Opinion / Columnist
Honour the Signature: Why Zimbabwe Must Pay BIPA Farmers and Protect Its Future
2 hrs ago |
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Dr Masimba Mavaza
HARARE - The word "BIPA" haunts Zimbabwe's land debate. To some it means betrayal of land reform. To investors it means a broken promise. But in law, BIPA means one thing only: a treaty Zimbabwe signed, ratified, and must honour.
BIPA = Bilateral Investment Promotion and Protection Agreement. Zimbabwe signed over 30 of them between 1996-2009 with countries including the Netherlands, Germany, Switzerland, Denmark, China, and the UK. The goal was simple: "Bring your money, build farms, factories, jobs. We will protect your investment."
Those treaties are now the legal battlefield over "BIPA farms" - commercial farms owned by citizens of those treaty countries when the Fast Track Land Reform began in 2000.
1. What the Law Actually Says
A. The Constitution, Section 34 & 327
Zimbabwe's Constitution says: "Any international treaty which has been concluded and ratified by Zimbabwe shall be binding on Zimbabwe." Section 327(6) also says international agreements are part of our law once ratified by Parliament.
Zimbabwe ratified the Netherlands BIPA in 1998, the Germany BIPA in 2000, the Switzerland BIPA in 1997. Parliament approved them. That makes them Zimbabwean law, not "foreign law".
B. The BIPA Text Itself – "No Expropriation Without Compensation"
Article 5 of the Netherlands-Zimbabwe BIPA, typical of all BIPAs, states:
"Neither Contracting Party shall take measures of expropriation or nationalization… except for a public purpose, under due process of law, on a non-discriminatory basis and against payment of prompt, adequate and effective compensation."
Land reform was for a public purpose. But "prompt, adequate and effective compensation" was the price the treaty demanded. To take the land and refuse compensation is to breach the exact clause Zimbabwe signed.
C. International Law: Pacta Sunt Servanda
This is a bedrock principle of the Vienna Convention on the Law of Treaties, which Zimbabwe ratified. It means "agreements must be kept". A state cannot use its internal law or politics as an excuse to break a treaty it freely signed. As the saying goes: "A signature is a country's bond."
D. ICSID & Arbitration Risk
Most BIPAs give foreign investors the right to sue Zimbabwe at ICSID – the World Bank's arbitration court. Zimbabwe has already lost cases: Bernhard von Pezold v Zimbabwe and Border Timbers v Zimbabwe. Awards exceed $200m + interest. Refusing to pay BIPAs means more lawsuits, more judgments, and assets like Air Zimbabwe planes or embassy accounts being attached abroad.
2. Five Reasons Zimbabwe MUST Honour BIPA Obligations
1. To Protect the Rule of Law at Home
If government can break treaties with Dutch farmers today, why can't it break contracts with Zimbabwean pensioners tomorrow? Law must be equal. Honouring BIPA proves that in Zimbabwe, "a signature means something". That protects every Zimbabwean's property rights, not just foreigners'.
2. To Unlock Money for Development
No investor brings money to a country that burns treaties. Since 2000, FDI into Zimbabwe collapsed. But after the 2020 Global Compensation Deed, the IMF, World Bank and AfDB began "re-engagement" talks. Honouring BIPAs is the key that opens the door to loans for roads, power, hospitals. It's not paying the Dutch. It's paying for Zimbabwe's future.
3. To End Sanctions & Isolation
BIPA breaches are repeatedly cited by the US, EU and UK as reasons for targeted sanctions. Section 5 of ZDERA in the US specifically mentions "failure to honour international agreements on property". Paying BIPA farmers removes one major legal justification used to keep Zimbabwe isolated.
4. To Avoid Paying More Later
Delay is expensive. ICSID awards attract 6-8% interest per year. The $3.5bn Global Compensation Deed signed in 2020 is cheaper than the $8bn+ Zimbabwe would owe if every BIPA case went to final award with 20 years of interest. Honouring BIPAs now is fiscal responsibility.
5. To Separate Justice from Economics
Land reform corrected a historical wrong. No one disputes that. But BIPA compensation does not reverse land reform. The land stays with Zimbabweans. Compensation
BIPA = Bilateral Investment Promotion and Protection Agreement. Zimbabwe signed over 30 of them between 1996-2009 with countries including the Netherlands, Germany, Switzerland, Denmark, China, and the UK. The goal was simple: "Bring your money, build farms, factories, jobs. We will protect your investment."
Those treaties are now the legal battlefield over "BIPA farms" - commercial farms owned by citizens of those treaty countries when the Fast Track Land Reform began in 2000.
1. What the Law Actually Says
A. The Constitution, Section 34 & 327
Zimbabwe's Constitution says: "Any international treaty which has been concluded and ratified by Zimbabwe shall be binding on Zimbabwe." Section 327(6) also says international agreements are part of our law once ratified by Parliament.
Zimbabwe ratified the Netherlands BIPA in 1998, the Germany BIPA in 2000, the Switzerland BIPA in 1997. Parliament approved them. That makes them Zimbabwean law, not "foreign law".
B. The BIPA Text Itself – "No Expropriation Without Compensation"
Article 5 of the Netherlands-Zimbabwe BIPA, typical of all BIPAs, states:
"Neither Contracting Party shall take measures of expropriation or nationalization… except for a public purpose, under due process of law, on a non-discriminatory basis and against payment of prompt, adequate and effective compensation."
Land reform was for a public purpose. But "prompt, adequate and effective compensation" was the price the treaty demanded. To take the land and refuse compensation is to breach the exact clause Zimbabwe signed.
C. International Law: Pacta Sunt Servanda
This is a bedrock principle of the Vienna Convention on the Law of Treaties, which Zimbabwe ratified. It means "agreements must be kept". A state cannot use its internal law or politics as an excuse to break a treaty it freely signed. As the saying goes: "A signature is a country's bond."
D. ICSID & Arbitration Risk
Most BIPAs give foreign investors the right to sue Zimbabwe at ICSID – the World Bank's arbitration court. Zimbabwe has already lost cases: Bernhard von Pezold v Zimbabwe and Border Timbers v Zimbabwe. Awards exceed $200m + interest. Refusing to pay BIPAs means more lawsuits, more judgments, and assets like Air Zimbabwe planes or embassy accounts being attached abroad.
2. Five Reasons Zimbabwe MUST Honour BIPA Obligations
1. To Protect the Rule of Law at Home
If government can break treaties with Dutch farmers today, why can't it break contracts with Zimbabwean pensioners tomorrow? Law must be equal. Honouring BIPA proves that in Zimbabwe, "a signature means something". That protects every Zimbabwean's property rights, not just foreigners'.
2. To Unlock Money for Development
No investor brings money to a country that burns treaties. Since 2000, FDI into Zimbabwe collapsed. But after the 2020 Global Compensation Deed, the IMF, World Bank and AfDB began "re-engagement" talks. Honouring BIPAs is the key that opens the door to loans for roads, power, hospitals. It's not paying the Dutch. It's paying for Zimbabwe's future.
3. To End Sanctions & Isolation
BIPA breaches are repeatedly cited by the US, EU and UK as reasons for targeted sanctions. Section 5 of ZDERA in the US specifically mentions "failure to honour international agreements on property". Paying BIPA farmers removes one major legal justification used to keep Zimbabwe isolated.
4. To Avoid Paying More Later
Delay is expensive. ICSID awards attract 6-8% interest per year. The $3.5bn Global Compensation Deed signed in 2020 is cheaper than the $8bn+ Zimbabwe would owe if every BIPA case went to final award with 20 years of interest. Honouring BIPAs now is fiscal responsibility.
5. To Separate Justice from Economics
Land reform corrected a historical wrong. No one disputes that. But BIPA compensation does not reverse land reform. The land stays with Zimbabweans. Compensation
Source - Dr Masimba Mavaza
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