Property rights, discrimination and the new Zimbabwe Constitution
We have all waited long for Zimbabwe's new constitution. I wish to focus on a fundamental and principle part of this long and wordy document which, at 164 pages, stretches to the length of a short novel.[i] Before doing so, it is perhaps pertinent to quote James Madison, one of the American founding fathers, who wrote: "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent if they cannot be understood..."[ii]
The part that I wish to focus on is the issue of discrimination and property rights. Law is essentially about fairness - and discrimination is about unfairness. So it is important that when we vote for the new constitution, we consider the issue of "fairness" very carefully.
Thomas Jefferson,[iii] the principal author of the American Declaration of Independence, wrote: "All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression."[iv]
While Jefferson stresses that the minority must have equal rights, we need to be aware that property rights are something that affect us all.
The word "property" comes from the same root as the word "proper" and so has a moral root to it. The agricultural economist Symond Fiske[v] points out that "wherever communities are poor, it is always because people and their governments have been trying to take a short cut to wealth and affluence. Instead of formulating and heeding codes that respect ownership, they harass, raid and discourage folk who do.... In reality the only difference between theft and redistributive taxation is the size of the gang."
In Zimbabwe, the "gang" that is stopping property rights from being protected - or enhanced and made sacrosanct - has been operating for some time.
James Madison stated that "Government is instituted to protect property of every sort... This being the end of government, that alone is not a just government,... nor is property secure under it, where the property which a man has in his own personal safety and personal liberty is violated by arbitrary seizures of one class of citizens for the service of the rest."[vi]
We all know that such seizures have characterized the whole of the twenty-first century in Zimbabwe. My children have never known anything different. In Zimbabwe's case, the systematic seizure of land from commercial farmers has not in most cases been "for the service of the rest" since a significant number of the beneficiaries have been the ZANU PF elite and many farms have been conveniently parcelled out as part of President Mugabe's patronage system.
The new constitution - which our political leaders have negotiated and endorsed - includes the preposterous, quintessentially Orwellian[vii] law in section 56  that "discrimination... is unfair unless it is established that it is fair..."
Thus it leaves the door wide open for not only the taking of agricultural enterprises, but also for the taking of businesses, mines, tourist facilities, banks and even homes....
Furthermore, section 72 [a] and [c] of the constitution reads as follows: "When agricultural land, or any right or interest in such land is compulsorily acquired .....[c] the acquisition may not be challenged on the ground that it was discriminatory..."
There is no constitution that legalizes discrimination and the seizure of property in this way anywhere in the world. It goes against all human rights conventions ever signed.
There is ongoing speculation as to whether some of the members of the Movement for Democratic Change (MDC) - which apparently endorses this constitution - have now, unwittingly, been incorporated into the "gang" that Symond Fiske talks of.
I wish to go back in history to look at a success story. Like Zimbabwe, the United States was a British colony. Like Zimbabwe, it attained independence - and it wrote a constitution which created the enabling environment for that country to become the most prosperous in the world. Within just over a century, the USA had the largest economy in the world and to this day it is by far the biggest exporter of agricultural produce in the world, accounting for nearly half of the world's food exports. It is important that we learn the reasons for this achievement.
John Locke[viii], one of the greatest and most influential philosophers of all time, was part of the glorious revolution in England that spurred on the agricultural revolution and the consequent industrial revolution. Locke, who is widely believed to have been one of the most significant influences behind the American Constitution, wrote: "...that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions...."
"The Supreme power cannot take from any man, any part of his property without his own consent. For the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property..." John Locke, Second Essay Concerning Civil Government.
In Zimbabwe, virtually all commercial farmers who happen to have a "white" skin have been deprived of their property - and in most cases, nearly a decade later, none have received a cent of compensation. Furthermore, they are not able to practice their profession on any property because their properties are now, under Zimbabwe law, vested in the President.
The problem in Zimbabwe is not only the issue of discriminatory protection of property rights. The problem is actually that none of us have property rights. The people in the communal lands have never had property rights and as a result of Amendment 17,[ix] which was added to Zimbabwe's constitution on September 14, 2005, the government has sweeping powers to take away homes and livelihoods at the stroke of a pen, without any challenge in any court being permitted. All they have to do is publish a notice in the newspaper and allocate the property to anyone they chose - which, as has been the case since 2000 - includes themselves. The new constitution, in glaring defiance of the SADC Tribunal and the SADC Treaty, endorses the contents of Amendment 17.
History has demonstrated that the State has always been spectacularly unsuccessful in making the land productive. Not only did Amendment 17 result in the complete abolition of property rights, it also criminalised all white farmers and their farm workers if they stayed on their land. The loss of the skills of former farm workers has also had a major impact on agricultural sector - and the persecution of such people continues through these laws, with farm workers being evicted by the new "chefs"[x] all the time.
John Adams, another of the 18th century founding fathers of America, had this to say: "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist."[xi]
That moment in Zimbabwe has been with us for some time - and the new constitution will perpetuate "the moment" indefinitely. When title deeds are cancelled, we enter the pre-agricultural revolution feudal age. Under feudalism, whether under a king, a chief, or a dictator, the individual's property has never been safe. Consequently, agriculture has never flourished and throughout the history of feudalism, millions of people have starved to death.
Fredrick Bastiat[xii], a renowned French economist, statesman and author, while trying to stop "legalized plunder" by the State in France, wrote in his book entitled, "The Law": "We hold from God the gift which includes all others. This gift is life - physical, intellectual and moral.
"But life cannot sustain itself alone. The creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. The process is necessary in order that life may run its course.
"Life, faculties, production - in other words, individuality, liberty, property - this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it.
"Life, liberty and property do not exist because men have made laws. On the contrary it was the fact that life, liberty and property existed beforehand that caused men to make laws [for the protection of them] in the first place."[xiii]
Zimbabwe is going against this fundamental principle - and though I am no prophet, history confirms without exception that it will be to the detriment of the people of Zimbabwe.
In April 2006, in a paper on Zimbabwe titled "Learning from Failure: Property Rights, Land Reforms, and the Hidden Architecture of Capitalism", Professor Craig Richardson[xiv] of Winston-Salem University in the United States, an expert in property rights with a keen interest in Zimbabwe, wrote:
"Property rights are analogous to the concrete foundation of a building: critical for supporting the frame and the roof, yet virtually invisible to its inhabitants. In fact, there are three distinct economic pillars that rest on the foundation of secure property rights, creating a largely hidden substructure for the entire marketplace.
- Trust on the part of foreign and domestic investors that their investments are safe from potential expropriation;
- Land equity, which allows wealth in property to be transformed into other assets; and
- Incentives, which vastly improve economic productivity, both in the short and long term, by allowing individuals to fully capture the fruit of their labors."
Justice George Sutherland of the US Supreme Court told the New York State Bar Association in 1921 at their annual address that "the individual - the man - has three great rights, equally sacred from arbitrary interference: the right to his life, the right to his liberty and the right to his property... The three rights are so bound together as to essentially be one right. To give a man his life but deny him his liberty, is to take from him all that makes his life worth living. To give him his liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave," [p.18].
In Zimbabwe, the "gang," is clearly bent on perpetuating the slavery of the people through discriminatory laws and through its constitutional "right" to take property from its citizens in an arbitrary way, and to vest the land in the State. This has proved to be a very valuable mechanism of control.
I cannot, and will not endorse a constitution that will subject the people of Zimbabwe to continued hunger and slavery. If it were measured against God's blue print and all international law, it would never even be put to the people in its present form. Anyone who endorses the draft constitution as it stands is, in my view, a traitor to the next generation of young Zimbabweans.
Spokesperson of SADC Tribunal Rights Watch and Executive Director of The Mike Campbell Foundation
[i] Comparison: South African Constitution: http://www.justice.gov.za/legislation/acts/1996-108.pdf
United States Constitution: http://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf
[ii] Federalist Papers, No.62, p.381
[iii] Thomas Jefferson was an American founding father, the principal author of the Declaration of Independence and the third President of the United States
[iv] Bergh, writings of Thomas Jefferson, 3:318
[v] Symond Fiske, author of "Ploughing a Furrow" and " Damage by Debt"
[vi] Saul K. Padovere, ed., The Complete Madison [New York]: Harper and Bros 1953 p.267
[vii] George Orwell, journalist, novelist and author of "Animal Farm" and "Nineteen Eight-Four"
[ix] Amendment 17 came into force on 14 September 2005. This states that, "A person having any right or interest in the land shall not apply to a court to challenge the acquisition of the land by the State and no court shall entertain any such challenge." It goes on to formally cancel the title deeds and register title over all land in the state where land has been acquired by decree.
[x] Chef: a senior ZANU PF party official
[xi] Charles Francis Adams- The works of John Adams, 10 vols. [Boston: Little, Brown and Company , 1850-56.,6:9, 280].
[xiii] [Irvington-on -Hudson, NY: The Foundation for Economic Education, Inc.,1974] pp5-6.
[Irvington-on -Hudson, NY:The Foundation for Economic Education, Inc.,1974] pp5-6.
[xiv] Prof Craig Richardson: "Learning from Failure: Property Rights, Land Reforms, and the Hidden Architecture of Capitalism", published by the American Enterprise Institute for Public Policy, April 5, 2006
Issued by SADC Tribunal Watch, January 30 2013
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