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      Contested compensation: the politics, economics and legal nuances of compensating white former commercial farmers in Zimbabwe Translated title: Compensation contestée : la politique, l’économie et les nuances juridiques de la compensation des anciens fermiers commerciaux blancs au Zimbabwe

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            ABSTRACT

            In July 2020, the government of Zimbabwe and white former commercial farmers signed a Global Compensation Deed agreement of US$3.5 billion. Under this deal, and in line with Section 295 (3) of the constitution, white former farmers are ‘entitled to compensation from the State only for improvements that were on the land when it was acquired’. This article questions the political, financial and legal rationale of this agreement. First, it argues that the compensation deal is ultra vires since there is no enabling act of parliament to support it as required by the constitution. Consequently, this deal is tenuous and insidious. Second, Zimbabwe’s economic implosion and colossal foreign debt will make it difficult for international financial institutions to extend credit lines. Third, this deal reverses some land reform outcomes, thus raising political tensions. Fourth, these political tensions are swelling into resistance against the deal by war veterans and the opposition.

            RÉSUMÉ

            En juillet 2020, le gouvernement du Zimbabwe et les anciens fermiers commerciaux blancs ont signé un Accord de Compensation Globale d’une valeur de US$3,5 milliards. Dans le cadre de cet accord, et conformément à la Section 295 (3) de la constitution, les anciens fermiers blancs ont « droit à une compensation de l’État uniquement pour les améliorations qui se trouvaient sur la terre au moment de son acquisition ». Cet article remet en question la justification politique, financière et juridique de cet accord. Tout d’abord, il affirme que l’accord de compensation est ultra vires, puisqu’il n’y a pas de loi d’habilitation du parlement pour le soutenir comme l’exige la constitution. Par conséquent, il s’agit d’un accord ténu et insidieux. Deuxièmement, l’implosion économique du Zimbabwe et sa dette extérieure colossale rendront difficile l’octroi de lignes de crédit supplémentaires par les institutions financières internationales. Troisièmement, cet accord annule certains résultats de la réforme agraire, accroissant par conséquent les tensions politiques. Quatrièmement, ces tensions politiques se transforment en résistance à l’accord de la part des vétérans de guerre et de l’opposition.

            Main article text

            Introduction

            In July 2020, the government of Zimbabwe and white former commercial farmers whose land was appropriated during the Fast Track Land Reform programme (FTLRP) signed a compensation agreement of US$3.5 billion. Under this deal, the so-called Global Compensation Deed, and in line with Section 295 (3) of the constitution of Zimbabwe, white former farmers whose land was acquired by the state are ‘entitled to compensation from the State only for improvements that were on the land when it was acquired’ (GoZ 2013, 84). They will thus receive reparations for improvements on agricultural land when it was expropriated, not the land itself. This compensation package is different from that offered to other farmers whose land was also expropriated during the FTLRP. In terms of Section 295 (1) and (2) of the constitution and Global Compensation Deed (GCD) provisions,

            those former farm owners who are indigenous Zimbabweans or citizens of countries which had ratified Bilateral Investment Protection and Promotion Agreements or Bilateral Investment Treaties with Zimbabwe at the time their land was compulsorily acquired for resettlement are entitled to compensation for both land and improvements. (Ncube and Masuka 2020, 2)

            Compensation funds for their land and improvements are being raised separately from the GCD long-term credit instrument. The GCD funds for white former farmers will be raised by a joint resources mobilisation committee comprising government of Zimbabwe officials, representative organisations of white former farmers (e.g. Commercial Farmers Union, CFU) and individual farmers through a 30-year bond financed through bilateral, multilateral and private international sources (Mupanedemo 2020). This means the compensation deal is funded through long-term debt of 30 years, guaranteed by the government of Zimbabwe, hence the taxpayer. Consequently, taxpayers of debt-ridden Zimbabwe must repay this money (with interest) within a period of 30 years.

            Under the terms of the GCD agreement, ‘half of the amount will be paid out within 12 months of signing the agreement and the balance to be paid over a period of 48 months thereafter’ (Mupanedemo 2020, 1). This means, if adequate finances are raised as planned, white former farmers will have received part of the payment before the end of July 2021. The president of Zimbabwe, Emmerson Mnangagwa, argues that this a historic compensation deal that demonstrates ‘our commitment to constitutionalism, respect of the rule of law and property rights’ (Sibeko 2020, 1). Similarly, but for different reasons and interests, the CFU (a signatory to the GCD) that represents white commercial farmers sees this as a landmark agreement. Andrew Pascoe, head of the CFU, remarked that ‘as Zimbabweans, we have chosen to resolve this long-outstanding issue’ (Sibeko 2020, 1), referring to farmers’ approval of the compensation deal.

            While the government of Zimbabwe and organisations of white former farmers present this deal as an important step in resolving the contentious and divisive compensation issue, this article questions the political, financial and legal rationale of the GCD agreement. First, it argues that the compensation deal is illegal since there is no enabling act of parliament to support it as required by the constitution. By virtue of being ultra vires the constitution, I therefore dispute the claim, by the government of Zimbabwe and CFU, that this deal is a milestone in the country’s attempts to redress violation of private property rights that occurred circa 2000–2003 at the height of the FTLRP. Second, Zimbabwe’s economic implosion and billions (of US$) in foreign debt means it will not be able to raise US$3.5 billion for compensation in international financial markets. The sheer scale of the compensation amount, and the country’s low credit rating and propensity to default on foreign debt obligations over the last two decades, will make it extremely difficult, if not impossible, for international financial institutions to extend credit lines to Zimbabwe, regardless of how usurious these are. Relatedly, the debt instrument for the compensation deal is additional odious debt that will further impoverish the country. Third, politically this deal has raised questions about whether it is tantamount to a reversal of the FTLRP and an antithesis to one of the founding ideals of the liberation struggle. I argue that while it does not (and cannot) reverse the FTLRP in its entirety, it certainly revises and reverses some of its outcomes, that include the impending eviction of farmers allocated land previously owned by indigenous black Zimbabwean citizens and those under Bilateral Investment Protection and Promotion Agreements or Bilateral Investment Treaties. Further, there is rising political tension from compensating white former commercial farmers, some of whom were landowners by virtue of inheriting violently expropriated land from blacks during colonial times. Fourth, these political tensions are swelling and morphing into resistance against the deal by some war veterans and the main opposition party, Movement for Democratic Change Alliance (hereafter MDC Alliance). These unlikely resistance bedfellows are bound by what they perceive to be parochial geopolitical and geostrategic interests of the Zimbabwe African National Union – Patriotic Front (ZANU–PF) government in settling the compensation demands of a small group of minority white farmers. In that regard, I argue that this deal forms part of the Mnangagwa administration’s political strategy of seeking re-engagement with Western countries to restore amicable political, economic and diplomatic ties. By compensating white former commercial farmers, their political tactic is to project an image of a ‘new dispensation’ correcting historical violations of private property rights that were the hallmark of the previous Robert Mugabe regime. This, however, is a façade, since many in the current political and government leadership were central players in the Mugabe regime and continue to violate private property rights on farms with impunity.

            The compensation question in Zimbabwe: a political economy primer

            The land compensation question has a long-contested history in Zimbabwean political economy. It was one of the major points of disagreement between the liberation movement (the Patriotic Front composed of Zimbabwe African People’s Union and the Zimbabwe African National Union), the Rhodesian colonial regime and the British government at the height of the liberation struggle. Utete (2003) notes that it was central to negotiations between these warring parties in Geneva (1976), Malta (1978) and Lancaster House (1979). Further, the failed Anglo-American proposals of 1977, under which the British and American ‘governments pledged to contribute towards a fund for land reform, including paying compensation to white farmers whose land holdings would be redistributed to landless blacks’, and ‘the near collapse of the Lancaster House Conference in 1979’ (Utete 2003, 12) over the land compensation question are prime examples of how divisive and emotive the reparations subject has always been. In fact, one of the Patriotic Front’s arguments at the Lancaster House Conference negotiations was that black people who had been dispossessed of their ancestral land without compensation could not fund its repossession, as that would be tantamount to perpetuating a colonial injustice. Diametrically opposite to this reasoning was the Chairman of the Lancaster House Conference, Lord Carrington (representing interests of the colonial power), who was unequivocal in his quest to absolve the British government of sole responsibility in paying white farmers compensation for land. Lord Carrington argued that the costs of land reform and compensation ‘would be very substantial indeed, well beyond the capacity, in our judgement, of any individual donor country, and the British government cannot commit itself at this stage to a specific share in them’ (Carrington 1979 cited in Utete 2003, 13). This stance by Lord Carrington was dismissed, by the PF and then president of Tanzania Julius Nyerere, for its ahistorical interpretation of land dispossession from the black majority and land compensation precedents set by the British government itself. In fact, in 1979 Nyerere reminded the British government about what it had done in Kenya as he opined:

            To tax Zimbabweans in order to compensate people who took it away from them through the gun? Really, the British cannot have it both ways …  . The British paid money to Kenya. That the future Government of Zimbabwe must pay compensation is a British demand and the British must promise in London to make the money available. (Nyerere 1979 cited in Utete 2003, 13)

            Despite these protestations by Nyerere and the PF vehemently opposing payment of odious compensation, the final Lancaster House Agreement and transitional constitution did not authoritatively settle who was primarily responsible for paying to acquire land for resettling the black majority. The compromise agreement between the PF, the Rhodesian regime and the British government that donor countries would be persuaded to provide funding for land required for resettlement and compensation was vague, as it did not place responsibility on any particular country for this costly and important obligation. Neither did the negotiated Lancaster House Constitution do this; instead, it ‘contained onerous clauses on the protection of private property, including land’ (Sachikonye 2012, 109). As a result, the land compensation question remained unresolved owing to this history and to the post-independence political economy dynamics.

            In the early 1980s, although ‘the Conservative government provided financial support for a successful initial phase’ of land reform and resettlement (Tendi 2014, 1256), this funding was later reduced and eventually frozen. Thereafter, financial constraints in conjunction with limited political will became an obstacle to land reform and compensation for land upon acquisition. What made matters worse was the fact that the Lancaster House Agreement stipulated that for a period of 10 years (1980–90) only land deemed to be under-utilised could be expropriated, and this had to be bought in foreign currency. The fledgling government of Zimbabwe simply did not have the surplus foreign currency to pay for land acquired for resettlement. Although ‘there were unconfirmed reports that the US and UK governments promised a package of US$1.5 billion’ for land reform and redistribution at independence, this compensation pledge was not included in the Lancaster House Constitution (Sachikonye 2012, 109), leaving the new government with no financial kitty for aggressive land purchases. Similarly, the neoliberal ‘willing-seller willing-buyer’ provisions of the Lancaster House Constitution hamstrung the 1990s decade. Even though the government of Zimbabwe passed the Land Acquisition Act in 1992, which gave it strengthened powers to acquire land for resettlement subject to the payment of fair compensation and introduce a land tax (Moyo 2000; Stoneman and Bowyer-Bower 2000), it argued that this stringent market-based approach prevented it from buying adequate land. Land available on the market was very expensive (GoZ 1998), its price having trebled since the 1980s (Raftopoulos and Phimister 2003), thus limiting the government’s capacity to acquire land upon full payment of compensation. This government position is, however, disputed by those who argue that ZANU–PF was under no local political pressure as it had easily won elections in 1990, 1995 and 1996 (Bush 2007), and there was no forceful organised pressure for land reform from the landless (Sachikonye 2012), hence the little political will for radical land reform (Raftopoulos and Phimister 2003). Notwithstanding this valid criticism, it is undeniable that the lack of adequate financial resources equally played a role in slowing down the pace of land reform, since the government did not have the financial wherewithal to compensate landowners at the going market rate.

            Contestation about land compensation continued into the late 1990s. A landmark event at this time was the September 1998 International Donors’ Conference on Land Reform and Resettlement in Zimbabwe organised by the government of Zimbabwe to mobilise political, technical and financial support for land reform from donor countries, development partners, farmer organisations and civil society. Although donors acknowledged the political importance of resolving the land question and its potential to broaden equitable access to land as part of poverty reduction, economic growth and stability measures (Communique 1998 cited in Sachikonye 2003), the limited pledged funding was tied to strict conditionality. Evidence of cronyism in land allocations pushed donors to tie any future funding for land purchases into this broad governance conditionality (Bush 2007). They insisted that land reform must be implemented ‘in a transparent, fair and sustainable manner, with regard to respect for the law, and broadened stakeholder as well as beneficiary participation; and that it should be affordable, cost-effective and consistent with economic and financial reforms’ (Communique 1998 cited in Sachikonye 2003, 232). This funding conditionality was a direct indictment of the government of Zimbabwe, ‘accused’ by the former colonial power of misallocating funding previously provided for land reform. The UK’s Department for International Development (DFID) and the European Union (EU) argued that conditionality is imperative in order to ‘eliminate gross abuses such as the use of funds for the purchase from landowners who may have been allocated state land under an earlier process’ (DFID and EU 1999 cited in Sachikonye 2012, 112). This discourse on transparency and good governance angered the government of Zimbabwe and provided a rationale for former president Robert Mugabe to begin renewed rhetoric against the forces of imperialism (Bush 2007), especially the British government. It therefore came as no surprise when strained diplomatic relations ‘burst into the public eye’ following New Labour’s landslide election victory in 1997. Then new UK Secretary of State for International Development, Clare Short, in her ill-famed letter to the government of Zimbabwe, argued that

            I should make it clear that we do not accept that Britain has a special responsibility to meet the costs of land purchase in Zimbabwe. We are a new government from diverse backgrounds without links to former colonial interests. My own origins are Irish, and as you know, we were colonised, not colonisers . … I am told Britain provided a package of assistance for resettlement in the period immediately following independence. This was, I gather, carefully planned and implemented, and met most of its targets. Again, I am told there were discussions in 1989 and 1996 to explore the possibility of further assistance. However, that is all in the past. (New African 2007 cited in Tendi 2014, 1255)

            The government of Zimbabwe understood Short’s letter as a funding policy ‘somersault’ by the New Labour government contrary to previous Conservative administration funding commitments. It also ‘saw her communication as reneging on an unwritten financial assurance, made by the Conservative government during the 1979 Lancaster House independence negotiations, to assist in the funding of land reform’ (Mugabe 2001 cited in Tendi 2014, 1255). The New Labour government openly refused to honour compensation commitments under the framework agreed with the Conservatives. Instead, they proposed a funding model based on good governance and poverty reduction conditionality. The diplomatic relations fallout, between the government of Zimbabwe and the British government, from this conditionality and Clare Short’s letter was colossal. The government of Zimbabwe argued that the former colonial power was defaulting on its compensation obligation. Within this context, as the government of Zimbabwe planned for a new phase of land reform in 1998 (Land Reform and Resettlement Programme Phase II), political events not only changed the pace and direction of land reform in Zimbabwe but also brought the land question to the forefront of Zimbabwean politics, culminating in the FTLRP.

            As is widely documented, the FTLRP expropriated without compensation large commercial farms and redistributed the land to the majority indigenous black Zimbabweans. There are divergent views on the social justice and political and economic motivations, as well as the outcomes and impacts, of the FTLRP. There are many who argue that it was a social justice imperative to redress racially skewed land ownership imbalances created by the colonial system (Cliffe et al. 2013; Moyo 2007, 2013; Moyo and Yeros 2005), and to decongest and address land hunger in communal and resettlement areas. Indeed, prior to the FTLRP, agitation for land in the grass roots had been simmering, resulting in the occupation of commercial farms by peasants from congested communal and resettlement areas, the unemployed and the working class. For example, in 1998 and 1999, a series of spontaneous community-led land occupations took place in areas like Marondera, Guruve, Chiredzi, Nyamandlovu and Umzingwane districts (Marongwe 2003). A feature of these land occupations that distinguished them from later ones is that they were community led, largely peaceful, spontaneous and not orchestrated by ZANU–PF (Alexander 2003; Marongwe 2003; Sachikonye 2003). These land occupations were an indication of land grievances and that something was fundamentally wrong with the land reform programme at the time. They also demonstrated the agency of landless people prior to the FTLRP as they sought to recover ancestral land they were dispossessed of during the colonial era.

            Hence, although the ZANU–PF-led government did not initiate the first land occupations, they later hijacked, led and strategically used this land hunger for their own political gain from 2000. From that point, ZANU–PF-coordinated farm occupations and seizures were regularised through the 16th Constitutional Amendment of 2000 and the amendment of the Land Acquisition Act (1992) in 2000 (Bush 2007; Moore 2001), resulting in the formalisation of FTLRP processes and outcomes. For many, like Moyo (2013, 33), the FTLRP was a progressive reform process that has changed ‘Zimbabwe’s agrarian relations, particularly by broadening the producer and consumption base’ and ‘diversification of labour towards numerous farms and other enterprises’ (Moyo 2013, 33). To their credit, these proponents of radical redistribution do not dispute that it disrupted production and impacted food security, exports and the macro-economy.

            Contrary to the largely positive assessment of the FTLRP by Moyo (2007, 2013), Moyo and Yeros (2005) and many others, there are some who view it as a partisan process driven by parochial political preservation by a nationalist liberation party, ZANU–PF, then on the verge of losing power to a new opposition party, the Movement for Democratic Change (MDC) (Cliffe et al. 2013; Sachikonye 2012). To preserve its hegemony, ZANU–PF took a strategic decision to use land as a political resource and weapon. As Sachikonye (2012, 108) explains, ‘the survival of the Mugabe government in the 2000 election ultimately hinged on the use of both the “carrot” of land reform and the “stick” of violence.’ Seen through this prism, the FTLRP was thus a strategic political manoeuvre to appease the electorate through unprecedented (on the African continent) large-scale land redistribution. ZANU–PF’s political survival thus shaped the timing and implementation manner of the FTLRP.

            Regardless of these divergent interpretations of the FTLRP motivating factors, by the end of 2003 the programme had expropriated 9.2 million hectares, most of which was prime land from large-scale commercial farms, and transferred it to small-scale farmers and indigenous black commercial farmers (Utete 2003). A total of 127,192 households were settled under Model A1, which was for the generality of land-short and landless people, with a villagised and self-contained variant, while a total of 7260 beneficiaries were settled under the medium- and large-scale commercial farming Model A2 (Utete 2003). These new A1 and A2 farmers were resettled on land illegally acquired by the state, since the FTLRP brazenly disregarded private property rights and title to land that is a legal pillar for fair compensation in free market transactions. Failure to pay compensation at that time did not, however, absolve the government of this legal obligation. As a result, the government of Zimbabwe has finally accepted this inevitable constitutional requirement and signed the GCD in an attempt to settle the lingering compensation question.

            Who will be compensated?

            Section 295 (Section 295) of the Constitution of Zimbabwe outlines the criteria and categories of former agricultural landowners that qualify for compensation by the state. The first group are indigenous Zimbabweans and, according to Section 295 (1) of the constitution, ‘any indigenous Zimbabwean whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State for the land and any improvements that were on the land when it was acquired’ (GoZ 2013, 84). Nomenclature is important here because by indigenous Zimbabweans, the constitution is actually referring to black Zimbabwean citizens only. This means that by law, and in reference to agricultural land, white Zimbabwean citizens by birth or naturalisation are not considered indigenous Zimbabweans. This racial profiling serves as a legal and political mechanism for excluding white former farmers from compensation for land, in contrast to indigenous black farmers entitled to this reparation. The majority of these indigenous black farmers bought their farms after independence in 1980 and held title deeds. By the mid 1990s, ‘about 500 black farmers had become fully fledged commercial farmers. Of these, about 80 per cent had bought farms with their own resources’ (Sachikonye 2012, 110) in various agro-ecological regions. Their legal title notwithstanding, these indigenous black farmers were illegally stripped of their land at the height of the FTLRP. To redress this, Section 295 (1) of the constitution therefore compels the state to pay compensation for land to all indigenous black Zimbabweans whose land was compulsorily acquired and all improvements on the said land.

            An important point to note here is that this category of indigenous black farmers is not entitled to compensation under the GCD. Instead, ‘their compensation will be considered separately on a case by case basis through the Land Commission (Gazetted Land) (Disposal in Lieu of Compensation) Regulations (SI 62 OF 2020)’ (Ncube and Masuka 2020, 3). Through a process overseen by the Minister of Lands, Agriculture, Water and Rural Resettlement, these farmers can apply

            for restoration of title to the piece of agricultural land that was compulsorily acquired from them for resettlement. Government will grant their applications where the circumstances presently obtaining on the ground permit the restoration of their land to them. In this regard, in order to allow former farm owners in this category to regain possession of the pieces of land that were acquired from them, Government will, in the appropriate circumstances, revoke the offer letters of resettled farmers currently occupying those pieces of land and offer them alternative land elsewhere. Where the situation presently obtaining on the ground makes it impractical to restore land in this category to its former owners, Government will offer the former farm owners alternative land elsewhere as restitution where such land is available. (Ncube and Masuka 2020, 3)

            The government of Zimbabwe has thus made two options available to indigenous farmers. First, where circumstances permit there is a possibility for a farmer to regain possession of their original farm; second, where the situation makes it impractical to do so, a farmer will be offered alternative land elsewhere. This commitment by the government of Zimbabwe to restore title of land compulsorily acquired from indigenous black Zimbabweans is a radical departure from the political thinking that characterised the FTLRP. It is also the correct legal action as per the provisions of Section 295 of the constitution.

            The second group who qualify for compensation, but are not covered by the GCD, are individuals or institutions protected by international agreements as defined in Section 295 (2) of the constitution:

            Any person whose agricultural land was acquired by the State before the effective date and whose property rights at that time were guaranteed or protected by an agreement concluded by the Government of Zimbabwe with the government of another country, is entitled to compensation from the State for the land and any improvements in accordance with that agreement. (GoZ 2013, 84)

            The international agreements recognised by this constitutional provision are bilateral investment protection and promotion agreements (BIPPAs) or bilateral investment treaties (BITs). In general, ‘a BIT is an agreement between two countries regarding promotion and protection of investments made by investors from respective countries in each other’s territory’ (UNCTAD 2020). BITs or BIPPAs are thus international investment law, based on internationally accepted common legal standards that countries voluntarily accede. Zimbabwe is a signatory to numerous BIPPAs that recognise and protect private property rights. At the onset of the FTLRP, it had enforceable BIPPAs with Netherlands, Germany, Switzerland, Denmark, Serbia, China, Iran and Kuwait (UNCTAD 2020). The former farm owners of the 37 farms under BIPPA at the time were legally protected under international investment law, hence compulsory acquisition of their farms was illegal. Zimbabwe is thus bound by international investment law to take corrective measures regardless of how financially inconvenient and disruptive this will be to the current agrarian structure. In recognition of this obligation under international law, the government of Zimbabwe has thus set in motion a process of compensating these BIPPA former farm owners guided by Section 295 (2) of the constitution. This constitutional provision covers compensation for land and improvements that will be assessed and payable subject to criteria of an act of parliament yet to be ratified. In the absence of this act, there is no legal framework that guides the government on the formulae for payment to these former farm owners. In acknowledging this legal gap, the government of Zimbabwe is arguing that similar to indigenous black farmers not covered by the GCD, compensation to BIPPA former farmers will be carried out through Statutory Instrument 62 of 2020 (Ncube and Masuka 2020, 3). However, this government reliance on a statutory instrument as the legal framework for compensating BIPPA former farmers is in breach of Section 295 (4) of the constitution which states that ‘compensation payable under Subsections (1), (2) and (3) must be assessed and paid in terms of an Act of Parliament’ (GoZ 2013, 84). Since this act of parliament does not exist, the government’s claims about the existence of a compensation mechanism for these former farmers has no comprehensive legal footing.

            The third group that legally qualifies for compensation are white former commercial farmers, the majority of whom had farms compulsorily acquired at the height of the FTLRP. According to Section 295(3) of the constitution,

            any person, other than a person referred to in Subsection (1) or (2), whose agricultural land was acquired by the State before the effective date is entitled to compensation from the State only for improvements that were on the land when it was acquired. (GoZ 2013, 84)

            The first point to note here is that this group of former farmers are white Zimbabwean citizens. Despite their existing citizenship rights, the constitution (Section 295) differentiates them from black Zimbabweans referred to as indigenous Zimbabweans. This constitutional racial categorisation and the associated citizenship rights are crucial as they determine whether a former farmer is compensated for land, farm improvements or both. While their citizenship rights have not been totally revoked, white former farmers are constitutionally categorised as non-indigenous farmers for compensation purposes. This differentiation, which strips them of land ownership rights, is a legal provision used by the government of Zimbabwe to resolve a historical injustice that dispossessed indigenous blacks their land. The government of Zimbabwe is therefore offering white former farmers compensation for improvements only, not land, since the land has now been repossessed by its rightful indigenous owners. A second key point to note is that white former farmers are the only ones due for compensation under the GCD framework. However, there is a legal caveat. For this compensation to be carried out based on uncontested legal grounds, an act of parliament must first be passed in line with Section 295 (4) of the constitution. While the government can circumvent this legal requirement by proceeding using contested provisions of delegated legislation in the form of a statutory instrument, the process will only become legally comprehensive and acceptable across the socio-political spectrum when it is based on and guided by primary legislation in the form of an act of parliament. This parliamentary legal route remains open to the ruling ZANU–PF since it has a majority in both houses of parliament, but for some reason it has not exercised this option.

            It should be noted that the government of Zimbabwe has sound legal footing for no liability to land compensation for white former commercial farmers. It derives this from Section 72 (3) (a) and Section 295 (3) of the constitution. Further, Section 72 (7) (c) of the constitution places the land compensation obligation on the former colonial power, the British government. Section 72 (7) (c) (i) states that

            the former colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose; and (ii) if the former colonial power fails to pay compensation through such a fund, the Government of Zimbabwe has no obligation to pay compensation for agricultural land compulsorily acquired for resettlement. (GoZ 2013, 28)

            Even though this constitutional obligation on the British government to pay compensation for compulsorily acquired land has a contested political economy, as demonstrated above, it is Zimbabwean law that white former farmers know and respect (although they might disagree with it). In recognition of this constitutional position, their representative organisations, including the CFU and the Southern African Commercial Farmers Alliance-Zimbabwe (SACFA-Z), unconditionally accepted the terms of the GCD. Through their signature of the GCD, they contractually accepted that the government of Zimbabwe has no obligation to compensate them for their former farms but for improvements only. Effectively, this has legally stripped them of any claim over their former land, regardless of any preceding court or tribunal judgement restoring title to or compensation for land. One may ask, why did representative farmer organisations assent to an agreement that strips them of their long-held land rights and title? The reality is they acceded because they had very little legal room to manoeuvre. Their decision was not only the legal thing to do (in line with the constitution) but also perhaps a strategic calculation to accept the cash offered after two decades of recalcitrance by the ZANU–PF government to compensate them for anything at all. Their acceptance of the offer can be understood within this context of salvaging some form of reparation even though it is unclear whether the compensation due is proportionate to the actual market value of their former farms.

            Meanwhile, beyond legal arguments, the political foundation and motivation for this compensation deal needs unravelling. The post-Mugabe government is using it to advance its geopolitical and geostrategic interests as part of its new foreign policy of re-engagement with Western countries. This is an administration that is keen to distance itself from the radical land policies and politics associated with the Mugabe era. Hence, as it re-engages with the Western world under its ‘Zimbabwe is open for business’ foreign policy mantra, the ‘new political dispensation’ is keen to project a new political image and to be seen to settle a two-decade dispute with white former commercial farmers. Resolving this long-standing compensation question is thus central in demonstrating to multilateral and bilateral lenders as well as Western political capitals that the country is on a new political trajectory of reconciliation, is now pro-business and respects private property rights. The prioritisation of displaced white former commercial farmers for compensation should therefore be seen within this foreign policy praxis and geopolitical and geostrategic manoeuvring by the Mnangagwa administration. However, the fact that many ZANU–PF political elites who were part of the Mugabe inner circle and policy enforcers are still the driving political force of the current administration raises questions about the sincerity of this foreign policy ‘somersault’.

            Further, there are practical GCD funding and on-farm production questions to disentangle. There seems to be deliberate public misinformation by the government of Zimbabwe on whether taxpayers will fund farm improvements compensation for white former farmers. For example, President Emmerson Mnangagwa’s assertion that ‘we are saying no taxpayer’s money will be used to pay that compensation’ (quoted in Mupanedemo 2020, 1) demonstrates this misrepresentation. In reality, the fact that the government of Zimbabwe committed, through a Joint Resources Mobilisation Committee comprising representative organisations of white former farmers and government officials spearheaded by the Ministry of Finance and Economic Development, to facilitate raising US$3.5 billion through a long-term bond confirms that the taxpayer is ultimately responsible for paying this compensation. Money borrowed by this Joint Resources Mobilisation Committee will constitute government debt on behalf of the taxpayer, who must repay it at some point. This odious debt, which will be transferred to future generations, will further impoverish the country and generations of the landless while benefiting white former commercial farmers who already benefited from decades of colonial and neocolonial appropriation.

            Another interesting point is that the GCD framework also has provision for the regularisation of the land tenure status of white former farm owners who, despite compulsory acquisition of their farms, refused (or ignored instructions) to relinquish them. They remain on the land without government tenure documents but do so based on informal agreements with ruling party elites and senior government officials. To regularise their stay, the GCD states that these former farm owners

            should urgently regularize their tenure through designated government institutions in the first instance, before consideration can be made for the issuance of 99 year leases. Former farm owners who already hold Offer Letters may proceed to apply for 99 year leases. (Ncube and Masuka 2020, 2)

            These GCD provisions are instructive. First, while this has always been known, the GCD is officially confirming that there are some white former farm owners whose land was compulsorily acquired but who remained on the farms through various negotiated insecure ‘gentlemen’s’ arrangements with government and political elites. To address this illegal tenure, the GCD is thus opening up official channels for these farmers to begin a process of regularising their occupancy and eventually apply for 99-year leases. Second, the consequence of this provision is that in cases where an indigenous black Zimbabwean was allocated the same piece of land by the government, this individual’s Offer Letter has effectively been revoked because the resident white farmer has now been given permission to apply for a counter Offer Letter to remain on the land. This means the indigenous Zimbabwean offered the farm no longer has claim to it. The revocation of such offers is the genesis of perceptions (right or wrong) that the government of Zimbabwe is, through the GCD, reversing some of the gains of the FTLRP. Third, for those white former farmers with Offer Letters (on farms under dispute), the GCD offers immediate and direct application for 99-year leases. While it is not clear whether these particular farmers remain on their ‘old farms’ on the basis of Offer Letters or are on different land, the change to the tenure process they have to undergo is worth noting. Essentially, the 99-year leases they are being offered are a constitutional determination as contained in Section 72 of the current constitution. Within this legal framework all agricultural land is now owned by the state, hence the leases being offered are a departure from title deeds previously held by these former farm owners. Just like indigenous black resettled farmers, their tenure will now be 99 years as per the constitutional framework. Fourth, this is the first official readmission avenue of white former farmers back into the commercial farming sector, albeit on a different legal route and different land tenure terms. Their reinstatement is fuelling political controversy in terms of whether it aggregates to a reversal of the FTLRP and the gains of the liberation struggle that was fought to (among other social justice imperatives) repossess ancestral land dispossessed from indigenous black Africans by colonial forces. This return of white farmers onto commercial farms, through 99-year leases, is interpreted by some, e.g. sections of the war veterans’ community, as counter-revolutionary, with the potential to reverse the current land and agrarian structure achieved through the FTLRP.

            Voices of resistance: war veterans and the opposition

            There is emerging evidence of tensions and resistance to this GCD deal. For example, a court case by the War Veterans Pressure Group, a group of former liberation fighters with no political affiliation, is a prime example of how the emotive compensation question is facing resistance. These war veterans are suing the government of Zimbabwe at the High Court, arguing that the GCD be declared ‘void and of no force or effect … for not being consistent with Section 295 (4) of the Constitution requiring that any such compensation be done through an Act of Parliament’ (Whiz 2020, 1). As demonstrated above, the war veterans have a sound legal argument here because the actions of the government of Zimbabwe are clearly unconstitutional and undermine the rule of law. Their second major point of litigation is embedded in redressing social injustices of the past. Here, they are arguing

            that government has unfairly and on outright discrimination attended to the settler white race’s compensation concerns which only occurred post-independence … [while] none of the black race persons received any form of compensation whatsoever for the lost land, mines, stolen livestock, dehumanising survival and stolen artefacts over a century ago. (Whiz 2020, 1)

            Since there is no evidence that these war veterans are motivated by and driving a factional political agenda within the ruling ZANU–PF in opposing the GCD, it is only reasonable to proceed on the basis that their resistance is genuine and mirrors that of many in their ranks. Their resistance to the compensation deal is immersed in the history of colonial land appropriation, hence the call for a process that will ensure indigenous black Zimbabweans also receive reparations for land lost during colonialism. Further, their objection is premised on how this major policy shift has the potential to reverse some land gains pursuant from the FTLRP. This political stance by war veterans is instructive given their central role, political power and influence in ZANU–PF party structures and military ranks. Given that in the past, under the Robert Mugabe regime, they used their coercive power to influence government policy on land, it remains highly likely that their voice will be influential in driving the direction of this GCD policy shift.

            Resistance to the GCD from the main opposition, MDC Alliance, has been based on the legal foundations and elements of the compensation agreement, not its policy tentacles and direction. The MDC Alliance’s position is that the GCD is unconstitutional. This illegality notwithstanding, it adds that although ‘adequate and fair compensation is necessary to ensure viability and national stability’, the beneficiary criteria of the compensation package are biased because ‘labour that was affected by the Land Reform Programme, the four million former commercial farm workers and 150,000 seasonal farm workers that have been totally ignored’ (Munhende 2020, 1) are excluded from the agreement. This means the MDC Alliance is not entirely opposed to the GCD but disagrees with its illegal foundation and its criteria of targeted beneficiaries – hence MDC Alliance’s call for scope broadening to include compensation of former farm workers. This position is hardly surprising as it resonates with the ideological orientation of the MDC, since it was founded on social democracy values with labour, including former farm workers, as the core and driving force of its political constituency. This political rationale underpinning the MDC Alliance position on the compensation deal is astute. The party is engaging in a delicate political balancing act through advocating for the compensation of former farm workers while not entirely opposing the deal, as that could alienate white former farmers who are historically its political constituency since formation.

            This resistance to elements of the GCD by the main opposition party, MDC Alliance, and outright rejection of the compensation agreement by some war veterans is contrary to President Mnangagwa’s triumphant remark at the signing ceremony where he argued that this ‘brings closure and a new beginning in the history of the land discourse in Zimbabwe’ (quoted in Sibeko 2020). Instead, what the compensation deal has done is trigger memories of the brutality of colonial forces as they violently pursued land accumulation by dispossession, as well as how land anchored the liberation struggle. This reminds us that the land question occupies a special and sensitive place in Zimbabwean historical-political memory. Its ownership and control has a contested history, having been a cause of violence and armed conflict since the precolonial era. This history has thus deposited ‘a residue of memories of dispossession, trauma and hardship amongst deprived blacks’ (Sachikonye 2012, 108). With such a history, any major government policy shift, such as the compensation agreement that is perceived – rightly or wrongly – to be an affront to the majority’s repossession of their ancestral land, attracts resistance and opposition. This explains the outrage of some war veterans and the opposition who are questioning the fairness and justice of an initiative that seeks to compensate white former farmers, some of whom are descendant beneficiaries of land accumulated by dispossession.

            Conclusion

            The government of Zimbabwe’s decision to sign a compensation agreement, the Global Compensation Deed, with white former farmers has raised numerous legal, political and economic questions. The government’s argument that it is simply adhering to the rule of law by implementing Section 295 on constitutional compensation clauses, thus demonstrating its respect for constitutionalism and private property rights, has many legal loopholes. To begin with, the GCD is in breach of the constitution because Section 295 (4) states that any compensation, be it for land, improvements or both, must be calculated and paid guided by an act of parliament. Since there is currently no act of parliament to that effect, this means the compensation deal is unconstitutional and has no legal force. The government’s claim to be an advocate of constitutionalism is thus tenuous and insidious. Further, Zimbabwe’s economic implosion and colossal international debt obligations mean that it does not have the finances for this deal. It is thus relying on usurious international capital that will increase odious debt, resulting in further impoverishment of the country for generations to come. Given the government’s financial incapacitation, the deal demonstrates its misplaced policy priorities as it pursues geopolitical and geostrategic interests as part of its ‘Zimbabwe is open for business’ foreign policy mantra. Political expediency and foreign policy imperatives are top of the government agenda as it surges ahead with plans to compensate white former farmers with billions of dollars in the midst of an economic crisis characterised by the collapse of social and health services, chronic poverty, high unemployment and inflation.

            Further, if the government’s political strategy was to use the GCD as a step towards resolving the emotive land compensation question in Zimbabwe, they certainly miscalculated. Instead of resolving the issue, they have instead provoked resistance from some war veterans and the opposition. Their argument is that a historical injustice of colonial appropriation of land without compensation cannot be resolved through taxing black dispossessed citizens to pay reparations to descendants of their colonisers. Given this history of white accumulation by dispossession, a government policy that compensates white former farmers evokes memories of colonial injustice and raises questions about the justice and fairness of the GCD. Similarly, the government’s offer to some white former farmers (who remain on compulsorily acquired land) to regularise their tenure status by applying for 99-year leases is being resisted because it is a reversal of one outcome of the FTLRP. By offering these white former farmers this route to access land, the GCD (while not reversing the entire FTLRP) is unilaterally revoking land Offer Letters to indigenous black farmers previously allocated land. Effectively, this GCD provision is thus not only an antithesis to the FTLRP but contrary to one of the primary motivations of the liberation struggle, which was making arable land accessible to indigenous black Zimbabweans.

            Disclosure statement

            No potential conflict of interest was reported by the author.

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            Author and article information

            Contributors
            Journal
            CREA
            crea20
            Review of African Political Economy
            Review of African Political Economy
            0305-6244
            1740-1720
            December 2021
            : 48
            : 170
            : 630-645
            Affiliations
            [ a ] Fort Hare Institute for Social and Economic Research, University of Fort Hare , East London, South Africa
            Author notes
            [CONTACT ] Philani Moyo pmoyo@ 123456ufh.ac.za
            Article
            1990033 CREA-2020-0201.R1
            10.1080/03056244.2021.1990033
            a5678417-d314-4d41-bbb7-122d76c17260

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            Categories
            Research Article
            Articles

            Sociology,Economic development,Political science,Labor & Demographic economics,Political economics,Africa
            compensation inconstitutionelle,political tension,white farmers,fermiers blancs,dette,unconstitutional compensation,résistance,debt,Terre,resistance,Land,tension politique

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