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Land Reform in Zimbabwe: Some Legal Aspects
Author(s): Gino J. Naldi

Source: The Journal of Modern African Studies, Vol. 31, No. 4 (Dec., 1993), pp. 585-600
Published by: Cambridge University Press
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TheJournalof ModernAfricanStudies,3I, 4 (1993), pp. 585-600
Copyright ? I993 Cambridge University Press
Land Reform in Zimbabwe:

Some Legal Aspects
by GINO J. NALDI*
THE Government of Zimbabwe has only recently begun to implement

the commitment of the liberation movements to give land to poor
'communal' farmers, especially those dispossessed by the white-
minority regime after Rhodesia's unilateral declaration of indepen-
dence in 1965. It needs to be recalled that by virtue of the Land Tenure
Act of 1969 almost half of the country's agricultural land was allocated
to Europeans, who had 'greater access to the regions considered suited
to intensive crop and livestock production', and that 'On average,
each of the nearly 7,000 European farms was roughly oo times the size
of any of the 700,000 or so holdings in the Tribal Trust Lands'.1 The
fact that much of this land was under-utilised only served to increase
African resentment.
Independence in I980 fed expectations of a fairer distribution of
resources, and illegal squatting by landless farmers emphasised the
growing seriousness of the problem. Although the Government lost
little time in indicating that it would address the issue urgently,2 land
resettlement has been slow and limited. With some seven million blacks
living on 16 million hectares of communal land, the Government has
purchased three million hectares, resettling 52,000 communal farming
families on that land, and plans to buy eventually a further six million
hectares, which is half the country's commercial farm land, in order to
resettle a further 10,000 communal farming families. The 12 million
hectares owned by some 4,500 white large-scale farmersconstitute one-
third of the country's arable land.3 They have long argued that
Zimbabwe's economy, heavily dependent on export commodities such
as tobacco, maize, tea, and cotton, and domestic food crops, would be
devastated if their large commercial holdings were rendered un-
* Lecturer in Law, University of East Anglia, Norwich.

1 Arthur Hazlewood, 'Kenyan Land-Transfer Programmes and their Relevance for
Zimbabwe', in TheJournalof ModernAfricanStudies(Cambridge), 23, 3, September I985, p. 457.
Colin Legum (ed.), AfricanContemporaryRecord:annualsurveyand documents,
i98i-82 (London
and New York, I981), pp. B87i, 878, and 885-6.
3 Keesing'sRecordof WorldEvents(Harlow, Essex), 38, 1992, p. 3875I.
586 GINO J. NALDI
productive by being broken into small plots and bestowed on allegedly

inexperienced peasants.
Under the Lancaster House Agreement of December I979 between
the United Kingdom (the colonial power) and the leaders of both
Bishop Abel Muzorewa's Rhodesia-Zimbabwe regime and the Patri-
otic Front it was decided, inter alia, that certain provisions of the post-
independence Constitution of 1980 would be entrenched for a period of
ten years thereafter, including Section I6 which guaranteed the right
to property.4
Towards the end of the ten-year period (which expired in May 1990)
the Government decided to amend Section I6 of the Constitution in
order to facilitate land resettlement. It is important to note that
according to Section 3, the Constitution 'is the supreme law of
Zimbabwe and if any other law is inconsistent with this Constitution
that other law shall, to the extent of the inconsistency, be void'. Apart
from the fact that the executive and the legislature are subordinate to
this supreme authority, the judiciary has powers of review with the
capacity to nullify legislation that conflicts with the Constitution.5 It
should be noted that under the Constitution of Zimbabwe Amendment
Act (No. 9) of 1989, which came into force on 27 March I990, a
unicameral legislature, known as the Parliament of Zimbabwe, was
created. It is submitted that the lack of an upper review chamber only
serves to make the scrutiny of the legislature and the executive by the
judiciary even more imperative.
Consequent to the constitutional amendment of Section I6 in
accordance with the terms of the Constitution of Zimbabwe Amend-
ment Act (No. I ) of I990, the Government proceeded to draft
legislation paving the way for the expropriation of white-owned
farmland. In March I992 the Land Acquisition Act was passed
unanimously by Parliament despite spirited opposition from white
farmers.6 While the Bill attracted no formal dissent during its final stage
it did undergo a significant amendment when - following criticism
from the Parliamentary Legal Committee that sections were in-
compatible with the Constitution, and international pressure that
hinted that aid would be compromised - a clause excluding the right to
fair compensation for expropriated land was dropped.7
4 See Reportof the Constitutional

Conference,LancasterHouse, London,September-DecemberI979
(London, 1980).
5 See, for example, SmithversusMutasa,Supreme Court of Zimbabwe, 1989, in Law Reportsof
the Commonwealth (London), I990, p. 87.
(Constitutional)
6 The 7 Keesing's,38, I992, p. 38804.
Independent(London), 20 March I992.
LAND REFORM IN ZIMBABWE 587
On 30 April I993, President Robert Mugabe announced that the
Government had decided to buy '70 big commercial farms, covering
190,000 hectares, as the first step in a plan to redistribute some 5 m
hectares of white-owned land to blacks',8 and certain holdings were
almost immediately designated for purchase under the terms of the
1992 Act.9 With an election looming in I995 it is not surprising that
Mugabe wishes to preserve his regime's credibility and support among
many elements of the black population, albeit without at the same time
undermining one of the mainstays of the Zimbabwean economy.
Consequently, expert training and advice and financial assistance to
maintain productivity and avoid descent into subsistence farming seem
essential. Thus, Gary Magadzire, president of the black Zimbabwe
Farmers Union is quoted as having said that 'only the most successful,
best-trained farmers must be resettled'.10
The purpose of this article is to consider the question of land reform
from a legal perspective, describing the initiatives undertaken to secure
changes and, given the controversy surrounding this issue, whether it
is susceptible to legal challenge, a possibility that seems increasingly
likely.
THE 1990 CONSTITUTIONAL AMENDMENTS
The compulsory acquisition of property without compensation is

prohibited by Section I I(c) of the Constitution of Zimbabwe.
Furthermore, Section I6 thereof, as originally drafted, protected
individuals against compulsory acquisition of their property except in
certain specific cases. Compensation for compulsorily acquired land
was required to be made in foreign exchange at the full market value,
which made such acquisition prohibitively expensive.1l In order
therefore to facilitate the purchase of land from white farmers in
furtherance of its resettlement programme, the Government introduced
a number of constitutional changes.
The Constitution of Zimbabwe Amendment Act (No. I I) of 1990
allows for land, including utilised land, buildings, and improvements to
land, to be acquired for settlement, land reorganisation, environmental
conservation, the utilisation of natural resources, or the relocation of
persons, whereas previously only under-utilised land could be acquired
8 TheEconomist 9 The Guardian,29 May 1993.

10 Ibid. and (London), 22 May I993, p. 68.
7 June 1993.
1 See May and OthersversusReserveBank of Zimbabwe,Supreme Court of Zimbabwe, 1986, in
Law Reportsof the Commonwealth(Commercial)(London), 1986, p. 758.
588 GINO J. NALDI
for resettlement. Secondly, compensation payable for compulsory

acquisition must be 'fair' and paid within a reasonable time, whereas
previously compensation had to be 'adequate' and paid 'promptly'.
And thirdly, Parliament is empowered to specify principles on which
the amount of compensation for the acquisition of land is to be assessed,
and to fix the amount in accordance with such principles, as well as the
period within which such compensation will be paid. Specifically,
Section I6(I) of the Constitution, as amended, requires:
(a) ... (i) in the case of land or any interest or right therein, that the acquisition
is reasonably necessary for the utilisation of that or any other land - A for
settlement for agricultural or other purposes; or B for purposes of land
reorganisation, forestry, environmental conservation or the utilisation of wild
life or other natural resources; or C for the relocation of persons dispossessed
in consequence of the utilisation of land for a purpose referred to in
subparagraph A or B; or (ii) in the case of any property, including land, or
any interest or right therein, that the acquisition is reasonably necessaryin the
interests of defence, public safety, public order, public morality, public health,
town and country planning or the utilisation of that or any other property for
a purpose beneficial to the public generally or to any section of the public; and
(b) requires the acquiring authority to give reasonable notice of the intention
to acquire the property, interest or right to any person owning the property
or having any other interest or right therein that would be affected by such
acquisition; and (c) subject to the provisions of subsection (2) requires the
acquiring authority to pay fair compensation for the acquisition before or
within a reasonable time after acquiring the property, interest or right....
Section 16 (2), as amended, also aroused controversy because it seeks to

oust the jurisdiction of the courts. Specifically, it provides that:
A law referred to in subsection (I) which provides for the compulsory

acquisition of land or any interest or right therein may - (a) specify the
principles on which, and the manner in which, compensation for the
acquisition of the land or interest or right therein is to be determined and paid;
(b) fix, in accordance with principles referredto in paragraph (a), the amount
or compensation payable for the acquisition of the land or interest or right
therein; (c) fix the period within which compensation shall be paid for the
acquisition of the land or interest or right therein; and no such law shall be
called into question by any court on the ground that the compensation
provided by that law is not fair.
It was inevitable that these amendments, amongst others,12 would
prove controversial, and they even attracted criticism from senior
12 Other amendments included altering the name of the state from 'Zimbabwe' to 'the
Republic of Zimbabwe', strengthening the independence of the judiciary, and enfranchising
certain persons who are not citizens but permanent residents.
members of the judiciary. The outgoing Chief Justice of the Supreme
Court, Enoch Dumbutshena, described Parliament's powers to fix the
price for land as 'regressive', and added that the measures were
repugnant to 'all accepted norms of modern society and the rule of
law'.13 The newly appointed Chief Justice, A. R. Gubbay, declared
publicly that any legislation that sought to dilute the fundamental
principles of the Constitution would be declared invalid by the courts.14
THE LAND ACQUISITION ACT OF I992
Once the Constitution had been amended to decrease the possibility

of enactments being nullified as contrary thereto, Parliament turned its
attention to legislating for the purposes of resettlement by adopting
unanimously the Land Acquisition Act of I992 in the face of domestic
and international hostility.15
Of particular interest is the fact that the Act empowers the
Government to acquire land and other immovable property com-
pulsorily in certain circumstances. Section 3 (a) states that the President
of the Republic may compulsorily acquire any land where the
acquisition is reasonably necessary in the interests of defence, public
safety, public order, public morality, public health, town and country
planning, or its utilisation for a purpose beneficial to the public. Sub-
section (b) permits the acquisition of rural land - which according to
Section 2 excludes communal land, state land, land in municipal, town,
and local government areas or in rural district council or rural council
areas - where it is reasonably necessary for its utilisation: (i) for
settlement for agricultural or other purposes, which is defined as, inter
alia, forestry,fruit-growing, and animal husbandry; or (ii) for purposes
of land reorganisation, forestry, environmental conservation, or the
utilisation of wild life or other natural resources; or (iii) for the
relocation of persons dispossessed as a result of the foregoing.
Furthermore, Section 3 (2) authorises the acquisition of derelict land.l6
Section 5 establishes the procedure for the compulsory acquisition of
land. Prior notice of the proposed acquisition must be given, whereupon
13 The Guardian,I2 December I990. 14

The Times, 6 January I99I.
15 The 20 March I992.
Independent,
16
Section 42 (4) requires certain criteria to be satisfied before land is determined to be derelict:
namely, whether the land is or has been occupied; whether the land is being worked or cultivated;
whether the owner can be found; the control which the owner has exercised over the land; and
the extent of compliance with laws regarding the payment of rates, levies, or taxes in respect of
the land.
590 GINO J. NALDI
the owners of the land may submit a written objection or claim

compensation. Written notice must also be served on the owners. Once
prior notice has been given the owner of the land loses certain rights
therein in that he or she cannot dispose of the land or any part thereof
nor make any permanent improvements subject to a fine and/or a term
of imprisonment. The prior notice remains in force for a period of one
year unless withdrawn or the land is acquired. Subject to an objection
to the acquisition order, Section 8 () states that land may be acquired
not less than 30 days after the publication of the prior notice and,
according to sub-section (3), ownership immediately vests in the
acquiring authority even though the question of compensation may
remain to be determined. The new title should then be registered with
the Registrar of Deeds in accordance with Section I . Section 9 makes
provision for the eviction of the previous owner, ultimately by order of
a competent court.
It should be noted that Section 12(I) authorises the Minister to
designate any rural land as land that can be acquired under the terms
of Section 3 (I). In accordance with Section I2 (2) he has to specify the
purpose for which the rural land is required, the authority that intends
to acquire the rural land, and the period, not exceeding ten years,
within which it is intended to acquire the rural land. Furthermore, the
Minister is obliged under sub-section (4) to give public notice of the
rural land so designated, and to take reasonable steps to so inform the
owner of the land. Once land has been designated as rural land, Section
14 forbids the owner from selling, leasing, or otherwise disposing of the
land except with the Minister's permission. Any purported sale, lease,
or disposal is otherwise void.
Section I3 allows the owner of designated land to object to the
designation. The Minister is empowered to make such investigation
into the matter as he thinks fit, and at his absolute discretion, his
decision being final, to amend or revoke the designation order. During
such time the designation remains valid.
The Act makes provision for the assessment and payment of
compensation. Under Section I6(a) an acquiring authority must pay
fair compensation to the owner of designated rural land, whereas sub-
section (b) requires the payment of fair compensation within a
reasonable time to the owner of other land. A Compensation
Committee is established under Section 17 to determine the amount
payable in respect of the acquisition of designated rural land. Under
Section 18 a valuation officer is required to draft a preliminary estimate
of the Committee's assessment, and this may be disputed by an affected
LAND REFORM IN ZIMBABWE 59I
person. In assessing the amount payable, Section I9(I) obliges the
Compensation Committee and valuation officers to abide by certain
principles prescribed in the First Schedule. Consideration must thus be
given to the size of the land; the type of soil to be found on it; the nature
and condition of the buildings and improvements on it; the agricultural
and other activities that are or can be carried out on it, notably the
varieties and yield of crops, the use of the non-arable land, including
grazing, water supplies, fencing, and the availability of mains electricity
supply.
However, in relation to land which is not designated rural land,
Section 20 requires fair and reasonable compensation to be paid for the
loss of the land, balancing the right of the claimant with the general
public interest, regard being had to the nature, location, and
quality of the land. Claims for compensation relating to both categories
of land are under Section 21 subject to certain general considerations
regarding assessment of compensation. Consequently, regard must be
had to the value of any other property or rights of the claimant.
Additionally, the latter must take reasonable steps to mitigate any
adverse effect to the value of the land effected by the acquiring
authority, and failure to do so would be taken into account in the
assessment. Furthermore, certain factors, such as an increase in the
value of the land achieved through illegal means or bad faith, can be
disregarded in the assessment of compensation.
Claims for compensation for land other than designated rural land
must usually, according to Section 22, be submitted within 60 days
from the date that the notice is served or published in the official
publication. The claim must be in writing and specify the nature of the
loss and the amount of compensation claimed.
The Act makes provision for the referral of compensation disputes to
an Administrative Court. With respect to designated rural land,
Section 23 (I) confers jurisdiction on the Court where the claimant
believes that the Compensation Committee has not observed any of the
required principles. Under sub-section (4) the Administrative Court
has the same powers as the High Court in instances of judicial review,
as well as the authority to set aside the Committee's assessment. An
application must be lodged with the Court within 60 days of the
Committee's report.
Furthermore, in relation to land that is not designated rural land the
jurisdiction of the Administrative Court appears to be slightly wider.
Thus, if the parties cannot agree to the claimant's right to, or amount
of, compensation, either party may submit the dispute to the Court.
592 GINO J. NALDI
However, this can occur only after the expiry of 30 days after
confirmation of the acquisition. Under subsection (5) thereof, the
Court must ensure the payment of fair compensation within a
reasonable time. It is important to note that Section 46(3) acknow-
ledges that appeals from a decision of the Administrative Court may be
made to the Supreme Court.
While land has been earmarked for expropriation under the terms of
the legislation and the Compensation Committee and the Admin-
istrative Court established thereunder are in place, it appears that their
jurisdiction has not yet been invoked at the time of writing.
SOME LEGAL ISSUES
As has been indicated, this legislation was enacted despite strong

opposition from those who continue to believe that it is wrong for the
Government to try and redress the wrongs perpetrated by colonial and
minority rule by infringing the fundamental property rights of farmers.
In view of the controversy, are the land acquisition measures susceptible
to legal challenge under municipal and/or international law? It needs
to be emphasised that Zimbabwe is a party to the African (Banjul)
Charter on Human and People's Rights, and the International
Covenant on Civil and Political Rights, and has recognised the
competence of the Human Rights Committee under Article 41 thereof,
according to which a state party may complain that another state party
is not fulfilling its obligations under the Convention.l7
I. Judicial Review
All three branches of government in Zimbabwe - the executive, the
legislature, and the judiciary- are bound by and work within the
confines of the Constitution, the supremacy of which 'is protected by
the authority of an independent judiciary, which acts as the interpreter
of the Constitution and all legislation'.18 This means that the judiciary
can strike down legislation passed by Parliament in conflict with the
provisions of the Constitution.
Legal Materials(Washington, DC), 21, 1982, p. 58, and Gino Naldi (ed.),
17 See International
Documentsof the Organisationof African Unity (London, 1992), p. I09. Zimbabwe ratified the
International Covenant on Civil and Political Rights in I99I.
18 SmithversusMutasa, I989, in loc. cit.
However, it should be observed that the Zimbabwean courts apply
the principle of the 'presumption of constitutionality'.19 This means
that if legislation is capable of being interpreted as falling within the
meaning of the Constitution while other interpretations do not, the
courts will presume that the legislature intended to act constitutionally.
Only where it is clear that an enactment is oppressive and repugnant
to the Constitution will the courts interfere. Yet well-established canons
of interpretation in Roman-Dutch law mean that a strict construction
is placed on statutory provisions which interfere with fundamental
rights, and that where a statute is reasonably capable of more than one
meaning the courts will choose the meaning which least interferes with
the freedom of the individual.20
Since the Zimbabwean judiciary is itself bound by the terms of the
Constitution it might be reasonable to assume that in the light of
Section 16, as amended, the powers of review of the judiciary have been
curtailed. However, as will be seen, this is not necessarily the case since
there are a number of legal manoeuvres available to the judiciary
which can be invoked to thwart the will of the executive and the
legislature. Whether the judiciary should hinder the will of a
democratically elected parliament is a matter which is beyond the
scope of this article.
Let us address the constitutionality of the Land Acquisition Act.
Section I8 (9) of the Constitution guarantees the individual the right to
a fair hearing within a reasonable time by a court in the determination
of the existence or extent of his civil rights or obligations. It is beyond
question that a person's right to property comes within the definition
of a 'civil right'. If the Act, 'as appears to have been mooted at the draft
stage,21 had not provided for fair compensation or had ousted the
jurisdiction of the courts in determining this question, the possibility
could have arisen in view of Section 18(9) that the Act would have
been struck down by the courts as unconstitutional violations of
substantive due process of law - i.e. that individuals were being
deprived of their property by the state without legal remedy. Although
this principle was used by the U.S. Supreme Court in the I930S to
undermine President Franklin Roosevelt's New Deal programme, the
19 ZimbabweTownshipDevelopers
(Pvt) Ltd versusLou's Shoes (Pvt) Ltd, Supreme Court of
Zimbabwe, I983, in ZimbabweLaw Reports,2, I983, p. 376.
20 See
StateversusMasiriva,Zimbabwe High Court, i990, in SouthAfricanCriminalLaw Reports
(Cape Town), i, I991, pp. 8I-5, and DjamaversusGovernment of theRepublicof Namibiaand Others,
Namibia High Court, 1992, in SouthAfricanLaw Reports(Cape Town), i, 1993, pp. 387-95.
21 The Times, 20 March I992.
594 GINO J. NALDI
controversy engendered has meant that this principle has been

distinguished and its invocation is now limited.22 In any case, this device
is not likely to be relevant in view of the fact that the Act does provide
for fair compensation and judicial review.
It appears to be the case in Zimbabwe that the manner in which
legislation is enacted can be questioned by the courts. While they
cannot interfere in Parliament's management of its internal affairs, the
legislature's independence is not unlimited since the Supreme Court
has held that Parliament cannot enjoy privileges, immunities, and
powers which are inconsistent with the fundamental rights guaranteed
by the Constitution, and that in the event of such a conflict only the
courts can resolve it.23 Indeed, the Court went on to say that should
Parliament disregard its own laws it is the responsibility of the judiciary
to say so and to pronounce the breach.24 Consequently, this suggests
that should the relevant legislation have been adopted despite
procedural irregularities25 - and it has been reported that the Land
Acquisition Bill was rushed through Parliament, ignoring at times
established procedures - the courts would be able to intervene.
Nevertheless, on the assumption that the legislation has been validly
adopted, the Compensation Committee, the Administrative Court,
and/or the relevant Minister under the Land Acquisition Act are
under an obligation to act in accordance with the law.
Under Section 23 (4) of the Land Acquisition Act the Administrative
Court - with the same powers as are exercisable by the High Court on
a review of a tribunal - and other courts can review the compatibility
of the decisions of the Compensation Committee with the principles
prescribed under Sections 19 and 24. Furthermore, as has been noted,
Section 46 (3) acknowledges that decisions of the Administrative Court
may be appealed to the Supreme Court. The Zimbabwean courts have
accepted the rules of administrative law regarding judicial review:
namely, illegality, irrationality, and procedural impropriety.26
22 See A.J. Abraham, Freedomand the Court(New York, 1988 edn.), ch. ii and pp. I22-4.
23 SmithversusMutasa, 1989, in loc. cit. pp. 94-5.
24 Ibid. See
also, Nasopie(Edms)Bpk versusMinistervanJustisie (2), Provincial Court, I979, in
SouthAfricanLaw Reports,4, I979, p. 438.
25 The
Times, 20 March I992.
26 See RushwayaversusMinisterof Local Government and Town Planning& Another,Zimbabwe
Supreme Court, 1987, in ZimbabweLaw Reports,I, 1987, p. 15; Mutambara andOthersversusMinister
of HomeAffairs,Zimbabwe High Court, 1989, in ibid. 3, 1989, p. 96. Furthermore, a minister is
required to look at the objective facts in order to reach a conclusion, as in Ministerof HomeAffairs
& Directorof PrisonsversusAustin& Harper,Zimbabwe Supreme Court, 1986, in ibid. I, 1986, p.
240. The courts will also review prerogative powers, as in PatrioticFront-ZAPUversusMinisterof
Justice, Legal and ParliamentaryAffairs, Zimbabwe Supreme Court, I985, in Law Reportsof the
Consequently, if the Compensation Committee, the Administrative
Court, or the appropriate Minister acted ultra vires, unreasonably, or
failed to follow the required procedures, their decisions could be
quashed on appeal. It is interesting to speculate, for example, on
whether the amount of compensation awarded could be deemed
unreasonable in view of the real value of the property.
Another relevant principle of administrative law is that of legitimate
expectations, which would give grounds for a hearing where something
in the circumstances makes it reasonable for a person to expect or to
rely on certain behaviour which does not materialise - in this study,
Government assurances, which have not been kept, that no productive
farms would be seized, but only derelict and under-utilised land.27 Such
broken promises would certainly seem to provide primafacie grounds for
instituting proceedings alleging a breach of the principle of legitimate
expectations which is recognised by Zimbabwean law.28
2. Fair Compensation
As already explained, both Section I6 of the Constitution and
Section 16 of the Land Acquisition Act require the payment of fair
compensation within a reasonable time. However, Section I6(I)(c)
of the Constitution originally required compensation to be 'adequate',
which the Supreme Court of Zimbabwe interpreted as being
'sufficient' to compensate the owner for the loss of his property, without
imposing an unwarranted penalty on the public because the acquisition is
effected in the interest of the public or community. The interest of the owner
of the property acquired must of necessity be balanced with the interest of the
public from whom the money paid in compensation comes.29
'Fair' compensation is generally assumed to set a more flexible
standard, but it would seem that the Zimbabwean courts have already
Commonwealth (Constitutional),1986, p. 672, and Logan versusMorris No and Others,Zimbabwe

Supreme Court, i990, in SouthAfricanLaw Reports,2, I991, p. 68.
Other principles of administrative law applied by the Zimbabwean courts include natural
justice, as in Austin & AnotherversusChairman,Detainees'Review Tribunal& Another,Zimbabwe
Supreme Court, 1988, in ZimbabweLaw Reports,2, 1988, p. 21, as well as legitimate expectations
and the audialterampartemrule, as in MetsolaversusChairman,PublicServiceCommission & Another,
Zimbabwe Supreme Court, I989, in ibid. 3, I989, p. I47.
27
Keesing's, 38, 1992, p. 38995, and 39, 1993, p. 39453; and The Guardian, 4 May I993.
28 MetsolaversusChairman,PublicServiceCommission & Another,I989, in loc. cit. pp. I55-6. See
also, Attorney-Generalof Hong Kong versusNg YuenShiu, Privy Council, I983, in Appeal Cases
(London), 2, 1983, p. 629, and L. Boulle, B. Harris, and C. Hoexter, Constitutional
andAdministrative
Law: basicprinciples(Cape Town and Johannesburg, i989), pp. I44-6, 295-8 and 338-9.
29 May and OthersversusReserveBank of Zimbabwe,
1986, in Law Reportsof the Commonwealth
(Commercial),1986, pp. 758-90.
596 GINO J. NALDI
adopted such an approach. Thus the principles governing com-

pensation have been held to be that:
(i) the compensation is to be determined by reference to the value of the
expropriated property to the person from whom it is taken and not by
reference to the value of that property to the expropriating authority - the
question is what the owner has lost and not what the State has gained; (ii) the
compensation should not be less than the money value into which the
expropriated property could have been converted if there had been no
expropriation; and (iii) any increase or decrease in the value of the
expropriated property due to the scheme of expropriationshould be ignored.30
It would not appear that the provisions of the Land Acquisition Act are
primafacie incompatible with these principles.
The question also arises whether the payment of fair compensation
within a reasonable time is compatible with international law. While
states have the right to expropriate property this right is not absolute,
and international law does seek to restrain the discretion of states.
According to the Permanent Court of International Justice in the Case
ConcerningCertain German Interests in Polish Upper Silesia (I926), only
'expropriation for reasons of public utility, judicial liquidation and
similar measures' was permissible under customary international law,31
although since then these principles would have expanded to take
account of contemporary issues.
The European Court of Human Rights has stated that a fair balance
must be struck between the demands of the general interest and the
requirements of the individual's fundamental rights.32 Article 14 of the
Banjul Charter makes the compulsory acquisition of property subject
to the 'public need' or 'the general interest of the community and in
accordance with the provisions of appropriate laws'. However, the
Charter is silent as to the appropriate level of compensation: Article
2I(2) stipulates 'adequate compensation', but this refers to the
property of dispossessed people in the sense of national or ethnic groups.
Although the better view appears to be that, at present, international
law requires as a general rule that compensation be prompt, adequate,
and effective,33 this standard is challenged by developing states which
maintain that the less rigid requirement of appropriatecompensation is
30 Ibid. p. 789. See also, pp. 773-4, citing with approval Nelungaloo (Pty) Ltd versus
Commonwealth, High Court of Australia, I948, in Commonwealth Law Reports(Sydney), 75, I948,
PP- 495-57 per Dixon J.
31 Permanent Justice (The Hague), Series A, 7, 1926, p. 22.
Courtof International
32 SporrongandLonnroth versusSweden,1983, in EuropeanHumanRightsReports(London), 5, 1983,
P. 35.
Law (Oxford, I990 edn.), pp. 532-5.
33 Ian Brownlie, Principlesof PublicInternational
applicable. 34 The jurisprudence of the European Court of Human
Rights is apposite and suggests that the Zimbabwean legislative
changes are legitimate. In a couple of cases the Court has had to
consider the right to property guaranteed by Article I of Protocol No.
i to the European Convention on Human Rights.35 In James versus
United Kingdom (1986) the applicants argued that the system of
leasehold enfranchisement had deprived them of their possessions
without adequate compensation. In addition, they maintained that
they were entitled to prompt, adequate, and effective compensation in
accordance with the general principles of international law. The Court
rejected these submissions, stating that the reference in Article I to 'the
general principles of international law' does not apply to the taking by
a state of the property of its nationals but is designed for the protection
of aliens, a conclusion reinforced by the travauxpreparatoires.36
The European Court reaffirmed this ruling in the similar case of
Lithgow versus United Kingdom (1986) which concerned the national-
isation of various industries. The Court went on to state that under
Article I of Protocol No. i the taking of property without payment of
an amount reasonably related to its value would normallyconstitute a
disproportionate interference which would not be considered justifi-
able, but that Article I did not guarantee a right to full compensation
in all circumstances since legitimate objectives of' public interest', such
as pursuing measures of economic reform, might call for less than full
reimbursement. However, 'compensation terms are material to the
assessment whether the contested legislation respects a fair balance
between the various interests at stake.'37 It would seem that the
Zimbabwean laws fall within such parameters.
It should further be noted that Section 16(7) of the Constitution
requires compulsory acquisition to be 'reasonably justifiable in a
democratic society'.38 How the courts might interpret compulsory
acquisitions under the terms of the Land Acquisition Act in the light of
this proviso remains to be seen, but it is not inconceivable that certain
acquisitions might fall foul of it. Nevertheless, if the Zimbabwean
34 See Article 2
(c), Charter of Economic Rights and Duties of States, I974, U.N. General
Assembly Resolution 3281 (xxix), in International LegalMaterials,I4, I975, p. 251. In Texacoversus
Libya,in ibid. 17, I978, p. i, the arbitrator noted that developed states regarded this formulation
as contralegem.
35 Ian Brownlie (ed.), Basic Documents on HumanRights (Oxford, I992 edn.), p. 34I.
36 European HumanRightsReports,8, 1986, p. I23, paras. 6i and 64.
37 Ibid. 8. 1986, p. 329, para. 54.
38 See Commissioner TaxesversusC W
of (Pvt) Ltd, Zimbabwe Supreme Court, 1989, in Zimbabwe
Law Reports, 3, 1989, p. 361.
598 GINO J. NALDI
legislation is in conformity with international human rights standards,

then it should surely meet the requirements of Section I6 (7).
Zimbabwean law, as already noted, requires compensation to be
paid within a reasonable time. Furthermore, Section 18(9) of the
Constitution guarantees individuals the right to a fair hearing within a
reasonable time in the determination of their civil rights, which must
surely include compensation assessment proceedings under the Land
Acquisition Act. Section 19(5) provides that the owner of designated
rural land must receive at least one-half of the compensation at the time
of acquisition or within a reasonable time thereafter; at least one-half
of the remainder must be paid within two years of the acquisition; and
the balance must be paid within five years. The obligation to pay
compensation within a reasonable time is well-founded in human rights
law. In Erknerand Hofauer versusAustria ( 987) the European Court of
Human Rights found an infringement when land compensation
proceedings had lasted an excessive, and therefore unreasonable, time
- more than 16 years.39
3. The Ousterof CourtJurisdiction

It will be recalled that Section 16(2) of the Constitution, as
amended, attempts to oust the jurisdiction of the courts4 - a device
familiar to many constitutional lawyers. However, as a general rule the
courts are reluctant to concede their jurisdiction, and it is a well-
established principle of both common and Roman-Dutch law - and the
law of both Zimbabwe and South Africa are derived from these systems
- that only the most clear and explicit statutory language will suffice, if
at all,41 to oust the jurisdiction of the courts. Thus, in Reid-Daly versus
Hickman and Others (1980) the Supreme Court of Zimbabwe held that
legislation is not lightly to be construed as taking away the jurisdiction
of the courts.42
39 EuropeanHumanRightsReports,9, 1987, p. 464.

40 A clause to similar affect in the Land Acquisition Bill was abandoned according to The
Times, 20 March 1992.
41 AnisminicLtd versusForeignCompensation Commission, House of Lords, 1969, in AppealCases,2,
1969, p. i47; ThomasversusAttorney-General of Trinidadand Tobago,i982, in ibid. 1982, p. 13; and
L. Baxter, Administrative Law (Cape Town and Johannesburg, I984), p. 730.
42 ZimbabweLaw Reports,1980, pp. 540-7. In Pyx GraniteCo.Ltd versusMinistryof Housing,Local
Government and Others,House of Lords, 1959, in AppealCases,1960, pp. 260-86, Viscount Simonds
stated 'It is a principle not by any means to be whittled down that the subject's recourse to Her
Majesty's courts for the determination of his rights is not to be excluded except by clear words.'
See further, AnisminicLtd versusForeignCompensation Commission (I969), in loc. cit. pp. I69-70.
In relation to South Africa, it is established that in the absence of express words the inference
that the court's jurisdiction is ousted must be clear and unequivocal. See WelkomVillage
It must be remembered that Section I8(9) of the Constitution
guarantees a fair hearing in the determination of an individual's civil
rights which creates a presumption difficult to rebut. Furthermore, the
courts will intervene where the party originally seized of the issue has
erred, acted illegally, or ultra vires by exceeding his jurisdiction or
authority.43 In addition, the courts are not inclined to decline the
exercise of their supervisory functions.44 In view of the fact that under
Article 46 of the Land Acquisition Act appeals from decisions of the
Administrative Court can be submitted to the Supreme Court it is not
difficult to envisage the question of fairness of the compensation being
addressed at some stage. Consequently, in the light of these principles,
it cannot be said that Section 16(2) will be effective in ousting the
jurisdiction of the courts.
It appears that international human rights law does guarantee an
individual the right of access to the courts.45 If the ouster clause in
Section 16(2) proved effective it would be difficult to see how it would
be compatible with international law. However, given that the Land
Acquisition Act does establish a Compensation Committee and an
Administrative Court, whose decisions are reviewable by the Supreme
Court, international standards seem to be met.
It should further be noted that the Administrative Court, the
composition of which is governed by Article 45 of the Land Acquisition
Act, appears to satisfy the criteria of a court or tribunal according to
international human rights standards, including the imperative that
the competent authority be independent of both the executive and the
parties to the case.46
CONCLUSIONS
The compulsory acquisition of property is always likely to be

criticised in any country, and the ensuing controversy in Zimbabwe is
particularly emotive because the Government is seeking to redress the
Management BoardversusLento,1958, in SouthAfricanLaw Reports,I, 1958, pp. 490-503, as well as

Baxter, op. cit. pp. 725-33, and Boulle, Harris, and Hoexter, op. cit. pp. 144-6 and 295-8.
43 Anisminic,loc. cit.; SouthEast Asia FirebricksversusNon-MetallicMineralProductsManufacturing
Employees'Union, Privy Council, i980, in AppealCases, 1981, p. 363; and Baxter, op. cit. pp.
729-32.
44 Anisminic,
loc. cit.; Photocircuit
SA (Pty) Ltd versusDe KlerkNo andDe SwardtNo, 1989, in South
AfricanLaw Reports,4, I989, pp. 209-I6; and Boulle, Harris, and Hoexter, op. cit. p. 296.
45 GolderversusUnited
Kingdom,European Court of Human Rights, I979-80, in European Human
Rights Reports, i, I980, p. 524.
46 See, for example, NeumeisterversusAustria,
European Court of Human Rights, 1979-80, in
EuropeanHumanRightsReports,I, 1980, p. 91.
6oo GINO J. NALDI
injustices of generations. This analysis of recent developments from a

legal perspective provides reasons for believing that the procedures
regarding the compulsory acquisition of land in Zimbabwe are lawful
even from an international viewpoint. Even so, attention must be paid
to the details of implementation since successful legal challenges could
be mounted against the legislation in question and/or the way it is
enforced.
That this controversy will remain a live issue appears to be
guaranteed as evidenced by the creation in March 1993 of a new
political party headed by the former Chief Justice, Enoch Dumbut-
shena, espousing free-market policies in partial response to this issue.47
Furthermore, since it appears increasingly likely that the Supreme
Court will be asked to adjudge the constitutionality of the Land
Acquisition Act during I994, the potential for a major confrontation
between the executive and the legislature, on the one hand, and the
judiciary, on the other, should not be underestimated.
47 The Times, March
29 1993.

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Land Reform in Zimbabwe: Some Legal Aspects

Author(s): Gino J. Naldi

Land Reform in Zimbabwe:

THE Government of Zimbabwe has only recently begun to implement

* Lecturer in Law, University of East Anglia, Norwich.

productive by being broken into small plots and bestowed on allegedly

4 See Reportof the Constitutional

THE 1990 CONSTITUTIONAL AMENDMENTS

The compulsory acquisition of property without compensation is

8 TheEconomist 9 The Guardian,29 May 1993.

for resettlement. Secondly, compensation payable for compulsory

Section 16 (2), as amended, also aroused controversy because it seeks to

A law referred to in subsection (I) which provides for the compulsory

THE LAND ACQUISITION ACT OF I992

Once the Constitution had been amended to decrease the possibility

13 The Guardian,I2 December I990. 14

the owners of the land may submit a written objection or claim

SOME LEGAL ISSUES

As has been indicated, this legislation was enacted despite strong

controversy engendered has meant that this principle has been

Commonwealth (Constitutional),1986, p. 672, and Logan versusMorris No and Others,Zimbabwe

adopted such an approach. Thus the principles governing com-

legislation is in conformity with international human rights standards,

3. The Ousterof CourtJurisdiction

39 EuropeanHumanRightsReports,9, 1987, p. 464.

The compulsory acquisition of property is always likely to be

Management BoardversusLento,1958, in SouthAfricanLaw Reports,I, 1958, pp. 490-503, as well as

injustices of generations. This analysis of recent developments from a

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