The land has always been the lifeblood of Zimbabwe. It nourishes our people, sustains our families, and connects us to the very essence of who we are. Yet, the right to this most fundamental resource has long been a source of contention, debate, and at times, deep divides within our society. As I gaze out over the rolling hills and vast, fertile plains that stretch before me, I can't help but wonder — how did we get here? How did something so ingrained in our identity become so fiercely contested?
Perhaps the answers lie in the complex history that has shaped this beautiful, yet sometimes troubled, land. From the colonial era to the fight for independence, the question of land ownership has been a driving force, both uniting and dividing us as a nation. And now, as we navigate the modern landscape, the echoes of those past struggles continue to reverberate, challenging us to find a path forward that honors our roots while embracing the realities of the present.
Ivhu nderedu here?
Zimbabwe has a complex history when it comes to land rights and their relation to human rights. After gaining independence in 1980, the Zimbabwean government embarked on a controversial land reform program aimed at redressing the inequitable land distribution that had persisted from the colonial era.
The right to shelter is closely linked to the right to land in the Zimbabwean context for a few key reasons:
Access to land as a prerequisite for shelter:
In a largely agrarian economy like Zimbabwe, land is a fundamental resource for constructing and maintaining adequate housing and shelter.
Without access to land, either through ownership, tenancy, or other secure land tenure arrangements, it becomes extremely difficult for individuals and communities to fulfill their right to adequate shelter.
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Displacement and landlessness
The history of land dispossession and unequal land distribution in Zimbabwe has resulted in the displacement of many people, rendering them landless and unable to secure adequate shelter.
The compulsory land acquisition processes have further exacerbated this issue, leading to the loss of land and homes for some individuals and communities.
Livelihood and food security linkages:
Land is not just a means of shelter, but also a critical asset for subsistence farming, livestock rearing, and other livelihood activities.
The loss of land can undermine people's ability to produce food and secure their basic needs, thereby impacting their overall standard of living and access to adequate shelter.
Cultural and social significance of land:
In many Zimbabwean communities, land holds deep cultural, spiritual, and social significance, beyond just its material value.
The right to shelter is therefore not just about physical housing, but also about the ability to maintain cultural and ancestral connections to the land.
Is the right to shelter justiciable?
In the context of the Zimbabwean constitution, the distinction between justiciable and non-justiciable rights is an important one when it comes to the right to shelter.
Justiciable rights are those that can be enforced through the courts and legal system. These rights give individuals the ability to seek legal remedies if their rights are violated. They are considered "justiciable" because they can be adjudicated upon by the judiciary.
On the other hand, non-justiciable rights are those that cannot be directly enforced through the courts. These are often referred to as "directive principles" or "socio-economic rights" that guide the state's policies and actions but do not create individual legal entitlements that can be claimed in court.
In the Zimbabwean Constitution (2013), the right to shelter is not classified as a justiciable right. Instead, it falls outside the “Declaration of Rights”.Section 28 of the constitution just provides that the state and its agencies of government at every level must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.
The reason for this is that the Zimbabwean government has taken the position that the right to shelter, along with other socio-economic rights, are subject to the “progressive realization” principle. This means that the state has an obligation to take reasonable legislative and other measures, within its available resources, to achieve the full realization of these rights over time.
However, the lack of justiciability means that individuals cannot take the government to court solely based on the right to shelter being violated. They would need to demonstrate that the government has failed to take reasonable measures to progressively realize this right, which can be a higher legal threshold to meet.
This distinction between justiciable and non-justiciable rights in the Zimbabwean Constitution has been the subject of debate and criticism from human rights advocates, who argue that all human rights should be equally enforceable.
The government's position is that the progressive realization of socio-economic rights, including the right to shelter, is a more realistic and achievable approach given the country's limited resources and development challenges.
The Constitution of Zimbabwe (2013) contains several provisions relevant to land rights and human rights:
Section 71 - Right to property
This section recognizes the right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, including land.
However, it also allows for the compulsory acquisition of land by the state for public purposes, subject to the payment of fair compensation.
Section 72 - Land
This section affirms that "all land in Zimbabwe belongs to the people of Zimbabwe", and the state ensures "equitable access and occupation of land" as provided by an Act of Parliament.
It also recognizes customary land tenure systems and the rights of communities to manage and administer their communal land in accordance with the law.
Section 73 - Environmental rights
This section establishes the right to an environment that is not harmful to health or well-being, and the duty of the state to protect the environment for present and future generations.
In addition to the constitutional provisions, Zimbabwe has enacted several laws that address land rights and their relationship to human rights, including:
The Communal Lands Act (1982): Recognizes the rights of communities to occupy and use communal land under customary law.
The Land Acquisition Act (1992): Outlines the process for the compulsory acquisition of land by the state, including provisions for compensation.
However, the implementation and enforcement of these laws have been contentious, with concerns raised about the protection of individual and community land rights, particularly for vulnerable groups such as smallholder farmers and indigenous communities.
I am left with a profound sense of unease. For despite the blood, sweat, and tears shed by generations of Zimbabweans in their fight for this most essential of resources, the harsh reality is that true land rights remain elusive.
The land that should nourish and sustain us has become a battleground, with ownership and access dictated more by the whims of power brokers than by any semblance of justice or equitable distribution.
The very thing that should unite us as a people has, in many ways, become a source of division and discord.
- Mafa (formerly Mutowekuziva) is a registered legal practitioner. She has a keen interest in human rights, development and governance. These weekly New Horizon articles, published in the Zimbabwe Independent, are coordinated by Lovemore Kadenge, an independent consultant, managing consultant of Zawale Consultants (Pvt) Ltd, past president of the Zimbabwe Economics Society and past president of the Chartered Governance & Accountancy Institute in Zimbabwe (CGI Zimbabwe). — kadenge.zes@gmail.com or mobile: +263 772 382 852.
