This article is part two of an article on current land rights in Zimbabwe. The first article was entitled: Rhodes' Esate Should Compensate White Farmers, Not Mugabe; this article deals with damages and how much should then be paid to the white farmers whether in Zimbabwe or South Africa. Liability as noted in the first article lies with either Cecil John Rhodes' Estate (for funding colonization under the banner - Rhodesia) or the United Kingdom (under the Lancaster House Accord).


The legal rule is that whether Zimbabweans take their case to the International Court at the Hague, in protest against the United Kingdom for not honoring the 1979 Lancaster House Agreement or take the white farmers head-on at whatever forum will be established to settle this dispute, the land never had a good title because it arises from political displacement. The amount for compensation surely can never include the original stolen land: the Zimbabwean people or government should not pay for land that was stolen and then returned after a protracted  bush War.  Should Jews compensate those who stole their artwork during Nazi German for the storage, exhibition, and maintenance fees?

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Similar principles of compensation should be applied in court whether they involve Jews or Gentiles; Blacks or Whites; Men or Women. 


The Zimbabwean war for liberation was fought for land and this land has been subsequently returned to the rightful owners. Whether it was redistributed the right way or the wrong way after it was returned is a political question of democracy. The main issue is that the treaty clauses of the Lancaster House Peace Treaty were that land be given back to the majority Africans having lost the bush war waged by the Rhodesian Front. This was the battle between Zimbabwe and Rhodesia; between Colonial America and Great Britain in 1789... In essence the bush war culminated in the Patriotic Front defeating the Rhodeain Armed Forces and thus the Patriotic Front, led by Zanu under Robert Mugabe was voted into government following a free and fair election monitored by the United Kingdom. It culminated in independence, in as much as the United States is now independent from then Great Britain. A similar scenario: two States fighting over territorial jurisdiction...

The Zimbabwean transition to power followed not a civil war but a revolutionary war that expanded the definition of citizen to include Africans. At this time in history white Zimbabweans preferred to be known as Rhodesians. This is the backdrop to this contentious subject. For 100 years, 1890, to 1980 in which Zimbabwe was ruled by white settlers who preferred the name Rhodesians the land has always been a product of African defeat off the land.

I would like to address the issue of, " we found no one here when we came from Britain." This is perhaps one of the most dangerous doctrines that is circulating around the Zimbabwe / South Africa land rights issue. Unoccupied land within a territory does not mean it does not falll within the jurisdiction of that country. The land that was settled on by the farmers fell within the local African tribal government in the form of chiefdoms. Geography and an understanding of government existed before white settlers in Africa. For example Africans knew where the Zulu Kingdom started and ended. As such, unoccupied stretches of land in Zululand in 1820s still fell within that Kingdom, it was not free land.

Thus the land in Zimbabwe was never truly the rightful property of white settlers who removed the African because it was based on theft; protected by a government, and racism. All this was overturned by the Lancaster House Accord. a Treaty that while it was incorporated into the Zimbabwean constitution is still a valid treaty since some of its clasues referred to land, and settled a war between two sides. Treaties are a valid form of international law unless annulled by a second treaty. As I have said in other articles, the United kIngdom and Zimbabwe eventually need to sit down and discuss the issue again.


The only measure of compensation for white farmers is for "land improvement," this is minus the cheap labor, which a constructive trust should be made for the African laborers who worked for close to nothing on the farms. Indeed, the success of the framing in zimbabwe would tnot be possible if it were not for the cheap immigrant labor from Malawi, Mozambique and Zambia. Should Jews compensate those who stole their artwork during Nazi German for the storage fees and up keep of these paintings?

The importation of thechnology into Zimbabwe cannot be compensated because in all regions technology is accepted aspart of human co-existence. The white farmers bought machines with the proceeds that were labored by cheap immigrant laborers. This is the cycle that we have. If you remove the cheap laborer then the whole system would have collapse over night.

It is a known fact that in litigation, sometimes the judge has to give a symbolic measure of damages as 1 dollar because while the litigant, here the white farmer, is right if one takes a superficial mode of analysis, however the litigant is not right if you look at all the facts. In any land dispute, even modern land disputes involving merely questions of who has a good deed, the fact that one has a deed in his name and his hands does not mean he is the rightful owner of the house; fraud and theft can set aside such a purchase if the person knows the house is stolen. Again, this one dollar, should be paid either by the Rhodes's Esate or the United Kingdom. One dollar because the Courts cannot ignore the pain and suffering caused by colonialism, humiliating conditions as farm laborers, the very embodiment of racism. 

To argue that a future government of say Tsvangirai or Tendai Biti should compensate farmers for land, is to ignore both the Lancaster House obligation under that Treaty and the Zimbabwean Revolutionary war of 1965-1979. Civil lawsuits, or "private litigation," to reverse political realities such as land dispossession of Africans that established democracy in Zimbabwe or South Africa are anti-democratic because a democratic state with its court system exist in these two countries. In addition, private litigation against Zimbabwe in South African courts is unfortunate because it undermines African soverienity, for both Zimbabwe and South Africa.


Ken Sibanda, is an American Constitutional attorney, born in Transkei, South Africa. Known as Tecumseh for his work in law.





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