Nearly 12,000 villagers in Chilonga now face being displaced from their ancestral lands after the High Court threw out their challenge to a government plan to uproot them to make way for a lucerne farm.
Lawyers for the villagers had challenged the “colonial” legislation used by the government to enforce the evictions.
Justice Joseph Mafusire of the Harare High Court said he was not convinced that sections of the Communal Land Act are unconstitutional.
“The Act may have an obnoxious and racist parentage, but at independence in 1980 and beyond up to the present day, the government, in its infinite wisdom, decided to retain the Tribal Trust Land Act intact, albeit under a new title,” the judge said.
“It decided to leave the concept of vesting of communal lands in the state president intact. That was a political decision. The respondents have argued why that was so. The applicants dismiss that argument. But I would think that without some sort of commission of inquiry on the whole agrarian reform especially as it applies to communal lands, this court may not be sufficiently qualified to provide a wholesome solution to the question of private ownership of communal lands.”
Justice Mafusire said it was not an unreasonable fear that granting title carte blanche to users and occupiers of communal lands may result in undesirable consequences.
He added: “For example, foreign land barons may end up owning vast tracts of communal lands. This may disrupt the orderly customary way of life in those territories. If there are safeguards that may be put in place, like what applicants say happened in Kenya and Uganda, I just do not have sufficient information and knowledge of what they are.
“A holistic approach to the question is required instead of providing some random remedy under some constitutional fiat.”
The Chilonga villagers wanted the High Court to set aside sections 4 and 6(1)(b) of the Communal Lands Act arguing that the two sections are unconstitutional and offend some provisions of the constitution.
The judge disagreed.
“The application cannot succeed. However, I disagree with the respondents’ contention that it was frivolous and vexatious. It was public interest litigation. Such kinds of challenges may actually dog the courts in the future. Therefore, in dismissing the application, it is only fair that each party bears their own costs. The application is hereby dismissed but with no order as to costs,” he ruled.
On February 26, 2021, the local government minister published Statutory Instrument (SI) 50 of 2021 which has the effect of annexing 12,940 hectares of communal land in Chilonga, with the resultant eviction of thousands of locals.
The land is being handed over to private company, Dendairy, which says it wants to farm lucerne, a perennial flowering plant used as forage for animals including cattle, sheep, goats and chickens.
The Zimbabwe Lawyers for Human Rights which instructed rights lawyer Tendai Biti said it would study the judgement and decide if it is appealable.