The messy nexus of land, property rights and race in Southern Africa

by Chido Makunike

Eddie Cross is an MDC MP with strong, frequently publicly articulated views on many issues, including the hot one of land. He has sometimes been referred to as the MDC’s ‘policy advisor,’ so his views on this subject are interesting as a window into the ‘advice’ he gives to his party on this deeply contentious issue. He argues that traditional, communal ownership of land; without individual title deeds, works against ‘development’ and against freedom and democracy. How do his arguments tie into Zimbabwe’s past and present?

His article in the Zimbabwe Independent, ‘Land: Africa’s greatest but still dead asset,’ is an argument for the restoration of the sanctity of land title deeds in Zimbabwe. It is an argument that has been made often enough by many others, and indeed, lack of ‘security of tenure’ is one of the great unresolved issues of Zimbabwe’s land reform.

Cross swiftly seeks to demolish the view that pre-colonial African life was idyllic until being interrupted by the European colonists. Early in his article, Cross has come out guns blazing, by setting up a picture of the miserable-ness of pre-colonial African life.

He writes, ‘All regarded land as God-given and a common good. Usage determined title and could be usurped at any time by force of arms or tribal consensus. Life was insecure, short and pretty torrid.’

If the build up of Crosses’ property rights/title deeds case sounds vaguely familiar to some readers of the Zimbabwe Independent, it is because the same basic argument about the ‘brutality’ of pre-colonial life has been made before in its pages, notably by its long-time columnist, Eric Bloch.

Cross and Bloch are probably of similar vintage. By their shared trait of having been up and coming young men during the decades of the entrenchment of the state and idea of Rhodesia, it is hardly surprising that their view of the process of colonization would have many things in common, not to mention even the similarity of the language they use to characterize that period in Zimbabwe’s history.

Particularly in Zimbabwe, it is impossible to separate discussion of the genesis of today’s ‘land issue’ from the issue of race. There is a general same-ness to how black Zimbabweans support/justify the recent land reform effort that to some others was ‘Mugabe’s land grab.’ Despite all the controversy and the discussion of what went wrong in that exercise, for many black Zimbabweans it represented justice and closure.

There are still black Zimbabweans alive today who experienced and remember the processes of colonial land grabs from their families or communities, after which the ‘property rights’ of the white beneficiaries were then secured with title deeds for the expropriated land. The societal wounds of those colonial land grabs never quite healed, even long after thriving white-owned/white-titled farms sprang up on that grabbed land.

Whites experienced and remember that era from an obviously very different vantage point. For them, the narrative that prevailed is of brave pioneers harnessing the elements (and the conquered Africans, their land and their animals) to build the state of Rhodesia. The devastating effects of the conquest and the displacement on the Africans were ‘collateral damage’ that the conquerors did not much need to pay any mind to.

Inevitably, black and white Zimbabweans come to the debate on land from fundamentally different basic viewpoints. Until 2000 it was the white viewpoint/history/justification/property rights/title deeds that prevailed over any feelings of land grievance by the Africans. Until then, all, black and white, had more or less accepted that the conquest of decades before and the subsequent building of a Western property rights system on that conquered land were irreversible processes.

When people talked of ‘the need for land reform,’ it was always mostly assumed that such reform would be built on the foundation of the colonial property rights/title deeds system. It was assumed that land reform would be under some variation of the ‘willing seller-willing buyer’ system, with an ‘orderly’ transfer of title deeds from white land owners to black ones. No one envisioned that there might be an invocation of a pre-colonial conquest ‘right to our stolen land,’ as has since been done since 2000, effectively rendering the then existing land deeds null and void.

Mugabe’s ‘land re-grab’ was and remains a huge shock to the Western idea of how the world should be ordered, of what is ‘right.’ Sure, it is grudgingly conceded, colonial conquest might have been a nasty, unpleasant business for the Africans, but look at all the benefits they gained from it. Sorry about the nastiness, but let’s all draw a line under it and accept the Western -based property rights/title deeds system as the starting point for any discussion about land reform.

That Mugabe threw out this assumption of the start point of the land reform discussion, to invoke pre-colonial African communal property rights, is one reason he will never be forgiven by the Western world. Imagine if the Australian Aborigines or the Native Americans were to demand the same thing? Or more realistically, and closer to home, the black South Africans? The heavens would collapse, it must never be even contemplated, and certainly not be tolerated! Property rights (at least since colonialism) and title deeds are absolutely sacrosanct, and Mugabe must not be allowed to get away with his land (re) grab!   

Whether these things are spoken or not, they underpin all discussion of land reform in Zimbabwe, and will likely increasingly do so in South Africa as well.

Let’s now go back to Eddie Crosses’ article. Having laid the foundation of his narrative of the short terribleness of pre-colonial African life, Cross, using the Eric Bloch argument and even similar language, now introduces how European conquest and innovations changed it all for the better .

Says Cross, ‘Then comes the colonial era which introduced colonial forms of title rights for settler interests, the restriction of people to prescribed land areas and the erection of fences to limit access and establish control. At the same time, tribal conflicts were halted, life expectancies raised and in the absence of conflict and the control of disease, African populations began to grow at a rate not seen for centuries. In Zimbabwe the population was expanding at over 3,5% per annum by the 1950s and remained at this very high level until Independence in 1980.’

Interestingly, Cross refers to ‘prescribed land areas’ for Africans. He has previously used the ugly (for Africans), condescending Rhodesian expression ‘tribal trust lands’ to refer to the keeps where blacks were relocated when their grabbed land was given to white settlers. His use of that term served, for an African reader, to suggest Cross occupied a Zimbabwean historical space that was very ‘old.’ That might not have been surprising, and one could speak of it as being offensive, but it also gave Crosses’ arguments a general tone that did not help him win over an African reader to his viewpoint on the already deeply racially contentious issue of land in Zimbabwe.

An inescapable conclusion for an African reader is that Cross, as with Bloch before him, seeks to paint pre-colonial African life in such a way as to justify the colonial indignities, repression and dispossession that came in its wake, including the introduction of title deeds. The point seems to be that European innovations that came with the settlers were so beneficial for the Africans that they made up for what the Africans lost and endured. If so, this is an argument that can only be acceptable to someone who looks at the issue from the point of view of the victor in the European/African clash. For the Africans, no increase in health or life expectancy could obliterate the basic grievance of conquest and loss. One could not be seen as ‘compensation’ for the other. That both Bloch and Cross seem oblivious of this is revealing in moreways than they may have intended.

The point is that long before Cross (or Bloch before him) get around to making their case for property rights/title deeds, they have already ‘lost’ many African readers in the manner of their building up to make their points. This is but just one out of many ways that race continues to intrude into almost anything to do with the genesis and present state of the land issue in Zimbabwe.

It is ironic that for Cross, colonization ended the period where land ‘usage determined title and could be usurped at any time by force of arms.’ Yet the land grab on which the settler governments then built the title deeds system was simply another type of usurpation by force of arms! The fact that title deeds were then issued to ‘legalize’ that usurping in no way made it any more ‘legitimate’ from the Africans’ point of view. And if ‘tribal conflicts were halted’ by the colonialists, they were replaced by the much bigger, longer conflict with the European settlers who had imposed themselves on the landscape.

All this is by way of pointing out that what Cross depicts as a short, brutal pre-colonial existence was not exactly replaced by a post-colonial paradise, despite the many innovations that came with the settlers. This also helps explain why even when there is no contention about the basic idea of the positives of title deeds, the way they came about and the legacy they left behind in Zimbabwe was inevitably going to be an issue that needed post-colonial addressing in one way or another.

How you evaluate the sum total of the events of the colonial period very much depends on which ‘side’ you were/are on; that of the winners/conquerors or the losers/conquered. People like Cross and Bloch, partly by having no present day group experience of being ‘the conquered,’ seem unable to see things from this point of view of deep African grievance. At least until everything was turned upside down from about 2000.

Since then, white Zimbabweans for the first time experienced race group dispossession and powerlessness, as the Africans had done decades before and since at the hands of the whites. What for many whites was ‘Mugabe’s land grab’ was for hundreds of thousands of blacks (not just ‘Mugabe’s cronies’) justice as well as ‘empowerment,’ showing, again, that who/what you are is central to one’s take on Zimbabwe’s bloody, tortured land history.

New black landowners would certainly now like to have the ‘security of tenure’ of title deeds that Cross argues for. The early white settlers were not the least bit concerned with what happened to the Africans evicted from land that they were then given title to. Similarly, today’s new black land owner would be quite happy for a new system of title deeds that completely ignores the validity of the title deeds of the whites that were evicted to make way for him.

This is the crux of the complexity of the security of tenure discussion in Zimbabwe; that there are now several generations and layers of claims and counter-claims to land by pure ‘force of arms.’ If anything, the settlers were far more effective at getting their way and subjugating the Africans by ‘force of arms’ than the Africans had done between themselves before. Access to land by force was not only a feature of pre-colonial life, as Cross seems to imply. It simply changed nature but continued after colonization in a way the subsequent title deeds could not sanitize.

Once we agree on the importance and benefits of title deeds, as most Zimbabweans would probably do, where do we draw the line on previous land grabs and counter-grabs? Would Cross advocate a new, post-land reform, post-2000 system of title deeds? Or would he perhaps instead prefer for the new, post-2000 ‘rule of law’ on land ownership to be invalidated, and for the pre-2000, Rhodesia-based one to come back, thereby restoring to legality the land claims/title deeds of the dispossessed white farmers?

Both the old Mugabe-deposed, Rhodesia-based system of title deeds and the post-2000, post-land reform ‘rule of laws’ can be said to be ultimately based on ‘force of arms.’ In the first one the whites had the power to force their way, in the second it is the blacks. On which of these two systems should a system of title deeds be based, and why?

These are the really difficult questions to do with title deeds in Zimbabwe, not so much whether they are a good idea or not. If you are in favor of retaining the validity/legality of the pre-2000 rule of law/title deeds, this inevitably becomes a very touchy racial issue in the Zimbabwean context because of how that system first came about. For many Africans, it was built on conquered/stolen property that was then effectively ‘laundered’ by title deeds.

If you are in favor of a post-2000 system of title deeds that rests on the new laws passed by the Mugabe government (farmland became property of the State), then for the whites who owned and built up farms on the basis of the ‘security of tenure’ they thought their pre-2000 title deeds gave them, that is obviously considered unjust. Also, freely tradable new title deeds could mean that whites could simply buy out many of the new black land owners. For some, that would be simply be part of market economics, but it is obvious that this way of potentially ‘reversing’ the land reform effort would be politically unacceptable for Mugabe and Co, and probably for many black Zimbabweans in general.

Whose rule of law should have precedence, and why, or why not? No prizes for guessing who would favor which of these competing ‘rule of laws,’ and why!

Cross volunteers his thinking on what should prevail when he cites the examples of Kenya and South Africa.

“In almost all colonial states in Africa,” Cross writes, “Once the colonial regime had been overthrown or withdrawn, the new African governments, one after the other, chose to revert to different forms of tribal and communal systems of land use. In some countries like Kenya, the transition was reasonably managed, in others it was done by the simple abolition of colonial title rights. Here (Zimbabwe), as in most other African states the colonial imposition of title rights, underwritten by the constitution were simply swept aside. South Africa remains the only country in Africa with widespread title rights covering a significant majority of the land surface. What are the implications of this development for modern Africa?”

 ‘Chose to revert to tribal and communal systems of land use.’ In a country with the historical peculiarities of Zimbabwe, it would have been arguably untenable for the first majority rule government to be seen to be merely perpetuating the colonial system of land tenure.

Cross speaks approvingly of the fact that this was largely what happened in Kenya, but whether ‘the transition was reasonably managed’ there depends on who you ask. For settler beneficiaries or their descendants who didn’t have to experience any sudden change and loss, certainly the transition would have appeared ‘reasonably managed.’ But for many of the millions of ‘tribal communities,’ to paraphrase Crosses’ seemingly favorite way of thinking about Africans, leaving things largely as the colonial governments had imposed was not necessarily ‘reasonable.’ Proof of the messy unfinished business of forced land movements was seen in the partly land-based Kenyan election violence of a few years ago.

It is also interesting that in Kenya, where the land issue is no longer as highly racialized as in Zimbabwe and South Africa, largely retaining the colonial system has created a new problem. There is a new class of black owners/occupiers of landholdings as vast as those of white settler land barons. In many cases, the means of their owning the land are as dubious as those of their colonial predecessors. With increasing population, environmental and climate pressure on the land, it seems safe to predict that a day of reckoning is inevitable over this result of leaving the colonial system largely in place.

As for South Africa, as long as ‘widespread title rights covering a significant majority of the land surface’ corresponds to those rights being predominantly held by whites, there is trouble ahead. That is also unfinished colonial business that threatens the future stability of that country.

Even if one were to accept all of Crosses’ arguments about the link between property rights and development, prosperity, freedom and democracy, the violent way they were imposed by settler governments in fairly recent history almost necessarily means that it was a very difficult basis for an abiding, stable land title deeds system. If anything, now in Zimbabwe presents a better opportunity for thinking about a new system of title rights than at any time in the past 100 years. The benefits of property rights are now widely understood, the old colonial system of title deeds that Cross may have found reasonable but that for many Africans was not so fair or reasonable has been deposed, land ownership has reverted to the ‘tribe’ via the government. It is now possible to begin the work of devising a new system of property rights that tries hard to avoid the many flaws of the colonial system African governments inherited at independence, while retaining the positives. 

Despite the very awkward, vaguely historically and racially incendiary way that Cross, Bloch and others make their arguments on this issue, the need for security of tenure for land to become a modern day productive economic asset is obvious, probably even to the ZANU-PF officials who presently resist the idea of title deeds at the moment. Particularly for a country with the messy, violent land history of Zimbabwe, the really troublesome issues have to do with how to put that messy past behind.

Nowhere does Cross show any signs in his article of seeing the issue in this larger, messier historical context. Even that glaring omission is a reflection of how the ties between history, privilege and race are very much at the center of how you view the issue of ‘land justice’ in Zimbabwe.

Furthermore, putting aside for a moment the always lurking issue of race, how does the still largely communal life of rural Zimbabwe suddenly convert to individually-held plots with title deeds? It suggests a stunning disconnect with African rural life and culture to not see that this transition would be far from as easy as simply passing a law in parliament in Harare. It would need to be accompanied by significant cultural, economic and social changes that cannot be easily imposed.

Cross writes of how communal, title deed-less land ownership has the effect that the ‘the African economy is denied the inherent capital value of land and its ability to collateralize the rest of the economy through the operation of land markets.’ This is all very well from the Western paradigm point of someone in urban Harare or Bulawayo, but as Cross ought to know, these are very foreign concepts in much of rural Africa. Instead of telling us the obvious, legislators like Cross should instead be exercising their minds on how the very significant cultural and mindset shifts for ideas like this to be accepted and work can be achieved.   

Life in Harare and other urban centers is a mix of African and European influences, with the emphasis much more towards the latter than the former. That is one reason why there is no controversy about urban title deeds, which are widespread and accepted by all. But in rural Zimbabwe, the setting is still significantly very close to the ancient communal one that Cross describes with barely disguised contempt.

The widespread introduction of title deeds in rural/communal Zimbabwe would have to be part of an overall process of change in many other aspects of life. Zimbabwe is not a Western country. It is instead a society in various states of flux between African-indigenous and European-imported.

By appearing to be oblivious of or ignoring the very many nuances and complexities to the issue of land in Zimbabwe, reducing it to a mechanistic one of title deeds, Cross and people of like mind grossly oversimplify what it will take for the country to find closure to this contentious subject.

‘Untainted’ title deeds are certainly one important element in transforming the ‘dead asset’ of land into an economically useful one. However, for a country with the violent, racially contentious land history of Zimbabwe; where one person’s idea of ‘justice and reversing colonial imbalances’ is for another person ‘Mugabe’s land grab,’ going from A to B is very far from straightforward.

The Zimbabwe Review