Communal land ownership rights in Zimbabwe

The recent demolitions of properties in communal areas by the government has sparked yet another debate on the status and property rights of people who reside in communal areas in Zimbabwe. The answers being sought range from whether people who live on Communal Land can lawfully resist being displaced or dispossessed of their land and if they have a right to compensation for being displaced or having their farming activities disrupted.

The Supreme Law of the land being the Constitution of Zimbabwe defines what is meant by the term Communal Land as follows:

“Communal Land” means land set aside under an Act of Parliament and held in accordance with customary law by members of a community under the leadership of a Chief”.

In terms of section 4 of the Communal Land Act, Communal Land shall be vested in the President, who shall permit it to be occupied and used in accordance with the Act.

Section 6(1) of the Act further proceeds and states that the President can publish statutory instruments declaring that land ceases to form part of Communal Land, but before doing so he must consult any rural district council established for the area concerned.  What is pertinent to note is that the local chief does not have to be consulted. Section 8 of the Act states that people may occupy and use Communal Land for agricultural and residential purposes with the consent of the local rural district council, and in giving such consent the council must have regard to customary law and must consult and co-operate with the chief for the area.

Under the Mines and Minerals Act, similar rules apply to mining in Communal Land as it would apply to mining in other areas:

Section 26 of the Act states that Communal Land is open to prospecting which means that licensed prospectors can search for minerals and peg claims on Communal Land. Before exercising any prospecting rights, they are mandated by the Act to give notice to the local rural district council concerned, though not necessarily to the occupants of the land or their chief (section 38 of the Act).

Recent events of demolitions of buildings built in communal lands cry for a reform of the Communal Lands Act from a public policy perspective. The necessary reforms could border along the lines of the right to object, to challenge the proposed setting aside or excision, to claim compensation, and so on. The Act may further be amended to grant chiefs the power to allocate land to people who, under customary law, are entitled to occupy it, and to give chiefs real powers to administer Communal Land as provided in section 282 of the Constitution.

The Mines and Minerals Act should be amended, generally to balance more fairly the rights of miners and owners or occupiers of land, and to also include the social responsibility concept. The amendment in relation to Communal Land could be:

a)     to give inhabitants a share in royalties from minerals taken from their land

b)    to require mining companies to enter into agreements with chiefs or local authorities requiring them to construct schools, clinics, roads and other infrastructure for the benefit of the people living in the vicinity of their mines,

c)     and to minimize ecological damage caused by their mining operations. 

These agreements should be published and made enforceable by the people who stand to benefit from them.