By Miriam Tose Majome
MANY arguments have been put forth calling for the Communal Lands Act to be amended to allow for private land ownership and acquisition of title deeds for communal land.
Such amendments will allow communal land to be bought and sold like any other privately-owned land to which real rights apply.
Last month, villagers of Chilonga in Chiredzi in the south-eastern part of Zimbabwe lost a court bid challenging sections 4 and 6 of the Communal Lands Act.
They sought to have the Act amended to make it possible for them to have real rights and be granted title deeds to their ancestral and family land.
They approached the court after a controversy-laden government initiated proposal to compulsorily acquire some of their land for purported agricultural use by a private concern. If the proposed acquisition goes ahead, it will dispossess the Chilonga people of some of their land which has been in their possession for many generations.
Government maintained that the villagers would not be summarily evicted as widely reported but that only some of the land would be appropriated. The villagers were unhappy with having to give up any of the land and wanted full legal private ownership and undisturbed control over it.
There are merits to their case as well as the many other voices which call for the privatisation of communal land.
The villagers rightly argued that the law is steeped in racism as it originated from discriminatory colonial laws that placed severe limitations on black land ownership.
A series of legal enactments, chief among them the Land Apportionment Act (1930), Native Land Husbandry Act (1951) and the Tribal Trust Lands Act (1965) and other enactments before them dating back to 1889, all conspired to impose various limitations to both possession and ownership of land by black people.
Before independence, black people were allowed to purchase land only in specifically demarcated areas under special conditions which were not attainable by the majority.
The various succeeding pre-independence legal enactments resulted in 51% of the total land being owned by the minority white people in mostly favourably arable areas while the entire black populace in the majority occupied only 22% of the less than favourable land.
The remaining 27% was reserved for forestry and national parks. The Communal Lands Act of 1981 proceeded from the colonial Acts and carried over the principle of communal land ownership. The Act vests ownership of communal land in the President and as such there is no private ownership. Communal land as the term suggests is shared communally by everyone in the community who has a right to be part of that community.
Zimbabwe Lawyers for Human Rights (ZLHR) was quoted saying: “The villagers 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, Chiendambuya, Nkayi or Tsholotsho’’.
Their argument sounded fair because it addressed their immediate problems. Unfortunately, however, the solution they sought did not address the long-term consequences of private communal land ownership.
Indeed, there are tangible benefits in the present because if communal land owners in Chilonga and elsewhere are allowed to own their land privately they will be protected from arbitrary dispossession because of the concept of inviolability of private property rights.
Many other communal land owners in the country are facing similar challenges and threats especially those in areas with commercial mining prospects.
However, there is more that meets the eye regarding private property rights in communal land. The ownership conundrum is impossible and cannot be resolved and is best left as it is. Issuing title deeds for communal land will only make an already complex situation worse.
The best that can be done is improve the legal instruments to safeguard possession and administration in a way that maximises benefits to the entire community. Community share ownership schemes are a good idea but must be refined with less opaqueness and corruption because there is more at stake in communal land than just the land itself.
Communal lands are bequeathed with assets like minerals, wildlife, heritage sites, water sources, important features like forests, rivers, hills and mountains many of which serve as strategic points for telecommunications and meteorological infrastructure and other uses of a wider strategic nature.
The notion of private communal land ownership raises more questions than can be answered. The term “communal private ownership” itself is an oxymoron — a contradiction. Whose land is it anyway? What entitles the family members claiming private ownership of it over other family members?
This includes deceased and absent family members and those yet to be born into those families. What more entitlement do the claimants have to family land over other family members who have the same traditional entitlement to the same ancestral land?
Individual family members cannot claim private ownership of family land at the expense of other members who are just like them. It is such a treacherous and dangerous slippery slope from which there is no retrieval. There are also questions relating to gender and the ownership of paternal land by female family members.
Will female family members also be allowed to privately own family land that is traditionally vested through male lineage and transfer it to whoever they may choose including husbands, lovers and their children-generally people of different bloodlines to the clan?
By operation of sections 17 and 56, which prescribe equality of the sexes and non-discrimination on the grounds of sex, this is legally permissible but this will never be allowed by the gatekeepers of tradition and custom.
It will sound the death knell on patriarchy as it has always been known and practised in this country.
It is doubtful that the Chilonga villagers in their quest ever envisaged such a scenario.
These are some of the simple and seemingly puerile questions that are not addressed when advocating for communal land private ownership.
The issue is far from simple. There has to be justification for the entitlement like purchase, donation, prescription or inheritance of which there is none.
Expropriation is also a way of owning land like has been historically done by marauding invaders and colonisers but is an utterly impossible prospect in this age of the rule of law.
Family members cannot just grab ancestral land from other family members and expect the law to support them. The Deeds Registry Act does not envisage such an eventuality. If communal land is to be bought, who will the seller be and who would benefit from the proceeds and under which entitlement? If the President were to issue Deed of Grants, by what criteria would he choose the family members to grant and not to grant?
Apart from the nationalistic pride of shaking off colonial legislation, there is no benefit to amending the law for the greater good except only for the lucky people granted private title.
The benefits of communal land ownership far outweigh individual or immediate interests. Rural land is the ultimate default social security for the majority of black Zimbabweans.
After decades of living and working in towns, the majority reaches pensionable age and retires with little more than clothes and a few bits of furniture.
Most people have no savings, investments or pension policies and nowhere to go. When the chips are truly down, it is helpful that there is always a home to return to no matter the economic status of the land.
Rural poverty is far much better than urban poverty. The security of having a rural home to return to has been the one thing that has so far lessened the scourge of homelessness in urban areas and kept the numbers of people who live on the streets to a negligible fraction of what they could be.
The numbers of pauper burials has also been managed because it could be far worse especially given the sustained two decades-long economic distress in the country.
For all the ills of colonial laws, black people are still guaranteed a home and final resting place if they so choose. Even if one dies alone and unknown among strangers, they can still be traced back to their ancestral home and be buried by their people.
Even if burned to pulp, their rural place of origin can be located using their national identity number. Criminals can also be traced in that way and brought to justice which would be difficult if their origins were unknown.
It is not possible to do justice to all the reasons why communal land should never be privately owned. People can continue to buy and sell it illegally as they do now and have done for years in some parts of the country, but that is not an issue because all those sales are invalid and inconsequential in the long run.
For all the Chilonga villagers’ disappointment with Justice Martin Mafusire’s judgment, it was one of the best judgments ever by the High Court.
The judgment was for posterity. It was not only for the benefit of descendants of the Chilonga people but for all the future generations of Zimbabweans who are privileged to have a rural home somewhere and an ID number that can trace them back to the land of their fathers and people.