By Mary Taruvinga
THE fate of 12 000 villagers in Chilonga, Chiredzi, has been effectively sealed after the High Court on Thursday ruled there was “finite wisdom” in gave President Emmerson Mnangagwa’s administration’s decision to evict them.
The controversial decision by government, which courted global outrage, has been raging for almost a year now.
High Court judge Justice Joseph Mafusire dismissed an application by villagers in which they were challenging their pending eviction.
The government in February last year planned to evict the villagers after it passed Statutory Instrument (SI) 50 of 2021 to set aside 12 940 hectares of communal land in their area for lucerne project by Dendairy.
This sparked an outcry with the villagers stating that to strip them of their land in that manner and for the purposes intended is to virtually pass the death sentence upon the entire community.
However, the government showed no mercy, instead of amending its controversial Statutory Instrument 50, paving the way for Dendairy to take over parts of Chilonga for lucerne production.
It instead only changed the wording in some provisions of the Statutory Instrument without foregoing mooted plans to displace the villagers. As such, the government issued Statutory Instrument 63A of 2021, correcting Statutory Instrument 50 of 2021.
The Statutory Instrument was corrected “by the deletion of the words “purpose of lucerne production” and substituted with the “establishment of an irrigation scheme.”
The SI provided that any person residing on this communal land would have to leave the area by the date of the publication of the notice.
This left the villagers with no option but seek legal recourse.
The Chilonga villagers wanted the High Court to set aside sections 4 and 6(1)(b) of the Communal Lands Act, arguing that the two sections are unconstitutional and violet provisions of the Constitution.
They challenged the Act arguing that it did not respect African traditional values with regards to land ownership.
However, Justice Mafusire Thursday dismissed their application for being unmerited.
“In the present case, I am not convinced that the impugned sections in the Communal Land Act are ultravires the Constitution,” he said.
“The Act may have an obnoxious and racist parentage, but at independence in 1890 and beyond up to the present day, the government, in its infinite wisdom, decided to retain the Tribal Trust Land Act intact, albeit under a new title.”
“It decided to leave the concept of vesting of communal lands in the State President intact. That was a political decision. The respondents have argued why that was so. The applicants dismiss that argument. But I would think that without some sort of commission of enquiry on the whole agrarian reform especially as it applies to communal lands, this court may not be sufficiently qualified to provide a wholesome solution to the question of private ownership of communal lands,” Mafusire said.
He said if the application was to be upheld, foreign land barons may end up owning vast tracts of communal lands.
“The application cannot succeed. However, I disagree with the respondent’s contention that it was frivolous and vexatious. It was public interest litigation. Such kinds of challenges may actually dog the courts in the future. Therefore, in dismissing the application, it is only fair that each party bears their own costs. The application is hereby dismissed but with no order as to costs,” he ruled.
The villagers had argued that procedures were not followed but the judge said this is a question of fact.
They said their lands are not tribal trust land as is the case with the majority of the other ethnic groups in Zimbabwe.
The villagers also argued that their land was not artificially created and carved out by the Land Apportionment Act and that they have owned it in their own right as indigenous people.