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Africa 2011 – the people versus the State in respect of property rights

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Does the State exist? The fact that the State is an artificial construction of mankind is easily lost in human experience as human beings have an affinity to belong to something.

Human beings do not need the State for them to exist, but on the contrary the State cannot exist without human beings who give it legitimacy.

The State is, therefore, merely a vessel that can and should be used by living human beings to advance their cause for a better and secure life.

The African colonial experience has had its own toll on the psychology of the former subjects to the extent the post-colonial experience has produced its own contradictions and distortions.

While it is true that poverty is not a colonially-generated phenomenon, the link between poverty and colonialism in the minds of many is considered direct and causal.

In other words, a view is held that without colonial interruption, poverty would not exist in the form and extent it does in Africa.

The relationship between mankind and property is a subject on its own, but the purpose of opening a conversation on the relationship between the State and the people in relation to property is to expose the missing dots in the narrative that says the State can be trusted to lead the charge on empowerment in so far as it can purport to be the custodian of the resources created by God.

God created land and no man can, therefore, claim credit for its existence and yet many State actors would think and act otherwise.

If it is true that no human effort was expended in creating land or even minerals, what then ought to inform the link between the State and the people in relation to the ownership and use of land?

Many believe that once created, the state can substitute the people and have a life of its own.
Surely this could never have been the purpose of God to create resources and then through elections or other means create actors who then play God by assuming a superior status in government offices.

Zimbabwe does provide a good case study for interrogating some of the key and fundamental concepts that are important in nation building.

The current government is a creature of negotiations between three parties that are represented in Parliament.

Prior to its creation, Zanu PF was the driver of the State.

Zanu PF has been in power since independence and it is not unexpected that the party’s actors would hold the view were it not for their efforts, Zimbabwe would not have been liberated and, therefore, their right to govern is historically determined or even God-sanctioned.

Zanu PF members credit themselves for democratising access to land and now minerals resources through the land reform and indigenisation programmes, respectively.

With respect to the ownership of land, the State has assumed the control of the country’s land. Freehold title to land is vanishing with implied economic costs to the nation.

In the contestation for political power, Zanu PF makes the point it is the only vehicle that can be trusted to secure the rights of the indigenous people over land and resources.

A view is held strongly the State has the custodial role to play in engineering desirable social and economic outcomes.

Accordingly, at its recently held 12th conference, delegates of Zanu PF resolved that all beneficiaries of the land reform programme leasing farms to white former commercial farmers be penalised.

In addition the conference resolved to direct the government to withdraw offer letters given to people leasing land to white commercial farmers.

The above-mentioned resolutions are significant in that they expose the fault lines in the thinking on property rights.

When we talk of a lease in relation to land, what do we mean?

A leasehold estate is an ownership of a temporary right to land in which a lessee holds rights of real property by some form of title from a lessor.

The import of the party’s resolution is that the rights inherent in a lease are at best perishable and, therefore, not secure notwithstanding the safeguards enshrined in the Constitution.

Leasehold is a form of land tenure whereby the lessee has the right for a defined period, ie 99 years to occupy land.

What we do know is that although the lease is for 99 years, no beneficiary of land is expected to be productively relevant for the entire duration of the lease.

This in itself suggests the beneficiary will not exclusively travel the journey implied in the lease.
If this were the case, then why would members of Zanu PF find fault in beneficiaries exercising a right to lease to third parties or even sell the right that is inherent in the design of the leases?

When beneficiaries get offer letters from the government, it is natural that they expect to travel the journey as they deem fit lest the acquired right loses its true meaning to the detriment of national progress and prosperity.

When one acquires leasehold property, one actually gets the right to live and use the property.

Although the title to the land still vests with the State, questions relating to the use of the land have to be at the sole discretion of the leasehold right holder lest the beneficiary is transformed into an agent of the State.

The absurdity and mischief in the construction of the above-mentioned resolution lies in the patronage implied in how the State will continue to hold the stick for the duration of the lease for State actors to use for political expediency.

What is implied is that the lessee must not die or even fall sick.

In such instances, the conclusion of operating arrangements with third parties may easily be misconstrued as representing a negation of the principles of land reform.

When I acquire a right whether by way of donation or purchase, I must also enjoy such rights without being constantly reminded that such rights are unfettered.

Security of tenure is critical in motivating human beings to be productive.

However, where no serious thought has been applied to a business model, a risk exists that production will be undermined.

In allocating leasehold rights, no means or competency tests are part of the deal to suggest the beneficiary must not be able to make decisions as a sovereign player on how best to move forward.

The negotiability of a right is critical in informing human action.

Surely, it is and should be common sense that the right will vest with different parties during the 99-year journey.

When the first beneficiary expires, the successors need not be farmers.

More significantly, there should be no obligation on the successors to step into the shoes of the deceased.

The State should be comforted that leasing does not change the underlying rights and obligations.

The lessor in respect of land will always be the State and, therefore, any underlying deals should have no bearing on property relationships between the beneficiary and the State.

It would be wrong for State actors to concern themselves about how someone chooses to use his donation.

If you lease a house to me, surely I must be able to decide what it is in my best interests.

I may elect to find a lodger or even assign the rights and obligations to a third party including my successors as long as such right is exercised during the duration of the lease, the lesser should be barred from interfering.

The tendency to reduce beneficiaries into some kind of feudal tenants must be resisted.

The propensity to convert State actors into lords and for citizens to be reduced to vassals must be exposed and resisted.

Mutumwa Mawere is a businessman based in South Africa. He writes in his personal capacity.

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