Fidelis Munyoro Chief Court Reporter
The conflict in Chilonga pitting traditionalists who want to keep land use as it has been and those who want a multi-billion-dollar irrigation scheme that will dramatically increase production, but require reorganisation of land is not something that the courts can really adjudicate, a High Court judge has ruled when endorsing the Government development scheme.
Three villagers, Messrs Livison Chikutu, Pheneas Chitsange and Albert Dhumela, all residents within the area under review, had approached the High Court challenging the validity of two certain sections of the Communal Land Act, which they argued were unconstitutional since communal land is held in trust by the President rather than granted with title deeds to those who occupy it.
However, the Government argues that this trust facility, with the associated lack of title deeds, is constitutional since it recognises the land rights of communities.
In the case of the irrigation scheme under review, very few people would need to move, since the land is largely uninhabited, and those who had to move would get full compensation and be relocated to alternative land.
Though the three wanted the sections declared ultra vires the Constitution, the villagers — through their legal counsel — did not in their draft order identify which particular sections of the Constitution the two provisions might be in conflict.
The villagers seeking continuation of the traditional systems are all members of a cultural and linguistic community in the country called the Hlengwe Shangaani.
This community occupies the south-eastern Lowveld of Zimbabwe — mainly areas falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi and Triangle, along rivers such as Save, Runde and Limpopo.
But Justice Joseph Mafusire dismissed the application noting that the court alone may be ill-equipped to provide a solution to the matter which might require a political solution.
He described the application as a compelling dissertation on the history of the occupation of the country and agreed with the history presented by the villagers in their application saying it rung true for virtually every piece of the African continent that was under colonialism.
The judge, however, said when it comes to the nuts and bolts of the case, and the remedy the villagers sought, it becomes a different ball game altogether.
“Sometimes politics has to speak first, and only then may the law take over,” said Justice Mafusire.
“Where politics has not yet spoken, or where it has spoken something else, there may well be a lacuna in the law. The courts may be ill-equipped to fill up the gap.”
In this case, Justice Mafusire was not convinced that the impugned sections in the Communal Land Act were unconstitutional. The Communal Land Act might have an obnoxious and racist parentage, but at independence in 1980 up to the present day, the Government, in its infinite wisdom, decided to retain the Tribal Trust Land Act intact, albeit under a new title.
“It decided to leave the concept of vesting of communal lands in the State President intact. That was a political decision,” he said.
What sparked this constitutional onslaught by the villagers were a series of legal instruments passed by the Government, giving notice of the setting aside of 12 940 hectares in the administration district of Chiredzi for the purpose of creating a national project and ordering those there to depart unless they acquired rights of use or occupation in terms of the Communal Land Act.
Through their lawyer Mr Tendai Biti, the villagers argued that the intended move by the Government was an unlawful deprivation of their right to property as enshrined in the Constitution. Mr Biti went into the history of the Act and the lack of title deeds.
But in its counter-argument, the State through its legal counsel argued that the impugned sections of the Communal Land Act were not unconstitutional.
It was the State’s submission that there was nothing wrong in vesting communal land in the State President.
Residents of communal lands, he argued, had the right to use and occupy that land subject to the administrative oversight imposed by the Act.
This, Adv Machaya said, was designed to ensure orderly development of communal lands.
He said vesting of such lands in the President was done to ensure orderly development.
Adv Machaya said no development of any significant proportion occurs in communal lands without prior and proper planning and consultations with the community leaders and the local authorities.
He emphasized that no one would be displaced as the land that has been identified is largely uninhabited. Those that may be affected will be relocated and compensated adequately in accordance with the provisions of the Act.