THE High Court of Zimbabwe, per Justice Chinamora, delivered a seminal ruling in Commercial Farmers Union v. Government of Zimbabwe (2023), reaffirming the legality and constitutional grounding of the state’s land reform policy.
By Brighton Musonza
The decision further elucidates the intricate relationship between statutory expropriation mechanisms, customary land tenure, and constitutional state custodianship of all land in Zimbabwe. While the judgment ostensibly addresses the rights of former commercial farmers, its implications extend far deeper into the legal architecture governing communal land and customary authority.
I. Statutory Foundation: The Land Acquisition Act and Constitutional Provisions
The Land Acquisition Act [Chapter 20:10], first enacted in 1992 and significantly amended thereafter, particularly post-2000, has become the principal instrument in the compulsory acquisition of agricultural land by the State. These amendments were a legislative reaction to colonial imbalances and entrenched disparities in land ownership.
The shift away from the “willing buyer, willing seller” doctrine—once a linchpin of post-independence land policy—marked the legal transformation towards a model of forced acquisition underpinned by public purpose and national interest.
Crucially, Section 72(3) of the 2013 Constitution clearly delineates that land acquired under the land reform programme is not subject to compensation for the land itself, but only for improvements. This provision effectively constitutionalises past expropriations and insulates the state from claims based on the common law principle of restitutio in integrum.
II. Judicial Endorsement of State Supremacy in Land Matters
Justice Chinamora’s judgment is rooted in a strict textualist and constitutionalist interpretation of Sections 71 and 72 of the Zimbabwean Constitution. He affirms that:
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All land, whether previously under private title or customary use, is ultimately vested in the President, exercising powers as the representative of the State (Section 71(2)).
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The doctrine of state custodianship supersedes any claims of perpetual private land ownership that conflict with land reform objectives.
This has the legal effect of annulling any prospective claims of acquired rights or legitimate expectations by dispossessed white commercial farmers, who now have recourse only to compensation for improvements—not land value itself.
The ruling also affirms that the reversal of land reform would be constitutionally impermissible, as it would undermine the state’s constitutional imperative to redress colonial-era injustices (Sections 289–291).
III. Communal Lands: The Silent Frontier of Legal Precedent
Although not the direct subject of litigation, communal land is tacitly implicated in the court’s reasoning. Governed by the Communal Land Act [Chapter 20:04], such land is held by the State but administered by traditional leaders under customary law.
Justice Chinamora’s silence on communal land expropriation is legally significant—it avoids entangling the judiciary in potential constitutional confrontations with traditional authorities, but it also leaves the door ajar for future reinterpretation. The ruling stops short of granting communal land the same immunity currently accorded to protected natural reserves or gazetted heritage sites.
Implication: While customary leaders maintain day-to-day authority, that power is increasingly precarious and subject to statutory override.
IV. Jurisprudential Consequences and Risks
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Customary Law vs. Statutory Law
Zimbabwe’s dual legal system—customary and statutory—faces a point of convergence. Customary land tenure, traditionally administered through lineage and oral traditions, lacks the formal guarantees enshrined in the statutory system. Justice Chinamora’s ruling implies that should the state pursue further land formalisation, customary claims may yield to statutory directives in the name of development or national interest.
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Risk of Future Expropriation of Communal Lands
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The court did not extend constitutional protection to communal land.
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Past precedents—e.g., the seizure of communal land in Chiadzwa for diamond mining—demonstrate that the state can and does override customary tenure.
Legal Interpretation: Communal land is not immune from reclassification or reallocation, particularly where overriding public interest can be legally substantiated.
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V. Gender Discrimination and Property Rights under Customary Tenure
Justice Chinamora’s judgment remains silent on the gendered dimensions of customary land administration, implicitly upholding a status quo in which:
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Widows and daughters are often excluded from inheriting land.
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Male-centric succession practices persist in most customary jurisdictions.
The omission represents a constitutional lacuna. Section 80 of the Constitution guarantees gender equality, yet the legal framework does not adequately integrate this into land law.
Legal Concern: This perpetuates structural discrimination and is potentially challengeable under constitutional equality provisions.
VI. Traditional Leaders: Reinforced or Marginalised?
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Short-Term Interpretation: The ruling maintains the status of chiefs and headmen as custodians of communal land allocation.
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Long-Term Projection: The gradual expansion of state leaseholds (as piloted in Mashonaland West) could erode the authority of traditional leaders.
If titling programmes become widespread in communal areas, traditional leaders may find themselves subordinate to bureaucratic land allocation mechanisms.
VII. Comparative Jurisprudence: Regional Context
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South Africa
The Communal Land Rights Act of 2004 attempted to formalise communal tenure but was struck down in Tongoane v. Minister of Agriculture (2010) for inadequate consultation and undermining of traditional structures. -
Kenya
The Community Land Act (2016) provides collective title to communities, offering a hybrid model that combines statutory recognition with customary tenure protection. Zimbabwe has yet to explore this path.
Legal Insight: Zimbabwe’s refusal to adopt such models exposes communal land to unilateral state action without the buffer of collective title.
VIII. Conclusion: A Constitutionally Grounded but Precarious Equilibrium
Justice Chinamora’s judgment offers a robust affirmation of state authority and constitutional supremacy in land matters. However, it also highlights the fragile position of communal land, which exists in a legal twilight—functionally administered by traditional leaders but legally owned by the State.
Key Takeaways:
✅ The ruling entrenches state power in land redistribution and expropriation.
⚠️ Communal land remains without explicit constitutional protection.
⚠️ Customary tenure is vulnerable to future state-led formalisation.
⚠️ Traditional leaders and gender equality advocates must navigate a narrowing legal space.
What to Watch:
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Will future amendments codify or undermine customary tenure?
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Will Parliament consider a Communal Land Rights Bill?
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Will Zimbabwe adopt regional models like Kenya’s collective community title?
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Can the courts balance state developmental prerogatives with the rights of rural inhabitants under customary law?
The legal contest over Zimbabwe’s land is far from over. While the fast-track reform era may have passed, the next frontier—communal land—awaits its own legal reckoning.
