What Britain owes Zimbabwe

I HAVE written several articles that have addressed Zimbabwean human rights and rule of law, as well as South African foreign policy. I now turn my attention to Zimbabwean legal constitutional history and in particular "The Declaration of Rights' clause that says - Zimbabwean land redistribution programme had to wait for ten years. That clause was greatly debated and the nationalists only agreed to sign the Accords after assurances from then US President, Jimmy Carter; and so the US joined Britain by default - in agreeing to also help fund an equitable land redistribution program.

I am not Mugabe's lawyer, neither am I Britain's'. But, for an effective peace process in Zimbabwe, this piece of the puzzle has to be addressed - land redistribution, as part of that nation's transitional justice.

Zimbabwe is a small country, but equally a country of tremendous potential if allowed to grow unencumbered. Its greatest asset is its land, capable of feeding the whole of Africa; and its people. My mother who was born in Zimbabwe always reminded me that Zimbabwe was the bread and South Africa - the wine; both are needed for a solid Shabbat.

In 1979, the Lancaster House Accords signed by Lord Carrington agreed to an equitable compensation in the distribution of farmland. Verbal agreements supplemented the written records; the written accord is an incomplete document. The minutes and session discussions are also incorporated into the final Accords if the parties so intended.

At present, the British government has stated that it's unwilling to meet those promises for compensation. From Tony Blair's government to Cameroon, the UK government is unwilling to move forward on land compensation unless Mugabe exits. Human rights, I am beginning to concede, is not the only pressing issue: international law and agreements will also play a role in Zimbabwe's political growth.

For starters during the Rhodesian bush war the Rhodesian armed forces engaged in racist and systemic human rights violations; labelled as ant-communist in nature. Mugabe was knighted by Britain in the past, at a time some argue he was involved in human rights violations - how a person earns a knighthood in this context is a million dollar question: Sir Robert Mugabe.

As for land ownership, the guerrilla fighters argued that since The Creator had put them on the land without white people, there was by Natural Law a right for self-rule, and this was inalienable to the African. The thing speaks for itself - res ipsa loquitur.

While I remain critical of Mugabe's rule and government on the basis of human rights, I concede that Mugabe is, in some instances, heroic and right on issues Africans face in general. Issues such as racism, marginalization, lack of international credit, lack of representation at bodies such as the United Nations and breached promises from past treaties.

Mugabe is in no way a misdirected comet in the African sphere, but is an unsentimental man whose manner of addressing issues is sometimes blant. He is the anti-Mandela in that sense. Whereas Mandela aspired to be an international statesman, Mugabe does not aspire for that. Mugabe is fighting right to the end for principles and rights he believes in, some principles that will outlive him; more specifically African land claims. I always say if Mandela was more like Mugabe; and Mugabe more like Mandela that region - Southern Africa - would have benefitted greatly from both.

Legal Precedent:

On land distribution Mugabe is correct - the British do owe the Zimbabwean people assistance in its historic implementation for the simple reason that the British government of 79' agreed to assist Zimbabwe's land programme regardless of Mugabe's human rights record or misrule. It was an issue litigated/concluded and discussed at Lancaster House and binding. Zimbabwe can argue collateral estoppel.

Collateral estoppel is rule of law that says previous issues are binding when concluded between parties and cannot be raised again. In that breath, land was an issue, factually discussed by Britain and Zimbabwe's future government. It binds future parties in-interest. Land was the key issue why the guerrilla war was fought; for Britain to say no verbal agreement was ever settled is a disservice to all involved.

The Lancaster Accords were not conditioned on good governance. The breach of treaties such as this one that were signed by six agents of change has its redress in international bodies such as the United Nations. This would be morbidly embarrassing for a country like Britain that was at the centre of criticizing Mugabe as a lawless ruler to be brought before an international body for its refusal to respect what is, in simple terms, a private international law document between Britain and Zimbabwe.

The white farmers might be able to perhaps get money from Britain directly. What Zimbabwe does with its land is purely an internal question. Be it corrupt or not, the distribution of land is best resolves by Zimbabwean people but as for the severing of this difficult umbilical cord shared with Britain in regards to the land, Britain must bear the cut of the surgeon. It must break from Zimbabwe but in a humane and friendly way.

Of all its colonies, Zimbabwe has been one of the most tenuous for Britain. Besides the United States in 1776, Zimbabwe, then known as Rhodesia, also declared independence on Britain in 1961 and thereafter went into the trenches. This suggests that the country has a strong understanding of rights and colonialism.

When Mugabe moved forward with redistribution in 2000, he was told by Blair and the Labour Party that they would not compensate the victims because they had no faith in his government, citing human rights abuses and the lack of democracy. At the root of their argument is that it was the conservatives who entered into the agreement for a new Zimbabwe, and not Labour.

This is not a new argument. The descents of slaves are yet to see a cent because each subsequent government refuses the pledge that was made during reconstruction. While this is a valid defence for a government to refuse to honour its past national covenants to its domestic subjects, it is unacceptable, unethical and inexcusable to try and extend this to foreign countries.

The agreement of a government, in this case a treaty/accord takes priority ahead of change of party policy. A winning political party cannot wish away treaty obligations and responsibilities made in the name of the Crown. For uniformity in the international system, accords are binding on countries and especially on the Crown.

It is incumbent on modern jurists to put pressure on Great Britain on this issue. Curious enough, Robert Mugabe feels betrayed by this breach of constitutional promise, as betrayed as the last bastion of Rhodesian rule Ian Smith felt when he wrote his ridiculous memoirs entitled, ‘Betrayed'.

In Ian Smith's case he argued, rather unconvincingly, that Britain betrayed democracy in Rhodesia by granting majority rule that included Africans. In Mugabe's case, he does have a point. Is the black government supposed to address colonial damages all on its own; does Britain get to walk away from its moral obligation in the name of bad governance?

Why Britain needs Zimbabwe

My thinking is that the British upholding its promise will trigger an equally democratic process in Zimbabwe. Undoubtedly, the two countries, Britain and Zimbabwe, need each other if not for the kindred in spirit, the espirit de'corps but for the joint pursuit of common projects that might require African geography.

To say Britain does not need Zimbabwe is to put the cart before the horse. Who is to say what needs Britain is to have in the near future? It is a given, in this very real environment of international coexistence - what Metternich noted as a diplomatic arena - that Britain must revisit this issue of compensation, outside of a discussion and dislike of Mugabe.

Mugabe himself is not without some marked achievements in Zimbabwe. Zimbabweans have the highest literacy in Africa, higher than South Africa. And why is this important; because literacy helps society to learn new principles and concepts. It helps a country to understand the dangers of xenophobia for example; the skills for language assessment needed in international trade; the technical development of companies and the value of ideas; all that is essential for growth and industrialisation. How else can a society grow unless it reads, and reads well?

Good governance has nothing to do with the Lancaster Accords of 1979. What is real is that the agreeing parties must respect the conditions, history and ethics of their agreement.

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Ken Sibanda is an American Constitutional Lawyer, born in Transkei South Africa.  A much sought after speaker on human rights and the rule of law. The above is taken from a forthcoming book entitled: Lancaster House Accords: What Britain owes Zimbabwe, forth coming 2016 - Tovakare Press.