Chilonga eviction saga: Time to amend Communal Lands Act

HIGH Court judge Justice Joseph Mafusire last Thursday dismissed an application by Chilonga villagers in Chiredzi challenging provisions of sections 4 and 6(1)(b) of the Communal Lands Act, which vests rural land ownership in the President, seeking to stop government’s plans to evict them so as to set up an agricultural venture on 12 940 hectares.

In their application which was filed in March 2021, the villagers, who were represented by Tendai Biti of the Zimbabwe Lawyers for Human Rights, asked the High Court to set aside provisions of the Communal Lands Act, which vests ownership of 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 make way for a lucerne production project by a local dairy company.

They argued that the Communal Lands Act denied them the right to self-determination as Africans in Zimbabwe, adding that had no place in post-independent Zimbabwe.

The villagers contended that the Act is a racist and a colonial creature which regards Africans too uncivilised to own land and queried why an African can own a house in Harare’s plush suburb of Borrowdale, but cannot own his ancestral home in areas such as Chiredzi, Mwenezi, Dotito, Chendambuya, Nkayi or Tsholotsho.

The villagers also argued that the intended eviction was an unlawful deprivation of their right to property as enshrined in sections 71 and 72 of the Constitution arguing that no person should be compulsorily deprived of their property.

In response to the application, the government argued that sections 4 and 6(1)(b) of the Communal Lands Act were not in breach of the Constitution and that there was nothing wrong in vesting ownership of communal land in the President as this was done to ensure orderly development.

The agricultural venture, the government argued, would generate foreign currency, rural development in the provision of basic amenities like clinics, schools and better housing and the establishment of an economic hub in Chilonga.

But in the judgment, Justice Mafusire dismissed the application after ruling that the impugned sections of the Communal Lands Act do not violate the Constitution.

While acknowledging that the Act may be obnoxious and of racist parentage, Justice Mafusire said the government in its “infinite wisdom” decided to make a political decision by leaving the concept vesting ownership of communal land in the President intact.

Justice Mafusire proposed that without commission to inquire into Zimbabwe’s whole agrarian reform, especially as it applies to communal land, the courts are not qualified to provide a wholesome solution to the question of private ownership of communal land.

The judge ruled that it was indisputable 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 land and this may disrupt the orderly customary way of life in such areas.

Justice Mafusire said the Executive and the Legislature were better placed than the courts to consider on the basis of the material information, expertise, resources and so on available to them whether, in spite of the regrettable origins of the Communal Lands 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.