The EFF and ANC manifestos

The first is women’s rights to land in communal areas, and the second is a rather strange clause that is aimed at “advancing women’s access to land and participation in agriculture and rural economies”.

But the Freedom Charter’s declaration is clear: “The land shall be shared among those who work it!” The bulk of persons who work the land are women, whether it is their own gardens, their own farms or simply as farmworkers. A manifesto responding to people’s needs should have placed women at the centre of land acquisition, land redistribution and agricultural production.

Beyond its stale proposal to amend section 25 of the Constitution, the EFF’S manifesto presents fresh and imaginative solutions. A concrete proposal is laid down for state ownership. Nationalisation of land has vanished from the rhetoric. In vogue is “state custodianship” of land for “equal redistribution to all”. Even that principle will not be applied overnight, but “progressively”.

The mechanics of state custodianship are to be spelt out in the proposed land redistribution and agrarian reform legislation. Perhaps one should add that before redistribution the land must be acquired, hence we should be talking about a Land Acquisition and Redistribution Act.

In addition, state custodianship would not result in state ownership, according to the manifesto. Instead, the state would distribute the land “in a manner that is democratically representative”, the primary beneficiaries of which would be women and the youth.

The EFF is insistent that foreign land ownership should be abolished. Their proposal to create an office for a “land ombudsperson” and the reconfiguration of the Land Claims Court are direct responses to the crisis of the collapse of the institutions of land reform, such as the Land Claims Commission and the Land Claims Court.

Unless those institutions are fundamentally restructured, it is impossible to embark upon a land and agrarian reform programme on an expansive scale.

Yet, granting the power of land redistribution to the state, as the people of Zimbabwe have witnessed, simply encourages corruption, arbitrary conduct and lack of accountability. Therefore, in reimagining the institutions of land reform, the most vital element is the rule of law.

In failing to install the institution of judicial review at the heart of the new proposed institutions, the EFF might legitimately be criticised for taking away procedural and substantial rights of persons likely to be affected by the land reform programme. In such systems — systems that lack a robust rule of law — the victims are always the poor. There is an answer to this in the form of the land ombudsman or, if it is to be established with the same powers as the public protector, a “land rights protector”.

Completely absent from the ANC manifesto are the rights of indigenous people potentially affected by mining. The EFF manifesto explicitly guarantees their protection. Mining legislation and mining practices have historically been the vehicle through which black people living in communal areas are dispossessed of land without compensation for the benefit of mining companies exploiting South African minerals. Legal precedent established in 2018 now asserts no community can be deprived of land for the benefit of mining companies without the community’s consent.

The ANC, via the responsible minister, Gwede Mantashe, intends to appeal the judgment, and has told mining companies that “anarchy” will result if he doesn’t. But there is no anarchy about a judgment that is simply an affirmation of an international law principle of free, prior and informed consent.

Moreover, there is a colonial and apartheid echo in Mantashe’s pronouncement. Mining houses and the state have for years displayed patronising attitudes, claiming to know what is in the best interests of communities. Now, communities assert that nothing can be done about them without them.

The judgment of Judge Annalie Basson is a potentially powerful instrument in the hands of communities. Unlike the past decisions about mining, one cannot exclude and marginalise the very people on whose behalf their land is ostensibly taken.

Post-constitutional legislation passed by the democratic government was intended to change the relationship between the people and mining houses in ways that truly empower the subalterns, so that “power belongs to the people”. Yet lived experiences have been the opposite. The axis of state, traditional authorities and mining companies has gradually eroded people’s power, entrenching the vulnerability of communities and opening up new avenues of economic and social exploitation.

Life cannot go on like this. The EFF’S explicit proclamation that communities such as Xolobeni will be protected by the state is a refreshing proposition. Equally innovative is the proposal to register and record customary rights to land so that customary rights-holders are offered “the same protection as other forms of rights over land”. The nonrecognition of customary rights to land is a relic of the colonial order. Although legislation was passed for the interim phase, it is notable that attempts have been made to make this permanent.

I will end on a note of disappointment. Neither manifesto focuses on the needs of labour tenants and labour dwellers. Research shows that this category continues to be the most vulnerable. Municipalities have piled up excuses about why they cannot offer toilets, refuse removal and sanitation services to labour dwellers.

Farmworkers are among the most heavily exploited workers in the country; easily dispensable, and their accommodation is terminable upon loss of employment. Labour laws protecting farmworkers require strengthening. In the absence of legal protection that vulnerability has been worsening.

According to the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies, more farmworkers have lost their homes post-1994 than in the entire period of apartheid. We are at a point of crisis of farmworker homelessness.

Nor do the manifestos mention a word about land-related corruption. We should be taking corruption seriously. Today, corruption affects each and every aspect of society. Land is no exception. If we are to make progress with land reform, redistribution and productive use of the land, we should confront corruption.

Although both manifestos begin with an endorsement for an amendment to section 25 of the Constitution, the solutions they propose are starkly different. The ANC appears to pin its hopes on managing the concerns of large agricultural businesses, undertaking to work in “partnership” with them, without any interrogation about why these partnership models have produced no tangible results in the past.

In its alternative vision, the EFF does not perceive the relationship with agribusiness as one of partnership, but as one of regulation for the promotion of the public interest. The pathway envisaged by the EFF, inspired by popular struggles, and rooted in the need for solidarity with the dispossessed, might evoke revolutionary nostalgia for some.

Those who might be sceptical about these proposals must remember that we are living in the age of policy stagnation. New ideas are hard to come by. If lacking in practicality, the EFF’S proposals do visualise an alternative future. That is not a bad thing. We should never stop imagining that things can be better.

The EFF’S explicit proclamation that communities such as Xolobeni will be protected by the state is a refreshing proposition. The non-recognition of customary rights to land is a relic of the colonial order

Tembeka Ngcukaitobi is a human rights advocate in Johannesburg and the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin)