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Assessing and promoting civil and minority rights in South Africa.

[This paper was delivered on 7 June 2018 at the South African Monitor colloquium “Expropriation without compensation”: comparing politics and property rights in Zimbabwe and South Africa in The Hague, The Netherlands.]

Introduction

Some theorists of social justice and the libertarian right all seem to agree that distribution of resources should be on merit. This clarifies the odd proximity between Fredrick Hayek, hero of the libertarian right, and John Rawls, theorist of social justice. Although Hayek said that the idea of social justice was nonsense, he argued against only a particular principle of social justice, one that Rawls too rejected, namely distribution according to individual merit. Any attempt provide justice without merit, Hayek argued, would undermine the market’s price system, leaving us all poorer and less free. Like Rawls, Hayek held that we should assess social institutions from behind a veil of ignorance, as a means of pushing us toward egalitarianism.

Most of the distance between Rawls and Hayek at the level of policy stems from Hayek’s optimism about the operation of markets, his equivocation about the meaning of central concepts, and his views have become prophetic in post Zimbabwe Land Reform. Hayek has argued that private property and markets benefit everyone, compared to the feasible alternatives, for instance, the Zimbabwean government that was known to have launched a brutal land dispossessions, is now begging the same white farmers to return to their private properties.

Hayek claimed that markets and private property are based on a principle that seeks to maximise the opportunities of randomly selected members of society. In other words, Hayek believed that respect for private property aggregates opportunities. As most Hayekians suggest that free market raises the position of the worst off in the long run, in future generations, whereas Rawlsians insist that inequalities between social positions should benefit the worst off now.

This argument is imperative when trying to understand Zimbabwe’s land reform policy whose domino effect resulted in country’s GDP dramatically shrinking largely as a consequence of white farm invasions.

I also wish to argue that the expropriation of land without compensation amounted to a gross violation, thus crimes against humanity in Zimbabwe. The Zimbabwean case study demonstrates the need for a collective effort of human rights and development practitioners, which is now more imperative than ever before.  This view stems from Hayek’s perception that “The great aim of the struggle for liberty has been equality before the law”. Social justice, according to Hayek, is a concept which, for the sake of clarity, ought to be confined to the deliberate and equal treatment of men and women.

Zimbabwe Land Reform

For a very long time before the “expropriation of land without compensation also known as Fast Track Land Reform, Zimbabwe was known as the “bread basket” of Africa endowed with productive farmland which it used to grow enough food to feed its population and also exported to the entire world. Craig Richardson argues that following Fast Track Land Reform, Zimbabwe now provides a compelling case study of the perils of tramping upon property rights and ignoring the rule of law – when implementing land reforms. Craig Richardson argues that protecting property rights is vital for economic growth and whenever these critical rights are violated, the economy is prone to collapse. I therefore submit to you that there is a proximity between economic development and human rights. The two are close enough, compatible and congruous, while at the same time they are different enough in strategy and design yet they complement each other fruitfully, according to the Human Development Report 2000.

Recently, a white Zimbabwean farmer, Robert Smart, evicted by Robert Mugabe’s government returned to his farm to a hero’s welcome as he became the first evicted farmer to get his land back under the new president, Emmerson Mnangagwa.  This is a reversal of Robert Mugabe’s controversial land reforms that had hastened the country’s international isolation and this is a clear demonstration that expropriation of land without compensation is a project that will never work.

Since Independence in 1980, white commercial farmers have taken the Zimbabwean economy to dizzy heights, they drove the economic growth with output rising on average by 15 per cent per annum during the first 18 years of Robert Mugabe’s leadership.

Statistics also show that the white commercial farmers were being joined by black farmers and by 1997 some 1 200 of the 6 000 farmers that existed at Independence in 1980, were black.

Commercial farmers employed a third of the national workforce, enjoyed no subsidies of any kind and generated half our exports. Up to 60% of local industry was dependent on them. They were globally recognized as the most productive farmers, holding global farming records in yields and advanced conservation techniques. Hence, Zimbabwe was totally self-sufficient in almost all foodstuffs and were the envy of the neighbours and the world.

The Fast Track Land Reform was a political weapon to win votes. And indeed it was heavily politicised. However, the programme was then accompanied by the deterioration of diplomatic relations between Zimbabwe and the United Kingdom. In June 1996, the United Kingdom declared that it will not endorse the land acquisition policy and urged President Robert Mugabe to return to the principles of “willing buyer, willing seller”. Mugabe responded that “let me have my little Zimbabwe, and Tony Blair have your little Britain”.

What happened during the Zimbabwe’s Fast Track Land Reform?

Most recorded statistics say up to 4 000 white Zimbabwean farmers were evicted following the Zimbabwe “fast track land reform” programme that was characterised by a violent expropriation without compensation policy. The Fast Track Land Reform was intended to transfer white farmland, covering 110,000 km² of mostly prime farmland, to black ownership.

From 2000, land invasions resulted in the murder of 28 white farmers and 78 black Zimbabweans working in those farms. The murders, beatings and forced evictions led to the demise of the “breadbasket of Africa”.

Zimbabwe’s Constitution, first crafted in London during the Lancaster House talks that resulted in Zimbabwe’s independence and endorsed by all the national leaders of southern Africa and by all Zimbabwean nationalist, guaranteed property rights, security of person and the rule of law. This constitution has so far been amended 19 times, but these singled out rights have not been tampered with.

What went wrong? 

After 18 years of progressive economic development, a catastrophic socioeconomic and political mistake was committed by Zimbabwe’s post-colonial dispensation. Under Robert Mugabe, ruling Zanu-PF party supporters, led by veterans of the 1970s Rhodesian bush war, evicted many of Zimbabwe’s white farmers through violent land reform program, leading to economic and social decline in a country that was revered for the world’s most Agro-based and well organised economy.

During the violent land reform, commercial farming infrastructure was destroyed, 25 000 tractors were destroyed, some stolen, 300 000 hectares of irrigation were destroyed, the equipment from transformers to pumps to pipelines, torn up and sold for scrap.

Furthermore, 3 million head of beef cattle and hundreds of thousands of other animals including wild animals were slaughtered for consumption, 23 000 homesteads and 350 000 staff houses were taken and in most cases burnt or vandalised. Farm buildings worth hundreds of millions were destroyed, 10 000 farm dams built by the farmers themselves were left full and idle. Clearly, there a violation of human rights during Zimbabwe’s land reform which consequently affected the economy.

Relationship between human rights and economics

There is a clear relationship between human rights and the economy. This relationship is largely complementary. The convergence of perspectives and approach between human rights and economics is part of the emerging reality of economic development. This leaves us with no doubt that the expropriation of white farmland without compensation in Zimbabwe was a violation of rights. Any deprivation of property without compensation constitutes a very serious breach of an individual’s rights. Property rights are a fundamental human right that is recognized by most international human rights conventions.

Clearly, Zimbabwe’s land Reform disregarded the international law and the international conventions on human rights. The expropriations went against the United Nations’ Universal Declaration of Human Rights, the European Convention on Human Rights and the African Convention on Human Rights (African Charter on Human and Peoples’ Rights). This is because in most jurisdictions, land owners have a constitutional right, hence also a constitutional right to be compensated. This explains while the new Zimbabwean president has announced plans to compensate white farmers who were victims of the Robert Mugabe Fast Track Land reform.

Undoubtedly, the debate between proponents of human rights and mainstream economists raises a number of interaction issues, as Reddy (2011) points out that practitioners and scholars in both fields present specific views as to how society should be organised.

While mainstream economists suggest that human rights offer merely broad principles but no tools with which to make specific policy choices, economists are uncomfortable but aware of the legal formulation that all human rights, civil and political, or economic, social, and cultural are indivisible. Clearly, mainstream economists are concerned with the realisation of human rights because they believe that human rights represent intrinsic values and, as such, should not be compromised.

In other words, human rights and economic development are of equal importance, and it is not right to promote certain rights at the expense of other rights. For instance, human rights are interdependent in that they are mutually reinforcing and intertwined with economics. Human rights proponents might argue that economists lack concern for the ethical consequences of their policies and for the negative consequences of growth for those left behind (Seymour and Pincus 2008), however, human rights often ensure whether economists are integrating and observing rights into their work.

It is the duty of all states around the world, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (UN World Conference on Human Rights, Vienna Declaration and Programme of Action, 1993).  There is a strong spirit that all human rights are universal, indivisible and interdependent and interrelated. Therefore, all countries must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.

In general, a human rights approach questions the status quo, render explicit the concerns of the marginalised when mapping out policies. In this case the marginalised can either be the rich or the poor.

Although human rights at the level of theory have been argued to represent violations, in practice the right to respect for private property requires that there must be no interference, expropriation by a public authority.  The economic wellbeing of the country stems from the protection of these rights and freedoms of others and clearly in Zimbabwe Fast Trach Land Reform was based on personal political gains as evidenced by the fact that most land acquired went to ZANU-PF cronies.

Who benefited from Zimbabwe Fast Track Land reform?

Robert Mugabe and his allies now own 40 percent of land seized from white farmers, according to the audit report. Mugabe alone owns 14 farms spanning at least 16,000 hectares. There is no doubt that he used the land reforms to reward his political supporters rather than ordinary black Zimbabweans. Those who benefited mostly are his cabinet ministers, senior army, government officials and judges. They helped themselves on fertile agricultural land, including wildlife conservancies and plantations.

Economic and social impact

From 2000, Zimbabwe experienced an unprecedented social, political and economic crisis largely precipitated by the Government’s expropriation of white farmland without compensation under the guise of Fast Track Land Reform Programme.

The Zimbabwean land expropriation story has led to a tension between political and social scientists – with many questions being asked on whether the Land Reform was designed for a genuine social justice cause or designed for a self-centred political goal. However, the most sad part of the Zimbabwean lessons is that history seems to be repeating itself, with neighbouring South Africa clearly, seemingly launching the same catastrophic programme which has been weaponised by the Economic Freedom Fighters. This is the same programme/process that has been characterised by gross human rights violations and disregard of the rule of law.

The expropriation of land without compensation has resulted in dramatic and unprecedented human rights abuses that are well documented in the report, Adding Insult to Injury: A preliminary report on human rights violations on commercial farms 2000-2005, by the Zimbabwe Human Rights NGO Forum.

Widespread human rights violations were inflicted upon white farmers and black farm workers by agents of Zimbabwean President Robert Mugabe’s government during the seizures of white-owned farms from 2000 to 2005.

This report finds that the gross human rights violations, and the violations of rights generally, were much greater than had been previously assumed. Data from a survey conducted in 2005 suggests that human rights abuses, immense financial losses were inflicted upon the farm owners. Black farm workers suffered catastrophic losses of income, habitation, health services and access to clean water and sanitation that contributed to a high death rate.

The combination of the human rights abuses and loss of livelihood have contributed to a growing economic and humanitarian crisis in Zimbabwe.

The report concludes that the evidence is strongly suggestive of a systematic campaign, as evidenced by the failure of the police and civilian authorities to enforce the law and offer the protection of the law. The report finds that a plausible case can be made for crimes against humanity having been committed during Zimbabwe’s Fast Track Land Reform. I submit to you that there is a compelling need to investigate crimes committed during the land reform and surely perpetrators must be charged and tried. There can be no impunity for gross human rights violations ever and hence there must be some process of accountability for the violations that occurred.

I also wish to submit that such an accountability must involve both criminal and civil actions, both farm workers and commercial farmers need to obtain redress for the violations they have experienced and the losses they have suffered.

While Land reform policies are generally implemented to address food insecurity, promote wider equity and efficiency, in Zimbabwe, the programme resulted in the violation of economic, social and cultural rights. It also led to political and social instability.

A violation of economic, social and cultural rights occurs when a State fails in its obligations to ensure that these rights are enjoyed without discrimination or in its obligation to respect, protect and fulfil them. Often a violation of one of the rights is linked to a violation of other rights, such as property rights, and the adverse impact of these violations is the damage on the economy.

For example, Zimbabwe’s economy significantly shrunk after 2000, thus after the expropriation of land without compensation, resulting in a desperate situation among ordinary Zimbabweans. The expropriations led to widespread poverty and a 95% unemployment rate. It also led to hyperinflation which was a major problem between 2003 to April 2009, resulting in the country suspending its own currency. The country faced 913 million percent peak hyperinflation in 2008.

To see the impact of land expropriation without compensation, Zimbabwe’s annual inflation rate became the highest in the world by hitting 2.2 million percent, thus, as announced by then Central Bank Governor Gideon Gono.

In July 2008 the Central Bank Governor announced that inflation rose to 2.2 million percent while independent economists said inflation was pegged 7 million percent annually.

Economist Jonathan Waters has stated that Zimbabwe experienced the fastest shrinking economy outside a war zone, with unemployment pushing to 80% and inflation a rampant 913%. Walters points out that amid the economic meltdown, some crooks have emerged and are indeed thriving. Walters state that “Where some see crisis others see opportunity”. This all reflects the view that the farm expropriations in Zimbabwe were problematic because they sought distribution of resources.

Economist observe that as a result of Zimbabwe’s Fast Track Land Reform, thousands of businesses have gone bankrupt, exports have been slashed and leading to the dramatic economic decline since 2000. President Mugabe, who led the former British colony since independence in 1980 often blamed the crisis on droughts and western sanctions imposed as punishment for the expropriation of white-owned farms.

Social scientists have argued that the fault was caused by Mugabe’s Zanu-PF government, which gave land to loot-minded cronies and under-capitalised black peasants, frightened investors away and then printed money to cover budget deficits, a development that triggered inflation which some say is close to 2,000%.

The impact of the expropriation of land has clearly manifested on living standards and has been so catastrophic. About 4.6 million people now rely on food aid, children miss school because their parents cannot pay fees, and hospitals lack basic equipment and medicine – handing a death sentence to those with HIV/Aids and other treatable diseases.

Zimbabwean Government to Compensate White Farmers

The Zimbabwean government has invited over 1000 white farmers to collect compensation for farms that were seized under President Robert Mugabe’s directives. The government has called for all dispossessed farmers to contact the Ministry of Lands for the compensation.

The former owners or representatives should contact the ministry of lands, land reform and resettlement as a matter of urgency in connection with their compensation (Read the Government Press statement).

Conclusion

The ANC Government in South Africa has announced that the they will immediately use the Constitution to expropriate land without compensation. Moreover, just mentioning land expropriation can make investors wince, evoking the violent farm seizures in Zimbabwe under Robert Mugabe that down a promising economy to its knees. The announcement has sent shock waves in business section and stake holders who are nervous about how the land issue will be handled.

In 2009, the Food and Agricultural Organisation (FAO) of the United Nations published a guide on international best practice for expropriation. The point of departure of the document is that forced acquisition of property could be abused and that measures should be in place to prevent this.

The guide requires, among others, clear and transparent procedures for forced acquisition of property, and compensation that will ensure that the affected persons are not worse off after expropriation than they were before. It further states that affected persons must not only be compensated for the loss of land but also for improvements made and for the disruption that accompanies expropriation.

A deliberate and genuine effort was made to introduce a way by which the government could fast track the process of land reform and redistribution, hence the introduction of the willing seller, willing buyer policy.

In the 21st century where economic development is influenced by the level of human rights redistribution of land requires a genuine policy such as willing seller, willing buyer. Apart from the willing seller willing buyer, the government can introduce a policy that would audit ineffective or land that is under-utilised and then introduce high taxation for land that is either lying idle.

Therefore, theorists of social justice and the libertarian right are correct that distribution of resources should be on merit.

References

Stiff, P (2000). Cry Zimbabwe: Independence – Twenty Years On. Johannesburg: Galago Publishing. ISBN 978-1919854021.

South Africa at a Glance
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