By Alex Bell
30 January 2013
The new constitution, that is set to be ‘adopted’ on Thursday by the parliamentary team responsible for it, is facing serious criticism for enshrining into law discrimination and illegal land seizures.
The COPAC team, which spent years fighting over the document, have indicated they will on Thursday officially ‘adopt’ the new draft that was finalised by the government’s political leaders. The document has already been formally approved by all parties in the coalition government, but still needs to be given the nod by Parliament before it is put forward for a public referendum.
But while talk turns to potential dates for a referendum and the election that will ultimately follow, there is little debate about the actual contents of the new charter, which critics say is fundamentally flawed. Already, some quarters of Zimbabwean society are campaigning for a ‘no’ vote for the document, mainly because it is the result of a negotiated political process and not the will of the people.
A key concern is the fact that discrimination has been enshrined in the draft, despite this being contrary to the basic human rights the charter is supposed to protect.
Chapter 56, section 5 states: “Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”
Ben Freeth, the former Chegutu farmer who is now heads the pressure group SADC Tribunal Rights Watch, said this week that discrimination has been written into law to support the government’s ongoing campaign of land seizures.
He told SW Radio Africa on Wednesday that such “totalitarian control that all animals are equal, but some are more equal than others,” has already been seen in Zimbabwe for many years. But he questioned why it has now been written into law. He said this move makes sense when further into the document you read a subsection on Property Rights that states: “the acquisition (of land) may not be challenged on the ground that it was discriminatory in contravention of section 56.”
Chapter 72 in the constitution enshrines the right of the state to seize land, stating that all agricultural land, including forestry land, conservation land and horticultural land, among others, may be “acquired” by the State for “public purpose.” Section 2 states: “the land, right or interest may be acquired by the State by notice published in the Gazette identifying the land, right or interest, whereupon the land, right or interest vests in the State with full title with effect from the date of publication of the notice.”
These takeovers will also be done without compensation, according to the new charter, and compensation issues cannot be challenged in the courts.
The draft constitution also upholds the standards of the old charter by insisting that Britain is responsible for compensation for the land seized as part of the land grab. The draft states that “the former colonial power has an obligation to pay compensation for agricultural land,” and if this fails to happen “the Government of Zimbabwe has no obligation.”
This provision flies in the face of international rulings, including from the SADC Tribunal and the International Centre for Settlement of Investment Disputes, which have both ordered Zimbabwe’s government to pay compensation for seized farms. Zimbabwe’s new charter however makes the legal provision for these rulings to be ignored.
Freeth said these ‘bad’ and unfair laws that do not entrench property rights have serious consequences for Zimbabwe’s future.
“When the government isn’t there to protect property rights, when the constitution isn’t protecting property rights and the law is stacked up against us in terms of protecting our property, then there are huge consequences. There will be an impact on the economy, on the wellbeing of the people, on the future develop of the country and it is something very serious.”
Freeth warned that without property rights, Zimbabwe cannot grow, cannot encourage investment and cannot progress. He said for these reasons, “anyone who does endorse it (the constitution) is actually betraying the future generation of children in Zimbabwe.”