Government makes it easier to acquire land

The government announced amendments to the Land Acquisition Act closing several loopholes through which commercial farmers based legal challenges to compulsory acquisition of their land.

The amendments, which were made retroactive to May 2000, allowed the government to whatever it liked, including removal of procedural or legal impediments.

Full cable:

Viewing cable 03HARARE2353, AMENDMENTS TO LAND ACT DUCK THE REAL ISSUES

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C O N F I D E N T I A L SECTION 01 OF 02 HARARE 002353

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JFRAZER

E.O. 12958: DECL: 12/03/2013

TAGS: ECON EAGR PGOV ZI

SUBJECT: AMENDMENTS TO LAND ACT DUCK THE REAL ISSUES

Classified By: Laboff KRBel for reasons 1.5 (b) and (d).

¶1. (U) Summary: Recently announced amendments to Zimbabwe’s

Land Acquisition Act do little except close several loopholes

through which commercial farmers based legal challenges to

compulsory acquisition of their land. Through a blend of

easing the procedural constraints on the GOZ and making these

amendments retroactive (to May 2000), the amendments

underscore the GOZ’s de facto ability to do whatever it

likes, including removal of procedural or legal impediments.

Nothing contained in the amendments deals with the real

issues surrounding land reform: returning the land to

agricultural productivity, respecting the rule of law, or

addressing the thorny issue of sanctity of title. Given the

fact that most commercial farmers have already been

dispossessed of their land, the very utility of an amended

Act at this time is questionable. End summary.

————-

The Specifics

————-

¶2. (U) In a nutshell, the amendments make the GOZ’s seizure

of land easier by:

— removing the GOZ’s burden of “personal service in writing”

of intent to seize land on the landowner and any other holder

of a registered real right (e.g., mortgage holders or water

right holders), and substituting publication of such intent

in the GOZ gazette and in “a newspaper circulating in the

area in which the land to be acquired is situated…”;

— repealing Sections 6A and 6B of the original Act, under

which farmers had previously offered either partition of

large farms or substitution of alternate farms — despite

possible Administrative Court confirmation of existing offers;

— removing landowners’ legal challenges from the High

Court’s jurisdiction (where many landowners had obtained

interim relief) and lodging original jurisdiction with the

Administrative Court;

— repealing the Hippo Valley Agreement Act, which governed

development of the irrigated sugar lands in Chiredzi: this

Act previously stated that any land sold to planters under

that agreement could be repurchased by the GOZ “if…

required… for public use by the Government,” with the

proviso that the GOZ must pay compensation “mutually agreed

upon,” or otherwise determined by valuation, for the

repossessed land;

— emasculating the previously-enumerated criteria listed in

the original Land Reform Programme (which exempted

large-scale plantations growing tea, coffee, timber, citrus,

or sugar cane; agro-industrial farms involved in poultry,

beef, dairy, or seed-crop production; export processing zones

(EPZs); properties operating under a Zimbabwe Investment

Centre (ZIC) certificate; approved conservancies; or the sole

property of the owner), and declaring that these criteria

were henceforth not binding upon the GOZ and no legal basis

for a landowner’s objection;

— broadening the scope of the process by declaring that the

original eleven million seized hectares was “only .. the

minimum” required for resettlement, thus opening the way for

the inevitable peri-urban land grab foreshadowed in the Utete

report.

——-

Comment

——-

¶3. (C) These amendments do little except polish the thin

veneer of legality surrounding the ongoing land grab. In

fact, they intimate that a new wave of “resettlement”

initiatives is waiting in the wings, with formerly exempted

properties targeted. As with previous amendments to the Land

Acquisition Act, these newest amendments are tailored to

counter the arguments landowners have used successfully to

challenge acquisitions through the courts: flawed process,

offers of alternative land, pre-existing agreements under

competing law, protection under EPZ or ZIC rules, approved

conservancy status, or unsuitability of specific land for

agricultural purposes. As the GOZ rushes to legislate

legitimacy for its poorly planned acquisitions, there is

little hope that any of these arguments will now provide any

relief in the courts.

¶4. (C) Despite recent press reports about Minister of

Information Jonathan Moyo’s desire for a “legal instrument

that makes those title deeds a little lower than toilet

paper, forever a nullity that invites ridicule in any decent

court of law,” (Herald, October 25, 2003), the GOZ has

apparently not been able to figure out a method for

addressing the issue of title. On the one hand, the GOZ

cannot abolish title to all agricultural land without harming

Zimbabwe’s indigenous farmers. On the other hand, the GOZ

cannot abolish title only to white-owned land without

puncturing its contention that the land acquisition program

is about colonialism rather than politics and race. It

cannot abolish title deeds for all lands purchased before

independence without acknowledging that most agricultural

land was purchased (often with GOZ acquiescence) after 1980

— scuttling its arguments about rectifying colonial

imbalances. The GOZ could attempt to invalidate title only

for “non-Zimbabweans,” but it has already faced numerous

challenges to laws designed to disenfranchise third- and

fourth-generation residents (and voters) ahead of the 2002

presidential elections.

¶5. (C) While the GOZ may be comfortable with leaving its

small-scale A1 farmers with possession only and no pretense

to title, it cannot ignore the issue forever with its

large-scale A2 commercial farmers. At this point, “new

farmers” occupy even the largest farms without any sort of

bankable title. Absent independent wealth, commercial

agriculture requires capital — and capital requires

collateral. The GOZ, following its own precedent in creating

“bearer’s cheques” rather than printing more bank notes,

could theoretically print a title-deed-like document rather

than invalidate existing title deeds. Indeed, the GOZ has

floated publicly the idea of issuing 49 or 99 year leases for

such land, “which banks should accept as collateral.”

However, it is unlikely that many mainstream banks would

accept such instruments as security for agricultural loans —

particularly with competing claims of ownership, and the

inevitability of legal conflict should a bank wish to

foreclose. If capital is indeed a coward, then Zimbabwean

agriculture will remain a frightening investment destination

until such anomalies are resolved.

¶6. (C) Except for removing the legal protections that have

theoretically, but not in practice, fenced off conservancies,

export zones, and other categories of land, the timing of the

law makes little sense. The vast majority of commercial

farmland is already de facto in the hands of new possessors

(as opposed to titled owners), making the amended law

something of a moot point.

SULLIVAN

(125 VIEWS)