Unpacking land, heritage and the law

24 Jan, 2020 - 00:01 0 Views
Unpacking land, heritage and the law Many Zimbabweans were empowered through land reform

The Herald

Elliot Ziwira,Senior Writer

Historical memory as recorded by Ranger (1985, 1991), De Waal (1990) and Martin and Johnson (1981) recalls that contestations culminating in the struggles of the 1890s and 1970s were precipitated by the land issue.

Because of its finite nature, land will remain an area of contention.

There is need for constant exploration and evaluation of this vital heritage with the view to put closure to the challenges that Zimbabwe faces as a result of the Fast Track Land Reform Programme that the country embarked on in the early 2000s.

Because land to Africans in general, and Zimbabweans in particular, is key to “livelihood trajectories” (Hebrink and Lent, 2007 in Mhlanga 2018:10), its loss through colonialism has been a cause for concern.

The historical link beckons in the analysis of the land issue in Zimbabwe with contrasting sensibilities always ensuing; one projecting a settler voice, and the other, a formerly colonised.

With the voices interacting and failing to merge, the issue of heritage is raised.

It is this matter of heritage which has put the nation state in a quandary.

The challenges and myths surrounding the Fast Track Land Reform Programme are a built-up of both the Hegelian theses, anti-theses and conflating syntheses, and Hegelian supremacist leaning, in a vicious cycle.

This cycle is steeped in the Marxian view that Man is responsible for his own fate, as he imposes his will on others, and the African conception of land as an ancestral heritage, which is communally owned, and cannot be individually owned, bought or sold (Armah, 1973; Achebe, 1958; Wa Thiong’o, 1977, 2018).

The sacredness of the land was rooted in that it was the dwelling place of the ancestors, and for that reason any claim to it as a heritage was clear cut; no alien could intercede between the living and the ancestors for the community’s prosperity through sustained rains.

Lan (1985) makes the observation that land was “mother” to the Shona community, and not a commodity, hence, it was sacred.

The spiritual connectedness to the land was born of the fact that it was the ancestors’ abode.

He avers: “Amongst the Shona the right of ownership in land is demonstrated and proved by the ability of a particular set of ancestors to control its fertility.

The people whose ancestors bring the rain own the land.”

The observation that only those whose ancestors are capable of bringing the rain, should claim ownership of the land, is as valid as it is appealing to the viewpoint that land is a contestation of heritage.

Sousa, Silva and Patrao (2010) aver that heritage is premised on four motivations, which are altruism; driven by familial solidarity; equity, inspired by the desire for equal division of possessions in order to maintain unity in the family; strategy, pivoting on reciprocity; and egoism, which is based on self-interest.

For avoidance of disintegration in the family unit, which in the broader sense reflects on communal and national discourses, heritage issues should be carefully examined and discerned.

Heritage is multi-disciplinary as it cuts across psychological, economic and sociological spectrums. Inasmuch as material gains are important in heightening relations between donors and heirs, where altruism is factored in (Becker, 1974), bequeathing heritage goes beyond the self.

As such, legacy is of essence for it transmits a selfless story hinged on elements of identity to future generations (Sousa, Silva and Patrao, 2010).

Legacy functions at three levels (Rowles, 2005); biological as in the passing of genes; personal values, like belief in education, ethos and the essence of kindness; and material; which is the transmission of possessions. All these are intangible aspects of heritage.

Heritage transferred from one generation to another, carries the historical, mythical and emotional patterns within a particular family or group, which is the basis of identity.

Because of the altruistic nature of leaving a legacy capable of positioning the familial base on solid ground, tangibles of heritage arouse feelings and emotions of love, anxiety, satisfaction, blame, humiliation or recognition (Kane 1996; Rappoport and Lowenstein 2007, cited in Sousa, Silva and Patrao, 2010).

Where material gain is involved, economic imperatives come in and with them the relationship between donors and heirs is bolstered, with the heir also motivated to build on his share and pass on an even better heritage to future generations.

Altruism makes it possible for donors to pass on their wealth to help their descendants in improving their standards of living.

Those that are left with nothing also suffer the psychological pangs associated with lack, and blame it on their progenitors.

There are always psychological and emotional issues involved in relation to heritage, especially when there is no satisfaction between parents (donors) and children, and or among siblings (heirs), leading to conflict (Segalen, 1999).

It may be that there is too much to be shared, or too little, without a clear criterion on distribution.

The egoistic motivation of heritage also requires probing, seeing that the roots of such behaviour can be gleaned in the black and white relations informing the motherland’s experiences, which somehow expose Hegelian supremacist traits.

In terms of heritage, and how it impacts on the well-being of future generations, the land is supreme.

The land is a source of wealth, pride, identity and spiritual connection and it is this issue that is central to the contestations impeding collective heritage in Zimbabwe.

So, what is the land?

The Land Commission Act, Chapter 20:9, states that “‘land’ includes anything permanently attached to or growing on land.”

The Act does not define what land is, but what it comprises, and what it is capable of doing.

It allows for growth and permanence of life, which is both limiting and broad, depending on how one reads it.

In the limited sense the land is an expanse or sod of soil where crops may be grown.

But in the broader sense, as the Act outlines, the word encompasses everything that grows on it, or is permanently attached to it; like buildings, mountains, rivers, forests, minerals and animals.

It also refers to the motherland, or country. Land sustains life, without which Man and his environment are doomed.

In terms of heritage, and what constitutes nationhood, however, “a man’s country is not a certain piece of land, of mountains, rivers, and woods, but it is a principle, and patriotism is loyalty to that principle” (George William Curtis).

Contestations on the land issue are mainly a result of lack of understanding of the concept of loyalty in relation to patriotism and principle.

Or perhaps, misplaced loyalty, seeing that there are competing nations in the land known as Zimbabwe.

The issue of the law; the rule of law, is constantly raised about the post-2000 Fast Track Land Reform Programme, with critics questioning the legality of it all, as if justice was ever a strong point in colonial administrations.

Digore cited in Shipton (2009:212) makes a valid observation: “Now, I want to pose a question before this honourable conference, this term we call legal, this term we call lawful, what is legal and what is lawful?

“To me I think the question of the land is beyond law. It is bigger than law”.

When justice wears so many faces, then the question of law becomes invalid, especially where land, an ancestral heritage is involved. The law falters (Sacco, 2008).

There is no social justice in the law, because it is crafted by mortal legislators; but the land has a life of its own; because it “provides a place to live, to grow food gardens, and to satisfy emotional requirements related to maintaining historical family connections” (Shackleton and Shackleton, 2015).

It is interesting to note that the issue of legality that is a point of reference to everything “wrong” about the Fast Track Land Reform Programme, finds traction through media lenses controlled by Europeans with vested interests in the same heritage.

Critics of land reform have for long been imbued with the legality or illegality of the post-2000 Fast Track Land Reform Programme, and the manner in which it was done, particularly on issues of property rights and human rights.

The issue of rights is as universal as the land is finite, and history is alive to the meaning of an illegality and what constitutes it.

Access to a heritage situated in the “livelihood trajectories” of a people (Hebrink and Lent, 2007), is what constitutes human rights and what is considered legal.

This standpoint is inspired by the rationale that land is beyond law because it is an ancestral heritage, thus, focus should be on “holistic human justice, rather than focusing on one aspect of justice” (Masitera, 2016: ii cited in Mhlanga, 2018).

After all are laws cast in stone that they cannot be constantly visited with the view to change them if they can no longer reflect the realities obtaining in the communities whose behaviours they are meant to regulate? As Aristotle avers, “even when laws have been written down, they ought not always to remain unaltered.”

Hegelian supremacist ideas are devoid of justice, fairness and humane values; they simply know no law.

This viewpoint is inspired by the illegality of the two said Concessions; Rudd and Lippert, which were used to dispossess blacks of their land.

The Lippert Concession of 1891 was the British’s attempt to “legitimise an illegal government” (Chigwedere, 2001:17).

In other words it was a case of plunder first, then sanitise and regularise it “through the backdoor” (ibid) using dubious legal means.

Since Independence in 1980, the Government of Zimbabwe sought to redistribute the land through enacting land reform laws, with the Land Acquisition Act of 1992 quickening the pace on a willing-seller, willing-buyer basis.

The post-2000 Fast Track Land Reform Programme was also backed at law (though some may argue that it was in retrospect).

The land, therefore, is a heritage, that should not be tempered with, because it straddles interdisciplinary spheres capable of shredding the societal fabric embodied in the family unit if due diligence is not exercised in its handling for the benefit of present and future generations through correction of past mishaps.

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