Complying with the Abuja Agreement: Two Months Report
In terms of the Abuja Agreement, the Zimbabwean Government committed itself to “take firm action against violence and intimidation”. This report examines whether there has been compliance with this term of the Agreement.
December 17, 2001

Appendix 2

The court cases on the land issue

The High Court decisions

When the farm invasions started the Police Commissioner washed his hands of the matter, stating that the police could not act because the matter was political. On 17 March 2000, the Commercial Farmers Union (CFU) obtained a High Court order from Judge Garwe. This declared the invasions to be illegal and ordered the police to evict the unlawful occupiers from the land within twenty-four hours. This High Court order was made with the consent of all the parties, including Dr Hunzvi and the police.

However, the leaders of the war veterans publicly proclaimed that they would not obey Judge Garwe’s court order but instead they would intensify the programme of farm occupations. The police also made no attempt to comply with the order, claiming that the issue was a political one and that it would be impossible, dangerous and counterproductive to do so.

The Attorney-General then applied for a variation of the order on behalf of the police. He argued that after the order was issued, the police realised that they had insufficient resources to effect the evictions. He also argued it would be ill advised for the police that to intervene in a situation that was so charged with political and racial overtones. The land distribution and ownership pattern in Zimbabwe was iniquitous and it needed to be remedied in the shortest possible time. He further argued that it would not promote the rule of law to enforce an inequitable ownership structure, through the application of brutal state power. The Commissioner of Police did not maintain a non-partisan position, as required by the Police Act. He openly proclaimed his complete support for the ruling party and, even as recently as last week, publicly expressed support for the land reform process of the Government.

In another High Court case Judge Chinhengo characterised the invasions as illegal and of a riotous nature. He said that the Commissioner of Police had a clear duty to enforce the consent order and to afford commercial farmers the protection of the law enshrined in the constitution. The rule of law meant that everyone must be subject to a shared set of rules that are applied universally, deal on an even handed basis with people and treat like cases alike. If there were laws that stood in the way of more equitable land redistribution, Parliament could change the laws. Whilst the laws remained in existence, however, the courts had the duty to enforce those laws and those affected by official inaction were entitled to bring actions based on the law to protect their interests. In the opinion of the judge, police intervention was unlikely to ignite an already explosive situation. Where the executive had acted in relation to previous farm invasions, the invasions had ended.

The farm invasions continued and the police continued to take no action to prevent the occupations or evict the occupiers. On 19 April 2000 the High Court held the leader of the war veterans, Dr Hunzvi, in contempt of court for failing to comply with an earlier High Court order barring him from inciting war veterans to invade farms. The judge, however, postponed the passing of sentence until 5 May 2000 on condition that the Dr Hunzvi complied with the initial court order and that he took steps to assist the CFU to ensure peaceful evacuation of the occupied farms. In his affidavit in connection with this case Dr Hunzvi had said he was committed to obeying the law and the court order, and that he would always strive to assist the CFU to “ensure the peaceful vacation of the war veterans of the farms.” He also maintained that in speaking to the war veterans on the farms he had been trying to persuade them to leave the farms.

The Supreme Court decisions

The CFU brought two actions in the Supreme Court. In the first, which was brought in mid-September 2000, the CFU challenged head-on the legality of the entire resettlement programme. In the second which was brought at the end of October 2000, it complained that government had failed to follow the correct procedures for acquisition specified in the laws it had passed.

In the first case the CFU argued that the laws upon which the State was relying to carry out its programme of land acquisition were unconstitutional. It also argued that the programme had been carried out unlawfully. The programme had been beset by lawlessness due to the failure police had failed to comply with High Court orders to remove the invaders. It alleged that the programme had also been carried out in a politically and racially discriminatory fashion.

Before the Supreme Court could hand down its decision in the first case, the CFU felt obliged to bring a second action in the Supreme Court. It did so because government was not complying with legally prescribed procedural requirement in carrying out its fast track resettlement programme. In this second case the respondents were the Ministers involved in the carrying out the resettlement programme and the Provincial Governors. The respondents consented to the order handed down by the Supreme Court. In the order the respondents acknowledged the illegality stemming from the failure to comply with the procedural pre-requisites. The respondents were ordered to stop implementing the programme until the procedural pre-requisites had been followed, which steps were set out in the order. (These included the giving of three months notice to vacate). The Court also ordered the police to remove from farms all persons who had unlawfully entered the properties, had breached the peace or had conducted themselves in some other unlawful manner on the occupied farms.

The Supreme Court then gave its judgment in the first case. It observed: “there is no dispute that a programme of land reform is necessary and indeed essential for the future peace and prosperity of Zimbabwe.” It was expected, however, that the resettlement would be carried out in conformity with the law. Although the land issue was a political matter, the political method of resolving this issue “is by enacting laws.” Government had enacted the necessary laws but had then failed to comply with the laws it had enacted. All the courts were doing was to seek to have government abide by its own laws.

It went on to observe that government was “unwilling to carry out a sustainable programme of land reform in terms of its own law.” Land resettlement had not being carried out in accordance with a programme of land reform as required by the s 16A of the Constitution or in accordance with other laws. The settling of people on farms “has been entirely haphazard and unlawful.” “A network of organisations, operating with complete disregard for the law, has been allowed to take over from Government. War veterans, villagers and unemployed townspeople have simply moved onto farms. They have been supported, encouraged, transported and financed by party officials, public servants, the CIO and the Army. The rule of law has been overthrown in the commercial farming areas and farmers and farm workers on occupied farms had consistently been deprived of the protection of the law.”

It declared that the farm occupations amounted to unfair discrimination. It said it might not have constituted unfair discrimination on the grounds of race if, in order to right historical wrongs, the government had expropriated farms owned by whites, provided that this had been done lawfully and with the payment of fair compensation. However, various government officials had announced that only ZANU (PF) supporters would be re-settled on the land. There was no doubt that it amounted to unfair political discrimination to target farmers who are believed to be supporters of an opposition party, and to award the spoils of expropriation primarily to ruling party supporters. If ZANU (PF) party branches or cells or officials are involved in the selection of settlers and the allocation of plots, the exercise degenerates from being an historical righting of wrongs into pure discrimination. The displacement of thousands of farm workers of foreign origin who were lawful permanent residents also amounted to unfair discrimination. It also declared that forcing farmers and farm workers to attend political rallies had violated their right to freedom of association and assembly.

The Supreme Court pointed out that it was the duty of the courts to insist on compliance with the laws be followed and that there be a return to lawfulness. The Supreme Court ordered the respondents to comply with the High Court and Supreme Court orders, made with the consent of the parties in terms of which government was ordered to comply with the law in carrying out land resettlement and the police were ordered to evict unlawful occupants.

It also interdicted the Minister involved in implementing the resettlement exercise from taking further steps to acquire land. However, it postponed the operation of this interdict for six months. The court said it had suspended the order to enable the Ministers to produce a workable programme of land reform, and to enable the Minister of Home Affairs and the Commissioner of Police to satisfy the Court that “the rule of law has been restored in the commercial farming areas.” It is difficult to understand why the court suspended the operation of this interdict for six months. Once the court had decided that the government resettlement exercise was unconstitutional because it did not constitute a programme as required by s 16A of the Constitution one would have expected the court to order that the unconstitutional exercise stop until a proper programme had been put in place. What the court was doing was to allow the government to continue with an unconstitutional process while taking steps to make it constitutional by devising a workable programme and carrying it out in accordance with the laws establishing that programme.

Following the Supreme Court decisions, the Government took a number of steps. Some commercial farmers had applied for and been granted High Court orders obliging the Zimbabwe Republic Police to evict persons who had illegally occupied their land. To put a stop to this, Government passed new legislation that was fast-tracked through Parliament. This was the Rural Land Occupiers (Protection from Eviction) Act [Chapter 20:26]. The effect of this piece of legislation was to protect from eviction for a period of six months all farm occupiers who had occupied farms in anticipation of re-settlement. It suspended the operation of court orders ordering the eviction of settlers and it precluded the courts from ordering the eviction of these occupiers. It also protected the setters against criminal and civil liability for unlawful occupation of properties and damage caused on the properties. This Act thus negated the earlier decision of the Supreme Court requiring the ZRP to remove all unlawful occupiers and to take steps to deal with the illegal occupation and unlawfulness obtaining on the commercial farms. It legalised the often-violent invasions of land that had taken place and prevented owners of occupied properties from taking legal action to recover possession of their properties.

After the period of suspension of the earlier Supreme Court order had expired, the matter was brought back to the Supreme Court for determination as to whether Government had put in place a programme of land reform as required by the Constitution had restored the rule of law in the commercial farming area. The Supreme Court was composed of the newly appointed Chief Justice Chidyausiku, three newly appointed Supreme Court judges and only one Supreme Court judge who had sat in the earlier cases, namely Justice Ebrahim. The Chief Justice and the three newly appointed judges decided that the Government had complied with the Supreme Court order to put in place a proper programme of land reform that complied with the Constitution. This programme was being carried out in accordance with the law. They found that the Rural Land Occupiers (Protection from Eviction) Act [Chapter 20:26] was constitutional. They found that this Act did not violate the constitutional rights of owners of properties, as the legislation applied to properties being acquired in terms of section 8(1) of the Land Acquisition Act [Chapter 20:10]. In terms of section 8(3) of that Act, it decided, the acquiring authority became the owner of the property being acquired in terms of section 8(1) and the original owner of the property only regained ownership if the Administrative Court refused to confirm the acquisition order. As the farmers were no longer owners of such farms but mere occupiers they could not exercise the rights of owners and claim that their rights as owners had been violated. They also found that the actual manner in which the programme of land reform was being implemented was a policy matter outside the purview of the court.

The four judges also found that the government had taken sufficient steps to restore the rule of law on commercial farms. Regarding rule of law, it found that the rule of law did not require that the rule of law did not require a totally crime free environment. What it requires is that the government take adequate measures to enforce law and order. The test for restoration of the rule of law was not the number and gravity of criminal acts committed but the rather all the measures including policing and prosecution. It was satisfied that the government had taken adequate measures to enforce law and order on the farms.

The decision of the four judges newest decision seems predicated more upon political expediency than on law. The evidence in this report shows that violence on commercial farms has increased and that little has been done to stem this violence.

In a strong dissenting judgement, Justice Ebrahim reached entirely different conclusions. He found that the rule of law had not been restored and that a lawful programme of land reform had not been put in place. The real question regarding legality was whether the programme was being implemented lawfully and in accordance with legally stipulated processes. Haphazard squatting could not constituted a lawful programme of land reform. He decided that Rural Land Occupiers (Protection from Eviction) Act was unconstitutional. In violation of constitutional rights, it deprived the landowner of his rights or interests in his land without compensation; it allowed arbitrary entry into property and occupation of that property, it deprived landowners of their right to protection of the law and the right to freedom of association.

The many factors taken into account in the previous Supreme Court decisions do not appear to have altered, and, as Justice Ebrahim indicated, the majority decision seems to have been predicated not upon issues of law but rather upon issues of political expediency. At one point in his judgment, Chief Justice Chidyausiku had this to say:

“More importantly, land acquisition and redistribution is essentially a matter of social justice and not strictly speaking a legal issue. The only legal issue of substance is whether the acquisition is done within the procedures set out by the law.”

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