As President Jacob Zuma, Economic Freedom Fighters’ leader Julius Malema and others build up excitement over land expropriation, it is worth taking a look at what that future might look like. As the Zimbabwe case shows, land expropriation is ugly when it happens and painful for many people involved. It is very expensive, too – not only for those who lose their assets but also for governments that end up getting embroiled in lengthy legal battles. As Ben Freeth, a former commercial farmer in Zimbabwe, highlights in an open letter on the ongoing land expropriation saga in Zimbabwe, it is not just the relationship between government and land-owners that is fraught with complexity. Matters can get very messy among people who once thought they were on the same side of the fence. Freeth raises the possibility that a group of dispossessed farmers has entered an unholy alliance with a government that has stolen people’s livelihoods, brutalised thousands and even killed many people in the rush to grab land. – Jackie Cameron
OPEN LETTER TO ALL DISPOSSESSED ZIMBABWEAN FARMERS
THE ISSUE OF COMPENSATION, THE COMPENSATION STEERING COMMITTEE
AND THE VALUATION CONSORTIUM (VALCON)
After 17 years, the compensation issue for jambanjad[i] (taken over by force, often violently) commercial farms in Zimbabwe is back in the spotlight.
We recently received information that John Laurie, a former president of the Commercial Farmers’ Union, had addressed an “Inaugural Stakeholders Meeting” with Government on 6 April at the Rainbow Towers Hotel in Harare. The meeting catered for approximately fifty attendees and the agenda was only made available at the event. The meeting was chaired by the Government’s Permanent Secretary for Lands and Rural Resettlement, Grace Mutandiro.
During his address, Mr Laurie purported to be from a new organisation I hadn’t heard of until very recently, the Compensation Steering Committee (CSC). I have not seen the Constitution, the terms of reference or the mandate of this organisation, but Mr Laurie says that it is now the only body representing farmers.
I have to register my concerns:
Firstly, this new organisation is apparently conceding that there should be no compensation for the land. I object in the strongest possible terms to this concession.
One of the things we fought in the Southern African Development Community’s regional human rights court, the SADC Tribunal, was the right for compensation to the land. Taking the Zimbabwe Government to court was a very risky decision and my father-in-law, Mike Campbell, paid the ultimate price for standing on this fundamental principle. Our case was subsequently joined by 77 other dispossessed commercial farmers. Using International Law and the various Human Rights Conventions that Zimbabwe is signed up to, the Tribunal deliberated on this point. It found that there should be compensation for the land! It gave a final and binding judgment to this effect.
I am therefore dumbfounded that Mr Laurie should make such a concession and claim to absolve the Government of its responsibilities. He told the meeting he accepted that there shouldn’t be compensation for land and stated that the Government is not responsible for paying compensation. His actual words were: “The value of the land which is not Governments responsibility has also to be assessed.”
Commercial farmers who built up ranching or wildlife operations will be very severely compromised if they are not compensated for their land.
The Von Pezold case, which was heard at the International Centre for Settlement of Investment Disputes (ICSID), is of particular interest regarding what the international norms are in relation to what compensation should be paid.[ii]
Secondly, the CSC purports to represent all farming bodies (and “approx. 90% of the commercial farmers”) in negotiations with Government.
I can’t comment about other groups but I know for a fact that the Southern African Commercial Farmers’ Alliance (SACFA) never endorsed the CSC – even though John Laurie stated at the Rainbow Towers Hotel that SACFA had endorsed the CSC. I do not think the Commercial Farmers’ Union (CFU) or any other groups would have endorsed CSC – and their policy to compromise on fundamental principle and go against the SADC Tribunal and International Law. It would be a sad day if they had! I maybe wrong, but I am dubious as to whether Mr Laurie has a single signed mandate from any farmers to negotiate on their behalf – and compromise on fundamental principle in relation to compensation for land.
Thirdly, if the CSC does represent 90% of the dispossessed farmers, where are their terms of reference?
If I were writing their terms of reference I would be very clear: the road to compensation must take in the full basket of international human rights breaches in the jambanja process. The human rights obligations that Zimbabwe is signed up to protect must be fully dealt with. International law must be brought into play. Comparable sales values with farms in the sub-region must be used to get a fair value for the land.
Fourth, we have a situation here where we as the dispossessed are purportedly being represented by the CSC which is negotiating with the very same thief – the Zimbabwe Government – that has dispossessed us.
This government has illegally stolen our businesses, livelihoods and homes, as well as those of our workers, wrecking countless lives and brutalising thousands in the process. Hundreds of thousands of people have been displaced and the country’s agro-based economy has been destroyed.
In our Mount Carmel farm case, the thief was the late Nathan Shamuyarira, a ZANU PF founding member and senior cabinet minister for 15 years. He sent thugs to the farm who burnt down our hay shed and safari lodge and relentlessly terrorised our families and workers. They also beat up a number of our workers very severely, some of whom were thrown into high security jails. Mr Shamuyarira subsequently stole all of our crops and equipment. In 2009, our homes were burnt to the ground and the entire Mount Carmel agricultural enterprise is now derelict. The government buried Mr Shamuyarira at Heroes Acre. Can negotiation be done in good faith with government people that have shown themselves to be so lawless?
Fifth, the thief in this case is also the judge.
This government, which is manifestly corrupt and also completely broke, is not going to give us many cents in the dollar. It’s a bit like trying to play a rugby game where the referee grabs the ball from one of us, runs down the field giving yellow cards to anyone who tries to tackle him, and goes on to score the winning try. Playing a game where that is the case is not going to yield very much. The CSC, realising they might get a yellow card if they tackle the referee, is allowing this referee to score.
Sixth, Mr Laurie has described the Valuation Consortium database of each individual property and the moveable assets identified at the time of takeover as “a unique tool”.
Yet in his presentation, Mr Laurie states that “We would like to make this available to the Ministry free of charge the immovable asset register (sic) as at the time of acquisition.” Where is his mandate to do this?
Those who have read the story of Jacob and Esau back in Genesis will know how Esau sold his birthright to Jacob on account of being famished. He sold his entire inheritance as the elder son for a bowl of stew. I know that there are some desperate farmers who have done this already in Zimbabwe. I believe it is complete folly to encourage others to do likewise.
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[i] Jambanja: For anyone reading this document who is not familiar with this term, a jambanja is a State-sponsored, threatening, intimidating and violent confrontation synonymous with the Zimbabwean farm invasions. The objective is to force white farmers and their workers off the land. During a jambanja, the police are not allowed to intervene or arrest anyone because those taking part will have prior State blessing and approval. Only one interest group, war veterans and ZANU (PF) supporters, is allowed to engage in a jambanja.
[ii]The Von Pezold case:
In July 2015, a tribunal of the International Centre for Settlement of Investment Disputes (ICSID) ordered the Zimbabwe government to restore three agricultural estates seized as part of President Robert Mugabe’s “racially discriminatory” land reform programme to the von Pezold family. Alternatively, the government would have to pay US$196 million to the family which comprises dual German and Swiss nationals. The legal case was mounted against the Zimbabwe government for breaching the Bilateral Investment Protection and Promotion Agreements (BIPPAs) signed by Zimbabwe with both Germany and Switzerland. The agreements should have protected their business properties.
15 March 2016
THE VON PEZOLD CASE
In July 2015, a tribunal of the International Centre for Settlement of Investment Disputes (ICSID) ordered the Zimbabwe government to restore three agricultural estates seized as part of President Robert Mugabe’s “racially discriminatory” land reform programme to the von Pezold family. Alternatively, the government will have to pay US$196 million to the family which comprises dual German and Swiss nationals. The legal case was mounted against the Zimbabwe government for breaching the Bilateral Investment Protection and Promotion Agreements (BIPPAs) signed by Zimbabwe with both Germany and Switzerland. The agreements should have protected their business properties.
Extract: …While it is a rare remedy in ICSID cases, the tribunal held that restitution was not impossible or disproportionate and that it was the most appropriate type of relief based on the “racially discriminatory acts” suffered by the family. The tribunal held that the US$196 million will compensate the family for land and production losses if legal title to the farms is not restored. If it is, it said the state will only have to pay a third of the damages – US$65 million. Both sums include US$1 million in moral damages for one member of the family, whom the Zimbabwean police had failed to protect from death threats and physical violence by “settlers” on his farm. The award was one of two issued by the tribunal last July arising from the same arbitration hearing and containing the same reasoning. In the second award, which remains unpublished, the tribunal ordered Zimbabwe to return an estate owned by forestry company Border Timbers, of which the von Pezold family are majority shareholders, and pay US$125 million damages to the company and its subsidiaries. That award too included US$1 million moral damages.
THE DUTCH FARMERS’ CASE
In April 2009, a tribunal of the International Centre for Settlement of Investment Disputes (ICSID) ordered the government of Zimbabwe to compensate a group of 13 Dutch nationals whose farms were expropriated under Zimbabwe’s controversial land reform program. The Dutch claimants in the case, Bernardus Henricus Funnekotter and Others v. Republic of Zimbabwe, said the government was complicit in the invasion of their land. A Bilateral Investment Treaty signed with the Netherlands should have protected the Dutch investors. The initial compensation award was €8,2 million Euros (US$9,247 million) but by 2015 it had risen to US$25 million due to interest and costs of the protracted legal battle.
*Former Zimbabwean commercial farmer, Ben Freeth, has written the attached open letter with regards to the ongoing issue of compensation for dispossessed farmers.
Mike Campbell Foundation: Brief overview of land expropriation in Zimbabwe
Invasions of white-owned farms in Zimbabwe began in the year 2000 and have continued ever since. Compensation has not been forthcoming from the Zimbabwe Government, despite international arbitration awards – in some cases over 10 years ago.
Locally there is a realisation that until the farms are paid for, the title deeds will remain in the hands of the dispossessed farmers and that no real development can take place on those farms.
As a result of both international pressure and internal pressure on the Zimbabwe Government, some discussion regarding compensation has begun between the Zimbabwe Government and some sections of the farming community. There is concern that some of these discussions are being entered into without a mandate or terms of reference from the dispossessed farmers – many of whom are now scattered across the world, and that massive concessions are being made by those who have set themselves up as negotiators.
Most notable among these concessions is the concession that the Zimbabwe Government doesn’t need to pay for the land.
Ben Freeth, whose late father-in-law, Mike Campbell of Mount Carmel farm, took the Mugabe Government to the regional human rights court of the Southern African Development Community’s SADC Tribunal and won the case, expresses the concern of many of the farmers in the open letter informing dispossessed farmers of the concessions being made on their behalf.