ABSTRACT
The purpose of this chapter is to critically analyse the role of the judiciary in the land acquisitions in post-independent Zimbabwe and assess the extent to which it has been used by the executive arm of government as an instrument of ‘recovery’ of land rights expropriated during the colonial period. It is important, however, in considering the role of the judiciary in post-independent Zimbabwe to look into history, in particular, during the colonial period for purposes of setting the context. The chapter therefore draws some commonalities in the role of the colonial and the post-independent judiciary in the expropriation of land. A key point emerging from this analysis is that in the same way that the colonial judiciary was an instrument of expropriation of land rights, the post-independence judiciary in relation to the recent Fast Track Land Reform Programme (FTLRP) has also been used as an instrument of ‘recovery’ of land rights. Far from being an independent adjudicator for the protection of land rights, the history of the judiciary in Zimbabwe has been characterised by allegiance to prevailing political power interests and has therefore been either an instrument of expropriation or an instrument of recovery. The chapter demonstrates that by and large, with limited exceptions,
Zimbabwe’s judiciary has, through the colonial to the independence era, generally been a critical political player, more so in relation to the expropriation of land rights. The impartiality of the judiciary in respect of the land question has been and continues to be influenced by political power so that its role is no more than to endorse the interests and demands of the dominant political players. This was the case with the colonial courts and continues to be the case with the post-independence judiciary. At the heart of the problem for the judiciary is its role in the contestation
between ‘human rights’ and ‘human claims’ in respect of land which were not effectively resolved at the Lancaster House Constitutional Conference (1979) through which Zimbabwe gained independence in 1980. As will be discussed in this chapter, in respect of the land question, it was always the view of the postindependence government that the Lancaster House Constitution sought to preserve the colonial order under which land had been expropriated but did little
to address the claims of the black majority apart from permitting land acquisition under the ‘willing seller, willing buyer’ principle. As the government sought to redress the colonial imbalances, it was left to the
judiciary to adjudicate between the government and the landowners. An interesting feature is the transformation of the post-independence judiciary, from one that was fiercely independent of the executive to one that has become more aligned to the executive’s interests. The independence of the judiciary in the early years must however be seen in the context of the politics of land and how this was perceived by the executive and nationalist politicians as a façade for serving the interests of the landowners and resisting the government’s land reform programme. It is within this context that the role of the judiciary in the period of the FTLRP can be seen one of pursuing the ‘recovery’ of land rights under the direction of the government. In relation to land issue therefore, the judiciary in Zimbabwe can be characterised as an instrument of ‘recovery’ as much as it was an instrument of ‘expropriation’ in colonial Rhodesia.
