Property Rights Systems and the Rule of Law, page 10 trumpeting land reform as a prominent part of his platform. Mugabe has held office ever Although land reform did occur, it proceeded at a measured pace. during the 1980s, the government acquired about 3 million hectares of land and redistributed that land to about 50,000 families.25 Some in Mugabe's government complained that too little was being done and blamed the overhang of colonial rule. The Lancaster House Agreement contained a restriction on forced land redistribution, stating that for 10 years (to 1990)no land would be acquired by the government of Zimbabwe unless there was a willing seller and the government promptly paid"adequate compensation. Following expiration of that stricture, Zimbabwe's constitution was amended to allow the govern- ment to take land without the owners consent. In 1992, legislation provided a new mechanism for calculating the price to be paid for property taken by the government, one that gave substantial power to a small group of administrators Despite the change in law, the pace of land reform actually slowed in the 1990s with government responsible during the decade for settlement of perhaps forty percent as many families on less than one-third the land transferred in the 1980s. One reason is that the funding for the land purchases of the 1980s very largely came from the UK and other Western nations through grants that had been exhausted by the end of the 1980s. Out- side commentary widely reported, though denied by the government of Zimbabwe also suggests that much of the benefit of government land reform programs went to well placed officials and influential supporters of President Mugabe rather than to the poor Zimbabweans for whose ostensible benefit the reforms were designed 29 Poorer zim- ns and soldiers who had fought for ZanU during the civil war took matters into
Property Rights Systems and the Rule of Law, page 10 ________________________________________________________________________ trumpeting land reform as a prominent part of his platform. Mugabe has held office ever since. Although land reform did occur, it proceeded at a measured pace. During the 1980s, the government acquired about 3 million hectares of land and redistributed that land to about 50,000 families.25 Some in Mugabe’s government complained that too little was being done and blamed the overhang of colonial rule.26 The Lancaster House Agreement contained a restriction on forced land redistribution, stating that for 10 years (to 1990) no land would be acquired by the government of Zimbabwe unless there was a willing seller and the government promptly paid “adequate compensation.”27 Following expiration of that stricture, Zimbabwe’s constitution was amended to allow the government to take land without the owner’s consent. In 1992, legislation provided a new mechanism for calculating the price to be paid for property taken by the government, one that gave substantial power to a small group of administrators. Despite the change in law, the pace of land reform actually slowed in the 1990s, with government responsible during the decade for settlement of perhaps forty percent as many families on less than one-third the land transferred in the 1980s. One reason is that the funding for the land purchases of the 1980s very largely came from the UK and other Western nations through grants that had been exhausted by the end of the 1980s.28 Outside commentary – widely reported, though denied by the government of Zimbabwe – also suggests that much of the benefit of government land reform programs went to wellplaced officials and influential supporters of President Mugabe rather than to the poor Zimbabweans for whose ostensible benefit the reforms were designed.29 Poorer Zimbabweans and soldiers who had fought for ZANU during the civil war took matters into
Property Rights Systems and the Rule of Law, page 1/ their own hands in many parts of the country, occupying land owned by white farmers without formal government sanction Responding to pressure from constituents, Mugabe's government proposed a re- formed constitution that would, among other things, allow the government to take land without payment to the owners. The new constitution, however, was defeated in a popu- lar referendum. Nonetheless, in the spring of 2000, the ZANU-dominated parliament adopted the amendment providing that the government could condemn and acquire land free of any obligation to compensate the owners, asserting instead(unilaterally) that Brit- ain had the obligation to provide recompense. And President Mugabe, exercising au- hority to enact legislation temporarily under a law giving the president extraordinary powers to deal with emergencies, amended the Land Acquisition Act in accord with the newly altered constitution to permit uncompensated takings. Six months later, the par- liament adopted legislation to the same effect. 1 The changes in the law were accompanied by a surge in land seizures by former ZANU fighters and others. Within a year, about 100,000 squatters occupied almost half the farms targeted by the government for acquisition. Within two years, according to some reports, as many as 300,000 families occupied some 11 million hectares of land formerly owned by white farmers. While some white farmers abandoned their property in the face of rising violence, others resorted to armed resistance, long a part of white mi- nority rule in Africa and particularly in Zimbabwe-Rhodesia. 4 Press reports link the vio- lent seizures of farms to groups associated with Mugabe.35 An umbrella group for larger commercial farmers, though lacking the political standing to reverse Mugabes policy, both tried to persuade the government to alter its
Property Rights Systems and the Rule of Law, page 11 ________________________________________________________________________ their own hands in many parts of the country, occupying land owned by white farmers without formal government sanction. Responding to pressure from constituents, Mugabe’s government proposed a reformed constitution that would, among other things, allow the government to take land without payment to the owners. The new constitution, however, was defeated in a popular referendum. Nonetheless, in the spring of 2000, the ZANU-dominated parliament adopted the amendment providing that the government could condemn and acquire land free of any obligation to compensate the owners, asserting instead (unilaterally) that Britain had the obligation to provide recompense.30 And President Mugabe, exercising authority to enact legislation temporarily under a law giving the president extraordinary powers to deal with emergencies, amended the Land Acquisition Act in accord with the newly altered constitution to permit uncompensated takings. Six months later, the parliament adopted legislation to the same effect.31 The changes in the law were accompanied by a surge in land seizures by former ZANU fighters and others. Within a year, about 100,000 squatters occupied almost half the farms targeted by the government for acquisition.32 Within two years, according to some reports, as many as 300,000 families occupied some 11 million hectares of land formerly owned by white farmers.33 While some white farmers abandoned their property in the face of rising violence, others resorted to armed resistance, long a part of white minority rule in Africa and particularly in Zimbabwe-Rhodesia.34 Press reports link the violent seizures of farms to groups associated with Mugabe.35 An umbrella group for larger commercial farmers, though lacking the political standing to reverse Mugabe’s policy, both tried to persuade the government to alter its
Property Rights Systems and the Rule of Law, page 12 policy(attempting to negotiate an expanded, voluntary land reform program) and alse went to court to block the land seizures. In December 2000, the Supreme Court of Zim- babwe agreed with the farmers that the government could not take away their property without compensation. The Court found that the land acquisitions being carried out did not conform to legal requirements of the Land Acquisition Act, including matters such the right to judicial review of decisions on compulsory takings, and that the program also did not conform to requirements of the constitution of Zimbabwe. 6 Among other things, the court found that the constitutional requirement of an established program of land re- form prior to land confiscation was not met. The judgment declared that the settling of people on farms had been entirely haphazard and unlawful: a net ork of organizations, operating with complete disregard for the law, had been allowed to take over from the Government. War veterans, villagers and unem ployed townspeople had simply moved onto farms, encouraged, supported, trans- ported and financed by [zanu] party officials, public servants, the Central Intel ligence Organisation and the army. 37 For devotees of Administrative Law, the judgment is notable for its invalidation of the law permitting President Mugabe to exercise legislative authority for temporary periods of time, the Presidential Powers(Temporary Measures)Act. The court struck this law down as an unconstitutional delegation of legislative power If we stop the story at this point, it seems a story about the efficacy of the rule of law. The courts stepped in against a very determined government led by a long-time
Property Rights Systems and the Rule of Law, page 12 ________________________________________________________________________ policy (attempting to negotiate an expanded, voluntary land reform program) and also went to court to block the land seizures. In December 2000, the Supreme Court of Zimbabwe agreed with the farmers that the government could not take away their property without compensation. The Court found that the land acquisitions being carried out did not conform to legal requirements of the Land Acquisition Act, including matters such as the right to judicial review of decisions on compulsory takings, and that the program also did not conform to requirements of the constitution of Zimbabwe.36 Among other things, the court found that the constitutional requirement of an established program of land reform prior to land confiscation was not met. The judgment declared that the settling of people on farms had been entirely haphazard and unlawful: a network of organizations, operating with complete disregard for the law, had been allowed to take over from the Government. War veterans, villagers and unemployed townspeople had simply moved onto farms, encouraged, supported, transported and financed by [ZANU] party officials, public servants, the Central Intelligence Organisation and the army.37 For devotees of Administrative Law, the judgment is notable for its invalidation of the law permitting President Mugabe to exercise legislative authority for temporary periods of time, the Presidential Powers (Temporary Measures) Act. The court struck this law down as an unconstitutional delegation of legislative power. If we stop the story at this point, it seems a story about the efficacy of the rule of law. The courts stepped in against a very determined government led by a long-time
Property Rights Systems and the Rule of Law, page 13 president to protect the rights of property owners and to enforce legal rules. That is the role of courts operating under the rule of law But the story goes on. President Mugabe, displeased at the ruling, replaced the Chief Justice of the Supreme Court(whose resignation was widely reported as being forced by Mugabe). The new Chief Justice then named three more new judges to the Supreme Court. With the newly reconstituted bench, the land acquisition case was then considered by five members of the court. Apparently the Chief Justice selected which five judges would hear the case. This time, the judges decided that the law met both con- stitutional and other legal standards. The four judges voting to uphold the law were the four new additions to the court. The lone dissenter subsequently stepped down, also reportedly under pressure from the government and its supporters Zimbabwe and the Rule of law first Cuts At this juncture, having gotten to the end, the story looks like a classic breakdown of the rule of law. It is a story about using legal forms to implement the will of the rulers specifically President Mugabe The law prevented Mugabe from doing what he needed to politically in order to stay in power or at least to be more secure in power. Legal rules prevented him from tak- ing property that belonged to some citizens( the white minority)in order to give it to oth- ers(veterans, militia members, government officials, other supporters) who were more critical to Mugabe's political future So Mugabe changed the law and he changed the personnel who interpret Mugabe changed the law by using special powers conferred on him to amend the law and by using his parliamentary majority to amend the law, including amendments that
Property Rights Systems and the Rule of Law, page 13 ________________________________________________________________________ president to protect the rights of property owners and to enforce legal rules. That is the role of courts operating under the rule of law. But the story goes on. President Mugabe, displeased at the ruling, replaced the Chief Justice of the Supreme Court (whose resignation was widely reported as being forced by Mugabe).38 The new Chief Justice then named three more new judges to the Supreme Court. With the newly reconstituted bench, the land acquisition case was then reconsidered by five members of the court. Apparently the Chief Justice selected which five judges would hear the case. This time, the judges decided that the law met both constitutional and other legal standards. The four judges voting to uphold the law were the four new additions to the court.39 The lone dissenter subsequently stepped down, also reportedly under pressure from the government and its supporters. Zimbabwe and the Rule of Law: First Cuts At this juncture, having gotten to the end, the story looks like a classic breakdown of the rule of law. It is a story about using legal forms to implement the will of the rulers, specifically President Mugabe. The law prevented Mugabe from doing what he needed to politically in order to stay in power or at least to be more secure in power. Legal rules prevented him from taking property that belonged to some citizens (the white minority) in order to give it to others (veterans, militia members, government officials, other supporters) who were more critical to Mugabe’s political future. So Mugabe changed the law and he changed the personnel who interpret the law. Mugabe changed the law by using special powers conferred on him to amend the law and by using his parliamentary majority to amend the law, including amendments that pur-
Property Rights Systems and the Rule of Law, page 14 ported to apply retroactively 0 And Mugabe changed the law-readers by using his power to replace judges who opposed him with judges who were more compliant, more willing to accede to his desires. The judges who stepped down were pressured by government officials and by others. The judges were subject not merely to criticism or threats of re- duced resources or of having government ignore their rulings. The judges faced death threats, threats they apparently viewed as more than mere rhetoric There is little that is more at odds with the rule of law than the use of raw power to bend legal judgments to the will of an individual. There is little more at odds with the ule of law than, in the midst of a legal controversy, changing who reads, who interprets the law in order to change the reading- much less to do so after the law has been read There is little efficacy to property rights when they can be abrogated so easily to serve the purposes of a ruler. Zimbabwe's treatment of property rights and its treatment of the le- gal system that defines those rights fails the rule of law because it is a story of the exer cise of arbitrary, dictatorial authority Arbitrary Rule or Rule of Lawv? As obvious as the disconnect between the events in Zimbabwe and conformity to the rule of law is-and it should be quite obvious -the line between blatant derogation from the ule of law and conformity to the rule of law between behavior consistent with legal pro- tection of property rights and total disregard of those rights, is not so easily drawn on conceptual grounds. The line rests on differences in degree in several respects and, most of all. on the combination of circumstances that free the decisions in Zimbabwe from control by valid, external authority, independent of the identity of the decision maker Rule of law and Changing law
Property Rights Systems and the Rule of Law, page 14 ________________________________________________________________________ ported to apply retroactively.40 And Mugabe changed the law-readers by using his power to replace judges who opposed him with judges who were more compliant, more willing to accede to his desires. The judges who stepped down were pressured by government officials and by others. The judges were subject not merely to criticism or threats of reduced resources or of having government ignore their rulings. The judges faced death threats, threats they apparently viewed as more than mere rhetoric. There is little that is more at odds with the rule of law than the use of raw power to bend legal judgments to the will of an individual. There is little more at odds with the rule of law than, in the midst of a legal controversy, changing who reads, who interprets the law in order to change the reading – much less to do so after the law has been read. There is little efficacy to property rights when they can be abrogated so easily to serve the purposes of a ruler. Zimbabwe’s treatment of property rights and its treatment of the legal system that defines those rights fails the rule of law because it is a story of the exercise of arbitrary, dictatorial authority Arbitrary Rule or Rule of Law? As obvious as the disconnect between the events in Zimbabwe and conformity to the rule of law is – and it should be quite obvious – the line between blatant derogation from the rule of law and conformity to the rule of law, between behavior consistent with legal protection of property rights and total disregard of those rights, is not so easily drawn on conceptual grounds. The line rests on differences in degree in several respects and, most of all, on the combination of circumstances that free the decisions in Zimbabwe from control by valid, external authority, independent of the identity of the decision maker. Rule of Law and Changing Law