By Nqobizitha Ndlovu-Zimbabwe Environmental Law Association

Introduction

This paper seeks to document the major developments in the history of wildlife tenure in Zimbabwe from pre-colonial times to the present. The fundamental question in shaping any wildlife management system of a country is that of ownership. The answer to this question is critical as it determines the major aims, roles and themes in the sustainable wildlife management system of a country. At the heart of Zimbabwe’s wildlife management system lies issues of control, exploitation/utilisation, welfare and conservation of wildlife and these are bought to the fore when the question is asked, “Who owns wildlife in Zimbabwe?” The paper explores the politics and interplay of ownership and utilization of wildlife and teases out how the balance or imbalance ultimately affects the conservation efforts. Community involvement and participation in wildlife management is regarded as the litmus test which ultimately determines the success or failure of conservation efforts. The paper builds on a previous discussion by Mutuso Dhliwayo from the Zimbabwe Environmental Law Association arguing for the review of the Parks and Wild Life Act to promote transparency and accountability in the wildlife sector.[1]

Pre-colonial wildlife tenure in Zimbabwe

Historically, in Zimbabwean pre-colonial societies, wildlife was not subject to ownership.  As a natural resource, wildlife was considered a community resource. In other words, the wildlife tenure was res nullius. While wildlife belonged to no one, it was central to the communities’ sustenance and source of livelihood. Wildlife played a central role in the communities’ social, cultural and religious wellbeing. Any member of the community had a right to hunt subject to a kin-based system of taboos which regulated which animal could be consumed and by whom. Hunting for subsistence was a universal customary right which was open to all members of the community. Since wildlife was considered as a source of food, traditional medicine, religious and cultural ceremonies, the traditional societies co-existed with wildlife. While human and wildlife conflict was inevitable, the utility of wildlife to the communities’ lifestyle and wellbeing was a balance to the loss suffered as a result of human wildlife conflict.

In a landmark South African decision, the Supreme Court of Appeal recognized the utility of wildlife to traditional communities holding that such communities have a greater interest in conservation and long-term sustainable utilisation of wildlife resources associated with their traditions and customs, than any other people.[2] This judgment is of immense interest to the Zimbabwean communities and their customary rights to hunt and fish using customary methods. The 2013 Constitution recognises customary law as an independent source of law equal to common law. Further, section 13(4) of the Constitution provides that the state must ensure that local communities benefit from the resources in their areas. While currently there is no Zimbabwean case on community customary hunting rights, the constitutional imperatives require an answer as to how the community effectively benefits from its own resources, which include wildlife. Community participation and involvement is thus critical in attaining that pre-colonial balance of communities standing as the guardians of wildlife which they regarded as an integral part of their socio-cultural and religious wellbeing.

Colonial policies on wildlife tenure: 1890 to 1975

The advent of colonization radically altered this traditional wildlife tenure system. The wildlife, which hitherto had no owner until captured or killed and in possession of a person, became the ‘King’s game’. The concept of the King’s game vested ownership of wildlife within the territory on the Royal Crown in England.[3] Royal ownership uprooted the traditional system which entrenched harmony between human and wildlife. The King’s game concept marginalized the local communities from a resource which customary law had allowed them use rights, and this led to widespread public resentment. In a bid to enforce the monarch’s ownership rights over wildlife, excessive penalties were imposed. This was during a time when the lives and liberty of the indigenous vanquished and colonized peoples were treated with scant respect. The colonial system tipped the balance in the human-wildlife relations heavily against local communities as wildlife found more protection than the local people. Thus, wildlife lost its utility to the local communities and this only served to marginalize and prejudice the people who held real power over the survival of wildlife on their land.

The racial land tenure system exacerbated the breakdown in the human-wildlife relations. While under the traditional setting, the igusu (wilderness/forest) was reserved for wildlife, the colonial government appropriated local communities’ land[4] and forcefully displaced the local communities to emaguswini (wilderness/forest areas). The colonial land use system totally disregarded the buffer zones which separated amagusu from imizi (human settlements) during the pre-colonial times. The inevitable conflict between wildlife and humans was thus born. The King’s game concept which effectively stripped the local communities use rights through hunting only served to fuel the conflict. The excessive penalties against hunting or killing of wildlife also reinforced the feeling that the colonial government valued wildlife more than human life. Wildlife thus lost its community utility and instead began to be viewed as a symbol of colonial domination and mastery. The desire to preserve hunting for the white minority and ruling elites as well as preserving colourful species was given paramountcy over the rights of local communities.

The Parks and Wild Life Act: 1975 to present

The current principal legislation which governs the ownership and utilization of wildlife in Zimbabwe is the Parks and Wild Life Act (the Act) which is forty-five years old now. The philosophy behind its enactment was that the King’s game concept did not give economic incentives for conservation of wildlife. In a bid to incentivize the conservation of wildlife, the Act gave landholders the right to manage wildlife for their own benefit, thus providing an economic rationale to reinforce the scientific, aesthetic and moral justifications for wildlife conservation. The Act was directed primarily at commercial farmers and ranchers. As already noted above, the Act was enacted in 1975 in the backdrop of massive land appropriations and forced displacements of the local communities from the prime land to emaguswini. Hence, the economic incentives philosophy in wildlife management was not aimed at the local communities but at the ruling elite.

The Act however contained a provision enabling district councils to be designated as the “appropriate authorities” for managing wildlife within district boundaries on communal lands, provided the Minister responsible for conservation and natural resources is satisfied with the council’s interest and capacity to manage these resources properly and with the full participation of, and benefit to, the people it represents. The provision was based on a paternalistic philosophy that local communities have no capacity to manage wildlife on their own. It must not be forgotten that the centralised system of government excluded the local communities from participation in any form of governance. The district councils were seen just as an extension of the oppressive system of governance by the white minority. It is no wonder that the first attempt to operationalise this provision in 1978 under Project WINDFALL (Wildlife Industries New Development for All) failed.[5] The fundamental weakness of WINDFALL is its failure to actively involve the local communities in wildlife management. Firstly, the project was rolled out on state land and not communal lands. As a result, communities had no voice in decision making. Secondly, since the project excluded communal land, it failed to revive that sense of communal ownership of wildlife which prevailed during the pre-colonial period. The project principally failed because it failed to promote the utility of wildlife to the community.

Post-independence, CAMPFIRE (Communal Areas Management Programme for Indigenous Resources), sought to give full control of wildlife management to rural communities. The theory behind CAMPFIRE is that communities will invest in environmental conservation if they can exploit these resources on a sustainable basis for their own benefit. However, the major weakness of CAMPFIRE is in its DNA which is the 1975 Act. The provisions of the Act were not directed at local community ownership and utilisation of wildlife. The white commercial farmers and ranchers were the target. As it stands, the legal basis of CAMPFIRE is debatable, and it is for this reason that there is no legal provision for the sharing of benefits accruing from CAMPFIRE. The CAMPFIRE Revenue Guidelines remain just that- a guideline. As noted in the European Union funded CAMPFIRE Review, Guidelines are not legally enforceable in that the RDCs cannot be held accountable for non-compliance with the provisions of the Guidelines.[6]

Hunting remains a preserve for the elites who have the economic means to apply for hunting permits. Local communities who suffer the brunt of human wildlife conflict remain sceptical about the benefits they derive from wildlife conservation. The Act has no single provision on the participation of local communities in wildlife management. There is no obligation on the Zimbabwe Parks and Wildlife Management Authority or on the Rural District Councils to consult local communities. Thus, community involvement, participation and consultation remain absent from the Act. Further, CAMPFIRE is just but a project or programme. It is not a legal provision or requirement. As a result, since colonisation to date, the wildlife management system in Zimbabwe has failed to provide for active community involvement in wildlife management.

Conclusion

One common thread in the wildlife management system from the colonial times to the present is the lack of legal recognition of the central role played by local communities in the management of wildlife. As noted in the Community-Based Natural Resource Management (CBNRM) review funded by European Union, the CBNRM-related laws do not have a formula on the sharing of revenue with local communities, yet they are the ones who bear the brunt of wildlife human conflicts.[7] Furthermore, despite their role in preserving culture, traditions, history and heritage of communities including shrines as well as management of the environment, the Traditional Leaders do not have power in decision making powers over natural resources management. There are no in-built accountability mechanisms for Boards to represent the views, needs and interests of the local communities in all CBNRM-related laws including the Parks and Wild Life Act. There is thus a need to strike a balance between ownership and utilisation and communities play a critical role in this balance. In this regard, the permitting and quota setting systems must involve the local communities. If the local communities do not see the utility of wildlife, then conservation efforts will in the long term be for naught.

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[1] M Dhliwayo ‘Reform the Parks and Wildlife Act to promote transparency and accountability in the wildlife sector’ http://www.zela.org/zimbabwe-must-reform-the-parks-and-wildlife-act-to-promote-transparency-and-accountability-in-the-wildlife-sector/.

[2] Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others; Gongqose & others v State & others (1340/16 & 287/17) [2018] ZASCA 87 (01 June 2018).

[3] HHT Prins, JG Grootenhuis and TT Dolan Wildlife Conservation by Sustainable Use

[4] This was done through laws such as the Lippert concession, the Native Reserves Order in Council, the Land Apportionment Act, the Native Land Husbandry Act, the Tribal Trust Land Act and the Land Tenure Act.

[5] http://www.fao.org/3/u5200e06.htm.

[6] Review of the Communal Areas Management Programme for Indigenous Resources (CAMPFIRE) and Community Based Natural Resources Management (CBNRM) Models (2017).

[7] D Mushayavanhu ‘Review of laws and policies relating to Community-based Natural Resource Management in Zimbabwe (2017).