CASE NOTE: LIVISON CHIKUTU AND ORS VS MINISTER LANDS AND ORS CCZ 03/2023 (Chilonga Case)
12 May 2023
Introduction and background
The question that boggles people’s minds in Zimbabwe is whether families living in communal areas can lawfully resist being displaced from the land they occupy when the land is set aside by the government for a particular ‘development’ project. Given Zimbabwe’s development agenda centered around developing natural resources, it is essential to identify lawful resolutions that will protect more communities from becoming victims of development-induced displacements. It is essential that lawful processes be followed when people are displaced from communal lands where they have been living for a long time, to pave the way for projects such as mining, agriculture, construction, and irrigation schemes. As ZELA, we observed violations of fundamental Constitutional human rights due to some of these displacements. Some of the rights violated include environmental rights (Section 73), the right to safe, clean, and potable water (Section 77), the right to dignity (Section 51), and the right to education (Section 75). These rights constitute a group of rights referred to as environmental, economic, social, and cultural rights. The impacts of such unlawful displacements are many, including the destruction of homesteads, loss of land and property damage.
Last week, the Constitutional Court of Zimbabwe had the opportunity to make a judicial pronouncement on communal land rights in the case of Livison Chikutu and 2 others vs Minister of Lands, Agriculture, Climate and Rural Settlement & 3 Ors (popularly known as the Chilonga case). This case note seeks to analyze the court’s ruling and implications for communal landholders.
The community in this case made an appeal to the Constitutional Court against the entire judgment of the High Court, seeking an order to declare Section 4 and Section 6 of the Communal Land Act [Chapter 20:04] unconstitutional. Section 4 of the Communal Land Act reads as follows:
Communal Land shall be vested in the President, who shall permit it to be occupied and used in accordance with this Act.
Section 6 of the Communal Land Act reads as follows:
Subject to this Act, the Forest Act [Chapter 19:05] and the Parks and Wildlife Act [Chapter 20:14], the President may, by statutory instrument—
a) declare that any State Land shall form part of Communal Land;
(b) after consultation with any rural district council established for the area concerned, declare that any land within Communal Land shall cease to form part of Communal land
(2) Whenever the President has published a declaration in terms of subsection (1), the Minister shall, by statutory instrument, amend the instrument published in terms of subsection (1) or (3) of section five, as the case may be to reflect such declaration.
(3) Whenever any land ceases to form part of Communal Land in terms of a declaration published in terms of subsection (1), such land shall thereupon become State land until it is granted, sold or otherwise disposed of in term of this Act or any other law.
The application had initially been made to the High Court after the Government had given notice to set aside 12 840 hectares of land for lucerne production and subsequently for an irrigation scheme in the Chiredzi district. The High Court had dismissed the application which had been placed before it. The appellants are peasant farmers of the Hlengwe-Shangani ethnic group who occupy tracts of land in the Chilonga area in Chiredzi.
The communal farmers argued that the land that had been set aside, an extent of 12 940 hectares, formed a significant part of the Hlengwe-Shangani communities ancestral lands that they had inhabited for decades. The appellants listed the fundamental rights contained in Sections 51: right to human dignity, 48: right to life, 71: right to property, 63: right to language and culture, and 56 (1): right to equality and non-discrimination of the Constitution of Zimbabwe as being violated by the respondents’ actions. The Chilonga community asserted that their right to practice their culture under Section 63 of the Constitution would be affected by their forced relocation from their ancestral lands. Forced relocation would also violate their dignity. The community also stated that they had not been consulted or given an opportunity to make submissions before the decision to displace them was made. Meetings with government officials were hostile and futile.
The Ministry of lands, agriculture, climate, and rural settlement contested the community’s claim to ownership of the reserved piece of land stating that their community was a mere beneficiary of the communal land whose title was vested in the President who has the authority to permit land usage within the confines of the Communal Land Act. Therefore, Section 4 and Section 6 of the Communal Land Act did not offend the Constitution. The Ministry of lands, agriculture, climate and rural settlement also refuted the community’s claim that the project’s true intent was not an irrigation project but that mineral deposits had been found in the area. Lastly, it was highlighted Section 12 of the Communal Land Act provided for compensation in instances of displacement from communal areas.
With regards to communal landholders having ownership of the land, the community had argued that their right to ownership of this land is guaranteed under Section 71 (2) of the Constitution and contended that this right has been violated by the setting aside of 12 940 hectares of the land they occupy. The court highlighted that the occupation of communal land is entirely consistent with the occupation of agricultural land under Section 72 of the Constitution. In both instances, an occupier requires permission or consent from an authority duly empowered by an Act of Parliament. Thus, there is no difference between an occupier of communal land and an occupier of agricultural land. This is because both classifications of land are vested in the State.
The Court also looked at Section 8 of the Communal Land Act which gives rights of occupation to community members that have occupied the land traditionally and continuously for extended periods. A perusal of the section reveals that the law recognizes the right of a community to occupy communal land that such a community has occupied continuously. It does not define the amount or length of time for such an occupation. The court held that when regard is had to Section 71 (1) of the Constitution, it becomes clear that the provisions of Section 8(1) of the Act are not only consistent with but give effect to the right to property being claimed by the appellants. That right is not restricted to ownership. The right includes the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property.
On a proper construction, the law on the occupation of State land, which includes communal land and agricultural land, Section 72 of the Constitution, makes it clear that occupation of land utilised for agricultural purposes must be in terms of lawful authority under Section 72 of the Constitution or the consent of a rural council under subsection 8 and 9 of the Communal Land Act. None of the occupants own the land. Therefore, there is no apparent difference between occupiers of land found in communal lands and those in occupation of agricultural land as defined in s 72. Thus, occupation is at the pleasure of the State.
An occupier in both instances requires permission or consent from an authority duly empowered by an Act of Parliament. As the law currently provides, occupiers of agricultural land under the Land Reform Program and those occupying pieces of land situated in a communal area both occupy State land. They are given authority or permission to occupy by statute. By living in communal areas, the appellants have elected to be bound by the strictures of occupation and use as set out in the Communal Land Act.
The further argument by the appellants that the right in Section 71 relates to individual ownership of property is incorrect. Individuals or persons can exercise the right in association with others. With regards to traditional/customary law, in terms of Section 8 (2) (b) of the Act, the right of a community that has traditionally, and continuously occupied land located in communal lands is guaranteed by the denial of permits of occupation to persons who have not continuously and traditionally been in occupation thereof.
In addition, it was held that it is clear that Section 8 (2) (a) and (b) accord preference to the customs of the community that has been in occupation. The special provision ensures that a rural district council, in granting consent to dwellers, must have regard for customary law. Therefore, the customs of a community take precedence when the local authority is making decisions affecting the community itself. In addition, where a community has been in continuous occupation of communal land, a district council shall deem that such community has the appropriate consent to occupy the same.
Analysis of the ruling and its implications
The decision of the Constitutional Court of Zimbabwe in this case significantly clarifies the scope of the right to property concerning communal land under the Constitution – the occupation of communal land is at the pleasure of the State. The court held that while communal land-dwellers have a certain bundle of rights under the Communal Land Act, the right to use and develop that land is subject to the provisions of the Act. Once the State decides that it is in the public interest to set aside communal land for any purpose within the confines of the Communal Land Act, it is at liberty to do so. The Constitutional Court pronounced that Sections 4 and 6 of the Communal Land Act are constitutional. Communities do not own the land that they occupy, and it can be taken away at any time even though generations or lineages would have occupied that land for hundreds of years. The right to property in that regard encompasses more than just ownership; it includes the right to acquire, hold, use, transfer, hypothecate, lease, or dispose of all forms of property. The rural population occupying communal lands constitutes much of the population in Zimbabwe. This means that all communal land dwellers do not own the land that they occupy. Once displaced, they are entitled to some compensation in terms of Section 12 of the Communal Lands Act. However, it has been noted that often most of the communities that have been displaced due to development-induced displacements are not compensated although in instances where they have been compensated, there are issues of adequacy.
- ZELA is currently drafting Model Regulations on Relocation which will provide a guide to equitable compensation and clear procedures on how the relocation should take place. Going forward, an important issue that needs to be addressed is the need for comprehensive reform regarding the communal land tenure system. There is no security of land tenure. To address these challenges, it is essential to implement legal reforms that provide robust community rights to land tenure. This will enable people to occupy and own land securely, without fear of displacement or dispossession.
- It is also important that communities have a voice and participate in decision-making processes that affect their lives and livelihoods in instances that involve development. As it stands, both communal and agricultural land is vested in the President. There is no security and at any time these lands can be gazetted and taken away from people who occupy, use and benefit from such land.
It is evident the challenges that come with Zimbabwe’s communal land tenure, and these require effective solutions. The Zimbabwe Environmental Law Association continues to advocate for the promotion and respect of community rights. ZELA actively takes the initiative to educate communities about their rights and how to seek recourse when their rights have been violated. To overcome these challenges and ensure that people’s rights are upheld, there is a need for the development of a comprehensive legal framework for displacement, relocation and compensation related to development projects. This will advance the respect of property and administrative rights as provided for in the Constitution. Additionally, community participation in decision-making is essential to ensure that communities have a voice in the management of the land they occupy. It is important to provide opportunities for meaningful community participation in decision-making processes at both local and national governance levels.