However, universally accepted property rights are those that guarantee optimality, including security, of
property rights under a formalized (i.e. documented) and private property regime. Property rights should
therefore be defined by the community (or the state), accepted and understood by all and able to be enforced.
In that context, not only statutory law but also customary and religious law and even unwritten local norms,
may all address the rights and responsibilities related to property such as land. Secure property rights come
with many advantages without which the economy simply collapses19 and there will be 'anarchy over the land'.
Van den Brink puts it clearly when he writes:
“---If a property right is insecure, investment will fall. This is why there is consensus that property
rights need to be secure.” 20
Some argue that secure property rights also make political mobilization safe.21 Where property rights are
respected, people with profound political differences settle their disputes peacefully in the ballot box and
return to their homes unafraid of reprisals or recrimination should their party lose.
Domestic Instruments
The Lancaster House Constitution in 1979 resulted in a cease-fire in Zimbabwe but the Declaration of Rights
(Chapter III, Section 16 read in full) of the Constitution prohibited the new government from acquiring land for
22
resettlement purposes except on a willing buyer-willing seller basis. Property rights therefore stood among
other rights as having equal protection before the law in Zimbabwe. For ten years of Zimbabwe's self rule, there
was respect for the private property that the white commercial farmers enjoyed, which the Constitution
guaranteed and the courts protected through judicial review. It is this section of the law that was severely
affected by the amendments made at the expiry of the willing buyer-willing seller clause in 1990. So, in
principle, property rights lost their guarantees from 1990 as the government introduced a wave of
amendments in the constitution, which sought to bring about acquisition and redistribution of land to the
landless people.
Thus from 1990 onwards the government was free to amend the Constitution and pass laws that could give it
the required powers to implement a radical land reform programme, based on the following:
the Constitution of Zimbabwe Amendment (No.11) Act 30 of 1990
the Land Acquisition Act (Chapter 20:10) of 1992
the Constitution of Zimbabwe (No. 12) Act 4 of 1993
the Constitution of Zimbabwe (No 14) of 1994
These laws provided the state with significant powers to implement accelerated land reform, including a
number of sanctions through which landowners could be convinced or forced to co-operate. In 1997, the
government published a list of 1,471farms it intended to compulsorily acquire for redistribution. Through this
policy, landowners were given 30 days to submit written objections. In addition, Amendment No. 17 of 2005
nationalized Zimbabwe farmlands and deprived farm owners of the right to challenge government's decision to
expropriate land.
These amendments put the hitherto guaranteed rights into reverse. Prior to these amendments,
compensation for land expropriated (or acquired compulsorily) by the state for resettlement purposes had to
be effected promptly and adequately and in a foreign currency of the landowners' choice. As a result,
compulsory acquisition was extremely costly to the state. These constitutional amendments were aimed at
moving away from prompt and adequate compensation to fair compensation paid within a reasonable time.
19
Richardson CR (2005) How the Loss of Property Rights Caused Zimbabwe's Collapse, Cato
Institute, Economic and Development Bulletin, No. 4, November 14, 2005
20
Van den Brink R Land Policy and Land Reform in Sub-Saharan Africa: Consensus, Confusion
and Controversy
21
Goetsche L. Property Rights, Conflicts and Peace located at,
http://www.swisshumanrightsbook.com/SHRB/shrb_01_files/255_12%20goetschel.pdf
22
Van Horn A. (1994) Redefining "Property": The Constitutional Battle over Land Redistribution in Zimbabwe Journal
of African Law, Vol. 38, No. 2 1994, pp. 144-172
8
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