[28th March 2021]
Revisiting the Chilonga Story
It has become plain over the last few weeks that the full story behind the recent controversy over the Government’s plans for the development of the Chilonga area has yet to be told. The legal ramifications of the Government’s intentions, and those intentions themselves, remain unclear.
It is not too early, however, to draw express the opinion that the Government’s handling of the matter since the 26th February has been unbelievably poor, from both the legal and public relations points of view.
This bulletin outlines our reasons for this opinion by setting out the following time-line of recent events, starting with the gazetting of the Government Gazette of 26th February.
Friday 26th February – publication of contradictory SIs 50 and 51
In the Government Gazette of this day there appeared two very brief statutory instruments [SIs 50 and 51] relating to the same area of Communal Land, baldly described as being “approximately 12 940 hectares in extent, in the administrative district of Chiredzi” more fully depicted on a map open to public inspection in three Government offices. SI 50 was the one that attracted most criticism.
By operation of law the notices came into effect simultaneously on the date they were gazetted [Interpretation Act, section 20], which is why we take SI 51 first in what follows – and took it first in our previous bulletin on this matter, Bill Watch 11/2021 dated 3rd March [link]. Both notices cite the Communal Land Act [link] [“the Act”] as the enabling Act for what the notices purport to achieve.
SI 51/2021 [link]– Communal Land (Excision of Land) (Chiredzi) Notice, 2021
In this notice the President, citing section 6 of the Act, declares that the area concerned “shall cease to be part of the Chiredzi Communal Land”. Section 6(3) provides that the effect of the declaration is that the land “shall thereupon become State land until it is granted, sold or otherwise disposed of in terms of this Act or any other law”.
SI 50/2021 [link] – Communal Land (Setting Aside of Land) (Chiredzi) Notice, 2021 In this notice the Minister of Local Government cites section 10 of the Act, which empowers the Minister to take far-reaching action in respect of Communal Land but not other land. This exposes the main legal flaw in the SI – that it makes the fundamental mistake of treating the area concerned as Communal Land, when the area is simultaneously being excised from Communal Land and becoming State land, to which section 10 simply does not apply. As we said in Bill Watch 11/2021, SI 50 is hopelessly invalid.
Nevertheless, it is necessary to describe what SI 50 actually – but illegally – said: it set aside the area, with effect from the 26th February 2021 (“the date of publication of this notice”) “for the purpose of lurcene (sic) production”. In addition, the notice ordered all persons occupying or using land in the area “to depart permanently with all of his or her property”. [It would be pointless to list the persons exempted from this departure order, because the ordinary inhabitants of the Chilonga were not included.]
Comment: It is no wonder that local and international outrage erupted after the publication of SI 50 became known. If legally in order, it would expose those who failed to depart from the area immediately to criminal prosecution in terms of section 10(7) of the Act and a process of “ejectment” in terms of section 16, with the Government’s expenses of ejectment recoverable from those ejected. Bear in mind, also, that this Government and its predecessors have a history of arbitrary and forcible mass evictions of people and demolitions of buildings and structures.