THIS is an open letter to Eddie Cross, policy co-ordinator general for the MDC published in your paper last week on Thursday title Christmas Everyday.
I remain distressed at your apparent blindness to the repugnant Section 72 of our “modern” and “brave new” Constitution, as you’ve referred to it previously. In your latest piece you wrote:
“Now we have adopted a new Constitution – the first crafted by Zimbabweans. It is a modern Constitution which entrenches all the values and norms that have been so damaged by the conflicts in our society since 1980.”
As you know I have been extremely vocal regarding Section 72 of the new Constitution. I believe implicitly that individual private property rights are fundamental to a functioning modern society.
A country in which the State can take private property at the stroke of a pen and where individuals are expressly barred by the Constitution from getting any recourse is a backward country with a backward Constitution.
Such a Constitution, contrary to what you say, goes against all “values and norms” of “modern constitutions” around the world.
As you are aware, we fought a successful legal battle in the Sadc Tribunal to get this exact section – then Amendment Number 17 of the old Constitution – struck down.
This very section then reappeared in the new Constitution – and it seems as if you are not prepared to acknowledge it, either in your recent speech to the jurists in Cape Town or, after I pointed it out to you, even now.
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The battle to get Amendment 17 struck down ultimately cost a great deal – the life of my father-in-law, Mike Campbell, being the most significant cost to us.
For you to gloss over the reincarnated Amendment 17 as Section 72, is a very sad indictment of where you, and your part of the so-called democratic movement, are at.
Proper Constitutional democracy does not allow the theft of private property from individuals without legal recourse, as is allowed by our new Constitution – and as is taking place at the moment.
To have legislated ouster clauses in our Constitution go directly against the rule of law and have no place in a modern Constitution!
Just to be sure that you are familiar with Section 72 of the Constitution I wish to quote parts of it:
“(2) Where agricultural land”, (agricultural land is where 70% of the people of Zimbabwe live) “or any right or interest in such land, is required for a public purpose the land right or interest may be acquired by the State by notice published in the Gazette whereupon the land, right or interest vests in the State with full title with effect from the date of the publication of the notice.
“(3) (a) no compensation is payable,
“(b) no person may apply to court for the determination of any question relating to compensation and no court may entertain such application; and
“(c) the acquisition may not be challenged on the ground that it was discriminatory. . .
“(5) As soon as practical after agricultural land is acquired in accordance with subsection (2), the officer responsible for registration of title over land must, without further notice, effect the necessary endorsements upon any title deed and entries in any register for the purpose of formally cancelling the title deed and registering the States title over the land.
“(6) An act of parliament may make it an offence for any person, without lawful authority, to possess or occupy agricultural land referred to in this section or other State land.”
It is a simple equation: if the State can control all the land, it can control all the people. As it stands, under the Constitution, the State can throw anyone off the land it chooses.
Ironically, even the most senior chéfs with 99 year leases can fall foul of the Party and have their leases cancelled in three months.
Those with title can have it taken by the State at the stroke of a pen. Those that then continue to stay on what immediately becomes State land can be put in prison for up to two years.
This leaves almost all of the more than a million farm workers still on the land “without lawful authority” liable to spend two years in jail for remaining in their houses under the “modern” Constitution if the State decides to use the law to control them.
I really find it inconceivable that any democrat can be enthralled with a Constitution that says such things!
Will a Constitution that does not protect property rights bring investment? Of course not!
Will it create employment? Not at all!
Will it bring productivity to revive commerce and industry? No way!
Will it create tax money to revive education and health? An emphatic no!
Eddie, your courage, dedication and perseverance are unquestionable and I salute you for these things!
It is extremely problematic however, when you make inaccurate and misleading claims about our Constitution when it explicitly fails to protect and promote the fundamental, basic and most far reaching right of individual private property rights for the people.
To pretend that our brave new Constitution “entrenches values and norms” is to walk to the edge of a cliff and carry on walking in the mistaken believe that gravity will somehow not take effect. – BEN FREETH SPOKESPERSON – SADC TRIBUNAL RIGHTS WATCH
