove the cheap labour then the whole system would have collapsed overnight, and Zimbabwean agriculture would not have been successful.
It is a known fact that in litigation, sometimes the judge has to give a symbolic measure of damages as one dollar because while the litigant, here the white farmer, is right if one takes a superficial mode of analysis, however, the litigant is wrong if you look at the totality of facts. In any land dispute, even modern land disputes involving merely questions of who has a good deed, the fact that one has a deed in his name and his hands does not mean he is the rightful owner of the house; fraud and theft can set aside any purchase if the person knows the house is stolen. This is the rule on bonafide purchasers Again, this one dollar should be paid either by the Rhodes's Estate or the United Kingdom. One dollar because the Courts cannot ignore the pain and suffering caused by colonialism, cheap labour with no wages, humiliating conditions as farm labourers, the very embodiment of racism.
To argue that a future government of say Tsvangirai or Tendai Biti should compensate farmers for land, is to ignore both the Lancaster House obligation under that Treaty and the Zimbabwean Revolutionary war of 1965-1979. Private litigation by farmers against Zimbabwe in South African courts is unfortunate because it undermines African sovereignty, for both Zimbabwe and South Africa. It is essentially undemocratic.
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Ken Sibanda, is an American Constitutional attorney, born in Transkei, 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.
The legal rule of damages is that whether Zimbabweans take their case to the International Court at the Hague, in protest against the United Kingdom for not honoring the 1979 Lancaster House Agreement or take the white farmers head-on at whatever forum will be established to settle this dispute, the land never had a good title because it arises from political displacement of African territorial homeland. The amount for compensation surely can never include the original stolen land: the Zimbabwean people or government should not pay for land that was stolen and then returned after a protracted bush War to win it back. Should Jews compensate those who stole their artwork during Nazi German for the storage, exhibition, and maintenance fees?
Similar principles of compensation should be applied in court whether they involve Jews or Gentiles; Blacks or Whites; Men or Women.
The Zimbabwean war for liberation was fought for land and this land has been subsequently returned to the rightful owners. Whether it was redistributed the right way or the wrong way after it was returned is a political question of democracy. The main issue is that the treaty clauses of the Lancaster House Peace Treaty were that land be given back to the majority Africans having lost the bush war waged by the Rhodesian Front. It was Zimbabwe that was the victor of that war, not Rhodesia. This was the battle between Zimbabwe and Rhodesia; between Colonial America and Great Britain in 1789... In essence, the bush war culminated in the Patriotic Front defeating the Rhodesian Armed Forces. The Patriotic Front, led by Zanu under Robert Mugabe was voted into government following a free and fair election monitored by the United Kingdom. This culminated in independence, in as much as the United States is now independent of the then Great Britain. A similar scenario: two States fighting over territorial jurisdiction...
The Zimbabwean transition to power followed not a civil war but a revolutionary war that expanded the definition of citizen to include Africans, who were back then seen as infantile subjects. At this time in history, white Zimbabweans preferred to be known as Rhodesians. This is the backdrop to this contentious subject. For 100 years, 1890, to 1980 Zimbabwe was ruled by white settlers but the land has always been a product of African colonization, and African subjugation.
I would like to address the issue of, "we found no one here when we came from Britain." This is perhaps one of the most dangerous doctrines that is circulating around the Zimbabwe / South Africa land rights issue. Unoccupied land within a territory does not mean it does not falll within the jurisdiction of that country. The land that was settled on by the farmers fell within the local African tribal government in the form of chiefdoms. Geography and an understanding of government existed long before white settlers in Africa. For example, Africans knew where the Zulu Kingdom started and ended. As such, unoccupied stretches of land in Zululand in 1820s still fell within that Kingdom, - it was not free land awaiting development. In fact, most of the land acquired by white settlers in Southern Africa as part of the colonization process was initially based on fraudulent treaties that asked merely for "mineral rights." These mineral rights were, in reality, a coded term for land rights and colonist. The white person with the mineral right would use this to say such and such an area belongs to him.
The land in Zimbabwe was never truly the rightful property of white settlers who removed the African because it was based on theft, deception and lies; protected by a white government, and white racism. All this was overturned by the Lancaster House Accord. A treaty that while it was incorporated into the Zimbabwean constitution is still a valid treaty since some of its clauses refer to land, and settled a war between two warring Nation-State parties (Zimbabwe and Rhodesia). Treaties are a valid form of international law and unless annulled by a second treaty remain as such. As I have said in other articles, the United Kingdom and Zimbabwe eventually need to sit down and discuss this issue again.
The only measure of compensation for white farmers is for "land improvement," this is minus the cheap labour, which a constructive trust should be made for the African labourers who worked for close to nothing on the farms. Indeed, the success of the farming in Zimbabwe would not be possible if it were not for the cheap immigrant labour from Malawi, Mozambique and Zambia. Should Jews compensate those who stole their artwork during Nazi German for the storage fees and up keep of these paintings?
The importation of technology into Zimbabwe cannot be compensated because, in all regions, including Asia, shared technology is accepted as part of human co-existence. The white farmers bought machines with the proceeds that were a result of cheap immigrant labourers from Malawi and Zambia. This is the cycle that we have. If you remove the cheap labour then the whole system would have collapsed overnight, and Zimbabwean agriculture would not have been successful.
It is a known fact that in litigation, sometimes the judge has to give a symbolic measure of damages as one dollar because while the litigant, here the white farmer, is right if one takes a superficial mode of analysis, however, the litigant is wrong if you look at the totality of facts. In any land dispute, even modern land disputes involving merely questions of who has a good deed, the fact that one has a deed in his name and his hands does not mean he is the rightful owner of the house; fraud and theft can set aside any purchase if the person knows the house is stolen. This is the rule on bonafide purchasers Again, this one dollar should be paid either by the Rhodes's Estate or the United Kingdom. One dollar because the Courts cannot ignore the pain and suffering caused by colonialism, cheap labour with no wages, humiliating conditions as farm labourers, the very embodiment of racism.
To argue that a future government of say Tsvangirai or Tendai Biti should compensate farmers for land, is to ignore both the Lancaster House obligation under that Treaty and the Zimbabwean Revolutionary war of 1965-1979. Private litigation by farmers against Zimbabwe in South African courts is unfortunate because it undermines African sovereignty, for both Zimbabwe and South Africa. It is essentially undemocratic.
--------------
Ken Sibanda, is an American Constitutional attorney, born in Transkei, 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.
Source - Ken Sibanda
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