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Written by Makanatsa Makonese (PhD
Published by Weaver Press: 38 Broadlands Road, Emerald Hill, Harare, Zimbabwe (https://weaverpresszimbabwe.com/store)
Also available from:
1) African Books Collective: (https://www.africanbookscollective.com/books/women-law-and-power)
2) Amazon: https://www.amazon.co.uk/Women-Law-Power-Perspectives-Zimbabwes/dp/1779223986/ref=sr_1_1?dchild=1&keywords=women%2C+law+and+power&qid=1624450262&s=books&sr=1-1
As reflected in my own life, the land question has been an enduring issue in the history of Zimbabwe. From pre-colonial times to the modern-day post-colonial State of Zimbabwe, the land issue has dominated the political, social, and economic discourse. The implications regarding women’s rights to access land generally, and agricultural land in particular have been immense. Given the long history of the land and its political, economic, and social impact on Zimbabweans, this book seeks to interrogate the land question in Zimbabwe with a focus on the Fast Track Land Reform Programme (FTLRP) and how the policy and legal frameworks governing the programme as well as access, ownership and control patterns impacted the agricultural land rights of different categories of women.
The categorisation of women in this study is based on different characteristics such as marital and social status, political affiliation, and age. It looks at the land rights of married, divorced, widowed, and single women, farmworker women, young and older women, women as wives and daughters as well as women in different political formations.
The underlying consideration is that when discussing women and access to agricultural land, women should not be lumped together as a homogenous group. My research focused on women as individuals but also as members of systems, societies, families, and communities, and with the realisation that the discrimination that they face is not frozen in time, space or circumstances. At the same time, there is a need to explore the collective discrimination faced by women because they are women and the differentiated discrimination or privileges that women experience because of their different social, economic, political, and even marital positions.
The comparison between women in different social and status groups is therefore useful in exploring the sameness and difference between women. This helps to explain how women from certain social and status categories may suffer from discrimination on the basis of their gender, their ethnic background, and their socio-economic situation, leading to intersectional discrimination. This will help in explaining why, when the FTLRP was implemented, many women were left out, and how and why the few women who benefitted manoeuvred a complex politically charged, and male-dominated process.
It is generally accepted that the FTLRP started as a chaotic and violent process, making it difficult for women to participate in the process. Violence is a power and control tool and the consequences of violence generally and violence against women specifically are that it maintains women in subordinate positions, limits their participation in political and public life, and in the attainment of work and access to resources.
As a result, by the time government moved in to try and rationalise and regularise the violent and chaotic land invasions, the bulk of the available land had been occupied by men. Notably, this rationalisation and regularisation included the promulgation of laws and formulation of processes to address the issue. There were many such laws starting from the year 2000, many of which at the beginning paid little attention to the already skewed access patterns for women.
However, in recent years, the 2013 Constitution, the Zimbabwe Land Commission (ZLC) Act [Chapter 20:29] and Agricultural Land Settlement (Permit Terms and Conditions) Regulations, 2014 [S.I. 53/2014] have sought to address women’s rights to agricultural land. The Constitution in particular provides for the rights of women to be treated on the basis of equality with men and prohibits discrimination on basis of “… custom, culture, sex, gender…” factors that are normally used to discriminate against women.
The Constitution also unequivocally states that the State must take practical measures to ensure that women have access to resources, including land, on the basis of equality with men. However, given that these provisions became law thirteen years after the start of the FTLRP, the reality is that by this time, most of the fast track land was already in the hands of men. I, therefore, argue that to address access to land by women given this reality, the focus must be on ensuring their access and equality as part of the family unit as wives and daughters, during the subsistence of a marriage or at its dissolution, either through death or divorce. I also argue that land identified through the land audit/s and farm rationalisation processes must target groups that have to date failed to access fast-track land, particularly women.
Section 36 (5) of the ZLC Act clearly addresses women’s land rights as part of the family unit. It states that applicable laws in relation to the devolution of property upon marriage, the dissolution of marriage, or death (amongst others) shall apply in relation to partially alienated state land (fast track land) unless another law specifically provides otherwise. This is a useful provision in light of interpretations that had been given by the courts until the promulgation of the Act.
The High Court in particular had concluded that fast track land is state land and thus could not be subject to consideration in sharing of property at divorce as it does not form part of matrimonial property. Whilst the interpretations were gender-neutral in that they allowed either of the spouses in whose name the lease was registered to retain the land upon divorce, substantively women suffered more from the negative effects of this interpretation given that most of the land acquired under the FTLRP was directly acquired by and registered in men’s names.
The cases of Chiwenga v Chiwenga and Chombo v Chombo were a clear example of how this interpretation by courts disadvantaged women and their rights to agricultural land in the event of divorce. A Supreme Court Judgment following an appeal in the Chombo v Chombo case however overturned the High Court reasoning on sharing of fast track land rights upon divorce, emphasising that although the land belongs to the State, the rights in such land must form part of the matrimonial assets. This decision has reinforced the provisions of the ZLC Act. Inheritance rights of wives and daughters over fast track land must be equally protected given the provisions of the ZLC Act.
Despite some loopholes, S.I 53/2014 recognises the rights of spouses of agricultural landholders (either as co-signatory permit holders or joint permit holders/joint heads of household). It also has provisions on the protection of spousal and dependants rights in the event of divorce or death. This law however only applies to small scale (A1) allocations and there are no similar provisions compelling co-registration of spouses for large scale commercial farms (A2) allocations.
Whilst in practice, the Ministry of Land, Land Reform and Resettlement requires all 99-year lease recipients to register their spouses on the lease agreement, it remains necessary for such a provision to be legislated for in order to avoid discretional application of the policy position. Compulsory joint registration would also be a positive step by the government in demystifying the notion that land belongs to men, in particular, the high value large-scale commercial farming land that is governed by the 99-year leases.
One of the major functions of the ZLC is ‘to conduct periodical audits of agricultural land’. The issue of identifying and documenting the access and control patterns following the FTLRP is vital for the government as well as for the people of Zimbabwe if the reform programme is to be considered a success by any standards or be put to rest. As the FTLRP unfolded, there were accusations that the programme benefitted mainly the elite and those with political connections. Although the government denied this and insisted that the programme benefitted the landless majority, with over three hundred thousand (300,000) households having been allocated land, the fact that the elite and politically connected were given bigger and better pieces of land is undeniable. In addition, the fact that this same elite acquired multiple farms or farms exceeding the maximum allowable hectarage is also a fact.
It is therefore imperative that land beneficiaries are not multiple landowners, and that their landholdings are within the legally set size limits. It is against this background that the land audits should assist the government in identifying those with multiple farms, or those whose farms exceed the maximum recommended farm sizes. The question that needs to be asked is how the land audit should help women to access more land under the FTLRP given that research conclusively shows that women did not benefit at the same level as men from the initial phases of the programme.
Any land audit should not only seek to identify multiple landowners or those with farms that exceed the maximum farm size but must be used to address anomalies that existed from the onset of the programme. This will also help in creating goodwill from the citizens around the FTLRP and when used to increase access levels for women will ensure compliance with the Constitution which enjoins the government to ensure gender parity in all spheres of life and equal treatment for women in accessing land.
The establishment of the ZLC and the enactment of the Zimbabwe Land Commission Act are milestones in achieving this. The relatively high budgetary allocations to the ZLC (compared to other constitutional commissions, both independent and executive) is probably an indication of the government’s commitment to ensuring that the ZLC is capacitated and in a position to fully implement its mandate and address the land question.
Given that the fast track land audit issue has been long outstanding, the ZLC must be assisted and capacitated to implement it. The longer it takes to complete the audit and address any anomalies, the more likely it is that positions regarding allocations and access will become entrenched. Further delay will make it increasingly difficult to acquire any excess, underutilised, or irregularly acquired land and redistribute it without causing major resistance and disruptions in future. Such entrenched positions are and will remain beneficial to men more than women in the country.
In addition to entrenching existing control and access patterns over partially alienated state land, the delays in the land audit will also have the effect of cementing the widely held views that government is reluctant to undertake the audit because those who should be spearheading the process are multiple farm owners or possess the land in excess of the required farms’ sizes and are therefore reluctant to implement the audit.
At a time when the post-Mugabe government is seeking re-engagement with the international community and seeking to open the country to foreign direct investment, addressing disparities in land ownership is an important way of attracting the necessary support and goodwill. If, moreover, discrepancies in allocation are to be seriously addressed, they will necessarily have to take into account the gender-based disparities that continue to exist in land access, control, and ownership patterns regarding the country’s FTLRP. The land audit should be a priority mandate issue for the ZLC and the government in order to set the country on a path of gender equality in land access, ownership, and control.
