The Zimbabwe land issue questions the extent to which extra-territorial tribunals, however well-intentioned, can assist. Tribunals and Courts exist to heal human conflict by producing an acceptable result in the shortest possible time, with the least possible expense, and with the minimum of stress on the participants,46 and should acknowledge context, both underlying and current, with complete and not selective regard. Only such an approach would satisfy the requirements of justice, and makes the Mike Campbell decision unsustainable. It discarded underlying context and privileged current context or the status quo without explanation, and still hoped that its decision would settle the matter.
According to Miller, social justice, the idea from which humwe proceeds, is a people-oriented idea because to describe it, ‘we must look at what the people themselves think’. Social justice theory has always been, and must always be, a critical idea – one that challenges us to reform our institutions and practices in the name of greater fairness. 47
The legitimacy of private property rights, instituted through colonial laws for the benefit of the minority white community at the exclusion of the black majority, is what the Mike Campbell case is about. The SADC Tribunal’s challenge in the matter was to determine what constitutes fairness in the allocation of land in present-day Zimbabwe.
Dworkin indefines fairness as ‘… procedures and practices that give all citizens more or less equal influence in the decisions that govern them’. He contrasts fairness with justice, which ‘… is concerned with the decisions that standing political institutions, whether or not they have been chosen fairly, ought to make’.48 To the extent that it empowers them collectively to influence decisions that govern them, fairness is people-oriented.
The connection between laws and principles of morality or justice, discoverable by human reason without the aid of revelation, becomes relevant because where the former conflict with the latter, the former should become invalid – ‘Lex inuiusta non est lex’. An analogous argument is that SADC Tribunals have no business upholding claims of exclusive legal titles to farms that had been created under apartheid rule, because all
46 Burger (n 2 above).
47 D Miller Principles of social justice (1999) ix.
48 R Dworkin Law’s empire 164 - 165. Discussing Dworkin’s triad of justice, fairness and integrity, see J Rivers ‘The interpretation and invalidity of unjust laws’ in D Dyzenhaus (ed) Recrafting the rule of law: The limits of legal order (1999) 58 - 65.
such titles lacked the democratic seal of approval under the social justice requirement of fair distribution of all the advantages and disadvantages accruing to the political community at issue.
Rawls writes that the primary subject of justice is how the major social institutions distribute fundamental rights and duties, and determine the division of advantages from social cooperation.49 Properly executed humwe would seek to ensure justice by undoing the discriminatory effects of the colonial structure that had fixed the social positions into which men and women had been born, and from which their life expectations were largely determined. Two arguments can be made in favour of restorative post-independent humwe-inspired land legislation in Zimbabwe.
The first is that colonial legislation on land allocation and land use imposed upon the post-independence government of Zimbabwe a duty to correct the situation. According to Rawls, such structures affect men’s initial chances in life even if they cannot possibly be justified by any appeal to the notions of merit or desert. This required the adoption of laws that would override the colonial land allocation laws. The Constitution of Zimbabwe Amendment Act 2005 is an example of that, characterised by its supreme quality.50 The SADC Tribunal condemnation of the Constitution of Zimbabwe Amendment Act 2005 can be explained only by the Tribunal’s failure to acknowledge underlying context in its determination.
The Constitution of Zimbabwe Amendment Act 2005 appears to be humwe-driven in that it returns ownership of agricultural land to the State which holds it in trust for “all.” Individuals obtain from the designated local government authority permission to use land for life for as long as it is not already under someone else’s charge. In this sense humwe appears to be consistent with laissez- faire redistributive theorists’ arguments, that the initial appropriation of resources should be limited by some principle of equality. Steiner writes that persons who appropriate more than an equal share impose an unjust distribution on those with a less than equal portion.51
Humwe land-ordering seeks to equalise opportunity for allocation of a minimum portion of land to everyone that requires land for their subsistence. Where such a portion was unavailable a right to redress would occur. This right to redress ‘carries over into a world in which there are no more un-owned things: in a fully appropriated world, where each person’s original right to an equal portion of initially un-owned things amounts to
49 J Rawls A theory of justice (revised ed 1999) 6.
50 Madzimbamuto v Lardner-Burke (1978) 3 WLR 1229.
51 H Steiner An essay on rights (1994) 268.
a right to an equal share of their total value’ and a right to compensation where that right has or cannot be satisfied.52
The State thus incurs a duty to establish a ‘redress fund’ to compensate all those that may end up without. This may be achieved by requiring those that hold more than their minimal equal portion to pay a fee proportionate to their oversize share. Beitz observes that
Because every living adult at any given time has a right to an equal share of resources, the value of an equal share fluctuates with population size. So there is a more or less continuous need for compensatory redistribution. Second, on this view, there is no right of inheritance; when a person dies, that person’s possessions become un-owned and revert to the redress fund.53
Trusteeship titles to land would give holders:
(1) The exclusive right to use land that was not in another’s use.
(2) The duty to surrender through established channels, actual land that was not under the holder’s use only if another had need of it.
(3) The right to seek more land provided that one had exhausted one’s initial capacity and still had need for more.
(4) The right to be treated equally and like anyone else viz land claims and land use.
That would guarantee that all concerned would not be impeded but assisted in their effort to live off the finite resources of their geographically fixed political community and ensure the dignity of subsistence agricultural communities. It would ensure that minimum standards of equity necessary in a civilised community are realised, and that enterprising members can exercise their talents. In this sense humwe appears to be consistent with aspects of the liberal tradition of distributive justice, according to which distributive responsibility for resources that belong to all lies with the State.54 Distributive justice theory seeks to inform:
... a range of choices whose outcomes bear on the well-being of individuals located in societies other than our own. These include, for example, choices about individual conduct such as whether to donate to Oxfam; the policies of our own government concerning for example, foreign aid or immigration; the policies of international institutions and regimes (rules of international trade, international monetary policy, environmental controls, labour standards, conditions on multilateral aid and structural assistance); the constitutions of international institutions, as distinct from their
52 Steiner (n 51 above) 271.
53 CR Beitz ‘International liberalism and distributive justice: A survey of recent thought’
(1999) 51 World Politics, 282.
54 Beitz (n 53 above) 269 - 96.
policies; and the policies of non-governmental organisations.
Recognising the potential consequences of thesechoices, it is natural to wonder what moral considerations should guide our judgment.55 Laissez-faire liberalism is clear that distributions are not just if they have been arrived at from a previous distribution that itself was not just. ‘A distribution is just when it has been arrived at from a previous distribution that itself was just, through a series of transactions that have not violated anyone’s rights.’56 A preceding distribution must be tested as to whether it had resulted from a process that had respected everyone’s rights, and the one before it, back to the beginning, when resources occurring in nature were initially appropriated. This is what the SADC Tribunal missed in the Mike Campbell case by its privileging of current context over underlying context.
The Tribunal’s decision favours the status-quo theory that insists that:
… whatever injustices may have occurred in the first appropriation will have been rectified subsequently, perhaps as a result of many generations of economic growth and innovation. There is therefore no argument for redistribution to rectify inequalities in benefits derived from resources. Laissez-faire redistributivists, argue that it may be necessary for the state to intervene to rectify the effects of injustices in earlier appropriations of un-owned things, either by redistributing control over resources or by compensating those who have less with transfer payments from those who have more.57
The hope that social evolutionary processes will adjust the initial and successive distributive injustices is not borne out by the legacy of apartheid rule in Zimbabwe and other SADC States. Their hope appears illusory, unless they argue for revolution rather than reformation. Literature on the topic suggests that redistributive arguments are regarded as being the more plausible form of laissez-faire theory, and the more pertinent to questions of global economic and environmental justice.58 In this sense the justiciability of a distribution depends on how it came about. Historical perspectives of justice typically hold that ‘considerations of liberty argue against most political forms of intervention in market processes except when required to remedy the effects of prior violations of liberty.
(Therefore) ... laissez-faire liberalism involves the definition and justification of the rights that market transactions should respect’.59
The Zimbabwe government has a strong case for reforming its agricultural sector because of the gross unfairness inherent in the status quo when it achieved political independence from Britain in 1980. Table 1 below illustrates the racial prioritisation of land allocation in colonial
55 Beitz (n 53 above) 270 - 271.
56 Beitz (n 53 above) 279.
57 Beitz (n 53 above) 281.
58 Beitz (n 53 above) 281.
59 Beitz (n 53 above) 279.
Zimbabwe, according to types of soil. Zones I and II are the best soils, while zones V and above are unsuitable for agriculture.
Table 3: Type of farming in relation to the European and African zones (1962)
Source: Adapted from ‘The development of the economic resources of Southern Rhodesia with particular reference to the role of African agriculture’, Report of the Advisory Committee of 1962.
Beitz writes that, because individuals are entitled to benefit equally from the opportunities open to other agents of a political community, inequalities should be compensated for ‘in ways that encourage or at least do not obstruct the processes of economic and social transformation through which a society must pass in order to develop the capacity to satisfy its people’s material needs.’60 This has implications for Zimbabwe’s application of humwe-inspired land allocation reforms.