On 26 February 2021, the Minister of Local Government, Urban and Rural Development of Zimbabwe passed Statutory Instrument (SI) 50 of 2021 to set aside 12,940 hectares of communal land in the village of Chilonga, Chiredzi district. The SI provided that any person residing on this communal land would have to leave the area by the date of the publication of the notice. This land is home to the Shangaan people who are a minority group in Zimbabwe. There are about 2,258 households and around 13,840 people on this land that are now being evicted without remedy or compensation.
Unfortunately, this is not the first time that the Shangaan people have been displaced. In the 1960s the British colonial government displaced them from an area that subsequently became the Gonarezhou National Park. The forced colonial displacement resulted in the Shangaan people moving to Chiredzi, the land from which they are now being forcibly removed. SI 50 of 2021 states that this land is being set aside for lucerne grass farming, allegedly to be used to feed the cattle owned by Dendairy, a private dairy processor that distributes to Zambia, Mozambique, and Malawi.
THE LAW REGULATING COMMUNAL LAND AND EVICTIONS
The Communal Lands Act [Chapter 20:04] is the act regulating the classification of land in Zimbabwe as communal land, the alteration of such classifications and any other related matters. Section 10 of the Act sets out how communal land, such as the land in the Chilonga Village in the Chiredzi district, may be set aside and the measures that must be taken by the designated minister when doing so. There are three reasons why a minister may set aside land. First is for the establishment of a township, village, business centre, or industrial area. The second is for the establishment of an irrigation scheme. Section 10(2) of the Act then functions as a catch-all clause which permits the designated minister to set aside any land contained within Communal Land, for any purpose “which he considers is in the interests of inhabitants of the area concerned or in the public interest or which he considers will promote the development of Communal Land generally or of the area concerned”. This may only be done, however, after they have consulted any rural district councils established for the area concerned.
Attention needs to be drawn also to section 12 of the Communal Lands Act which provides that when land is set aside under section 10, those that have been dispossessed or suffer diminution of their right to occupy the land must be given a right to occupy or use alternative land or, if no alternative land is available, they must receive compensation. Similarly, section 71(3) of the Constitution states that those compulsorily deprived of their property have a right to adequate compensation which needs to be paid before the acquisition of the property or within a reasonable time thereafter. The people of Chilonga have not been given alternative land or received compensation for their dispossession. The Shangaan people have stated that they strongly oppose their eviction and are at this time unaware as to where they will be going and whether there will be any compensation. To date the state has been silent on this issue. To take land from the Shangaan people without making alternative arrangements for them, and without giving them compensation is to arbitrarily evict them from their land and homes. Arbitrary eviction is prohibited by section 74 of the Constitution.
THE REACTION FROM CIVIL SOCIETY
The Statutory Instrument raised outcries from numerous civil society organisations and lawyers who highlighted its unconstitutionality. These actors also correctly pointed out that the Minister should have consulted the rural district council before effecting such a decision as is specified by section 10(2). The villagers of Chilonga have reported that no district council was consulted and the government has made no information available to the contrary.
Many lawyers and academics like Zwelithini Xaba, argue that the lack of an adequate legal purpose set out by the SI effectively renders such a statutory instrument null and void. They also argue that the Minister has acted outside of his delegated powers by setting aside the land for lucerne farming, which is not a purpose provided for under section 10(1) and (2) of the Communal Lands Act. As a result, the Minister published SI 63A, which seeks to correct SI 50. The new SI corrects the purpose from “lucerne production” to “establishment of an irrigation scheme,” which is one of the permitted reasons to set aside land under the Communal Lands Act. The government finally passed Statutory Instrument 72A of 2021. This SI repealed the first statutory instrument (50 of 2021) but still sets aside the land in Chilonga for the establishment of an irrigation system.
Despite these recent developments, if the government does not address the issue of alternative land or compensation for the Shangaan people, it will not meet the requirements set out in the Communal Lands Act and the notice will therefore be an arbitrary eviction.
THE IDP FRAMEWORK IN ZIMBABWE
Zimbabwe was praised for being one of the first countries to demonstrate commitment to creating a legally enforceable IDP framework as it ratified the Convention on Protection and Assistance for Internally Displaced Persons (the Kampala Convention), in October 2009. The country has, however, still not passed implementing legislation for the Kampala Convention, as required of state parties. The provisions of the convention, therefore, do not form part of domestic law. Zimbabwe also has not officially designated an authority responsible for IDP issues, as required by the convention.
The IDMC estimates that there were around 52,000 internally displaced persons in Zimbabwe in 2019. Without alternative land or compensation being provided by the government for these 13,840 people, they will sadly increase this number.
Tatenda Kerina Zvobgo is a Zimbabwean Human Rights lawyer who has experience in three jurisdictions. She has a passion for helping others and hopes to use her law degrees and leaderships skills to gain justice and equality for all.