‘We will over­haul the ten­ure sys­tem’

The Sunday Mail (Zimbabwe) - - ANALYSIS & OPINION - Tendai Bare Tendai Bare is chair­per­son of the Zim­babwe Land Com­mis­sion. She was speak­ing to The Sun­day Mail Se­nior Re­porter Lin­coln Towindo.

WE HAVE re­ceived over 2000 cases of land dis­putes and 512 have been re­solved. This may ap­pear to be a very small num­ber, but solv­ing land dis­putes is a very de­mand­ing and del­i­cate mat­ter be­cause you are deal­ing with some­body’s liveli­hood and her­itage, and you have to be very care­ful.

The mech­a­nism we are us­ing to solve the dis­putes is called Al­ter­na­tive Dis­pute Res­o­lu­tion, where all dis­putants par­tic­i­pate in re­solv­ing the dis­pute. It en­tails all the par­tic­i­pants meet­ing at the same time and pro­vid­ing all rel­e­vant in­for­ma­tion and we will be ar­bi­trat­ing, me­di­at­ing and con­cil­i­at­ing.

This makes the process pro­tracted; it is not an event, but a process.

But the beauty of this method is that once con­sen­sus has been reached, the dis­putants sign a cer­tifi­cate of agree­ment and that marks the end of the story, be­cause you must re­mem­ber that th­ese peo­ple have to live with each other for the next 99 years.

It is also a cost-ef­fec­tive method and not ad­ver­sar­ial in the sense that they are not go­ing to court and (it) brings about a win­win sit­u­a­tion.

Sources of dis­putes

Bound­ary dis­putes are the num­ber one source of con­flict. We have cases where bound­ary marks such as bea­cons or a tree are re­moved and neigh­bours be­gin en­croach­ing on one an­other’s land.

In such cases, we go on the ground and com­pare the ac­tual map and the lay­out given to each farmer. Then a car­tog­ra­pher ex­plains to the farm­ers the fea­tures on the orig­i­nal map and en­sures that the farm­ers agree on the fea­tures on the lay­out map so that there is con­gru­ence.

When they have agreed on that, we then use a Plano-me­ter to mea­sure the bound­aries on the lay­out of each farmer who is con­tend­ing and when each farmer is agreed that the lay­out is what is re­flected on the par­ent lay­out, we then have to walk the bound­aries farm-by-farm and then we agree and usu­ally leave a stone so that they can have bea­cons erected and af­ter that they then sign.

That is why the process is so de­mand­ing and pro­tracted. The other source of dis­putes re­lates to dou­ble al­lo­ca­tions.

This arise as a re­sult of the with­drawal of an of­fer let­ter from the orig­i­nal ben­e­fi­ciary, with it be­ing of­fered to some­one else.

Again this is a com­plex mat­ter, be­cause we have to es­tab­lish why the of­fer was with­drawn and when the ben­e­fi­ciary first set­tled on the land.

This is so be­cause there were dif­fer­ent poli­cies that were be­ing ar­tic­u­lated by Gov­ern­ment over a 17-year pe­riod, and we have to look at the in­con­sis­ten­cies of the poli­cies.

This is a very del­i­cate process be­cause we need to get in­for­ma­tion from the Min­istry of Lands, and that takes time.

We also have con­flicts be­tween min­ers and farm­ers and again we have to look at the poli­cies and laws guid­ing that.

Min­ers don’t want to give pref­er­ence to farm­ers but I think now its law that if min­ing is 50 me­tres within the farm­stead, then the farmer has first choice.

Then the other dis­putes we are deal­ing with are those of shar­ing in­fra­struc­ture.

This is par­tic­u­larly preva­lent with the A1s where they have to share elec­tric­ity, dams, servi­tudes and roads.

Ev­ery­one wants to have ac­cess to the in­fra­struc­ture but not ev­ery­one wants to pay for the ser­vices. Par­tic­u­larly for wa­ter and elec­tric­ity, there are some who pay the bills and some who are not pre­pared to do so. If the elec­tric­ity is switched off, then it means pro­duc­tion stops for ev­ery­one.

The other cases in­clude in­her­i­tance is­sues. Every time we are deal­ing with a batch of dis­putes, we al­ways have two or three cases of in­her­i­tance dis­putes where the sur­viv­ing spouse and the chil­dren are be­ing dis­posed of the farm and house­hold.

The De­ceased Es­tate Act is very clear that the sur­viv­ing spouse, par­tic­u­larly where there is no will, in­her­its the farm and the home­stead.

This is an area we hope the Min­istry of Women Af­fairs, Gen­der and Com­mu­nity De­vel­op­ment can come in and as­sist in rais­ing aware­ness and ad­vo­cacy.

This is an area that brings a lot of dis­con­tent, in­equal­i­ties and so­cial in­jus­tices be­cause some­times the de­ceased’s rel­a­tive will in­voke tra­di­tion and cus­tom­ary law, yet statu­tory law is very clear.

The other area per­tains to cases where there has been a di­vorce.

In some cases, the part­ners, when the union still sub­sisted, would have in­vested their re­sources into the farm and may have dis­in­vested what they had ku­musha or in ur­ban ar­eas. So when they di­vorce, they have to share the prop­erty and the farm, and it is very dif­fi­cult to co-ex­ist with a part­ner that you no longer have af­fec­tion for.

That is an­other area that we think Gov­ern­ment should re­view in or­der to come up with a bet­ter propo­si­tion be­cause ei­ther way one of them is go­ing to be des­ti­tute, par­tic­u­larly in cases where all the in­vest­ment has been sunk into the farm.

Then the other area of con­flict is on il­le­gal set­tlers who set­tle on ei­ther wet­land or graz­ing land, par­tic­u­larly on A1 schemes. This brings about con­ges­tion and hos­til­ity.

To sum it up, wher­ever there is a dis­pute, you can bet it will dis­rupt op­er­a­tions and so­cial re­la­tions. That is why we opt for ATR so we can re­store so­cial re­la­tions and also it is cost-ef­fec­tive. On av­er­age, we are get­ting about 300 cases of dis­putes per month.

And the chal­lenge is that I don’t have enough staff to deal with all the dis­putes; like I said, the dis­pute has to be re­solved in situ.

Then we don’t have enough ve­hi­cles be­cause we have to move from one district or ward to the next; in fact, that is the ma­jor chal­lenge we have.

Ten­ure re­forms

We have been as­sess­ing farms sub­mit­ted to us by the Min­istry and dur­ing assess­ment, we have es­tab­lished that the process of ac­quir­ing a 99-year lease is very bu­reau­cratic; there are 37 steps to be fol­lowed.

And it is also a very ex­pen­sive process and the farm­ers feel that the ten­ure doc­u­ment is too long for them to ab­sorb all the in­for­ma­tion and their obli­ga­tions.

Then with the ten­ure rights, some of the rights are not eas­ily com­pre­hen­si­ble.

Some are say­ing when they take the doc­u­ment to the banks, they can­not ac­cess fi­nance and some­times banks re­quest pro­duc­tion plans and col­lat­eral.

Com­pli­men­tary to that is the re­quire­ment in the Con­sti­tu­tion that we look into the ten­ure sys­tem with the aim of en­sur­ing that the sys­tem pro­vides the ap­pro­pri­ate rights and that they are sim­pli­fied.

It is some­thing we are look­ing at as a Com­mis­sion and hop­ing that by the first quar­ter of next year, we should come up with rec­om­men­da­tions of the ten­ure sys­tem and the 99-year lease.

We are re­search­ing on it and we are also ex­am­in­ing what other coun­tries are do­ing.

In fact, we just had a team that was in East Africa and they es­tab­lished that in Rwanda, the ten­ure doc­u­ment is just one page and that the process is not as bu­reau­cratic as it is here. We are likely to have an over­haul of the ten­ure sys­tem.

We un­der­stand from what we have gath­ered from study tours and other best prac­tices that a ten­ure doc­u­ment should em­brace ac­cess, oc­cu­pa­tion, trans­fer­abil­ity and use.

So that is the frame­work we will be look­ing at in pro­cess­ing the ten­ure doc­u­ment.

Land au­dit

The land au­dit is go­ing to start from the 25th of Oc­to­ber (Thurs­day) to about the 25th of Novem­ber.

Through the pi­lot study that we car­ried out ear­lier on, we were able to fine-tune the in­stru­ment that we are go­ing to use and also as­cer­tain the lo­gis­ti­cal sup­port re­quired. But the chal­lenge of re­sources re­main. In fact, the for­eign cur­rency ex­change tur­bu­lence that oc­curred last week desta­bilised us be­cause we were sup­posed to take de­liv­ery of ve­hi­cles from a sup­plier that had been au­tho­rised by Gov­ern­ment.

Then the sup­plier came and said they can’t pro­ceed with the con­tract be­cause they re­quired for­eign cur­rency.

As a re­sult, we are not able to im­ple­ment the land au­dit to the scale that we had en­vis­aged un­less we have the is­sue of the for­eign cur­rency re­solved. So now we have to hire cars and when you hire cars, you re­duce the bud­get you had. We will be go­ing to all the eight prov­inces (be­sides Harare and Bu­l­awayo).

For ex­am­ple, in Man­i­ca­land we are go­ing to Makoni; in Masvingo to Gutu; in Mata­bele­land South to Beit­bridge; in Mata­bele­land North to Lu­pane; in Mid­lands to Kwekwe; in Mashona­land West to Hu­rungwe; in Mashona­land Cen­tral to Muzara­bani; and in Mashona­land East to Hwedza.

We will be au­dit­ing all the re­set­tle­ment mod­els we have, namely: A1, A2, small-scale com­mer­cial farm­ers, three-tier sys­tem, com­mer­cial farms set­tle­ment scheme, com­mer­cial agri­cul­ture plots and A1 vil­lagised, A1 self-con­tained and peri-ur­ban farms as well as large-scale com­mer­cial farms.

We have de­vel­oped an in­stru­ment that has got 37 ques­tions which more or less cov­ers the com­plete pic­ture of a farm.

Then as the ques­tion­naire is com­pleted, we will up­load all the in­for­ma­tion into our server and our data cap­ture of­fi­cers will then an­a­lyse the in­for­ma­tion.

Find­ings of the au­dit

It is go­ing to take some time (to con­clude the au­dit) be­cause of lack of re­sources.

If all goes well and we are given all the re­sources, we should com­plete it by the end of next year. But if it fails, the Act pro­vides for us to do it in­cre­men­tally over a pe­riod of five years, but we want to do it ear­lier so that Gov­ern­ment has a land in­for­ma­tion man­age­ment sys­tem which can help them for­mu­late poli­cies, pro­grammes and strate­gies to sus­tain agri­cul­ture de­vel­op­ment.

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