Staff from the Masvingo Centre for Research Advocacy and Development (MACRAD Trust) consult with members of the Chilonga community in Chiredzi. © 2021 MACRAD Trust – FILE PIC
In their application which was filed in March 2021, the Chilonga
villagers, who were represented by Tendai Biti of Zimbabwe Lawyers for
Human Rights, asked the High Court to set aside provisions of Sections
4 and Section 6(1)(b) of the Communal Land Act, which vests rural land
in the President arguing that they are unconstitutional and offend
some provisions of the Constitution.
The Chilonga villagers, who are farmers who grow sorghum, maize and
millet while some of them are contract farmers for a local beverages
manufacturer for the production of sorghum, were aggrieved after
government sought to evict them to pave way for a commercial
irrigation venture with media reports stating that they were being
moved to pave way for a lucerne production project by a dairy
processing company.
They argued that the Communal Land Act denies them the right to
self-determination of Africans in Zimbabwe and has no room in
post-independent Zimbabwe.
The villagers contended that the Communal Land Act is a racist and a
colonial creature which regards Africans as too uncivilised as to own
land and queried how an African can own a house in Harare’s plush
suburb of Borrowdale but he cannot own his ancestral home in areas
such as Chiredzi, Mwenezi, Dotito, Chendambuya, Nkayi or Tsholotsho.
The villagers also argued that the intended eviction is an unlawful
deprivation of their to property as enshrined in Section 71 and
Section 72 of the Constitution arguing that no person may be
compulsorily deprived of their property.
In response to the application, government argued that Section 4 and
Section 6(1)(b) of the Communal Land Act are not in breach of the
Constitution and that there is nothing wrong in vesting communal land
in the State President and this is done to ensure orderly development.
The agricultural venture, government argued would generate foreign
currency, rural development, provision of basic amenities like
clinics, schools and better housing and the establishment of an
economic hub in Chilonga.
But in a judgment handed down on Thursday 6 January 2022, Justice
Mafusire dismissed the application after ruling that the impugned
sections in the Communal Land Act do not violate the Constitution.
While acknowledging that the Communal Land Act may have an obnoxious
and racist parentage, Justice Mafusire said government in its
“infinite wisdom” decided to make a political decision by leaving the
concept of vesting communal lands in the State President intact.
Justice Mafusire proposed that without some sort of Commission of
Enquiry on Zimbabwe’s whole agrarian reform especially as it applies
to communal lands, the courts may not be sufficiently qualified to
provide a wholesome solution to the question of private ownership of
communal lands.
The Judge ruled that it is not an undesirable fear that the granting
of title carte blanche to users and occupiers of communal lands may
result in undesirable consequences and warned that foreign land barons
may end up owning vast tracts of communal land and this may disrupt
the orderly customary way of life in those territories.
Justice Mafusire said the Executive and the Legislature are better
placed than the courts to consider, on the basis of the material,
information, the expertise, the resources, and so on, available to
them whether, in spite of the regrettable origins of the Communal Land
Act, it is time that private ownership of communal territories is
recognised so that individual title deeds can now be granted to the
occupiers of such territories.