Questioning the Constitutionality of the 99-year Lease Agreement between Judicial Officers and the Government of Zimbabwe
| Author | Justice Alfred Mavedzenge |
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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Questioning the Constitutionality of the 99-year Lease Agreement
Between Judicial Officers and the Government of Zimbabwe
Justice Alfred Mavedzenge
The 2013 Constitution of Zimbabwe guarantees the independence of judicial officers. To maintain the
independence of the judiciary, the Constitution requires judicial officers to abide by certain standards
of moral and professional conduct, listed in section 165.
1
These include that judicial officers must be
above reproach, and must not engage in conduct or any relationship that causes the appearance of
impropriety in the eyes of a reasonable observer. A substantial number of judicial officers have been
given land by the Government under the Fast Track Land Reform Programme. These judicial officers
presently lease the land from the President under lease agreements which do not provide them with
security of tenure because the President – in his capacity as the lessor – has the authority to repossess
the land even after the lessee has made substantial investments in the land. This Article examines the
impact of such lease agreements on the independence of the judicial officers who are the lessees. It also
discusses the constitutionality of these lease agreements and suggests possible redress which
Zimbabwean citizens may seek.
Introduction
Since 1999, the Government of Zimbabwe has embarked on a land redistribution exercise also
known as the Fast Track Land Reform Programme. This exercise saw the Government
compulsorily acquiring land, mainly land used for commercial farming by white farmers, and
redistributing that land to black Zimbabweans. The land reform process created two farming
models: the A1 and A2 models. The A1 model is for small-scale, subsistence farms, while under
A2 farms are large commercial enterprises. The majority of judges that benefit from the land
redistribution programme run commercial farms, and therefore lease the land under the A 2
model. Individuals who have acquired land under the A2 model lease said land from the President
and Government on the basis of what is known as the ’99-Year Lease Agreement’.
The Government has justified this programme of land redistribution as necessary for the purpose
of correcting historical imbalances regarding access to and ownership of productive agricultural
land in Zimbabwe.
2
Whilst the statistics on the ratio of land ownership between black and whites
remains a contested subject, there is no doubt that most of the commercially productive land was
in the hands of white farmers.
3
This paper seeks to explore certain aspects of the land reform
1
The Constitution of Zimbabwe, s 165.
2
Preamble to the 99-Year Lease Agreement.
3
Sam Moyo, Land Policy, Poverty Reduction and Public Action in Zimbabwe (ISS/UNDP Land, Poverty
and Public Action Policy Paper, 11, 2005) 4. See also L Mazingi and R Kamidza, 'Inequality in
Zimbabwe' in Muchena (ed), Tearing Us Apart: Inequalities in Southern Africa (OSISA 2011) 324-5;
Charles Paradzayi, 'Land Tenure in Zimbabwe’s Post Agrarian Reform' (2005) FIG
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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programme which have not been otherwise studied; the debate on the land reform has largely
focused on whether the land reform was necessary or not. Sufficient attention has not been given
to the implications of the programme on judicial independence - an important principle under the
envisaged constitutional democracy that comprises the Zimbabwean state.
The Government and those in support of the land reform process argue that given this imbalance
and the unwillingness of the white commercial farmers to share access to land equitably, it was
necessary to embark on a more radical land redistribution process.
4
Some of the critics of this
process c ounter-argue that whilst land reform was necessary to achieve equitable access to the
vital natural resource, the process could have been better conducted.
5
They argue that the process
was unnecessarily violent and chaotic; that it should have been planned better to realise the
maximum socio-economic benefits of the land. They also argue that the process became less
focused on economically empowering black Zimbabweans, and instead became focused on
entrenching the ZANU-PF’s hold on political power.
6
This Article does not seek to examine the credibility or soundness of ei ther of these two views.
That debate has already been explored thoroughly by more competent scholars. We instead seek
to analyse the impact of the 99-Year Lease Agreement on the ability of j udges and magistrates
(who benefited from the land reform process under the A2 model) to be independent when
adjudicating matters which involve the President and Government. It also seeks to examine the
impact that the 99-Year Lease Agreement has on the public’s confidence in the ability of the judges
and magistrates to be impartial when adjudicating matters involving their landlord: the President
and/or the Government. To achieve this purpose, the Article discusses the concept of judicial
independence and how it has been entrenched in the 2013 Constitution of Zimbabwe. We then
discuss the 99-Year Lease Agreement, pointing out the weaknesses of the agreement which have
a negative impact on the c apacity of judges and magistrates to be impartial and to be viewed as
impartial by the public when they adjudicate in matters which involve the President and the
Government. Finally, we c onsider the constitutionality of the 99-Year Lease Agreement, and
examine opportunities for legal reform to enhance the independence of judges and magistrates
who are leasing farms from the President and Government.
This discussion is conducted in a legal context where the Constitution categorically requires judges
and magistrates to always act independent of undue influence when exercising their j udicial
functions. In addition, it also specifically requires judges and magistrates to refrain from conduct
and/or entering into any relationship which causes the public to view them as incapable of being
impartial when adjudicating over matters.
Duty to Act Independently and to Maintain a Public Image of Impartiality
The principle of judicial independence is derived from Montesquieu’s separation of powers
doctrine, which demands that p ower not be concentrated in a single organ of State b ut instead
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4
Moyo (n 3).
5
Human Rights Watch 'Zimbabwe: Background' (2002)
6
ibid.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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shared between the legislature, the judiciary, and the executive; with each of these three branches
checking against abuse of power by the others.
7
One of the roles of the judiciary in the separation
of powers model is to ensure that the other two branches of the state comply with the law. The
judiciary performs this function by adjudicating over the disputes that are brought before it by
citizens or other organs of the state. In order to perform this function effectively, the judiciary must
be an independent institution with independent judicial officers.
8
The concept of judicial independence has been explained in the Bangalore Principles of Judicial
Conduct (2002) as a principle which requires a judicial officer to:
exercise the judicial function independently on the basis of the judge's assessment of
the facts and in accordance with a conscientious understanding of the law, free of any
extraneous influences, inducements, pressures, threats or interference, direct or
indirect, from any quarter or for any reason.
9
Thus judicial independence requires a judicial officer to execute his or her judicial functions free
from interferences and influences other than the law which he or she is supposed to apply.
Senior judicial practitioners such as Ismael Mohamed (the former Chief Justice of South Africa and
Namibia) have summarised the essence of judicial independence as follows:
What judicial independence means in principle is simply the right and duty of judges
to perform the function of judicial adjudication, through an application of their own
integrity and the law, without any actual or perceived, direct or indirect interference
from or dependence on any other person or institution.
10
Thus, Mohamed views judicial independence as a principle which includes judicial integrity and
impartiality. This view is also supported by Brazier
11
who argues that judicial independence
requires that, ‘in general the public must feel confident in the integrity and impartiality of the
judiciary: judges must therefore be secure from undue influence and be autonomous in their own
field’. Similarly, Lord Bingham
12
makes the point that judicial independence includes judicial
impartiality when he argued that:
Any mention of judicial independence must eventually prompt the question:
independent of what? The most obvious an swer is, of course, independent of
government. I find it impossible to think of any way in which judges, in their
decision-making role, should not be independent of government…. [But] They must
also, plainly, ensure that their impartiality is n ot undermined by any other
association, whether professional, commercial, personal or whatever.
7
Lovemore Chiduza, 'Towards the Protection of Human Rights: Do the new Zimbabwean
constitutional provisions on judicial independence suffice?' [2014] 17 PELJ 370.
8
The Bangalore Principles of Judicial Conduct 2002, art 1.
9
ibid.
10
Ismael Mohamed, 'The Role of the Judiciary in a Constitutional State' [1998] 115 S African LJ 111.
11
Rodney Brazier, Constitutional Reform (3rd edn, OUP 1991) 172.
12
Tom Bingham, The Business of Judging, (OUP 2009) 61.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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The Constitutional Court of South Africa, in the Certification case, affirmed the view that judicial
impartiality is an element of judicial independence when it held that what is vital to judicial
independence is that, ‘the Judiciary should enforce the law impartially.’
13
The views of the
Constitutional Court of South Africa – as a superior foreign court – have persuasive value in the
Zimbabwean legal system.
14
Therefore, the Court’s view that judicial independence encompasses
judicial impartiality has persuasive value in a discussion on judicial independence in Zimbabwe.
Therefore, there is a strong view expressed both in law and literature that judicial independence
includes the values of judicial impartiality, integrity and propriety.
The principles of judicial integrity and propriety require j udicial officers to ensure that their
conduct is above reproach in the view of a reasonable observer,
15
while impartiality is the idea that
judicial officers must execute their judicial functions without favour, bias, or prejudice.
16
Mohamed, Brazier, and the Constitutional Court of South Africa are all correct to argue that the
principle of judicial independence includes j udicial propriety and impartiality as the concept of
judicial independence rests on the ability of individual judicial officers to apply the law without
fear, favour, or any bias when adjudicating a matter. Furthermore, it is necessary for judicial
officers to safeguard their integrity and to conduct themselves with propriety in order to safeguard
their independence from sources which could take advantage of impropriety to influence the
judicial officer’s decisions. Failure to safeguard judicial integrity and propriety undermines the
confidence of the public in the independence of the judicial officer. Thus there is justification in
viewing judicial independence as inseparable from the ideas of impartiality, propriety, and
integrity because these are the values judicial officers must adhere to in order to safeguard their
independence.
17
It is also important to note that judicial independence should be understood as twofold in nature.
Firstly, it is explained as the ability of the individual judicial officer to be independent in fact; and
secondly, it is th e requirement to ensure that the public has confidence in the ability of a judicial
officer to be impartial. This is clear in both Mohamed and Brazier’s explanations of judicial
independence as the principle that the judic ial officer must, ‘perform the function of j udicial
adjudication, through an application of their own integrity and the law, without any actual or
perceived, direct or indirect interference…’
18
and that the, ‘general public must feel confident in
the integrity and impartiality of the judiciary’.
19
The Bangalore principles also underscore this
view by requiring judges to be independent, impartial and conduct themselves with integrity both
in fact and in appearance.
20
Thus at the international level and in literature, judicial independence
is interpreted as the requirement to apply the law free of any influences, to act impartially with
integrity and propriety both in fact and in appearance. The 2013 Constitution of Zimbabwe
entrenches judicial independence in the same manner, as will be subsequently shown.
13
Certification of the Constitution of the Republic of South Africa [1996] ZACC 26, 1996 (4) SA 744 (CC)
[123].
14
The Constitution of Zimbabwe, s 46(1)(e).
15
Bangalore Principles (n 8), art 3(1).
16
ibid, art 2(2).
17
ibid, art 1.
18
Mohamed (n 11).
19
Brazier (n 12).
20
Bangalore Principles (n 8), arts 2(2), 3(1), 3(2), 4(1).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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The Constitution of Zimbabwe and the Independence of the Judiciary
The Constitution of Zimbabwe guarantees the independence of the judiciary. The judiciary
consists of the Chief Justice, Deputy Chief Justice, and all judges and magistrates who preside in
all the courts established by the Constitution or any Act of Parliament.
21
The Constitution defines
judicial independence as the principle that, ‘the courts are independent and are subject only to
[the] Constitution and the law which they must apply impartially, expeditiously and without fear,
favour or prejudice’.
22
Thus, in line with the Bangalore Principles, the Constitution entrenches
impartiality as one of the values which must underpin the independence of the judiciary in
Zimbabwe. Therefore, when exercising their judicial functions, all judges and m agistrates in
Zimbabwe are required to make their decisions impartially, without being influenced by anyone
or anything bar the law.
In order to protect the independence of the judiciary, the Constitution establishes certain principles
and standards in section 165, which outlines the manner in which judges and magistrates execute
their judicial mandate and conduct themselves outside of the courts.
23
These include the principle
that, ‘members of the judiciary must not solicit or accept any gift, bequest, loan or favour that may
influence their judicial conduct or give the appearance of judicial impropriety.’
24
In addition, the
Constitution prescribes that, ‘Members of the judiciary, individually and collectively, must respect
and honour their judicial office as a public trust and must strive to enhance their independence in
order to maintain public confidence in the judicial system.’ These two principles require that
judges must not only be independent and impartial when exercising their judicial functions but
they must also appear to be independent and impartial. It therefore may be argued that the
Constitution of Zimbabwe has domesticated both the Bangalore principles and the views of
eminent scholars (Mohamed, Brazier) that judicial independence requires judges and magistrates
to act independently in fact and to maintain a p ublic image of independence. Therefore, it is not
adequate for judicial officers in Zimbabwe to be impartial in fact but they must also cultivate the
appearance of impartiality, which necessarily requires ensuring that their conduct in and out of
court maintains and enhances the confidence of the public in the impartiality of the j udge and of
the judiciary as an institution. Furthermore, it is not enough for them to hold themselves with
propriety in fact. Their obligation on judicial propriety stretches beyond that as they are required
not only to avoid impropriety, but to also avoid any appearance of impropriety in the eyes of a
reasonable observer.
There is a very important reason why the Constitution has required j udicial officers to be
independent both in fact and in appearance: judicial officers must inspire p ublic confidence in
their ability to act impartially when executing their judicial mandate, which includes adjudicating
over legal disputes. Various reasons have been suggested both in case law and literature as to why
it is necessary that the public must have confidence in the impartiality of judicial officers. In Baker
v Carr
25
, Frankfurter J explains the rationale as follows:
21
The Constitution of Zimbabwe, s 163.
22
ibid, s 164(1).
23
ibid, s 165.
24
ibid, s 165(5).
25
[1962] 369 US 186.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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The Court’s authority … possessed of neither the p urse nor the sword ... ultimately
rests on sustained public confidence in its m oral sanction. Such feeling must be
nourished by the Court’s complete detachment, in fact and in appearance, from
political entanglements and by abstention from injecting itself into the clash of
political forces in political settlements.
Thus, it is suggested by Frankfurter J that for the judiciary to sustain its authority, its officers must
hold themselves with high propriety and integrity to ensure that the public continues to render its
confidence in their ability to protect the c itizen’s rights, freedoms and other entitlements.
Otherwise, when judicial officers become entangled in impropriety or the appearance thereof, the
judiciary will lose its legitimacy in the eyes of the public. Frankfurter J’s view holds true in
Zimbabwe, and has found expression in various provisions of the Constitution.
The Constitution prescribes that the supremacy of the Constitution and the rule of law should be
the foundation of Zimbabwean governance
26
The preamble to the Constitution clearly affirms this
commitment and section 165(1)(c)
27
prescribes that one of the roles of the judges and magistrates
is to safeguard and enforce the rule of law. In section 164(2), the Constitution acknowledges that,
‘the independence, impartiality and effectiveness of the courts are central to the rule of law an d
democratic governance’.
28
There is a nexus between the duty to uphold the rule of law and the need for judges to act
independently and maintain a public image of independence at all times. It is necessary for judges
and magistrates to maintain a public image of independence so that the public they serve will have
confidence that the judiciary will always act fairly and on the basis of the law, without fear or
favour. In section 69(3), the Constitution guarantees members of the public the right of access to
the courts for the resolution of any legal dispute.
29
If the judges and magistrates appear in any way
partial, the public is likely to hesitate to come to the courts for the resolution of disputes because
they lack confidence that their disputes will be resolved fairly, on the basis of the law, and without
bias. When the public lacks confidence in the capacity of the judiciary to act impartially and fairly,
there will be a break down in the rule of law. Any break down in the rule of law gives the public
no option other than to engage in catastrophic self-help, wherein they take the law into their hands.
Inevitably, this will lead to violations of fundamental rights, which in turn is likely to culminate
in a civil crisis with catastrophic p olitical, social, and ec onomic consequences. This is what the
Constitution seeks to avoid by stating that in order to maintain the rule of law
30
, judges and
magistrates have the duty to inspire and maintain public confidence in the ability of the courts to
apply the law independent of any other influences. Therefore, when judges and magistrate fail to
maintain a public image of independence they are in violation of the Constitution, particularly
section 165(2) read together with sections 165(3), 3(1)(c) and 69(3) of the Constitution. This is a
serious violation which undermines the very foundation of Zimbabwe’s constitutional state - the
rule of law.
The Constitution does not only require the judges and magistrates to act independently and
maintain a public image of independence, but it also requires the state and all institutions of
26
The Constitution of Zimbabwe, s 3(1)(a) and 3(1)(b).
27
ibid, s 165(1)(c).
28
ibid, s 164(2).
29
ibid, s 69(3).
30
ibid, s 165(1)(c).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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government to support the judiciary in cultivating independence and maintain the required public
image of impartiality. The Constitution seeks to achieve this by entrenching a number of
obligations which the state must fulfil. These include that, ‘the State, through legislative and other
measures, must assist and protect the courts to ensure their independence, impartiality, dignity,
accessibility and effectiveness and to ensure that they comply with the principles set out in section
165,’ which includes the duty to maintain public confidence in the judicial system.
31
In this regard,
the state has two kinds of duties. First is the negative duty to refrain from acting in any way which
interferes with the judicial functions of judges and magistrates.
32
This includes the duty to refrain
from acting in any way which appears to compromise the independence of the judges and
magistrates. Second is the positive duty to implement measures to enhance the independence of
the judiciary and the public confidence in the judges and magistrates.
33
Such m easures include awarding competitive salaries an d other benefits to judicial officers. In
terms of section 188(1), judges and magistrates are entitled to receive salaries, allowances and other
benefits fixed from time to time by the Judicial Services Commission (JSC) with the approval of
the President, given after consulting the Ministers for Justice and Finance. The nature of the
salaries and b enefits, as well as the manner in which they are awarded, must be consistent with
the principle that judges and magistrates must be financially secure from external interference.
Therefore, one of the positive measures to be undertaken by the State is to ensure that the judges
and magistrates are awarded competitive salaries and benefits at all times and that these salaries
and benefits must be awarded in a manner which does not compromise – or appear to compromise
– judicial independence. Thus, the manner in which salaries and benefits are awarded to the judges
and magistrates must inspire rather than undermine public confidence in the independence of the
judges and magistrates. One of the benefits which a substantial number of judges and magistrates
in Zimbabwe have received from th e State, is commercial farming land. Although the land was
not allocated to them as part of their package of benefits as judicial officers, they received this land
as beneficiaries of the land reform program and therefore it is a benefit which they have accrued
from Government. This has implications on their independence in fact and in appearance,
examined below.
The 99-Year Lease Agreement and the Independence of Judges and Magistrates
Since 1999, the Government has been appropriating land from mainly white commercial farmers
and redistributing it to black citizens. Various justifications have been provided in defence of this
exercise, with equally numerous criticisms levelled against it.
34
The focus of this Article – as
mentioned earlier – is not to explore these, as so much has already been written on this subject.
This Article attempts to examine the impact of the land tenure system (introduced after the
redistribution of land) on the independence of judges and magistrates. It also attempts to examine
the constitutionality of this system.
As part of the land redistribution exercise, the Government created two landholding systems: the
A1 and A2 models. Those who were given land and resettled under the A1 farm model are
31
ibid, s 165.
32
ibid, s 164(2)(a).
33
ibid, s 164(2)(b).
34
Ian Scoones, Zimbabwe's Land Reform: Myths and Realities (Weaver Press 2010).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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essentially smallholder farmers living in a villagised or self-contained manner.
35
The A2 model is
composed of individual plots of land that are classified as small, medium, and large-scale
commercial schemes.
36
These farms require a high amount of investment to prove productive: an
A2 farmer may be legally required to p ay annual rentals as high as $152,830, develop and
implement a five-year development plan, and establish home and accommodation for employees
within three months of occupying the farm.
37
By 2009, about 2295 farms had been acquired for
resettlement under this model, and 16,386 beneficiaries had accessed approximately 2,681,642.00
hectares of land under this model.
38
These figures have obviously since increased given that land
redistribution is ongoing. The true beneficiaries of this model of land redistribution are contested;
some critics allege that the beneficiaries are largely political elites who are connected to the Harare
regime in one way or another, while other scholars have claimed that the ‘politically connected’
constitute between 5 to 26% of the beneficiaries.
39
The real figures will probably not be known at
this point given that the beneficiaries are in most cases unwilling to identify themselves or reveal
their political allegiance.
40
However, what has been ascertained is that there are a substantial
number of senior judges and magistrates who are beneficiaries under the A2 farm model.
41
The hallmark of the A2 farm m odel is that the beneficiary leases the land from the Government
under a 99-Year Lease Agreement which is concluded between the Government and the land
holder. The beneficiary farmer is not an owner of the land but is a lessee while the owner of the
land is the Government, represented by th e President as the lessor.
42
Therefore, it can reasonably
be argued that the judges and magistrates who are beneficiaries of the land reform exercise under
the A2 model are leasing the land from the Government. Though prima facie appearing to be an
ordinary business arrangement similar to a j udge renting property from any other person, this
view is c onclusively rejected with a c loser look at the nature of the parties to this lease
arrangement, as examined against Constitutional demands of p rofessional and moral judicial
conduct.
On the lease agreement, the Government is represented by the acquiring authority, who per the
Land Acquisition Act
43
is the President. Therefore, all the judges and magistrates who have been
allocated land under this model are, in effect, leasing the land from the President.
The President is the Head of the Executive
44
, whose decisions and policies are from time to time
brought for review in the courts, and these same judges and magistrates are required to pronounce
35
P Matondi and M Dekker, ‘Land Rights and Tenure Security in Zimbabwe’s Post Fast Track Land
Reform Programme’ (African Studies Centre and Ruzivo Trust 2011) 6
36
ibid.
37
99-Year Lease Agreement, cls 4 and 5.
38
Matondi and Dekker (n 37) 6-7.
39
Scoones (n 36).
40
Matondi and Dekker (n 37) 7.
41
David Smith, 'Mugabe And Allies Own 40% Of Land Seized From White Farmers – Inquiry' The
Guardian (Johannesburg, 30 November 2010)
Nleya, 'Judges Demand Farms' NewsDay (25 June 2014)
42
99-Year Lease Agreement, cl 1.1.
43
Land Acquisition Act 1992, s 3.
44
The Constitution of Zimbabwe, s 88(2).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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on the legality of those decisions and policies. Th erefore, when a citizen approaches the court to
review the President’s decision or policy, in reality, the citizen is asking for a judge (who is a lessee
of the President) to review the decision made by the President (who is the lessor to the judge). As
mentioned earlier, the lessees are required to make huge investments in the form of capital and
human resources on these farms. For instance, they m ay h ave to pay up to $152,830
45
in non-
reimbursable annual rental. In addition, the lessee m ust develop and implement a five-year
development plan which involves a substantial capital investment.
46
Having made such
investments, there can never be any doubt that judges and magistrates have a substantial interest
in maintaining the lease to realise the profits of their investment. This substantial interest surely
has a bearing on their mind when adjudicating disputes, especially sensitive matters involving the
President and/or the Government. Thus the lessee/lessor relationship between the j udge or
magistrate and the President is an untenable one which undermines the ability of the judge or
magistrate to be independent of undue influence from the President and/or his Government when
adjudicating disputes involving the President and/or his Government.
It may be counter-argued that the lessee/lessor relationship between the judges and the President
or Government does not automatically imply that the judges and magistrates cannot be
independent when adjudicating over cases which involve Government. However, as discussed
earlier, the Constitution does not demand of judges and magistrates to be independent in fact only
but also to refrain from entering into relationships which undermine public confidence in their
ability to be independent when executing their judicial functions. The fact that the judges and
magistrates are lessees to the President and that they have substantial interests in maintaining the
leaseholds casts suspicions on their ability to act impartially in cases which involve the President
and/or his Government, especially politically and economically sensitive ones.
It may also be counter-argued that the lessor/lessee relationship between the President and the
judges and magistrates who benefited under the A2 landholding model does not compromise – or
should not appear to compromise – the independence of the judges and magistrates involved. The
lease agreement provides adequate security of tenure, which guarantees the land holder to remain
on the farm even if they make an adverse judgement in a matter which i nvolves their lessor. This
argument is unfounded because the reality is that the 99-Year Lease Agreement (which is the
agreement between the landholder and the President) read together with the Land Acquisition
Act (the principal legislation) does not guarantee security of tenure for the lessee. Clause 20 of the
99-Year Lease Agreement prescribes that:
The Lessor may, at any time and in such manner and under such conditions as it may
deem fit, repossess the Leasehold or any portion thereof if the repossession is
reasonably necessary in the interests of defence, public safety, public order, public
morality, public health, town and country planning or the utilization of that or any
other property for a purpose beneficial to the public generally or to any section of the
public.
47
This is a broad provision which gives the President and or his Minister (as an acquiring authority)
the leeway and rights to repossess the entire farm or part of it from the judge and or magistrate
concerned at any time. All the President needs to do is to provide the judge and or magistrate with
45
99-Year Lease Agreement, cl 4.
46
ibid, cl 9.
47
ibid, cl 20 (emphasis added).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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a notice of 90 days
48
and any reasons which fit within the aforementioned broad categories of
promoting or safeguarding the interests of defence, public safety, p ublic order, public morality,
public health, town and country planning. For instance, the President may decide to give the judge
or magistrate 90 days notice to vacate the farm because Government has designated the farm for
the establishment of a military base or for the expansion of a town. The judge or magistrate may
be relocated to another less lucrative farm.
However, what makes the lessee’s tenure even less secure is that the 99-Year Lease Agreement
must always be interpreted together with the Land Acquisition Act because the lease agreement
is an instrument which seeks to give effect to the policy and legislative objectives enshrined in the
Act.
49
Therefore, the above cited clause 20 of the 99-Year Lease Agreement must be read together
with section 3 of the Land Acquisition Act which states that:
(1) Subject to this Act, the President, or any Minister duly authorised by the President for that
purpose, may compulsorily acquire—
(a) any land, where the acquisition is reasonably necessary in the interests of defence, public
safety, public order, public morality, public health, town and country planning or the utilization
of that or any other property for a purpose beneficial to the public generally or to any section of
the public;
(b) any rural land, where the acquisition is reasonably necessary for the utilization of that or any
other land—
(i) for settlement for agricultural or other purposes; or
(ii) for purposes of land reorganization, forestry, environmental conservation or the utilization of
wild life or other natural resources; or
(iii) for the relocation of persons dispossessed in consequence of the utilization of land for a
purpose referred to in subparagraph (i) or (ii).
50
When clause 20 of the 99-Year Lease Agreement is interpreted in the context of section 3 of the
Land Acquisition Act, the implication is that the President may at an y time repossess the land
from the lessee on account that the land has been designated for any other use including resettling
other people. Therefore, it is possible that a judge or magistrate, after issuing an adverse decision
or remarks in a matter which involves the President and/or Government, m ay be removed from
their farm and either be left with no land, or be relocated to less lucrative land. Thus it is not true
that the 99-Year Lease Agreement provides security of tenure to the judges and magistrates who
are leasing the land from the President. The reality is that the lease agreement and the Land
Acquisition Act places the tenure of the judge or magistrate on the land at the mercy of the
President and Government. This exerts undue influence on the judge or m agistrate when
adjudicating over a matter which involves the President and/or the Government. Furthermore, it
puts the judge or magistrate in a relationship which diminishes public confidence in their ability
to act fairly and impartially in a matter which involves the President and/or Government.
Implications on the constitutional validity of the 99-Year Lease Agreement
The 99-Year Lease Agreement may therefore be unconstitutional where the judges and magistrates
are the lessees and the President and Government are the lessors. As discussed earlier, the 99-Year
48
ibid, cl 22.
49
Long Title to the Land Acquisition Act [Chapter 20:10] 1992.
50
Land Acquisition Act 1992, s 3.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
11
Lease Agreement does not provide security of tenure for the lessees as it allows the lessor to
repossess the land at any time. The 99-year lease is therefore unconstitutional because it
compromises the independence of the judiciary by putting the leaseholder judge or m agistrate in
a c onflicting and vulnerable position, where they hold land at the mercy of the President and
Government and yet are required to adjudicate fairly and impartially on matters which involve
the President and the Government. In order to secure their tenure on the farms leased to them by
the President and Government, judges and magistrates are likely to be biased in favour of the
President and Government when they adjudicate over sensitive matters involving their landlord.
In addition, the lease agreement is unconstitutional insofar as it places lessee judges and
magistrates in a contractual relationship with the President and Government, arguably
diminishing public confidence in the independence of the judiciary. As demonstrated above, the
Constitution requires that the members of the judiciary, ‘must strive to enhance their
independence in order to maintain public confidence in the judicial system’.
51
In addition, the
Constitution instructs that, ‘members of the judiciary must not solicit any gift, bequest, loan or
favour that may influence their judicial conduct or give the appearance of judicial impropriety’.
52
The appearance of judicial impropriety includes c onduct or entering into relationships which
causes a reasonable observer to view the judge as incapable of being impartial.
53
By accepting to
be a lessee on a lease agreement, which involves a substantial economic interest with no security
of tenure, judges and magistrates place themselves in a relationship which results in the public
having diminished confidence in their ability to enforce the law without bias, especially in matters
that involve the j udge’s landlord. Judges who are lessees on the 99-Year Lease Agreement are
therefore in violation of sections 165(2) and 165(5) of the Constitution. They have failed to live up
to the constitutionally required standard of judicial propriety and integrity, entrenched in section
165(5) of the Constitution. As discussed earlier, judicial propriety and integrity means that a
judicial officer m ust ensure that their conduct is above reproach in the view of a r easonable
observer.
54
Therefore, a judicial officer must not involve themselves in relationships with any party
– including the Government – which causes the reasonable observer to view them with reproach,
as that undermines public confidence in the impartiality of the judicial officer as an individual and
the judiciary as an institution.
It has often been argued that judges and magistrates are citizens of Zimbabwe and therefore have
a legitimate right and expectation to benefit from a lawful government programme such as the
land redistribution programme.
55
This argument is problematic as it assumes that judicial officers
are ordinary citizens, when they are not. The Bangalore Principles say the following about the
status of judicial officers in Article 4.2:
As a subject of constant public scrutiny, a judge must accept personal restrictions that
might be viewed as burdensome by the ordinary citizen and should do so freely and
willingly. In particular, a judge shall conduct h imself or herself in a way that is
consistent with the dignity of the judicial office.
56
51
The Constitution of Zimbabwe, s 165 (2).
52
ibid, s 165(5).
53
See Bangalore Principles (n 8) art 4.
54
Definition derived from Bangalore Principles (n 8) art 3(1).
55
See Nleya (n 44).
56
Bangalore Principles (n 8) art 4(2).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
12
Thus, there is international recognition that under international law, judges are not ordinary
citizens by virtue of the role they play in society as adjudicators of the law. This view is affirmed
in the Constitution of Zimbabwe, where it prescribes specific standards according to which judicial
officers must live by.
57
As discussed earlier, one of those standards is that they must b e careful
about how they relate with fellow citizens and their own government and must refrain from giving
any appearance of impropriety or reproach.
58
The past Chief Justice of the Constitutional Court of
Zimbabwe, Godfrey Chidyausiku, said it aptly when he remarked that, ‘Like Caesar’s wife, a judge
has to be beyond reproach’.
59
Therefore, judicial officers are held to a higher standard of moral and
professional behaviour by the Constitution and therefore, a thing that was appropriate for any
citizen to do may be improper for a judicial officer to do. Whilst it might be constitutional for
ordinary citizens to benefit from the land reform programme as a lessee on the current 99-Year
Lease Agreement, the same is not true for judicial officers by virtue of their role in society. They
have been entrusted by the Constitution to enforce the rule of law and to apply the law impartially
in fact and in appearance, and therefore c annot be lessees on an agreement which does not
guarantee them security of tenure from undue interference (by the President and Government)
with their judicial functions. In addition, they may not be lessees on an agreement which does not
give them security of tenure and thereby undermine public confidence in their ability to adjudicate
impartially.
It may as well be argued that what this Article suggests is tantamount to discriminating against
judicial officers by advocating restrictions on judicial officers which do not apply to other citizens.
Whilst it should be acknowledged that what this Article is suggesting is discriminatory in nature,
one would argue that it is discrimination which is sanctioned by the Constitution and is therefore
lawful. The Constitution does not prohibit all forms of discrimination, instead outlawing unfair
discrimination. Discrimination is unfair if it is based on any of the grounds listed in section 56(3)
of the Constitution, a list which includes socio-economic status.
60
However, the fact that
discrimination is based on any of these prohibited grounds does not automatically mean that such
unfair discrimination is unconstitutional.
61
If the discrimination is based on an y of the grounds
listed in section 56(3) but it is sanctioned by the Constitution itself, then such discrimination may
be unfair but nevertheless c onstitutional. Therefore, although what this Article suggests may
amount to unfair discrimination on the basis of the social standing of the j udicial officer, such
discrimination is sanctioned by the Constitution through section 165 which imposes a higher
standard of moral and professional behaviour for judicial officers, which is not necessarily
applicable to the rest of the citizens.
62
In that regard, it should be acknowledged that it is the
Constitution, through section 165, which restricts judicial officers from leasing government land
on the basis of an agreement which does not accord them security of tenure. Therefore, if such
discrimination is sanctioned by the Constitution, it cannot be deemed to be unconstitutional.
57
The Constitution of Zimbabwe, s 165.
58
ibid, s 165 (5).
59
See Zvamaida Murwira, ‘High Court Judge in Bribery Storm’ The Herald (30 September 2016) <
http://www.herald.co.zw/high-court-judge-in-bribery-storm/>.
60
The Constitution of Zimbabwe, s 56(3).
61
The Constitution of Zimbabwe, s 56(5). See also Harksen v Lane [1997] ZACC 12 [50]-[53] where the
test for establishing unconstitutional discrimination is laid out. This is foreign case law which has
persuasive force in this discussion because of the similarity of the provisions on discrimination under
the Interim Constitution of South Africa (1993) and that of Zimbabwe, 2013.
62
The Constitution of Zimbabwe, s 165.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
13
Furthermore, unfair discrimination is constitutionally permissible if it is reasonable and necessary
to achieve a purpose that is considered legitimate in a democratic constitutional state.
63
Judicial
officers may be held to a higher standard of moral and professional behaviour on the basis of their
social standing because they are responsible for enforc ing the rule of law – a mandate which, as
discussed earlier, they are only able to discharge if they are impartial both in fact and in
appearance. It is a legitimate purpose entrenched in the Constitution,
64
and is therefore the kind
of differential treatment acceptable within the confines of the Constitution.
Opportunities and Main Thrusts for Litigation
Given that the independence of the judiciary has been weakened or appears to have been
compromised by making certain judges and magistrates lessees on insecure lease agreements, the
right of access to justice enshrined in section 69 of the Constitution is threatened. Where a right
has been threatened, any holder of that right can approach the court to litigate in defence of the
right.
65
Therefore, any citizen may challenge the constitutional validity of the 99-Year Lease
Agreement on the basis that it is a threat to the right of access to justice and the rule of law in so
far as the lease is a threat to the independence of the judiciary and it undermines public confidence
in th e judiciary. The matter may be heard by a judge who is not a lessee on the 99 -Year Lease
Agreement. The litigating citizen may be inclined to seek as relief a declaration of the
constitutional invalidity of the 99-Year Lease Agreement in so far as it makes a judge or magistrate
a lessee with no security of tenure.
66
In addition, the citizen may also apply for an order of the
court which directs the President and Government to strike down clause 20 of the 99-Year Lease
Agreement and replace it with a provision which provides the lease holders with security of
tenure.
67
Conclusion
In Zimbabwe, j udicial officers are required by the Constitution to maintain public confidence in
their ability to perform their roles impartially an d to adjudicate over matters without fear or
favour. In order to maintain public confidence, j udicial officers are required to adhere to certain
standards of behaviour and conduct per section 165 of the Constitution, including refraining from
impropriety or en gaging in any conduct or relationship which c auses a reasonable observer to
suspect impropriety. Certain judges and magistrates are beneficiaries of the Zimbabwe land
reform programme. Whilst judicial officers (like every other citizen of Zimbabwe) are entitled to
have a fair share in the distribution and ownership of natural resources; the Constitution demands
that the manner in which they should seek to benefit from government programmes should be
above reproach. Many judicial officers who have benefitted from the land redistribution
programme are lessees on 99-Year Lease Agreements, with the President as the lessor. The
lessee/lessor relationship between the judges and the President undermines the ability of judges
to adjudicate impartially in matters which involve the President or the Government. Further, an
analysis of this lease agreement reveals that it does not offer security of tenure for judicial officers
as the President has the power to repossess the land at any time. This scenario causes a reasonable
63
ibid, s 56 (5).
64
ibid, s 164 (2) read together with s 165(1)(c).
65
ibid, s 69.
66
This is in terms of The Constitution of Zimbabwe, s 85(1).
67
This is allowed by The Constitution of Zimbabwe, s 167(3).
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
14
observer to suspect that the j udge will not be impartial when adjudicating over a matter which
involves the President and/or the government. Therefore, by agreeing or seeking to be lessees on
this agreement, judicial officers have violated the Constitution in the sense that they have engaged
themselves in a commercial relationship which undermines their independence from the
Executive and causes the public to have diminished confidence in the integrity and impartiality of
those judicial officers. Further, the lease agreement is unconstitutional insofar as it seeks to make
a judicial officer a lessee without offering the lessee security of tenure. Citizens m ay therefore
challenge the constitutionality of the 99 -Year Lease Agreement on such basis and may seek as
redress a declaration of invalidity be pronounced and an order be given to the effect that the lease
agreements should confer security of tenure to lease-holding judicial officers.
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
15
Bibliography
Legislation
99-Year Lease Agreement
Land Acquisition Act 1992
The Constitution of Zimbabwe
Case Law
Baker v Carr 1962] 369 US 186
Certification of the Constitution of the Republic of South Africa [1996] ZACC 26
Harksen v Lane [1997] ZACC 12
Books and Journals
Bingham T, The Business of Judging, (OUP 2009)
Brazier R, Constitutional Reform (3rd edn, OUP 1991)
Mazingi L and Kamidza R, 'Inequality in Zimbabwe' in Muchena (ed), Tearing Us Apart: Inequalities
in Southern Africa (OSISA 2011)
Scoones I, Zimbabwe's Land Reform: Myths and Realities (Weaver Press 2010)
The Bangalore Principles of Judicial Conduct (2002)
Journals
Chiduza L, 'Towards the Protection of Human Rights: Do the new Zimbabwean constitutional
provisions on judicial independence suffice?' [2014] 17 PELJ 370
Matondi P and Dekker M, ‘Land Rights and Tenure Security in Zimbabwe’s Post Fast Track
Land Reform Programme’ (African Studies Centre and Ruzivo Trust 2011) 6
< http://www.landgovernance.org/assets/2014/07/Zimbabwe_RuzivoTrust_ASC_0.pdf >
Mohamed I, 'The Role of the Judiciary in a Constitutional State' [1998] 115 S African LJ 111
Moyo S, Land Policy, Poverty Reduction and Public Action in Zimbabwe (ISS/UNDP Land, Poverty
and Public Action Policy Paper, 11, 2005)
Paradzayi C, 'Land Tenure in Zimbabwe’s Post Agrarian Reform' (2005) FIG
<http://www.fig.net/resources/proceedings/fig_proceedings/fig2007/papers/ts_3a/ts03a_03_para
dzayi_1384.pdf >
Questioning the Constitutionality of the 99-year Lease … the Government of Zimbabwe
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Newspaper Articles
Murwira Z, ‘High Court Judge in Bribery Storm’ The Herald (30 September 2016)
< http://www.herald.co.zw/high-court-judge-in-bribery-storm/ >
Nleya F, 'Judges Demand Farms' NewsDay (25 June 2014)
< https://www.newsday.co.zw/2014/06/25/judges-demand-farms/ >
Smith D, 'Mugabe and Allies Own 40% Of Land Seized From White Farmers – Inquiry' The
Guardian (Johannesburg, 30 November 2010)
< https://www.theguardian.com/world/2010/nov/30/zimbabwe-mugabe-white-farmers >
Online Resources
Human Rights Watch 'Zimbabwe: Background' (2002)
< https://www.hrw.org/reports/2002/zimbabwe/ZimLand0302-02.htm - P110_20153 >
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