High Court Judge Justice Joseph Mafusire on Thursday 6 January 2022 dismissed an application filed by some Chilonga villagers challenging some provisions of Sections 4 and Section 6(1)(b) of the Communal Land Act, which vests rural land in the President and seeking to stop government’s plans to evict them so as to set an agricultural venture on 12 940 hectares.
In their application which was filed in March 2021, the Chilonga villagers, who were represented by Tendai Biti of Zimbabwe Lawyers for Human Rights, asked the High Court to set aside provisions of Sections 4 and Section 6(1)(b) of the Communal Land Act, which vests rural land in the President arguing that they are unconstitutional and offend some provisions of the Constitution.
The Chilonga villagers, who are farmers who grow sorghum, maize and millet while some of them are contract farmers for a local beverages manufacturer for the production of sorghum, were aggrieved after government sought to evict them to pave way for a commercial irrigation venture with media reports stating that they were being moved to pave way for a lucerne production project by a dairy processing company.
They argued that the Communal Land Act denies them the right to self-determination of Africans in Zimbabwe and has no room in post-independent Zimbabwe.
The villagers contended that the Communal Land Act is a racist and a colonial creature which regards Africans as too uncivilised as to own land and queried how an African can own a house in Harare’s plush suburb of Borrowdale but he cannot own his ancestral home in areas such as Chiredzi, Mwenezi, Dotito, Chendambuya, Nkayi or Tsholotsho.
The villagers also argued that the intended eviction is an unlawful deprivation of their to property as enshrined in Section 71 and Section 72 of the Constitution arguing that no person may be compulsorily deprived of their property.
In response to the application, government argued that Section 4 and Section 6(1)(b) of the Communal Land Act are not in breach of the Constitution and that there is nothing wrong in vesting communal land in the State President and this is done to ensure orderly development.
The agricultural venture, government argued would generate foreign currency, rural development, provision of basic amenities like clinics, schools and better housing and the establishment of an economic hub in Chilonga.
But in a judgment handed down on Thursday 6 January 2022, Justice Mafusire dismissed the application after ruling that the impugned sections in the Communal Land Act do not violate the Constitution.
While acknowledging that the Communal Land Act may have an obnoxious and racist parentage, Justice Mafusire said government in its “infinite wisdom” decided to make a political decision by leaving the concept of vesting communal lands in the State President intact.
Justice Mafusire proposed that without some sort of Commission of Enquiry on Zimbabwe’s whole agrarian reform especially as it applies to communal lands, the courts may not be sufficiently qualified to provide a wholesome solution to the question of private ownership of communal lands.
The Judge ruled that it is not an undesirable fear that the granting of title carte blanche to users and occupiers of communal lands may result in undesirable consequences and warned that foreign land barons may end up owning vast tracts of communal land and this may disrupt the orderly customary way of life in those territories.
Justice Mafusire said the Executive and the Legislature are better placed than the courts to consider, on the basis of the material, information, the expertise, the resources, and so on, available to them whether, in spite of the regrettable origins of the Communal Land Act, it is time that private ownership of communal territories is recognised so that individual title deeds can now be granted to the occupiers of such territories.
Source: Zimbabwe Lawyers for Human Rights