By Mari Matutu | I have noted the regime has amended the Government notice on evicting the people of Chilonga and changed the reason for take over of land from “growing of lucerne” to “irrigation project”. The name of the ministry responsible has been left as is. 

Now that it has been shown that it is possible to push the regime and make them change their action, it will be foolish to fold arms and leave the people of Chilonga alone.

There is clear evidence that the regime just looked for a reason to put something on paper but nothing shall benefit the community. We have seen it all before. The Chiyadzwa people, the Chisumbanje people, the Chingwizi people, just to name a few, this regime does not look after anyone. 

Here is the problem with that Statutory Instrument.

1. The Statutory instrument is relying on the Communal Lands Act of 1983. That Act has not been brought into line with new Constitution of 2013. One has to first pick the provisions in Communal Lands Act that relate to this matter first then see if they complement or contravene the new constitution. I feel as our leaders have put themselves in front, they now need to fight  the battle with full background information of all the things the regime is relying on.

1. Communal land is defined as land that was defined as Tribal land under the Tribal land Trust Act of 1979. [Section 3 of communal lands Act]

1. The right to acquire, hold, occupy,  use, transfer, hypothecate, transfer or dispose Communal land has since been given to every Zimbabwean by s71(2). This renders s4 of Communal Lands Act , which vested the communal land to the president who will in turn permit people to occupy it null and void. By the adoption 2013 constitution all people in Communal land are occupying the land by property right from constitution and not at permission of the president. This automatically means s4 of Communal land is unconstitutional.

1. Section 7 of communal land Act of 1983, has restriction of occupation and use of

Communal lands. By s71(2) everyone was given right to occupy and use Communal Land without any restrictions. This again means whole s7 of Communal lands is against constitution and there for null and void.

1. Section 8 of Communal Lands Act of 1983 deals again with occupation and use of communal land for agriculture and for residential. However the 2013 has separated Agricultural land from Communal land by definition given to Agricultural land in s72 of constitution. The constitution in s72 specifically exclude Communal lands from Agricultural land. Where the constitution clearly state that agricultural land is not communal land, how then can s8 seek to give permission or no permission of communal land for Agricultural use. Since the right to occupy and use the land in

communal land has been given direct to individuals, it is now up to owner as to what he or she want to use it for, but the state has no more control over communal lands. It cannot determine what individual occupier has to do using s8 of Communal lands Act. 

• Again s9 of the Act talks of District council issuing permits to occupy. This falls away. No more permit is required from District Council. The constitution in s71(2) addressed that. Communal lands are occupied as of right of a citizen and not at the mercy of a Council.

• Section 10 of communal lands Act of 1983. This is where the minister who authored the Gazette is drawing his authority to take the Chilonga land. Without background information of all the preceding sections of the Act which I have explained above,  one would not see the error in Minister’s reliance on this section. The section says “the minister shall set aside the land contained in the communal land for the establishment of-“. This is where the minister is missing. 2013 Constitution did give communal land to the people. Those who occupy the land are no long doing it at the mercy of President. Communal land is no longer vested in president like it was in 1983. People no longer need permit to occupy and use the Communal land. The people now own the communal land they occupy. It their personal property which is protected by Civil and property rights right from UN charter until s34 of Constitution direct Legislation of this fundamental right from UN charter into our statutes, where upon s71 of constitution protects and guarantee the enjoyment of property rights of this particular land.

• The minister cannot set aside that which belongs to someone. The state and government minister can set aside that which belong to state. The 2013 left Agricultural land only as the state land that can be set aside for such use. The words “set aside” has no more place in communal lands anymore. It does not work. The minister should be aware that he has no authority over that land. If and only if he want to use the land, then he must follow procedures of s71(3) which talk of compulsory deprivation of property by following strict s71(3) constitutional conditions. He must forget about setting aside. It has no more value or relevance in Communal land. The whole of communal land is owned by those who occupy it. The state can only use the route of compulsory deprivation whose conditions are set by s71(3).

• I shall here paste section 71(2)&(3)

Section 71

(2)Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.

(3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied—

• the deprivation is in terms of a law of general application;
  • the deprivation is necessary for any of the following reasons—

(i) in the interests of defence, public safety, public order, public morality, public health or town and country planning; or (ii) in order to develop or use that or any other property for a purpose beneficial to the community;

• the law requires the acquiring authority—
  • to give reasonable notice of the intention to acquire the property to

everyone whose interest or right in the property would be affected by the acquisition;

• to pay fair and adequate compensation for the acquisition before acquiring the property or within a reasonable time after the acquisition; and
  • if the acquisition is contested, to apply to a competent court before acquiring the property, or not later than thirty days after the acquisition, for an order confirming the acquisition;
    • the law entitles any person whose property has been acquired to apply to a competent court for the prompt return of the property if the court does not confirm the acquisition; and
    • the law entitles any claimant for compensation to apply to a competent court for the determination of—
    • the existence, nature and value of their interest in the property concerned;
    • the legality of the deprivation; and
    • the amount of compensation to which they are entitled; and to apply to the court for an order directing the prompt payment of any compensation.

• It must be noted why we insist that laws be aligned to the constitution. As it stand a whole government that has a minister of Justice,  and  Attorney Justice and all permanent Secretaries who must correct a SI after a public out cry cannot still pick up the anomaly is s3 of the statutory instrument. They still cannot pick up that communal land is no longer owned or vested in president but was given to people and Government cannot set aside that which does not belong to it. It has to acquire ownership of it first by following procedures in s71 of constitution.
• In this case the law which is stated in s71(3) is not yet established. As I have shown above Communal lands Act is off line with constitution in all matters relating to this. I know zanu will always try to run away a try tricks. Let it be known that the Chilonga people are protected by UN charter on right to property so do not cry sanction mantra when it is raised you violet rights. The international treaties and conventions was be adopted into our laws by direct instruction of s34 of Constitution so where an issue relating to a fundamental right as property everyone interpreting a provision of rights in Chapter 4 of constitution is bound to interpret any of those rights by referring to international treaties , this is by express directive of s46 of constitution. Now as it stand s71 is under chapter 4 of constitution and is a fundamental right. The minister in drafting his SI he is bound by all treaties and provisions relating to property rights. Before he can pen anything more he must also realise that even with zanu’s 2/3 majority in parliament they cannot amend s71 without going to referendum. 

More to the fact that the law required by s71(3)(a) to be of general application and stating all the listed items is not yet there, his best option is to cancel the deal.   Kana tanga tisina vanhu kunzimbe tavakuzova wana.

• I call upon all Zimbabweans to stand up against a regime that has no respect of rights.