Online Reporter
Fidelis Munyoro, Chief Court Reporter
THERE is no need to amend the Constitution to enable issuance of title deeds for agricultural land acquired under the Land Reform Programme, as the current legal framework already provides for the transfer of land rights from the State to private individuals, a team of senior lawyers has concluded.
The legal experts — Lloyd Mhishi, Munashe Obrian Gutu, Hazel Tariro Chimbiro, Joe Sinyoro and Lincoln Majogo — made the submission in a detailed commentary titled Title Deeds on Agricultural Land: A Legal Commentary.
Last year, Cabinet announced the Government would begin issuing title deeds for agricultural land, a move seen as a departure from the past policy where land was allocated mainly through 99-year leases, offer letters and permits.
The authorities said the programme was aimed at strengthening security of tenure, attracting investment and improving access to credit in the agriculture sector.
The lawyers indicate the Government’s bold move “is key in unlocking the much-needed capital in the agricultural sector”.
They also reiterate that the Constitution already gives the State authority to transfer agricultural land to private individuals “for value”, and that an amendment to the supreme law was unnecessary.
“Broadly speaking, the current law allows the State to transfer agricultural land for value,” the experts wrote.
“This is despite the wording of Section 72(4)(b) of the Constitution, which states that ‘all agricultural land continues to vest in the State’.
“The phrase simply entails that once the State has acquired agricultural land, the land continues to belong to it.
“What the State can do with the land after acquisition is governed by Sections 71, 293 and 294 of the Constitution, which allow ‘owners’ of agricultural land to transfer the land for value, subject to any existing laws.”
The lawyers argue that once land was compulsorily acquired under the Fast-Track Land Reform Programme and the title endorsed in the name of the State, the Government effectively became the private owner and, therefore, has full authority to transfer the land to others.
“As has been earlier stated, once acquired and the title endorsed, the State automatically became the owner of the land and with full rights to dispose of the land to any other party subject to set legal guidelines,” the lawyers noted.
They further explained that “for value” means there must be a transaction, such as a purchase, mortgage or other form of consideration that secures benefit to the State.
“We understand that those who are receiving title transfer of agricultural land are paying for it including through mortgage financing,” they added.
They also underlined that Zimbabwe’s property rights are safeguarded under Section 71 of the Constitution — the property clause — which recognises private ownership of land, including the rights to use, transfer, lease or mortgage it.
Sections 293 and 294 of the Constitution, they said, explicitly empower the State, as the owner of agricultural land, to “alienate” it through transfer, lease or other means, consistent with guiding principles set out in Section 289.
Reads Section 293: “The State may alienate for value any agricultural land vested in it, whether through the transfer of ownership to any other person or through the grant of a lease or other right of occupation or use, but any such alienation must be in accordance with the principles specified in Section 289.
“The State may not alienate more than one piece of agricultural land to the same person and his or her dependants.
“An Act of Parliament must prescribe procedures for the alienation and allocation of agricultural land by the State, and any such law must be consistent with the principles specified in Section 289.”
The experts also added that the statutory support for transfer of agricultural land is already in existence.
“The transfer process of State land acquired or otherwise respects the existing constitutional and legal framework.
“This means that an amendment to the Constitution is not necessarily required for this purpose.”
The team also pointed out that the Land Commission Act, enacted in 2016 after the adoption of the 2013 Constitution, already prescribes procedures for the allocation and alienation of State land.
Further, the issuance of title deeds is critical in unlocking capital and correcting the weaknesses of past tenure arrangements.
“This transferability of land is key in unlocking the much-needed capital in the agricultural sector and doing away with the old system of offer letters, permits and 99-year leases, which had transformed Zimbabwean land into dead capital,” they said.
While critics have questioned the legality of the programme, citing constitutional provisions that vest agricultural land in the State, the lawyers maintain that the Constitution already provides for title transfer.
“Once the State has transferred the land to a private person, the person will now enjoy all the rights and entitlements of the Constitution, subject to legal limitations,” the lawyers wrote, adding that owners would be able to transfer land to others, subject to obtaining a “certificate of no present interest” from the State.
