Three white South African farm owners, Louis Fick, Michael Campbell, and Richard Etheredge, are poised to challenge Zimbabwe’s controversial land reform program in South Africa’s High Court of Pretoria. The week of January 22, 2010, the civil rights group AfriForum filed papers on behalf of the farmers against Zimbabwe, challenging its defiance of a 2008 Southern African Development Community (SADC) decision that the Zimbabwean land reform program violated international law and was racially discriminatory.
The case is scheduled to begin on February 23, 2010 and could lead to the Zimbabwean government’s assets in South Africa being attached so that farm owners can recover some of their losses. The farmers’ attorney, Willie Spies, stated that if the case succeeds, it would set a precedent for other dispossessed farmers to claim damages for lost property in South African courts.
Since 2000, Zimbabwean president Robert Mugabe has embarked on a land reform program that has displaced approximately 4,200 white farmers and affected up to 60,000 workers and their families. In late 2009, Zimbabwe and South Africa signed the Bilateral Investment Promotion and Protection Agreements, which South African government officials promised would protect South African interests under the land seizure program. However, evictions have actually increased since the agreement was signed, with at least 17 farms affected in January 2010 alone. So far, South African government officials have denied requests to use the agreement to protect their citizens’ property rights, stating that the agreement is unenforceable until it is ratified by the Zimbabwean Parliament.
Section 16B of Zimbabwe’s constitution provides that “no compensation shall be payable” for land that is forcibly taken for agricultural settlement and land reorganization. Even though SADC declared the clause illegal in 2008, the Zimbabwean government has continued to seize land without paying the former owners. On January 26, 2010, Justice Bharat Patel of Zimbabwe’s High Court declared that, while Zimbabwe would normally recognize SADC judgments, this ruling directly contradicts Zimbabwe’s constitution and is unenforceable as a matter of public policy.
The violence and lawlessness of aggressive land takeovers in Zimbabwe is alarming. At least 18 people have been murdered during violent evictions since 2000. As recently as December 2009, farm owner Don Stewart was strangled and burnt to death in his home. On January 12, 2010, the Smit family was locked inside its home for over a week without water or electricity while a mob, bussed to the farm by government official, camped outside and demanded that that the family give up its property. A November 2009 report by a coalition of Zimbabwean agricultural organizations claims that during land evictions, 65 percent of dispossessed farmers have been tortured according to the United Nations Convention against Torture definition.
Although many takeovers are orchestrated by high-ranking officials in Mugabe’s government, the land evictions are controversial even within the government. In April 2009, after a farm was seized and given to President Mugabe’s biographer, the Zimbabwean deputy prime minister, Arthur Mutambara, denounced the takeover and demanded the farm be returned. Although his demands were disregarded and the former owners were chased off the land, Mutambara continued to argue that land takeovers detract foreign investors and lead to economic instability.
Mutambara is not alone in contending that the economy has suffered because of land reform. The Commercial Farmers Union (CFU) claims the land reform program has led to non-productivity of eighty percent of formally cultivated land, leading to a U.S. $12 billion loss in agricultural production over ten years. The United Nations Famine Early Warning System Network has also reported that between January and March of 2010, 2.2 million Zimbabweans may be in need of food assistance. CFU blames the food shortages on the dramatic decrease in food production since the land takeovers began in 2000—a logical conclusion considering there has only been one drought since the initiation of the land reform campaign.
Even if AfriForum wins the current litigation in South Africa, evictions of commercial farms are unlikely to stop: of the three hundred still operating in Zimbabwe, 152 are already being targeted. However, the ruling could find Zimbabwean officials in contempt of South African law and may provide dispossessed farmers with an avenue to receive compensation for land that has been taken from them. Considering that the government ignored the SADC ruling and domestic court decisions, this may be the most effective remedy farmers can expect.