CONSTITUTION WATCH 3/2021
[27th August 2021]
Communal Land and the Rights of Those who Live in It
Actions by the Government in recent years have raised questions about the rights of people who live in Communal Lands in Zimbabwe.
Government entities have mined diamonds in Communal Lands with scant regard for the people who live there. There have been repeated disputes over the quarrying of black granite in Communal Lands. And in March this year over 12 000 hectares were excised from Communal Land in Chiredzi to grow lucerne for a dairy company, an action which threatened to displace over 12 500 villagers.
Can people who live in Communal Land lawfully resist being displaced or dispossessed of their land? Have they a right to benefit from diamonds and other minerals taken from their land? Have they a right to compensation for being displaced or having their farming activities disrupted?
To answer these questions we must look first at the Constitution.
Section 332 of the Constitution defines the term “Communal Land” as follows:
““Communal Land” means land set aside under an Act of Parliament and held in accordance with customary law by members of a community under the leadership of a Chief”.
Apart from that definition, the Constitution mentions Communal Land several times:
It excludes Communal Land from the definition of “agricultural land” in section 72. This means that Communal Land is not liable to be expropriated by the State for public purposes in terms of that section, under the “fast-track” land reform programme.
Likewise, Communal Land is excluded from the definition of “agricultural land” that is subject to redistribution under Chapter 16 of the Constitution (see section 288).
Finally, under section 282 of the Constitution traditional leaders are given the function of administering Communal Land “in accordance with an Act of Parliament”. The fact that they are given this function by the Constitution means that while an Act of Parliament can limit their administrative powers, it cannot exclude them completely.
All these provisions have important consequences for people who live in Communal Land:
1. They have recognisable rights over the land: The definition of Communal Land makes it clear that people who live there as members of a traditional community hold the land, whether collectively or individually, in accordance with customary law. Their rights in and over the land are recognised by the Constitution.
2. Their rights are not subject to expropriation or redistribution by the State: This follows from the fact that Communal Land is not “agricultural land” for the purposes of section 72 or Chapter 16 of the Constitution.
3. Their rights are protected under section 71 of the Constitution: Section 71 protects everyone, except those who occupy agricultural land that is liable to expropriation under section 72, against being compulsorily deprived of their property, and “property” is defined so widely – “property of any description and any right or interest in property” – that it obviously covers the customary-law rights of inhabitants of Communal Land. Before someone can be deprived of their property under section 71:
The deprivation must be necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning, or in order to develop the property for a purpose beneficial to the community.
The acquiring authority must give reasonable notice “to everyone whose interest or right in the property would be affected by the acquisition”.
If the acquisition is contested, then either before the acquisition or no more than 30 days afterwards, the acquiring authority must apply to a competent court for an order confirming the acquisition. If the court does not grant the order the property must be returned.
The acquiring authority must pay “fair and adequate” compensation for the property either before acquiring it or within a reasonable time afterwards. The person whose property has been taken must be given a right to apply to a competent court for an order determining the amount of compensation payable.
These property rights can be limited by law in accordance with section 86(2) of the Constitution, but the limitation must be “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”.
4. Chiefs administer Communal Land: As we suggested above, an Act of Parliament can limit chiefs’ powers but it cannot exclude them completely from administrative decisions concerning Communal Land.
We now turn to see how two statutes which particularly affect persons in Communal Land measure up to the Constitution.
The Communal Land Act
The Communal Land Act [link] contains the following important provisions:
Section 4: Communal Land is vested in the President “who shall permit it to be occupied and used in accordance with this Act”.
Does this comply with the Constitution? Yes, so long as vesting the land in the President does not nullify the rights of people who, by virtue of the definition in the Constitution, hold the land in accordance with customary law. Vesting it in the President does not turn it into State land which the President can dispose of at will.
Section 6(1): The President can publish statutory instruments declaring that land ceases to form part of Communal Land, but before doing so he must consult any rural district council established for the area concerned. The local chief does not have to be consulted.
Does this comply with the Constitution? No it does not, for at least two reasons:
1. Excising land from Communal Land invariably deprives the inhabitants of their collective or individual rights in the land, so under section 71 of the Constitution they must be informed of the intention to excise the land – it is not enough just to publish a notice in the Gazette – and they must be given an opportunity to challenge the excision in court and to claim compensation. The Communal Land Act does not provide for this.
2. The chief, who is responsible for administering the land, must at least be consulted and preferably he should consult his people
Section 8: People may occupy and use Communal Land for agricultural and residential purposes with the consent of the local rural district council, and in giving such consent the council must have regard to customary law and must consult and co-operate with the chief for the area.
Does this comply with the Constitution? No The chief in consultation with the people rather than the council should be given power to allocate land.
Section 9: Rural district councils, with Ministerial approval, may issue permits allowing the use of Communal Land for administrative purposes, for hospitals and clinics, for businesses and for similar purposes. Chiefs, it seems, do not have to be consulted about such permits.
Does this comply with the Constitution? Councils probably have more expertise in the establishment of hospitals, clinics and so on, but chiefs should at least be consulted – and ideally they should consult their people.
Section 10: The Minister of Lands can set aside areas of Communal Land for townships, business centres, irrigation schemes or any other purpose. Before doing so, he must consult the rural district council for the area and then publish a notice in the Gazette:
describing the area and the purpose for which it is to be set aside, and
ordering all the occupants of the area, apart from holders of mining rights, “to depart permanently with all their property from the land concerned within such reasonable period as the Minister shall specify in the notice”. Anyone who refuses to do so is liable to a year’s imprisonment.
Does this comply with the Constitution? Certainly not. Occupants are presented with what amounts to an eviction notice without having been notified of the intention to set aside the land and given an opportunity to exercise their rights under section 71 of the Constitution, in particular to apply to a court for an order nullifying the proposed setting of the land. And once again chiefs and their people should be consulted.
Section 12: People who are dispossessed or who suffer a diminution of their right to occupy or use Communal Land must be given a right to occupy or use alternative land, if that is reasonable and practicable, but where no land is available they have a right to claim compensation under the Land Acquisition Act.
Does this comply with the Constitution? Not fully. First of all they are given no right to challenge the dispossession or diminution of their rights. Secondly, if they are offered alternative land they must accept it and cannot opt for compensation instead.
As we said above, a law can limit the property rights of persons in Communal Land in terms of section 86(2) of the Constitution, but any limitation must be “fair, reasonable, necessary and justifiable in a democratic society”. The limitations imposed by sections 6, 10 and 12 of the Communal Land Act do not pass this test.
The Mines and Minerals Act
Under the Mines and Minerals Act [link] very much the same rules apply to mining in Communal Land as apply to mining in other areas:
Communal Land is open to prospecting (section 26 of the Act) which means that licensed prospectors can search for minerals and peg claims on Communal Land, though they may not prospect near homesteads, buildings or cultivated land. They are entitled to take water and firewood and to erect tents and other temporary accommodation for themselves and their employees (sections 29, 30 and 31). Before exercising their rights they must give notice to the local rural district council, though not necessarily to the occupants of the land or their chief (section 38).
Holders of mining locations on Communal Land are entitled to mine for minerals on their locations and, for that purpose, to take water, cut down trees and erect buildings (sections 36, 178 and 234). The inhabitants of the Communal Land can cultivate crops and graze livestock on the location, so long as they do not interfere with mining operations (section 179).
Miners have to pay royalty to the Government on minerals taken from their locations (Part XIV of the Act). Royalty is paid to ZIMRA and goes into the Consolidated Revenue Fund like all other taxes. There is no provision in the Act for payments to be made to inhabitants of the Communal Land from which the minerals are taken, though under Part XV of the Act the Minister of Mines can order miners to make payments to local authorities – i.e. rural district councils and urban councils – within whose areas their mining locations are situated.
Generally, the occupiers of land taken for mining purposes do not receive compensation, unless prospecting or mining takes place on cultivated land or in the close vicinity of buildings.
Do these provisions comply with the Constitution? Perhaps. Owners and occupiers of land have never owned the minerals under their land, which have always vested in the State; and the State, personified by the Crown, the Governor or the President, has always reserved to itself power to grant to persons other than the owners or occupiers of the land the right to mine for those minerals. The law has to strike a balance between the rights of miners and the rights of owners and occupiers of the land on which mines are situated. The law in this country has tended to favour miners rather than landowners or occupiers, and has done so for more than a century – ever since white settlers occupied the country in the 1890s. On the other hand, the Constitution does protect property rights to a greater extent than before, and it does not specifically provide for mineral rights – it does not even say that underground minerals are vested in the President, which the Lancaster House constitution did. So it is arguable that the constitution-makers intended to change the law and that some of the provisions of the Mines and Minerals Act which allow mining operations to be conducted without regard to the interests of owners and occupiers of land are unconstitutional.
In any event, accepting that the provisions may be constitutional is not the same as saying that, in their application to Communal Land, they are equitable or desirable. A strong case can be made, on policy grounds for an amendment to the Mines and Minerals Act:
· to protect the rights of people in Communal Land where the majority of Zimbabweans still live,
· to ensure they receive adequate compensation for having to leave their land where their family graves are and where they have farmed often for generations
· to give inhabitants of Communal Land a share in the profits from minerals won from their land.
Conclusion: Current Situation
To conclude, we summarise our answers to the questions we posed at the start of this bulletin:
Can inhabitants of Communal Land lawfully resist being dispossessed of their land?
Answer: Not if the dispossession is caused by lawful mining activities. If on the other hand it is caused by the setting aside of their land for public purposes or the excision of their land from Communal Land, then they are entitled to reasonable notice and can challenge the dispossession in court.
Have they a right to benefit from diamonds and other minerals taken from their land?
Answer: Not at the moment, even though it seems just and equitable that they should.
Do inhabitants of Communal Land have a right to compensation for being displaced or having their farming activities disrupted by mining activities or by the excision of their land from Communal Land?
Answer: Generally they get no compensation for disruption caused by mining activities. If however their land is set aside for a public purpose or is completely excised from Communal Land, they are entitled to fair and adequate compensation.
Need for Law Reform
What we have said in this bulletin points to the need for law reform, as we have already suggested:
The Communal Land Act should be amended:
to ensure that inhabitants who face dispossession because their land is to be set aside for a township, growth point or other public purpose, or because it is to be excised entirely from Communal Land, are able to exercise all their rights under section 71 of the Constitution – the right to object, to challenge the proposed setting aside or excision, to claim compensation, and so on
to give chiefs power to allocate land to people who, under customary law, are entitled to occupy it, and
to give chiefs real powers to administer Communal Land as provided in section 282 of the Constitution.
The Mines and Minerals Act should be amended, generally to balance more fairly the rights of miners and owners or occupiers of land, and in relation to Communal Land:
to give inhabitants a share in royalties from minerals taken from their land
to require mining companies to enter into agreements with chiefs or local authorities requiring them to construct schools, clinics, roads and other infrastructure for the benefit of the people living in the vicinity of their mines, and to minimise ecological damage caused by their mining operations. These agreements should be published and made enforceable by the people who stand to benefit from them.
To require publication of pre-existing mining agreements with foreign firms or countries which apparently offer compensation and benefits to local communities – construction of roads, buildings, dams and so on – but which have not been made public. If the agreements are published everyone will know what has been agreed and the beneficiaries and people assisting them will be able to take action to hold the miners to their promises.