Land Reform Policy

The Challenge of Human Rights Law

Ben Chigara

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351154307
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

Originally published in 2004. The book examines the possibility of resolving past and continuing social injustices that are rooted in colonial or some such other similar experience of states from a variety of perspectives. First the issue is examined from an international law perspective, which evaluates the validity of counter claims to title to land in affected SADC states. Secondly the issue is examined from a human rights perspective, which privileges promotion for the respect of the inherent dignity of all persons. Thirdly, the issue is examined from victimology and psychology schools of thought in order to understand both the effect and impact on stakeholders of the operative dynamics in conflicts that arise from long standing social injustices that are connected to colonial or some such other similar historical experience of States. The book proposes humwefficiency as a model for resolution of this type of conflict. This model targets preservation of the inherent dignity of all stakeholders by combining international human rights morality with local intuition about land ownership and use. In this sense, the book takes human rights theory beyond politics and utopia, and applies it to foster new social engineering technologies for the resolution of social injustices and promotion of social justice. This is justified by the fact that the human rights culture has evolved in a considerably short period of time to become the dominant culture of the world.

Chapter 1

Access to Land in Affected Southern African Development Community (SADC) States

1.1. Introduction

Zimbabwe’s land issue has elevated to the fore of international concern the question of how States resolve past and continuing social injustices that are rooted in colonial or some such other similar experience of States. It has also exposed lacuna in scholarship on the matter and demonstrated that the United Nations’ decolonisation program left unscathed some of the worst effects of colonialism on affected territories. This study has one objective, to formulate and recommend a juridical model for the resolution of past and continuing social injustices that are rooted in colonial or some such other similar experience of States. It uses the inequitable land distribution in the SADC as a typical example of a past and continuing social injustice that is rooted in colonial experience of some States.

But just how should examination of this problem begin, and proceed? Because the study uses the SADC land issue as a typical example of a past and continuing social injustice that originates in colonial experience, we should perhaps begin with a foregrounding of the SADC itself. Following on from that, this chapter of the book examines first why the land issue has risen to the top of the agenda in SADC States and beyond. Secondly, it analyses the dynamics that the land issue has unleashed. The purpose of this exercise is to both identify and understand the dynamics that manifest in disputes that are associated with past and continuing social injustices of a past era. Such understanding is critical to any effort that seeks to resolve the injustice in question.

Land ownership confers social, economic, and even political status for everyone in every community. When we talk about the “homeless people” in the West or “squatters” in developing countries, we are continually referring in coded language to the consequences of landlessness or of land policy of particular nations. Instead of insisting that someone’s situation recommends that they need land or property, we conveniently label them as “homeless” or as a “squatter”, pity them for a while before casually moving our thoughts, and then our conversations onto something else more “serious” and “entertaining” like “a game of golf” or “the new coffee that a neighbour brought us from their recent visit to the Far East”. In so doing, we endorse the situation of the homeless and the landless and all its causes, without so much as a care, until one day, the ferment of our own previous recklessness overpowers us, and forces us to account for decades of previous abandon and neglect. There is enough land on this planet, and enough resources for there to be no homeless person or squatter. Only one thing has created the land issue which in some societies is expressed as homelessness and in others as landlessness. The homeless need somewhere to live while the landless need land to eke out a living. That thing is avarice, or in more familiar language, greed.

The formation of the SADC was informed as much by futuristic, and even ephemeral social and political objectives as by the quest to affirm civil and political rights of the dispossessed and disenfranchised majority in the region. From the offset, it had a hybrid of functions that theoretically interconnected and combined to pursue the creation of a welfarist regional community similar perhaps to the supranational European Union (EU). With rigorous pursuit, the declared functions of the SADC potentially can release energies whose combined dynamic privileges the realisation of communal progress at the expense of hollow nationalism. Nonetheless, to even get started on the process of unleashing those energies, if at all that is desirable, or to sustain them, that is assuming that they already had been released, the SADC must prioritise its progress plan. This inevitably requires establishment of a hierarchy of preferences among the organisation’s goals. Collective assertion of political independence of Member States evidenced in the SADC’s acquiescence with President Mugabe’s campaign equitably to redistribute land in Zimbabwe appears to have shot in recent times to the top of that hierarchy at the expense of regional political and economic stability.

The strategies adopted to resolve the apparent problem of inequitable land distribution in the predominantly agrarian economies of the SADC States, the outcomes that they obtain, and the reaction of stakeholders will impact both the political stability and human resource and skill base of the SADC. Consequently, at least in the medium to short terms, the question whether SADC States will progress to realise their ultimate goal of harnessing the community’s inertia to establish an effective political and economical bloc depends in large part on the measures adopted now to resolve the land issue in affected States because inevitably, that will cast a model of how the region reacts to similar crises. Therefore, the strategies employed by the Community to resolve this problem will present to the international communities of commerce, business and others a barometer with which to determine the future risk of committing themselves in the region. That could hurt or hail the region’s developmental prospects. So far, South Africa’s approach of criminalising landless peasants¹ whenever they make physical claims of ownership of land against commercial farmers who appear to hold it in excess; and Zimbabwe’s encouragement of unconstitutional appropriation² by landless peasants of commercial farmland represent extreme responses to the problem of land ownership and its use in the SADC whose economy is predominantly agrarian.

Inter-State agreements that create regional organisations and agencies are commonplace. Chapter VIII of the United Nations Charter³ (UNC) authorises States to set up regional institutions for the promotion and protection of peace, subject to the requirement that such arrangements are consistent with the purposes and principles of the United Nations⁴ (UN). The UNC enjoins the Security Council – the UN organ with primary responsibility for the maintenance of international peace and security⁵ – to encourage pacific settlement of local disputes through such regional arrangements or by such regional agencies⁶ as States already may have established. The Security Council (SC) may utilise these regional organisations and agencies to enforce its decisions.⁷ Security Council Resolution 1279 (1999) on the civil strife in the Democratic Republic of Congo called upon all Congolese parties concerned to participate in the national dialogue to be organised by the Organisation of African Unity (OAU) (renamed African Union-AU) and called upon them and the OAU to finalise agreement on a facilitator for the national dialogue.⁸ In its practice statement of 31 August 1998⁹ the Security Council acknowledged the increasingly important role of regional arrangements and agencies, and of coalitions of Member States in the promotion of peace and security, and stated that, all such activity shall be carried out in accordance with Articles 52, 53 and 54 of Chapter VIII of the UNC, and that, all such activity shall be guided by the principles of sovereignty, political independence and territorial integrity of all States, and by the operational principles for UN peacekeeping operations set out in the statement of its President of 28 May 1993.¹⁰

The SADC is one of several examples of exercise by States of their collective UNC conferred discretionary right to enter into regional agreements that create organisations that are intended to service regional concerns of participating States. By a treaty signed on 17 August 1992 at Windhoek by heads of States of Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe at the 12^th summit of the SADCC, the SADC was formed. It succeeded the Southern African Coordination Conference (SADCC) established in 1980 by Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe as a forum for economic liberation. When it was formed, it was largely seen as a tool for reducing economic dependence on apartheid South Africa because on paper this new regional organisation targeted economic integration of economies of Member States. It sought also to promote collective self-reliance of the member countries, and to secure international understanding and practical support for the SADCC strategy.

The SADC has a membership of 14 historically diverse States. Angola and Mozambique shared the yoke of Portuguese occupation as colonies of the latter. Namibia, which in 1884 became a German protectorate until the end of the First World War when Germany forfeited her interests in Africa, became the tenth Member State at its independence from South Africa in 1990. South Africa, which like ten other Member States of the organisation is a former United Kingdom colony took up membership of the organisation in August of 1994, making it the eleventh member state of the SADC. Subsequently Mauritius, the Seychelles, and the only Member State of the organisation to have been colonised by Belgium, the Democratic Republic of Congo have also become members. This diversity in terms of colonial experience is critical to the land issue in the sub-region because besides maintaining arbitrary borders drawn up by their colonial masters according to the customary international law principle of uti posidetis, SADC Member States have generally maintained the institutions of the State set up by their colonial masters, including the judicial system, sometimes with cosmetic changes that do nothing to affect the fundamental utility of the institution. The organisation lists among its primary objectives acceleration of economic growth of the region and improvement of living conditions of its citizens through regional cooperation in different fields, and harmonisation of economic development of the region.¹¹ Article 5(1) of the treaty establishing the SADC¹² lists as the organisation’s objectives:

a) pursuit of development and economic growth, alleviation of poverty, enhancement of the standard and quality of life of its citizens and the support of the socially disadvantaged through regional integration;

b) evolution of common political values, systems and institutions;

c) promotion and defence of peace and security;

d) promotion of self-sustaining development on the basis of collective self-reliance, and the interdependence of member States;

e) pursuit of complementarity between national and regional strategies and programmes;

f) pursuit and maximisation of productive employment and utilisation of regional resources;

g) pursuit of sustainable use of natural resources and the effective protection of the environment;

h) strengthening and consolidation of longstanding historical, social and cultural affinities and links among the peoples of the region.

Article 5(2) states that in order to achieve the objectives set out in Article 5(1) the SADC shall:

a) harmonise political and socio-economic policies and plans of Members States;

b) encourage the peoples of the region and their institutions to take initiatives to develop economic, social and cultural ties across the region and to participate fully in the implementation of programmes and projects of the organisation;

c) create appropriate institutions and mechanisms for the mobilisation of requisite resources for the implementation of programmes and operations of the organisation and it...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Cases
• List of Tables and Figure
• List of Abbreviations
• Glossary of Terms
• Acknowledgments
• Introduction
• 1. Access to Land in Affected Southern African Development Community (SADC) States
• 2. Eternal Land Rights? Interaction of Divergent Land Rights in the SADC
• 3. The Contest for Labels and the “Inherent Dignity of Mankind”
• 4. Humwe, Human Rights and Globalisation
• 5. Not Utopia But…
• 6. Conclusions
• Bibliography
• Index