One hundred years ago today, the British judiciary presented the Empire’s most expressly and egregiously racist justification for the land dispossession of indigenous peoples. As Zimbabweans go to the polls next week, no matter which way they turn, they continue to pay the price for it.

Chimanimani

On 26 July 1918, the Judicial Committee of the UK’s Privy Council published its infamous ruling, In Re Southern Rhodesia. The court upheld imperial Britain’s wholesale expropriation of the entire territory of Southern Rhodesia, invaded by Cecil Rhodes’ British South Africa Company (BSAC) under a mandate from the British Crown. The BSAC had governed Southern Rhodesia for some thirty years after occupying and seizing the territory in the 1890s. The company’s legal dispute with the Crown arose in the run-up to self-government for the white settler population. Its parting gambit was to stake a claim for all of the “unalienated lands” which were yet to be allocated.

Legal arguments submitted by the Aborigines’ Protection Society appealed for the court to consider the land rights of the “native” population. In his response to these claims, Lord Sumner pronounced:

“Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.”

The BSAC’s own arguments rested in large part on mining and land concessions it had obtained from Lobengula, King of the Ndebele. Lobengula’s quasi-sovereignty was itself a convenient fiction that strategically ignored the variegated and dynamic indigenous political structures existing in the territory. He had quickly encountered its limits. When Lobengula signed the so-called Rudd Concession presented to him by BSAC representatives in 1888 with an “X” – annotated as “his mark” – he was given assurances that no more than ten white men would enter the territory and that they would abide by local laws. Later realising that he had been duped into granting valuable concessions to the BSAC, Lobengula’s putative sovereignty proved insufficient to rescind the agreements in the eyes of the company or the Crown. After war broke out in 1893, Lobengula’s fictive consent was no longer relevant for the British.

In examining whether the “native” sovereign had in fact possessed any rights of which he could dispose, the Privy Council’s approach was typical of the way in which European colonial powers instrumentalised legal doctrines to clear the way for white settlement unfettered by prior occupation or title. Whatever the nature of the rights of the indigenous population prior to conquest, these were simply extinguished when the BSAC (aided by the British Bechuanaland Border Police) slaughtered them. Any such rights could not be binding on “successors to [Lobengula’s] sovereignty who came to it by right of the sword”.

As Lord Sumner succinctly declared, “Whoever now owns the unalienated lands, the natives do not.”

The Privy Council ruled against the company, declaring all unalienated lands the property of the Crown. But the BSAC was awarded handsome compensation for its role in the country’s administration: some £3,750,000, plus a £2million waiver for its war debts, and the right to retain extensive mineral rights, commercial assets and land it had allocated to itself. Self-government for the white settlers was granted in 1923.

With no rights to speak of in the eyes of the court, the natives received no such remedy.

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On the centenary of the Privy Council’s decision and the eve of a new political era for Zimbabwe, it would seem an apt moment for Britain to reflect on that legacy.

At the turn of the millennium, former President Robert Mugabe secured his status as an international pariah when he tethered the issue of land reform to his own political survival and unleashed a wave of political violence. Zimbabwe underwent the most controversial episode of land redistribution in recent history, with the government sanctioning farm occupations and amending the constitution to permit expropriation without compensation. As demonstrated by Mahmood Mamdani in 2008, it is difficult to say much about the reforms without becoming mired in controversy. The former President’s popular politics of nativism and anti-imperialistic rhetoric may well have been deployed to obscure the excesses of an authoritarian regime. Incidents of violence, corruption and cronyism clearly stained what many hoped would be a new and vital chapter in Zimbabwe’s unfinished business of independence.

But the “problem” of land was not Mugabe’s invention – and nor will it be solved by his ousting from power last year. In 1980 independent Zimbabwe emerged from nearly a century of white minority rule lumbered with an inheritance comprising of approximately 6,000 white farmers in control of 15 million hectares of the country’s best agricultural land. Illegal squatting and land occupations had already played a significant and recurring role in Zimbabwe’s history. Despite the contentious implementation of the so-called Fast-Track Land Reform Programme (FTLRP), between 2000 and 2009 it is estimated that over 10 million hectares were formally transferred to 169,000 beneficiary farmers. Current election candidates continue to position themselves around the irreversibility of that process.

Determining what went awry is perhaps easier than identifying how to proceed with legitimate claims for land redistribution – in Zimbabwe or elsewhere. Those claims may well hinge on what it costs the government to secure such redistribution. Julius Nyerere, President of Tanzania, warned presciently in 1979 that it would be untenable “to tax Zimbabweans in order to compensate people who took [land] away from them through the gun.” Echoing that sentiment, in 2004, the World Bank’s evaluation of its own role in Zimbabwe acknowledged that the success of any “orderly and market-assisted land reform process” had been fatally undermined by the Bank’s failure to “finance all components of land reform, including land purchases.”¹World Bank, Report No. 29389, Project Completion Note (Credit 3286-ZW) On A Credit In The Amount Of Sdr 3.7 Million (US$5.0 Million Equivalent) to the Government Zimbabwe Land Reform Support Project (May 27,2004)

Zimbabwe’s refusal to pay compensation to former owners constituted a central part of the power-sharing agreement entered into by ZANU-PF and the Movement for Democratic Change in 2008. The agreement explicitly placed sole responsibility for compensating the owners on Britain, as the former colonial power. In 2013, this clause was incorporated into the Zimbabwean constitution.

And indeed, why not?

From the grant of a Royal Charter to the BSAC in 1889, right up until the Unilateral Declaration of Independence in 1965, British colonial authorities retained legal oversight of “native affairs” in Southern Rhodesia. Deemed too “low” to be capable of having rights, the indigenous population were condemned to subjugation, subordination and servitude in native reserves, paying the white minority government tax on everything from huts to dogs. Hundreds of measures that were prima facie discriminatory against black Africans were submitted to the British government for assent; they were scrutinized, amended, and approved. Among these was the 1930 Land Apportionment Act, which helped to entrench the country’s racially discriminatory system of land segregation. Approved under a British Labour administration (contrary to Clare Short’s notoriously ingenuous 1997 letter), the Land Apportionment Act was dubbed the “magna carta” of the white supremacist Rhodesian Front. Zimbabwe’s independence settlement – brokered by the British – further bequeathed the new nation with rules effectively prohibiting meaningful land reform for ten years, and a gentlemen’s agreement that Britain would eventually, voluntarily contribute. That prospect seems increasingly unlikely.

In the run-up to the election, ZANU PF’s resolve not to pay compensation has been replaced by a tempered resignation. Mugabe’s interim successor Emmerson Mnangagwa has given assurances that compensation will indeed be paid to former owners. But how much? That million-dollar question may prove to the defining issue of the country’s new administration. If Zimbabwe is left to buy its own way out of the racist distribution of land it inherited at independence, the cost of compensating properties already expropriated may simply cripple the already battered economy – and create conditions for further civil unrest.

In some instances however, the government may not have a choice.

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In the 2000s, already in the throes of the FTLRP, the Mugabe government signed several bilateral investment treaties (BITs), including with Germany and Switzerland. In hindsight, it could hardly have been a more incongruous moment. But at that time, only 27 known investor-state disputes had ever been concluded. Not even the architects of investor-state dispute settlement (ISDS) seem to have anticipated the legal behemoth that the ISDS industry has become. Nearly two decades and over five hundred concluded cases later, the risks of signing BITs that provide foreign investors with recourse to ISDS are more obvious. The inclusion of ISDS clauses has been a major factor in mobilising opposition to a raft of major trade and investment agreements (including TTIP, CETA and TPP). Though Zimbabwe can hardly claim to have been defrauded into signing the BITs in the same manner that Lobengula had been duped into the BSAC concessions, there is a striking parallel.

In 2010, German-Swiss investors filed an ISDS claim to challenge the expropriation of timber plantations that were first established by the BSAC. In fact the company — Border Timbers Ltd. — refers to the plantations as “established” by “the British South Africa Police Company” – a misnomer, as no such company has ever existed. The British South Africa Police was the company’s paramilitary. The company’s conflation of the two names is not only an idle display of its indifference. The mistake rather unwittingly encapsulates both the overlap in the BSAC commercial and administrative roles in the creation of Southern Rhodesia, as well as the function of legal force in constituting property rights. The error is more “true” than the truth: the plantations were not merely established by the company, but by the force of law with which property rights are fortified. (For a demonstration of that process, one need not look further than the history of international investment law itself).

In August 2015, the arbitral tribunal deemed the expropriation of the timber plantations unlawful and awarded the investors’ nearly $200million in compensation, including $1million in moral damages. Zimbabwe is currently fighting to have the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) annul the decision.

To avoid the colossal compensation bill, the arbitrators expressly urged the Zimbabwean government to rather restore the investors’ properties to them, by forcefully removing certain communities occupying parts of the plantations. Those communities’ rights, the Tribunal emphasised, are “fragile at best”. Normally when people speak of “fragile” rights it is to appeal for their protection. Not so in this case. Here the term was meant simply to illustrate how much easier (and cheaper) it would be to trample them. The arbitrators did acknowledge that in forcibly removing these groups — whom they dub “the Invaders” — the “possibility of some disturbance should not be overlooked”. Nevertheless, this was deemed the “most appropriate” remedy.

These “Invaders” had in fact petitioned the arbitral tribunal in 2012, asserting that the proceedings would fatally undermine their rights as indigenous peoples under international law to collective ownership and usufruct of their traditional lands, as well as their collective right to consultation. Stuck between the state and the company, the indigenous communities of Chimanimani have been attempting for decades to become beneficiaries of the government’s land reform programme, but to little avail.

Aptly, the name Chimanimani means “squeezed into a tight space”. Some of the indigenous people still remember being forcibly removed from their ancestral lands — after the land was sold to the BSAC — and into native compounds. The BSAC’s timber was planted on the sacred sites and burial grounds of their ancestors, which these communities have maintained over generations, despite having no legal title. Indeed, although earmarked for expropriation in the FTLRP over a decade ago, these timber plantations have in fact remained in control of the company. The communities meanwhile have endured Kafkaesque legal battles, the constant threat of eviction and significant levels of harassment by the company and local authorities. Some have seen their homes and crops torched. Their attempt in the 2000s to negotiate with the company over a Joint Forest Management agreement was flatly rejected. A petition for the recognition of their rights — in which both state and company are named as defendants – has been pending for several years before the Supreme Court of Zimbabwe.

The communities petition to the ICSID tribunal requested merely for the right to participate — in accordance with the ICSID rules — as “amicus curiae”. The investors objected and the government was ambivalent. But the arbitrators’ response was arguably even worse than the Privy Council’s handling of the “native” land claim in 1918: they refused the communities permission to even submit a written legal argument.

It is an episode worth bearing in mind in the coming days, as Zimbabwe’s new government listens to the inevitable calls from Western governments and international financial institutions to create a stable environment for foreign investment. Zimbabwe will be pressed to ensure the security of property rights, so as to lay the foundations for the country’s continued rehabilitation and re-integration into the “international economic order”. That order – largely unchanged despite the economic chaos that has enveloped the entire globe during Zimbabwe’s hiatus – has long proven blind to the often-violent origins of property rights it strives to protect.

In the ICSID tribunal’s disdainful response to the indigenous communities’ plea, Lord Sumner’s words seem to echo across a century of unremitting land dispossession, exclusion and exploitation, begun by the British and seemingly without end: “Whoever owns the land, the natives do not…”

Ciaran Cross is a Researcher at the International Centre for Trade Union Rights (ICTUR). He also works as a freelance consultant on human rights, labour and environmental law, international trade and investment law issues. Ciaran has a background working with trade unions and NGOs, and an LL.M. in International Economic Law, Justice and Development from Birkbeck College, University of London.

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  World Bank, Report No. 29389, Project Completion Note (Credit 3286-ZW) On A Credit In The Amount Of Sdr 3.7 Million (US$5.0 Million Equivalent) to the Government Zimbabwe Land Reform Support Project (May 27,2004)