Chilonga villagers resist eviction

By Conrad Mwanawashe
The Hlengwe Shangaan community, occupying south eastern Zimbabwe in areas such as Chiredzi, Mwenezi, Save and Runde River want the High Court to stop their pending eviction to pave way for a lurcene grass farming project saying the move is unconstitutional.
In an application filed at the High Court, the Hlengwe Shangaan community have asked the court to declare Section 4 and Section 6(1)(b) of the Communal Lands Act [Chapter 20:04] an infringement on the right to life, right to human dignity, right to property, among other fundamental rights protected by the constitution.
Represented by Livison Chikutu, the chairperson of an informal association of villagers in Ward 6 Chilonga known as Save Chilonga Committee, Pheneas Chitsange and Albert Dhumela, the Hlengwe Shangaan community, argue that the two sections of the Communal Lands Act infringe on the rights protected by Sections 48, 51, 71, 63, 56(1) and Section 68 of the Constitution of Zimbabwe
President Emmerson Mnangagwa, Lands, Agriculture, Water, Fisheries and Rural Resettlement Minister, Dr Anxious Masuka and Local Government and Public Works Minister July Moyo are cited as respondents to the application, which was filed by Tendai Biti of Zimbabwe Lawyers for Human Rights.
The Hlengwe Shangaani ethnic group which are found across south eastern Zimbabwe in areas such as Chiredzi, Mwenezi, Save, Runde River, and in the lower parts of the Northern Transvaal in South Africa and large parts of Mozambique, claim ownership of the land which they have been occupying for more than 500 years.
“Section 4 of the Communal Lands Act, vests all Communal Land in Zimbabwe with the President. It is our respectful contention that Section 4 of the Communal Lands Act is a colonial construction that did not recognise that Africans could own land. Section 4, was born out of an ideology of racial segregation and discrimination that regarded Africans as too uncivilised to possess property rights. It is our respectful contention that Section 4 has no room in post-independence Zimbabwe. White people were allowed to own rural land and have title deeds in the same communities. Whereas us Africans who were next door, were not allowed to own land,” they argued in court papers.
“Section 4 is therefore clearly unconstitutional. Equally, Section 6 of the Communal Lands Act is clearly unconstitutional. Section 6(1)(b), allows the President to excise land from communal lands. That on its own, is unconstitutional for the same reasons. It affects the right of Africans to their land. It therefore breaches Section 71 of the Constitution. It affects the right to life for this land is agricultural land that we survive on. It therefore infringes Section 48 of the Constitution.
“Most importantly it affects our dignity. Without our own land we are not people we do not have dignity. We are nothing, we are naked. Therefore our right to dignity as codified in Section 51 of the Constitution is affected.
“We are a community, we are the Hlengwe Shangaani people. If you disperse us and send us to different locations you are affecting our culture our identity as a people. Therefore you are affecting our right to culture as protected by Section 63 of the Constitution.
“Most likely, we will be scattered to different parts of Zimbabwe. We could be sent to Manicaland, we could be sent to Mount Darwin where we will be diluted by the existing tribes there and we would therefore lose our identity as Hlengwe Shangaani people,” they argued.
Background
Court papers show that on 26 February 2021, President Mnangagwa, published a notice, the Communal Land (Excision of Land) Notice 2021 being Statutory Instrument 51/2021. Section 6(1)(b) of the Communal Land Act [Chapter 20:04] allows the President, after consultation with the Rural District Council, to exercise and remove land that is designated as communal from being communal land.
The notice allowed the President to expropriate 12 940 hectares of land in Chiredzi district. On the same date, Local Government and Public Works Minister Moyo published the Communal Land (Setting Aside of Land) (Chiredzi) Notice, 2021.
Acting in terms of Section 10 of the Communal Lands Act, Agriculture Minister Masuka set aside, for the purposes of lurcene production, a certain piece of land measuring approximately 12 940 hectares in Chiredzi.
On 9 March 2021, Minister Moyo, published in Statutory Instrument 63A/2021, the Communal Lands (Setting Aside of Land) (Chiredzi) Notice 2021, (correction of errors) in which he changed the purpose of the land being taken away from lurcene production to “the establishment of an irrigation scheme”. This affected villagers from the area.
“To therefore take away our land in the manner proposed, is a breach of our right to our dignity, life and nationhood. It is a breach of our right to property as protected by Section 71 of the Constitution of Zimbabwe. In any event, property includes an interest and we certainly have an interest and a right in that land,” they argued in the court papers.
“Our heritage is in that land. Our culture is in that land, our livelihoods are in that land. We cannot be dispossessed of that land at the mere whim of the Respondents. This is a huge assault on our right to human dignity as protected by Section 51 of the Constitution, our right to life as protected by Section 48 of the Constitution, our right to land as protected by Section 71 of the Constitution and our right to our own culture and language as protected by Section 63 of the Constitution of Zimbabwe and our right to equal protection and benefit of the law as protected by Section 56(1) of the Constitution.”
They added: “We have been advised that the lurcene grass farming project will be done by DenDairy (Private) Limited. We do not understand why 12 500 people can be ejected for the interest of one white farmer DenDairy (Pvt) Limited. We find this more ironic in the context of the liberation struggle. Furthermore it is wrong and myopic the belief that private big estates are the only vehicle for economic transformation despite the widespread evidence to their detrimental effects on the final purpose diverse livelihoods on the African continent.”
High Court Judges Justice Joseph Mafusire, Justice Never Katiyo and Justice Chipo Annie-Lucy Mungwari reserved judgment after hearing the application.