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Why US$3.5bn deal for farmers is problematic

09 Aug 2020 at 10:07hrs | Views
PATRICK Chinamasa, acting spokesperson in President Emmerson Mnangagwa's Zanu-PF government, has announced that, through the signing of the government's "Global Compensation Agreement" on July 29, 2020, there is now acceptance from white commercial farmers that there will be no compensation for land from the Zimbabwean government.

Chinamasa emphasised that by agreeing on the amount of compensation for improvements, the timeframe for payment and the modalities for raising the resources, Zanu-PF wished it to be known that it no longer considered the Commercial Farmers' Union (CFU) and the Southern African Commercial Farmers' AllianceZimbabwe (Sacfa-Z) to be anti the land redistribution programme.

Further to these comments published in The Herald on August 5, 2020, Chinamasa stated that white farmer organisations were now no longer against the taking of their members' farms.

He called for the CFU and other farmer organisations to demand the unconditional lifting of sanctions imposed by the United States.

"As we go into the future, Zanu-PF expects the voice of the two organisations in calling for the unconditional lifting of the sanctions to be loud, clear and unambiguous," he said.

Chinamasa noted that the conclusion of the Global Compensation Agreement was "an acceptance by white commercial farmers that with respect to compensation for land, they should look elsewhere and not to the people of Zimbabwe nor to the Zimbabwe government.

"In terms of section 72(7) of our constitution, the obligation to pay compensation for land was placed squarely on the shoulders of the former colonial power, the British," Chinamasa added.

As Sadc Tribunal Rights watch (Sadc-TRW), we wish to distance ourselves from the Global Compensation Agreement that the CFU, Sacfa-Z and the Valuation Consortium were under extreme pressure to sign and within a minimal timeframe.

However, in the government's apparent haste to have the agreement signed, even Zimbabwe's own constitution has been violated in the laid-down procedure for the compensation process.

Although the reasons for the pressure were not clear, numerous legal experts and dispossessed farmers, many of them living in dire straits in Zimbabwe or scattered around the world, urged caution and highlighted legal shortcomings in the proposed draft agreement.

Sadc-TRW was also concerned that dispossessed farmers were not given prior sight of the actual agreement document before being asked to vote in a referendum on whether or not to accept the agreement, which was presented to them as the last option for compensation from the government.

The reality is that the government is broke and although the parties have agreed to a sum of US$3.5 billion, there is no money available or pledged, and the farming organisations are expected to work with the government to raise it internationally.

Chinamasa is a lawyer and was former Justice minister during the landmark Campbell case (Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe), which was lodged with the Sadc Tribunal in 2007.

He has been trying to find ways to circumvent the 2008 Sadc Tribunal judgement for the last 12 years.

Chinamasa has made it clear that he believes the Global Compensation Agreement is a great triumph in undermining this historic and binding judgement of the Tribunal.

The Tribunal held that the Zimbabwean government had violated Sadc's Treaty by denying access to the courts and engaging in racial discrimination against white farmers whose lands had been confiscated under the land reform programme.

The Tribunal also held that the Zimbabwean government had violated the Sadc Treaty by denying access to local courts and engaging in racial discrimination in the confiscation of the land.

With respect to the question of who should pay compensation, the Tribunal stated that in international law it is the expropriating state that should pay compensation.

Regarding compensation for the land, the Tribunal noted: "It is difficult for us to understand the rationale behind excluding compensation for such land, given the clear legal position in international law.

It is the right of the applicants under international law to be paid, and the correlative duty of the respondent [the Zimbabwean government] to pay fair compensation."

The Tribunal stressed that [the Zimbabwean government] cannot rely on its national law and its constitution to avoid an international law obligation to pay compensation.
The Tribunal was unanimous in its decision that fair compensation should be paid by the Zimbabwean government for land it had unilaterally taken.

It is important to note that more than 75% of title deeds were transferred after independence in 1980, after the government had issued "certificates of no present interest".

This meant that government had the first option on any sale.

If it did not want a farm for resettlement, it issued a certificate and the farmer could sell his land on the open market.

The Zimbabwe Democracy and economic Recovery Act (Zidera) requires that the Zimbabwean government compensates farmers fairly according to the Sadc Tribunal judgements, the rule of law and international precedents, guidelines and norms.

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Ben Freeth is the spokesperson for the Sadc Tribunal Rights Watch, Zimbabwe

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