Incommensurabilities of the SADC Land Issue and Nozick's Entitlement Theory
| Published date | 01 August 2017 |
| Pages | 295-325 |
| Author | Benedict Abrahamson Chigara |
| DOI | 10.3366/ajicl.2017.0197 |
| Date | 01 August 2017 |
At the heart of the SADC
Until November 2014 the European Union (EU) and its allies
The purpose of these constitutionally driven SADC LRPs is to undo the apartheid rule's legacy of legally sanctioned racialised land ownership policies, particularly in the longest apartheid-governed states of Namibia where political independence was achieved only in 1990, South Africa where majority rule was achieved in 1994 and Zimbabwe which attained political independence in 1980. These states regard their LRPs as non-negotiable centrepiece reconstruction objectives. However, Western states have adopted the view that the same LRPs are an unacceptable attack on the rule of law and an affront to the notion of property rights and human rights. They have wasted no time in implementing unilateral coercive economic measures against LRP implementing SADC states. The purpose of these measures is to ‘compel respect for human rights’. However, SADC states refuse to be distracted by any such measures, insisting on Black Economic Empowerment (BEE)
This article evaluates the arguments for and against the de-racialisation of land ownership in the SADC between the European Communities and ‘Others’ and SADC states themselves. In particular, it examines the incommensurabilities that arise from:
a mishandling of the multi-layered context of the SADC land ownership issue; and
insistence on formalist human rights and purist rule of law positions in addressing the problem.
The article shows that, because of its historically multi-layered dimensions, the SADC land issue appears ill-suited to frame in legal formalisms that are diametrically opposed to the social reconstruction needs of states that have just emerged from almost a century of apartheid rule. The article recommends a holistic, joined-up framework towards a possible end to Western and African states’ conflict over the de-racialisation of land ownership in affected SADC states.
Pursuant to Article 215 of the Treaty on the Functioning of the European Union
a ban from entering the EU of listed persons, entities and bodies;
an embargo on arms and related materials;
a ban on exports of equipment for internal repression;
a ban on the provision of certain services;
restrictions on admission to the EU;
the freezing of funds and economic resources.
In its intervention at the UN Workshop on the impact of unilateral coercive measures on the enjoyment of human rights held at Geneva on 5 April 2013, the Zimbabwe Delegation observed that since independence in 1980, the EU had been the most important donor to Zimbabwe, especially in the areas of health, education and agricultural development – contributing millions of euros in various programmes. But as soon as the Zimbabwe government had instituted fast-track LRP, the EU had withdrawn all its support, resulting in an immediate depletion of essential drugs in 73 per cent of Zimbabwe's health-care facilities. Infant mortality rates immediately shot up, with at least 100 children dying every day from treatable diseases and at least eight Zimbabwean women dying everyday in childbirth for chronic underfunding of the health sector. Even more, ‘Global funding made it difficult, and most of the time impossible for the country to scale up its HIV prevention programmes by rejecting Zimbabwe's applications for funds for unspecified reasons.’
A 2010 report of the Zimbabwe National Statistical Agency (ZIMSTAT) states that in 2002, Zimbabwe had an estimated population of 11.6 million, with a trajectory of 12.2 million for 2009. It notes that the 2002 population estimate might have been underestimated as many Zimbabweans had migrated to neighbouring countries or overseas in response to emergent economic challenges. Zimbabwe's gross domestic product (GDP) showed a cumulative decline by 46 per cent between 2000 and 2007:
[This] unstable macroeconomic environment was characterised by hyperinflation, with annual inflation reaching 231 million per cent in July 2008. The economy experienced severe shortages of many basic commodities, including drugs, food, fuel and industrial and consumer goods. The past decade had also witnessed increasing poverty levels. For instance, the Total Consumption Poverty Line (TCPL) rose from 61 per cent in 1995 to 72 per cent in 2003.
On 21 December 2001 the USA passed the Zimbabwe Democracy and Economic Recovery Act
Canada's Special Economic Measures (Zimbabwe) Regulations
Australia's Autonomous Sanctions Regulations 2011, as amended by the Autonomous Sanctions Amendment Regulation 2012 (No. 1), at
military activity;
a sanctioned supply for Zimbabwe;
the manufacture, maintenance or use of an export-sanctioned good for Zimbabwe.
sanctioned service is also, for an entity or person mentioned in an item of the table, the provision to the entity or person of the following: (a) technical advice, assistance or training; or (b) financial assistance; or (c) a financial service; or (d) another service; if it assists with, or is provided in relation to, an activity involving the supply, sale, transfer, import, purchase or transport of an item of gold, precious metals and diamonds.’
In sum, the consequence of these severe unilateral coercive measures against Zimbabwe's fast-track LRP was to reduce the former ‘bread basket of Africa’ to a ‘basket case’ with the country unable either to feed itself or to run an economy with any realistic hope of fulfilling any of the UN Millennium Development Goals.
The Zimbabwe government responded by substituting multiple foreign currencies, including the Chinese yuan/renminbi, the US dollar, the South African rand and the Japanese yen for the once universally appreciated and stable Zimbabwean dollar. At the peak of the sanctions regime, unemployment, inflation and poverty reflected a ‘failed economy’, matching US Assistant Secretary of State for Africa Chester Crocker's objective of seeking to separate the Zimbabwean people from ZANU PF by making ‘… their economy scream, and I hope you Senators have the...
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