AMENDMENTS TO LAND ACT DUCK THE REAL ISSUES

C O N F I D E N T I A L SECTION 01 OF 02 HARARE 002353

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JFRAZER

E.O. 12958: DECL: 12/03/2013
TAGS: ECON EAGR PGOV ZI
SUBJECT: AMENDMENTS TO LAND ACT DUCK THE REAL ISSUES

Classified By: Laboff KRBel for reasons 1.5 (b) and (d).


1. (U) Summary: Recently announced amendments to Zimbabwe's
Land Acquisition Act do little except close several loopholes
through which commercial farmers based legal challenges to
compulsory acquisition of their land. Through a blend of
easing the procedural constraints on the GOZ and making these
amendments retroactive (to May 2000),the amendments
underscore the GOZ's de facto ability to do whatever it
likes, including removal of procedural or legal impediments.
Nothing contained in the amendments deals with the real
issues surrounding land reform: returning the land to
agricultural productivity, respecting the rule of law, or
addressing the thorny issue of sanctity of title. Given the
fact that most commercial farmers have already been
dispossessed of their land, the very utility of an amended
Act at this time is questionable. End summary.

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The Specifics
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2. (U) In a nutshell, the amendments make the GOZ's seizure
of land easier by:

-- removing the GOZ's burden of "personal service in writing"
of intent to seize land on the landowner and any other holder
of a registered real right (e.g., mortgage holders or water
right holders),and substituting publication of such intent
in the GOZ gazette and in "a newspaper circulating in the
area in which the land to be acquired is situated...";

-- repealing Sections 6A and 6B of the original Act, under
which farmers had previously offered either partition of
large farms or substitution of alternate farms -- despite
possible Administrative Court confirmation of existing offers;

-- removing landowners' legal challenges from the High
Court's jurisdiction (where many landowners had obtained
interim relief) and lodging original jurisdiction with the
Administrative Court;

-- repealing the Hippo Valley Agreement Act, which governed
development of the irrigated sugar lands in Chiredzi: this
Act previously stated that any land sold to planters under
that agreement could be repurchased by the GOZ "if...
required... for public use by the Government," with the
proviso that the GOZ must pay compensation "mutually agreed
upon," or otherwise determined by valuation, for the
repossessed land;

-- emasculating the previously-enumerated criteria listed in
the original Land Reform Programme (which exempted
large-scale plantations growing tea, coffee, timber, citrus,
or sugar cane; agro-industrial farms involved in poultry,
beef, dairy, or seed-crop production; export processing zones
(EPZs); properties operating under a Zimbabwe Investment
Centre (ZIC) certificate; approved conservancies; or the sole
property of the owner),and declaring that these criteria
were henceforth not binding upon the GOZ and no legal basis
for a landowner's objection;

-- broadening the scope of the process by declaring that the
original eleven million seized hectares was "only .. the
minimum" required for resettlement, thus opening the way for
the inevitable peri-urban land grab foreshadowed in the Utete
report.

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Comment
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3. (C) These amendments do little except polish the thin
veneer of legality surrounding the ongoing land grab. In
fact, they intimate that a new wave of "resettlement"
initiatives is waiting in the wings, with formerly exempted
properties targeted. As with previous amendments to the Land
Acquisition Act, these newest amendments are tailored to
counter the arguments landowners have used successfully to
challenge acquisitions through the courts: flawed process,
offers of alternative land, pre-existing agreements under
competing law, protection under EPZ or ZIC rules, approved
conservancy status, or unsuitability of specific land for
agricultural purposes. As the GOZ rushes to legislate
legitimacy for its poorly planned acquisitions, there is
little hope that any of these arguments will now provide any
relief in the courts.


4. (C) Despite recent press reports about Minister of
Information Jonathan Moyo's desire for a "legal instrument
that makes those title deeds a little lower than toilet
paper, forever a nullity that invites ridicule in any decent
court of law," (Herald, October 25, 2003),the GOZ has
apparently not been able to figure out a method for
addressing the issue of title. On the one hand, the GOZ
cannot abolish title to all agricultural land without harming
Zimbabwe's indigenous farmers. On the other hand, the GOZ
cannot abolish title only to white-owned land without
puncturing its contention that the land acquisition program
is about colonialism rather than politics and race. It
cannot abolish title deeds for all lands purchased before
independence without acknowledging that most agricultural
land was purchased (often with GOZ acquiescence) after 1980
-- scuttling its arguments about rectifying colonial
imbalances. The GOZ could attempt to invalidate title only
for "non-Zimbabweans," but it has already faced numerous
challenges to laws designed to disenfranchise third- and
fourth-generation residents (and voters) ahead of the 2002
presidential elections.

5. (C) While the GOZ may be comfortable with leaving its
small-scale A1 farmers with possession only and no pretense
to title, it cannot ignore the issue forever with its
large-scale A2 commercial farmers. At this point, "new
farmers" occupy even the largest farms without any sort of
bankable title. Absent independent wealth, commercial
agriculture requires capital -- and capital requires
collateral. The GOZ, following its own precedent in creating
"bearer's cheques" rather than printing more bank notes,
could theoretically print a title-deed-like document rather
than invalidate existing title deeds. Indeed, the GOZ has
floated publicly the idea of issuing 49 or 99 year leases for
such land, "which banks should accept as collateral."
However, it is unlikely that many mainstream banks would
accept such instruments as security for agricultural loans --
particularly with competing claims of ownership, and the
inevitability of legal conflict should a bank wish to
foreclose. If capital is indeed a coward, then Zimbabwean
agriculture will remain a frightening investment destination
until such anomalies are resolved.


6. (C) Except for removing the legal protections that have
theoretically, but not in practice, fenced off conservancies,
export zones, and other categories of land, the timing of the
law makes little sense. The vast majority of commercial
farmland is already de facto in the hands of new possessors
(as opposed to titled owners),making the amended law
something of a moot point.
SULLIVAN