For some time, Zimbabwe’s courts have been regarded with great concern by human rights organisations because of their apparent lack of independence from government, and their tendency to deliver decisions that suit the needs of the ruling party. In fact, they are sometimes described as ‘captured’. All this makes a new decision by a panel of the country’s constitutional court on the vexed question of land grabs, both unusual and intriguing.
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The case concerns a white farmer, 81-year-old Alistair Fletcher, who is proving something of a bone of contention for the government. That’s because, long after the whole land expropriation issue appeared to have been buried in a human rights cemetery, he is still insisting that his own land really is his own. And so far, unusually, he seems to be having some success.
In Zimbabwe, the supreme court is the highest body on all legal issues except constitutional matters for which there is a specially designated constitutional court. This court, which strictly pre-screens cases slated for hearing to ensure the dispute is in fact centred on interpreting aspects of the constitution, is the apex legal forum on such issues.
Now, a three-judge panel of this apex constitutional court has given Fletcher the right to appeal to a full hearing of that court against a judgment of the supreme court, on the issue of interpreting crucial constitutional provisions dealing with land grabs by the state. And in doing so, the panel seems to have shown its hand on the question of interpreting the law related to urban land grabs.
Arrested for ‘illegal occupation’
This particular part of Fletcher’s story starts in August 2000, when the Zimbabwe government seized his land outside Bulawayo. Fletcher then challenged aspects of the land grab in the high court, and won his case.
The government quickly noted an appeal to the supreme court, but while that was pending, Fletcher was arrested for illegally occupying the land, and was charged with not obeying a government order to vacate the property – this despite the existence of the high court finding in favour of Fletcher.
In January 2024, the supreme court heard the appeal and ruled against Fletcher, saying the high court had made some serious errors. Among these, said the supreme court, was accepting to hear the case in the first place, because the law says that government land acquisitions could not even be considered by the courts.
Prospects before the constitutional court ‘very good’
But Fletcher then asked the constitutional court for leave to appeal. That leave to appeal application was heard a month after the supreme court decision was handed down, and the panel of three constitutional court judges has now delivered its judgment, finding there was indeed a constitutional issue to be decided, that prospects of success on appeal were very good and that the appeal may now be heard by the full constitutional court.
The panel identified the key issue for interpretation as section 16B of Zimbabwe’s previous constitution, a provision that, among other things, ousted the jurisdiction of the courts in matters involving government land grabs.
So, what made the three-judge panel so sure that Fletcher would have success if the appeal were to be heard by a full constitutional court?
Urban land may not be seized by government
They began by asking whether his land had been ‘properly acquired’ by the government under section 16B(2). That section was unambiguous: it allowed government acquisition of agricultural land only, not urban land. ‘Urban land may not be acquired by the state in terms of this provision,’ the judges said. They also quoted from previous decisions holding that government cannot expropriate land ‘which is not agricultural land under the guise of the land reform programme.’
The panel wrote that it was ‘reasonably clear’, given the authorities, that for the state to acquire land, ‘it must be agricultural land’. In their view, the full bench of the constitutional court would ‘doubtless endorse that position’ when it sits to hear the main matter.
Fletcher’s land was urban land, proclaimed and gazetted as such when it was incorporated into the Bulawayo city area, thus falling under its city council. That Fletcher’s property was ‘regarded as non-agricultural’ was confirmed by various official letters including one from the provincial planning officer in 2016.
Thus, Fletcher’s land could not have been ‘lawfully acquired by the state’, since it wasn’t agricultural land, and the right of the state to acquire land was ‘strictly confined to agricultural land’. This right ‘explicitly excludes … land within the boundaries of an urban local authority or within a township,’ the panel wrote.
Supreme court ‘undoubtedly erred’ on excluded jurisdiction
That conclusion would in turn affect the jurisdiction of the courts to hear and adjudicate the dispute. The supreme court had decided that the courts were barred from so much as considering Fletcher’s case, but previous decisions made it clear that this bar only applied where the land acquired by the state was ‘agricultural land’ – ‘not urban land set aside for residential development or for any other non-agricultural purpose.’
The provision ousting the jurisdiction of the courts ‘was confined to agricultural land’ and thus, where non-agricultural land was taken, the ouster clause didn’t apply.
It was therefore the ‘considered opinion’ of the panel that the supreme court ‘undoubtedly erred’ in holding that the high court had no jurisdiction to hear and decide on Fletcher’s case.
Courts can’t decline jurisdiction in cases testing legality of state conduct
Then comes a particularly interesting paragraph: ‘It is axiomatic that the courts cannot decline jurisdiction whenever it becomes necessary to determine questions relating to the legality of state conduct. To do so would be tantamount to the abdication of judicial authority that is vested in the courts by constitutional imprimatur. … In short, the [supreme court] fell into grave error’ in finding that the high court had no jurisdiction to hear and decide the case.
Further, the interests of justice were affected. The supreme court’s decision in the Fletcher case set a precedent for all cases involving the state’s acquisition of urban land. It had failed to carry out a proper inquiry into the meaning and scope of the applicable law ‘and has thereby created a binding precedent giving rise to confusion as to what the law should be.’ This, said the panel, created the need for a definitive decision to clarify and settle the law on the question.
There was also great public interest in the final outcome, and a ‘correct interpretation of the law is essential and unavoidable.’ It was thus clearly ‘in the interests of justice’ to allow an appeal.
In conclusion the panel said the supreme court appeared to have ‘fundamentally misconstrued and consequently misapplied the law’ and its judgment was likely to be ‘materially altered or overturned on appeal before the full bench’.
Why did the government not contest leave to appeal?
No date has been announced for argument of the appeal, and it’s obviously impossible to say for sure what will happen in the full court’s hearing (though the three-judge panel sounded pretty confident of the outcome). But there are a couple of last issues to highlight.
Why did the government, here represented by the minister of lands, agriculture, fisheries, water and rural resettlement, not oppose Fletcher on leave to appeal, and instead give notice that they would abide by the decision of the court?
Counsel offered what seems an inadequate reason for this course: the minister ‘believes that he would not suffer any prejudice, even if the application were to be granted’. Coming from the same minister that appealed to the supreme court against the high court decision favourable to Fletcher, this just doesn’t seem logical.
Has something changed in government thinking about the case?
Something seems to have changed about government thinking on the Fletcher case and/or urban land grabs.
A few years ago, prominent academic and human rights lawyer, Justice Mavedzenge, wrote an article for the African Human Rights Law Journal, examining a series of decisions by Zimbabwe’s constitutional court. His conclusion is that when the court hears high-profile human rights cases involving the interests of the ruling party or government, there is a discernable trend. Most decisions ignore the constitution in favour of a decision ‘meant to protect the government from certain political risks’.
And even where an apparently bold decision seems to enforce the constitution, a closer look shows something else at play: it reflects that a ‘reconfigured political strategy of the ruling party and the internal factional contestations in the ruling party required or permitted the court to make those decisions’. In other words, even where the court seems to be making decisions that favour constitutionally-enshrined human rights, the decisions appear to reflect changes in government policy or the balance of power in the government.
From his analysis, Mavedzenge concludes that the performance of the constitutional court so far ‘paints a gloomy picture’ in relation to its reliability and usefulness as a ‘guardian of human rights and democratic institutions under the current autocratic regime in Zimbabwe.’
Against this background, what to make of the Fletcher judgment? Has there been a shift in government policy that would permit – even require – such a decision? Or is the court showing rare judicial independence, with no regard to government requirements?