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SENATE HANSARD 19 JULY 2017 VOL 26 NO 70

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PARLIAMENT OF ZIMBABWE

Wednesday, 19th July, 2017

The Senate met at Half-past Two o’clock p.m.

PRAYERS

(THE ACTING PRESIDENT OF THE SENATE in the Chair)

ANNOUNCEMENT BY THE ACTING PRESIDENT OF THE SENATE

PRESENTATION OF 2016 ANNUAL BUDGET REVIEW AND 2017 ECONOMIC OUTLOOK STATEMENT

          THE ACTING PRESIDENT OF THE SENATE (HON. SEN. CHIEF CHARUMBIRA): I have to inform the Senate that the Hon. Minister of Finance and Economic Development will present the 2016 Annual Budget Review and the 2017 Economic Outlook Statement tomorrow, Thursday, 20th July, 2017 at 1445 hours in the National Assembly Chamber.  The Senate will view the presentation from the television screens in the Senate Chamber. 

COMMITTEE STAGE

CONSIDERATION OF AN ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON THE LAND COMMISSION BILL [H.B. 2A, 2016]

        First Order read:  Committee Stage: Consideration of an adverse report by the Parliamentary Legal Committee on the Land Commission Bill, (H.B. 2A, 2016).

        House in Committee.

        THE TEMPORARY CHAIRPERSON (HON. SEN. TAWENGWA): Hon. Senators, we are gathered here to consider the Adverse Report on the Land Commission Bill, (H.B. 2A, 2016) as was circulated by the PLC, the Hon. Member here, Hon. Ziyambi is representing Hon. Samukange, he is the Acting Chairperson and Hon. Samukange is the Chairperson of that Parliamentary Legal Committee.  The adverse report will then be discussed here and we will make recommendations to the President of the Senate when he resumes the Chair. 

        The Committee of the whole House will now take into consideration the report from the Parliamentary Legal Committee on the Land Commission Bill (H.B. 2A, 2016). 

          HON. SEN. MAKONE: Thank you Chairman. At this stage, we do not have any copies infront of us on what it is that we are discussing. I do not know whether it would be fruitful for us to agree or disagree with anything that you will be reading if we do not have anything infront of us. Thank you.

          THE TEMPORARY CHAIRPERSON: The Adverse Report was circulated.

          HON. SEN. CHIEF CHARUMBIRA: I think for the benefit of everybody and also that we are talking of the Constitution, I will debate in English because the things I want to talk about are in the Constitution. I want to say thank you everybody for the support during the debate. It is true the Adverse Report was presented by Hon. Samukange in this House and we do have copies of that. That was after the proposed amendments by Hon. Sen. Chief Mtshane had been tabled. In fact if we recall, the Bill was presented by the Minister himself and we went to Committee Stage, went through all the stages, all the clauses we did and even agreed on the amendments. This House did pass the amendments that had come from Hon. Sen. Chief Mtshane.

          Those amendments were basically saying, can we also have two chiefs on the Land Commission and also when the Commission sits to decide on disputes on land anywhere in the country – the Bill was saying they would appoint some assessors to deal with disputes over land issues. Our amendment was saying when you do that, please consider that some of those assessors should be chiefs. Those were the amendments. One, two chiefs to be considered for membership of the Commission and also when you handle disputes make sure that some of those assessors are chiefs. Those were the amendments and they were agreed and passed by the House.

          In terms of procedure, because we made an amendment to the Bill, the Bill goes back to the Parliamentary Legal Committee to look at those two amendments. As a result, it took long because there were different opinions. I want to say when the Bill then went to the Parliamentary Legal Committee, I want to confirm that several meetings took place between the Parliamentary Legal Committee, the chiefs and Attorney General’s office also confirming whether the amendments were constitutional. The Adverse Report was basically saying it would be unconstitutional for the chiefs to sit on the Land Commission and also that they appoint assessors.

          This matter went to various legal minds, outside and within Parliament. I stand here again to say we the traditional leaders, as movers of those amendments after having gone through all that process, we come back and say the Parliamentary Legal Committee in finding that the amendments would be unconstitutional, we found out that is not correct, simple. That is not correct and that is our position. I want to emphasise that the Parliamentary Legal Committee is not a court of law. It just gives an opinion – mafungiro avo, maonero avo like anyone else can see differently.  In this case they come back to the House nemavonero avo and in terms of the law we are allowed to say hatibvumirane nemaonero enyu.

          This is what I am standing here for to say look, please let us reject this Adverse Report and I am talking not only as a chief but also standing also on solid legal foundation canvassed and shared with  various other people within this building and outside. We have no doubt that the amendments actually are consistent with the Constitution. I am therefore asking Hon. Senators when you get to the point of voting, we should actually say ‘No’ and not ‘Yes’. This time when they say those of that opinion will say ‘Aye’ let us say ‘No’ and it means we have basically rejected. Thank you very much.

          HON. ZIYAMBI: I would like to thank the Hon. Senators for allowing us to respond to our report. Firstly, I want to say that like Hon. Sen. Chief Charumbira said, the Parliamentary Legal Committee is a constitutional committee that is tasked with looking into all Bills that pass through Parliament for their constitutionality. The work of the Parliamentary Legal Committee is to scrutinise all Bills that come and we check whether they are constitutional or not. What we do not do is, we do not take our own personal emotions or preferences and then we put them. What we simply do is to look at the Bill, the provisions of the Constitution and we assess whether it is constitutional.

          I would like also to concur with him that our report is an opinion that is correct. The procedure is, once we issue an Adverse Report there is no need to negotiate with us. The report comes to the House, you debate it and you have two verdicts; agree or disagree. There is no need to even solicit for other expert opinions because Parliament has a constitutional committee that looks into legislation whether it is constitutional or not. When that legislation is passed whether it is constitutional or not, there is only one court that can deal with that, it is the Constitutional Court. So, whether we pass legislation that is unconstitutional or not, at the end of the day the Constitutional Court will have the final say.

          I must say that in the opinion of the PLC, we looked at the provisions that you were requesting to be amended. We did not look at them with a view of what we preferred or what our feelings were but we looked at it as a Committee in terms of what the Constitution says. We went through all the arguments that the Senate had. I have to take you back to the Constitution to Section 282 (2) and it states “Except as provided in an Act of Parliament, traditional leaders have authority, jurisdiction and control over the Communal Land or other areas for which they have been appointed, and over persons within those Communal Lands or areas”. If you read this in conjunction with the Traditional Leaders Act, Chapter 3 (1) it states - “Subject to (2) the President shall appoint chiefs to preside over communities inhabiting communal land and resettlement areas”

          What we did as a Legal Committee is that we went into the Constitution and the Traditional Leaders Act and we tried to find what a definition of a community is. The definition of a community in the Traditional Leaders Act means people. It does not mean land. If you go to the Traditional Leaders Act, you will find that it will tell you about traditional leaders having jurisdiction over resettlement areas. If you go to Chapter 30 of that particular Act, it says “but it excludes the land”. The dilemma that we then had is  that for the purposes of defining the community in a particular area you need to use the land. If you now want to find the jurisdiction of that particular person, it says communities. If you go into our Constitution, it states that traditional leaders are the custodians of our traditions.  Now, the other problem that we have is, the land that we are talking about, agricultural land has title and the owner of the title deeds is the Government.  If there is a dispute between a landlord and somebody who is leasing that particular land, where do you go?  You go to the courts.  In this particular case, the Government is saying we are setting up a Land Commission to look into disputes on our land that we have leased.  This is the position of the law; it is not what I want it to be.

          I believe that there are several contestations.  The way the Constitution is couched does not give traditional leaders the due respect that they deserve, but this is the law.  So, if you look at it from the perspective of property rights, there is some unconstitutionality in the way that this amendment wants to be couched.  Firstly, in so far as traditional leaders are given authority over communities, not land and secondly, they have authority over communal land but in conjunction with Rural District Councils (RDCs), which is another anomaly which in our view needs to be clarified.  However, our job was to look at the law as it is and not what it should be like. 

In our view, we felt that in so far as the Constitution and the Traditional Leaders Act are as they are now, it would be unconstitutional to have this amendment inserted in the Land Commission Bill.  However, I have to say that our report is an opinion.  The House is free to debate, accept or reject it.  Thereafter, the law can go over but these were the dilemmas that we had. When we looked at the Traditional Leaders Act and the Constitution, we saw some inconsistencies in having this in that the role of traditional leaders in so far as administering land was concerned, particularly agricultural land is not provided for. I thank you.

HON. SEN. CHIEF CHISUNGA:  Thank you very much.  I want to add my voice on this controversial debate.  The Constitution says, any law or statute which is inconsistent with the Constitution is null and void.  The Traditional Leaders Act has not been aligned, so in my view, it is inconsistent with the Constitution.  If we go to Section 282 (2), it does not mention communities and I will read, “Except as provided in an Act of Parliament, traditional leaders have authority, jurisdiction and control over communal land or other areas for which they have been appointed and over persons within those communal lands or areas.”  - [HON. SENATORS:  Hear, hear.] –

Let me emphasise that as traditional leaders or proponents of these amendments, we did not seek powers or jurisdiction over agricultural land.  We were only seeking representation – [HON. SENATORS:  Hear, hear.] – I do not see where our amendments usurp the Constitution.  As such, I agree with the President of the National Chiefs Council that we, in totality reject the report of our learned members of the PLC.  I thank you.

HON. SEN. MASHAVAKURE:  Thank you Mr. President.  I think really the presentation from the Vice Chairperson of the PLC did not touch the core of the issue, because the core of the issue is the composition of the Zimbabwe Land Commission, which is in Section 296 of the Constitution.  In Subsection 2 it says, “any person of integrity and competence, knowledge and understanding of land management and administration can be a member of the Zimbabwe Land Commission.  Whether that person of integrity, competence, knowledge and understanding is a chief, prophet, angel, traditional healer – [HON. SENATORS:  Hear, hear.] – he can be a member of the Zimbabwe Land Commission.  All these other issues that we are trying to conjure up the Traditional Leaders Act, Section 72 are irrelevant.  The important thing is on Section 296 of the Constitution, which says any person of integrity, competence, knowledge and understanding of land management in land administration. 

Like the Hon. Chief said, according to the President of the Chiefs Council, they are not requesting jurisdiction or authority.  They are only requesting to be represented in the Commission and to be part of the assessors in any land dispute; not to preside over the assessors but to be included.  In other words, local chiefs should be included as assessors in whatever dispute that comes up.  I think the PLC made a mistake and ended up confusing themselves by inviting all these pieces of legislations and sections of the Constitution.  They ignored the important section, Section 296 which talks about integrity, competence, understanding and knowledge.  Any person with that on land can be a member of the Zimbabwe Land Commission.  Thank you Mr. President.

HON. SEN. CHIEF NGUNGUBANE:  Thank you Hon. Chair.  I would want to support my colleagues.  In doing so, I think the bone of contention here is not about the authority of chiefs in resettlement areas.  It is the chiefs sitting in the Commission.  So, I think we need to separate the two issues, because the amendment says, in appointing the Commission, the President has to consider representation of the chiefs.  That is what is important and that is what we should be debating.  The PLC did not in any way address this issue.  I feel as Senate, we should address the issue. 

However, to respond to what Hon. Ziyambi has said, I think we need consistency Hon. Senators.  In saying so, if you look at the Government Gazette that has been published, I think of the one published on 5th April, 2017, placement of agricultural resettlement under the authority of chiefs in Zvishavane and that was done.  It is something that went through the PLC and for them to come to the Senate today and say chiefs do not have jurisdiction, I think it is misplaced. 

I will not debate much.  What we want as chiefs is involvement, because we are the custodians of land.  We feel on issues to do with land, there should be involvement of chiefs.  When we talk of land, we are not talking of the land only.  There are rituals that need to take place.  So if you say they do not have jurisdiction, let us not separate the land from rituals and other things that are in tandem with land.  Also, the issue that was raised by the Hon. Deputy Chairperson of the PLC, you cannot separate land from its people; you cannot live in a vacuum to say you have no authority, you live there.   Section 282 (2) of the Constitution has given the chiefs a right over communal land and other areas but it says an Act of Parliament can take away that right.  We should make it clear.  As of now, there is no act that has taken away that responsibility from the chiefs.  It is important that we observe that and for the sake of maintaining our culture and tradition, I feel the involvement of chiefs in the Land Commission is very important.  Thank you.

HON. SEN. MAKORE:  I want to agree with the few words spelt out by the Deputy Chair Hon. Ziyambi, where he mentioned in terms of definition - people.  If you talk of people in terms of that jurisdiction, it is most fitting as a technical definition of people who are represented by chiefs.  Chiefs are already responsible for all land which could be communal, resettlement or commercial. They are true representatives of that land and it is therefore most fitting that the feeling of this House that Chiefs should be wholly represented in that commission, Hon. Ziyambi Ziyambi is correct.  We do feel from Clause 296 which was quoted for us here that it could even be the pastor or teacher but the very honourable area that we do respect is that of those people who are already representing people in various communities.  So, we can debate further but the feeling of this august House is that there must be representation by the chiefs in the Land Commission.  Hon, Chair, we can continue debating but the feeling is that already chiefs are representing people and resolving disputes within their communities.  With their varied experience, we do feel that these neutral people must also play a role in the said representation that we are calling for within the Land Commission.  I thank you very much.

          HON. SEN. MARAVA:  I also rise to add my voice to this issue.  This House agrees and understands that chiefs are part of the identity of the citizens of this country.  Without a chief you do not have an identity.  Never mind where you are settled.  There is no place you can find independence of agricultural land from rural land.  Agricultural land and rural land are one and the same thing.  I think it is just disrespectful of our traditional leaders to even spend 10 minutes talking about such issues.  We cannot be defeated by the Rudd Concession that recognised the traditional leaders.  Here we are, talking about that issue, where are we losing it?  Mr. Chair, chiefs do not need us but we need them, because they are our identity. 

          Section 72, we do not need to talk about it but it is obvious and it does not give any scale.  All the powers of leadership originated from the chiefs.  Even if we try to look at it from another angle of the liberation struggle, when Chief Svosve led his forces to the commercial areas to repossess the land, they were not talking about a group of people who were supposed to be led by the Chief but they actually invaded farmland in commercial areas.  So what are we now saying, are we trying to indirectly disarm the chiefs?  Mr. Chair, we must stop this nonsense.  Thank you.

          HON. SEN. MAKONE:  Mr. Chair, I think we want to go back into history and see what we are talking about.  My understanding of the liberation struggle is that we were going to fight for our land and not for our rural areas.  The people of this country did not shed their blood for the rural areas.  Let us get it very straight here. The land was divided into communal and agricultural by the whites.  They took over the whole of Zimbabwe from the chiefs.  So, if we now want to talk about title deeds and say that title deeds are with Government, no - they are not even with Government if we want to be very honest. 

The title deeds are still in the possession of the people that we took the land from between 2000 and today.  We, as the people of Zimbabwe actually wrote off those title deeds and said we shall say all the land belongs to the Government of Zimbabwe.  Strictly speaking, the Government did not go and buy any land from anybody but we simply dispossessed them of our land which they had taken.  So, the land does not belong to Government but to the people of Zimbabwe.  Government is the simply the custodian of the land, but it is not theirs.  The land belongs to the people from which it was taken by the colonialists.  It was not taken from Government but from the chiefs. 

So, we can talk about law but some of us are not even legal minded but ordinary people.  The arguments that you made as PLC do not make sense.   We are simply saying when talking about the land of Zimbabwe, the chiefs are part and parcel of that land.  You cannot have a committee that goes to preside in a chief’s area without that chief’s involvement and say that you have settled matters.  You have not settled anything in our traditional custom.  You will have settled nothing if the chief is not involved.

 In any case, the Constitution talks about an Act of Parliament that might come but it has not come yet.  If this is a way of by-passing the chiefs so that we can say an Act of Parliament did come and you allowed the chiefs to be outside, well this one is not going anywhere.  If it is steam rolled over us, we will fight with every Government starting with this one until that land is given back to the chiefs.  The boundaries that were there are well known and everyone knows the demarcation of every chief’s land.  That is what we want. 

If you are going to talk about land in Chief Tangwena’s area, Chief Tangwena must be there.  If you are going to talk about land in Mazowe, Chief Chiweshe must be there.  There is no way we can have the chiefs excluded.  There is nothing called agricultural, but there is land.  Agricultural land was demarcated by the whites as their boundaries and that has got nothing to do with us.  So, this coming Act of Parliament must make sure that we align the law and the Act that is going to pass through here.  I thank you Hon. Chair.

          *HON. SEN. MAVHUNGA:  Thank Mr Chair for according me the opportunity to also debate the issue of involvement in the Land Commission as requested by the chiefs.  We might peruse through many books but the only thing that the chiefs want is to have representation in the Land Commission.  All the other issues to do with who will have power, the power has been given to the Commission so that they solve the disputes that are found in the land.  This means that if the chiefs are involved, they are referred to as Commissioners as well.  So we can go to town about it but as this House, we have agreed that that amendment should be effected into the Bill. 

That is why you heard the chief in his opening remarks saying that ‘as this House, we are through with this because chiefs will be represented.  This will give honour to the Commission in solving disputes.  If they see chiefs being consulted, people will have confidence.  In short, I just want to say, yes, the Parliamentary Legal Committee (PLC) has said out their view, but we are not fighting here.  However, from their opinion, we can go back and say that that is the opinion of this House as well.  With these few words, I want to say thank you.

HON. SEN. CHIMHINI: Thank you Mr. Chairman.  I just want to read Section 281 (2) of the Constitution.  I am reading this Section to indicate the justification for the traditional leaders.  It reads;

“Traditional leaders must not be members of any political party or in any way participate in partisan politics.  In my view, their presence in that Commission will help.”  Secondly, they must not “…act in a partisan manner.”  If they are there, they become our eyes.  Thirdly, they must not “…further the interests of any political party or cause or violate the fundamental rights and freedom of any person.”

Mr. Chairman, what we are saying here is that there is a justification.  Unless we abuse the chiefs, if we do not abuse them, those chiefs are there to be ears and eyes and they are only asking for a representation and I do not see why in our view, we should say we have closed doors.  The debate in this House is simply to indicate that let us respect what the chiefs have asked for, which we are supporting.  If we are making laws, let us make laws that can stand the test of time.  I want to believe the chiefs have a role to play and we argue that they have to be included, particularly that we are only asking for two.  I thank you Mr. Chairman.

HON. SEN. B. SIBANDA: Thank you very much Mr. Chairman.  When I entered this Chamber, the debate was already on and I find it interesting.  I only have one point to develop.  The request being presented as an amendment by the chiefs reads; “The President must consider representation of chiefs.”  I find this a very humble and honorous amendment.  It reads; “Mr. President, please consider including…”  What more could the chiefs ask us?  I am reminded of Masipula Sithole saying, “Let us not get angry on behalf of the President.  Let us not over-defend the President.” 

The President has certain capacities.  Those capacities include, rejecting a law that he perceives to be unjustified.  I believe the President is extremely capable of making that judicious determination.  Let us give that opportunity to the President.  If he is unhappy about it, we will come back and reconsider the position that the President has taken.  My plea is that, the PLC should not endeavor to over-defend an opportunity that is given to the President.  We make him the President because we think he is presidential.  I thank you Mr. Chairman.

HON. SEN. MUMVURI: Thank you Mr. Chairman.  I also want to add a few words on this debate.  I think the point has been made.  However, I do not know why the PLC wrote the whole page here on jurisdiction which was not requested for.  This is because from here, their objections are on jurisdiction.  The chiefs are asking for inclusion – [HON. SENATORS: Hear, hear.] –

My only question, now that the Hon. Minister is here is; in terms of the Constitution and where the President has already appointed a Commission, is it possible to reverse or this is for the future that the chiefs will be accommodated? This is because this is now administrative; it has nothing to do with what we are debating here. However, as I said, I think this debate has already settled that the chiefs only want representation, it is simple.  How it is going to be done remains with the Minister of Lands and Rural Resettlement.

+HON. SEN. CHIEF MUSARURWA: Thank you Mr. Chairman.  In our culture, it is said that murume mukuru haasiye bhachi padare.  This issue had since been resolved.  The Minister agreed, he came into this House and said that he had looked at the plight of the chiefs and it is very important for chiefs to be included in the commission.  The PLC had their own opinion. 

Hon. Chairman, the opinion of the PLC is theirs but as this House, we are clearly saying that we cannot divide the country to say a community consists of people only separating it from the land and further saying that land stands on its own.  Land and the community is the same because there is no way we can have a community without land.  It is very clear and we should not continue debating this issue.  We were hoping that this Bill should just sail through with its amendments because the Minister agreed to it.  If there are people with their own views, this House is very clear on what they want.  The issue of the Traditional Leaders Act and the Constitution - your Committee is lagging behind.  We are blaming you because the Bills that are supposed to be aligned to the Constitution are in your hands because you are the ones who are supposed to deal with legal issues.  You are slowing this Bill from being passed so that it is in line with the Constitution. 

So, Mr. Chairman, I am pleading with our learned lawyer, Hon. Ziyambi, that when it comes to the issues of chiefs, if we go back in history, we can spent the whole day because land was grabbed from the chiefs and it is very clear that the chiefs spearheaded the Second Chimurenga. Now we have chiefs’ heads which are in Britain.  If people like Chinengundu could hear us debating on the land issue which led to their deaths in the communal lands, it is better to leave their remains in Britain.  We should leave them there because if you are saying that the land which was taken from the whites, that is the land which we fought for so that chiefs should be there, that is what moved people to go for war. If you are saying the chiefs’ jurisdiction is now in the rural areas and you are saying that we are using the Roman Dutch law, it means we are throwing the Constitution away.

          The Minister agreed and we were thinking that today we were going to pass the Bill. We thought you were going to say you heard what we said but now, we are singing from the same hymn book. To say that Hon. Ziyambi who comes from Chief Nemakonde that you will go back and tell your chief that in Parliament, we are saying your jurisdiction only ends in the rural areas. I am not pointing a finger at him, but I just want to say that let us move forward. We want this Bill to be passed today.

We do not want to go back and as a House, we are saying each and everyone who is debating, their debate is clear that we might have an oversight. What we are saying is that chiefs should be included in the Commission, not that the chiefs will become Chairpersons of the Commissions, but we will be there. Even when we go gender, you will find that chiefs are involved and even in tourism, chiefs are involved as well. Now we are saying chiefs are not included on the issue of land. I think when the Minister agreed, he found that it was important for chiefs to be included. Thank you.

HON. SEN. NYAMBUYA: Thank you Mr. Chairman. I have a problem and I request and I hope after I have said the few words that I want to say, perhaps I will be feeling a little bit better. I have a conscience, and I need to say what I am about to say now. Mr. Chairman, we are talking about a Commission, a Land Commission and land is an issue which is at the core of our souls as Zimbabweans. Most of us went to fight for the liberation of this country. One of the major issues was land. The abuse which we suffered at the hands of the whites and all the things which made us go to war, and what we are doing in this august House is nation building.

We were elected in 2013 and I think at the end of the five years which we are supposed to serve, each and every one of us at the end of five years, we need to sit down and ask ourselves whether we have been useful citizens who have contributed to building a strong nation. A nation with a strong foundation with values, which follows principles, a nation which future generations can look back and say yes, in 2013, we had so many Senators who made very wise decisions.

In this House, I think we should hang our heads in shame that we have already made a big lapse whereby we allowed some legislation to pass which was faulty, and it was turned down by the Head of State, and you know what I am talking about.  Lest I be misunderstood, I want to make it very clear from the onset that I am a firm believer of the role which chiefs play in our society –[HON. SENATORS: Hear, hear.] - I said lest I be misunderstood and I am still going ahead. I strongly believe that chiefs have got a very strong and solid place in the formulation and building of our nation.

Today, we are talking about a Land Commission, a Commission which is supposed to superintend the utilisation of land which has been redistributed, which we want to ensure that it is properly utilised. Surely, the chiefs have got a place in the Commission to serve, but in the process of making this very important pivotal law, we have got a PLC which we as Zimbabweans, is us as people who pass this Constitution mandated to look and scrutinise our laws and ensure that they are in tandem with our Constitution. Our own PLC have given us an Adverse Report and they are doing their job.

One of the biggest facets of nation building is institutions. A country which does not respect its institutions is bound to fail. Let me assure you that if you have got strong institutions anywhere in the world, you are bound to make progress. In my view, we should ask ourselves because the last thing that we do not want to do is that we pass this after having debated and congratulate ourselves and everything and then somebody challenges this in the constitutional court, and it is found to be unconstitutional. That is the last thing which we want to do my dear Hon. Senators. They have given us an opinion, their own opinion and most of us today we are saying it does not really matter. Does it not really matter?

In my view, I think and I said lest I be misunderstood, I fully support the chiefs and I think they have a role to play. I think there is a better way to achieve what we want to achieve. There are many ways to kill a cat. You can tie a stone to the cat and throw it into the river and it will die. You can take a knife and simply cut it off and it will die. You can as well strangle it and it will die. Some ways are more humane than others. In the same manner, we want to achieve a very noble objective of ensuring that chiefs play a role in administering the land.

I think perhaps there is merit in looking at amending what has made the PLC to issue an Adverse Report. Why do we not be patient and amend whatever it is so that it is in tandem with the Constitution so that tomorrow no one will say we passed a Bill which had an Adverse Report. Lest I be misunderstood, I fully support the chiefs, but what I am saying is that let us think with our brains, not with our hearts. Let us look at tomorrow and let us not just look at today. I would like to say that there is another way of killing this cat, why do we not look at it. Thank you Mr. Chairman.

HON. SEN. MASUKU: Thank you Mr. Chairman. The way I understand it is that everybody in this august House is saying the same thing but different expressions. I agree with every Hon. Senator that you cannot separate  communities and land – you cannot separate people and land.  I agree that when we took up arms to fight for this country, we were fighting for our land.  Mr. Chairman, without taking much time; Hon. Sen. Brigadier Gen. (Rtd) Nyambuya in his last word, he said exactly what I was going to say.  Nobody is against the inclusion of chiefs in the Commission because there is nobody here in Zimbabwe who can say kala sithupha esibiza induna.  Note, in Zimbabwe here – every I.D. ile nduna.  But like I said when we first debated this Bill that the Commission is in place, if the Commission is in place, what is it then that can be done to include the chiefs?  Are we as this august House saying we are lobbying for the extension or let me say, addition of two more members in the Commission who will happen to be chiefs?  Are we saying so or are we saying we are rejecting the Commission that has been appointed by the President?  There are two things here.

I believe what we have to come up with in this august House is something that will reflect that as the Senate we know our duty.  I believe that our duty as well is to assist whichever Committees – PLC or whatever.  Mr. Chairman, are we advocating for the inclusion of two more Members to the Commission so that the chiefs can be included?  I do not doubt the capabilities of our chiefs because we have learned chiefs who are capable in those Commissions.  I do not doubt but as the Commission is in place, what are we coming up with?

 Are we saying to the Head of State, the Senate is requesting that your Commission should be extended by two members who will happen to be chiefs?  The rejection as far as I feel is that there will be questions that some of us cannot answer.  Even people or even my child would say Mama, instead of rejection, did you fail to come up with a solution?  What can be the solution rather than rejecting?  Can the solution be the inclusion of two more members or can it be that the Commission that is in place today completes its term, then the second term be assured that chiefs will be included?  We have to come up with a solution.  I thank you Mr. Chairman.

+HON. SEN. CHIEF GAMPU: Thank you Mr. Chairman.  I thank you for giving me this opportunity to add a few words on this matter before this House which is quite big.  My contribution is that this matter which we are debating divides people.  As such, this House and others who are outside, when they hear that the chiefs are not included in the Land Commission and even people spelt it out in the Constitution that the land should be in the hands of the chiefs, they will be surprised.  People will say we went out of the country to fight for the land because our chiefs in the times of Mzilikazi and Lobengula were dispossessed of their land.  As a result of that, people had to go out en masse to fight for their land so that it is given back to the chiefs. 

I am of the view that the number of the traditional leaders should be increased to more than two or even five because it is a big duty for chiefs to handle land matters.  As chiefs, our jurisdiction is on the land.  It is my request that this problem that we are trying to create here to divide our people should come to an end.  As chiefs, our request is that we be included in this Commission so that we represent the people and we fulfill their requests.  We are not requesting for something out of the ordinary which is not in the Bible.  Remember that Moses gave jurisdiction to chiefs to be in charge of the land. 

We are requesting for something which is within our rights.  Our children when they hear that we are not involved in the Land Commission, will despise us.  They will even say, how did you fail to amend this in Parliament when you had the power?  We have to attend to this by understanding and respecting one other.  Our request is within our rights as traditional leaders.  I thank you.

HON. SEN. MASHAVAKURE:  On a point of order Mr. Chairman.  I think that somewhere along the lines, we are drifting away from the debate because I hear that there is an introduction on issues to do with how the chiefs can be appointed.  I think that the issue was – representation by the chiefs and then the jurisdiction by the PLC, that is our issue.  So, whether the appointing authority takes it on board and decides to appoint today or after five years, that is not our business. I think our business is to sort out the mess of the representation and the jurisdiction, which is the matter of argument between us and the Parliamentary Legal Committee. I thank you.

          *HON. SEN. CHIEF CHIDUKU: Thank you Mr. President for giving me this opportunity to make my contribution. I am not going to be repetitive but I will state two new facts. The problem we are facing is that some people think that chiefs cannot think on their own and they have to be guided. As chiefs, we are very clear on what we want. We are very focused. We stated long back that we are not worried about the fact that you did not give us the power to play an oversight role in communal areas. What we are simply doing is that we are saying we have no jurisdiction over the communal areas because we have some people who are now playing the oversight role in those areas.

What is really happening is that all the people who have been allocated land and resettled in those communal areas belong to a chief. What I advise is that if they no longer need to be under our jurisdiction, they should cancel out the term on their identity card that they belong to that particular chief where they originated from and then they can live like the whites who do not have any chiefdom. That is not what we want. All we are saying is, when you are looking for members who can be included in the Land Commission, please include the chiefs so that they can play a pivotal role in the administration of the land.

          If you want to conclude this case effectively and positively because you said you had overlooked the amendments we had proposed – we know that the Land Commission has been appointed and sworn in. You seem to think that the chiefs want some members in the Commission to be removed from that body to create space for the chiefs but that is not the fact. Now that you have already appointed members into the Commission and it is functioning, let this Commission run its tenure and when you are appointing the members for the next term, please appoint chiefs in that  Commission. Better still, during this current Commission, should any of the members misbehave or found to be unsuitable because of one reason or the other, please remove that person and replace them with a chief. If I were to ask, what is really happening in the Land Commission that you want to be kept a secret from the chiefs?  We are now very suspicious. We now smell a rat and we feel there is something going on. What we know is that land belongs to the chiefs and when the chief is being installed he is told about the land which he has jurisdiction over. That is why we get our powers from the land.

          We may talk in any language which you may want to say and include all the legal aspects of this case but all we are saying in simple and clear terms, the Land Commission should include chiefs because they are part and parcel of the land in Zimbabwe. If you do not want the chiefs, please call the Europeans and put them in that Commission.

          HON. SEN. CHIPANGA: There is now too much politics creeping into this debate. We are now being driven back to why we went to war when in actual fact the issue here is, do we or do we not want the inclusion of chiefs on the Land Commission, that is the issue. One Senator summed it up well when he said there is need to align the Traditional Leaders Act to the Constitution. The Constitution we are talking about today is the Constitution not written by whites but by ourselves. It is this Constitution which says there is one particular land which is called communal under the jurisdiction of the chiefs and then another set of land which is not under the chief. That is what is in the Constitution.

          When our Parliamentary Legal Committee goes to look at it, they are right by saying there is inconsistency here. Things do not tally. The Constitution says the chief moves from here up to there - until and unless we amend our Constitution then it will be easier for our PLC. The point that I am trying to make is that, let us not blame the PLC for having in my view correctly interpreted the Constitution as it stands. Theirs is to read and then say - what does it mean? There is no politics here. I would like to suggest that as of now we agree that the Constitution and the Traditional Leaders Act as they stand do not tally and there is need to harmonise these two so that we know when we say land we are talking about the people. When we are talking about the people we are talking about the land. Under the current Constitution, these two issues are separate and distinct. This in my view is what led the PLC to say this Act as it stands will be declared unconstitutional.

          One Senator said the last thing that we want is to pass a law just for the sake of it, then someone will go to the Constitutional Court and then the law is quashed. The President as we all know has a very keen eye, he will send it back and say hazvisizvo. That is the last thing that we want particularly when we have been advised.

          I just want to add a word of caution that as Senators, we need to think with our minds. In other jurisdictions, Senate is the last House where other things which have been passed haphazardly in the Lower House are scrutinised strictly in the Upper House. It looks like we are doing what the whites were doing. It is not the Whiteman’s problem but ours. We should have incorporated that in the new Constitution at the very beginning to say where there is communal land, there should be a chief. It is not there in the Constitution. Why did we not include it? I thank you.

          HON. ZIYAMBI:  Thank you very much.  I would like to thank all the contributors for contributing to our report and giving us your views. Firstly Mr. President, I want to state that the Parliamentary Legal Committee is a constitutional committee established in terms of Section 152 of the Constitution.  As such, when we are doing our work, like I said in the beginning, we look at the Constitution and our laws to see if they are in harmony. 

There was an Hon. Member who described our work as nonsensical.  I believe I said it from the beginning that I am not demeaning the office or the function of the chiefs.  The PLC did not produce the Constitution or the Acts of Parliament.  The PLC was put in place to make sure that the laws, before they are passed to avoid congesting the Constitutional Court, are constitutional.  I believe Mr. President, to label us as producing a nonsensical report is unparliamentary and unbecoming.  I think we are owed an apology as the Parliamentary Legal Committee Mr. President. 

Secondly, I would like to take you through the Constitution.  The reason we are debating the Land Commission Bill is in terms of the Constitution whose crafting the majority of us participated in.  We came up with this Constitution and we went with it to the people to say this is what we want.  I may have had my preferences regarding traditional leaders but because this Constitution is there, I abide by it. 

If you go to Section 296 that you have been referring to, it talks about establishment and composition of the Zimbabwe Land Commission.  That is a done deal.  The provisions that deal with the establishment and composition of the Land Commission are there in the Constitution.  Section 297 goes on to talk about the functions of the Zimbabwe Land Commission; that is a done deal according to the Constitution.  However, Section 297(6) goes on to state why we are here.  It says the Government must make adequate and suitable provision through legislation and other appropriate means to ensure that the Zimbabwe Land Commission is able to exercise its functions efficiently and independently. 

The Constitution is not saying when we debate the Zimbabwe Land Commission Bill, we should look into appointment procedures of commissioners.  The provision of this Constitution is saying the Government should put in place mechanisms to ensure that the Commission is independent, is an executive committee but it has to be independent, supervised by the Minister but he has to give it some form of independence.  This is what it is saying.  This is what the Minister is trying to establish and other provisions like persons employed by the Zimbabwe Land Commission and how they carry out their duties fairly and impartially.  This is what the Minister is saying.  The Bill that he is bringing before the House, the provision of the Constitution is not talking about including other or amending the appointment procedures.  No.  It is not there.  It is not even talking about where there is a dispute, you should include other people.  It is only giving the procedures of having this.  This is what the Constitution is saying. 

There was reference to Section 282 which says, subject to - chiefs may have jurisdiction over other areas that they have been given.  I agree with that and I love it, to have legislation that will give chiefs jurisdiction over land but that legislation is not there.  PLC does not move Bills.  PLC simply receives Bills for scrutiny once they are tabled in the House. 

*Hon. Sen. Chief Musarurwa, we cannot give guidance to the Land Commission to change whatever they were working on but we follow what is in the Constitution.  Our job is simply to look at legislation, the Constitution, the applicable law and we decide.  That is the reason why I said as lawyers we go and argue before judges and magistrates.  When we are arguing, we have different opinions and nobody calls another person’s opinion nonsensical.  We debate and then the judge gives his opinion.  This is what I said that as Hon. Senators, you can even pass this Bill with our opinion but you do not call it nonsensical. Our opinion is not premised on our feelings but the provisions of the Constitution.

The Hon. Member was talking about appointment of commissioners as persons of integrity.  Exactly, that is what the Constitution says.  If you look at it, we debated about it and we said our jurisdiction is to look at the law and the Constitution.  There are other mechanisms to comply with the Constitution which would ensure that the Chiefs are included in the Land Commission but that was not our brief.  We were not given a task to look into that.  Our duty is not even to recommend what the legislation should look like.  Our duty is to say this is correct and this is not correct.  The way forward, we leave it to the stakeholders.  We simply say, the law does not say this.  The duty to ensure that the law says that is with the legislature. 

I want to go to the issue of custodians of land.  Your views are more or less like our view.  The Constitution, the Traditional Leaders Act, the Communal Lands Act and the Rural District Councils Act do not speak to each other.  If you look at the Communal Lands Act, it says the land is vested in the President. As chiefs, you do not allocate land without consulting the Rural District Councils according to the law and we are saying there is need for harmonisation of these laws so that they can speak to each other.  This will enable chiefs to be given the status and the due respect that is accorded to them but that is not the function of the PLC.  It is the function of the legislature.  No land in Zimbabwe can be given, even in communal areas without the authority of the Rural District Council.  That is the law. 

If you go to the Traditional Leaders Act, we did not make that Act as PLC.  It is the one which is defining what a community is.  I heard the Hon. Chief saying there are areas in resettlement areas that are being gazetted and chiefs are being given jurisdiction.  He was correct.  The chiefs are given jurisdiction according to the Traditional Leaders Act and I will read, inhabitants of resettlement land, placing of communities on resettlement land under the authority of a chief.  This is Section 29 and it further says after consultation with the Rural District Council and the chief of the area concerned, the Minister may, by notice in the Gazette declare that an area of resettlement land shall fall under the authority of such chief as he may specify in the notice.  Then you go to Section 30, which says - notwithstanding the section that I have read, “resettlement land that is the subject of a declaration under that section shall not form part of communal land.”   Then you go to the Constitution and all these laws, are not saying the chiefs have jurisdiction over the land.  I agree with you that you cannot separate land from the people but these are laws that we made and the Constitution that we passed.  They were not passed by the PLC.  The PLC’s job is simply to look at the law and interpret what the law has said.  So, I believe that we are on the same page and we are just your servants.  We are not there to fight with you, but just to highlight things that might need improvement so that our laws become clearer, easier and very good for the good governance of all our people. 

          I also agree that we went to war to fight for the land.  Nobody is disputing that.  We went and fought for the land, but when we came back we did not then say let us form feudal governments by asking Chief Svosve to have his own government and Chief Charumbira to have his own government.  We then decided to continue with the same system of governance which I may not agree with.

          HON. SEN. CHIEF CHARUMBIRA:  On a point of order Mr. Chair, I believe when you refer to feudal government, I think you are over doing it.  I do not think the use of that word in this era wherever a chief is presiding means feudal.  I think it is a very unfortunate word.  Thank you.

          HON. ZIYAMBI:  Thank you.  I withdraw that word but the import of what I was saying was not insinuating that I am denigrating the office of the chief.  I think the most important thing is to look at the import of what I am saying and not look at it from the point of view that the PLC is trying to denigrate the office of the chief.  If we look at it from that point of view, then we will move together and find a solution in a better way.  My request - let me repeat this, I love the chiefs so much and even when the laws are like this, we consult chiefs wherever we stay.  Even when the law says this, we have informal arrangements to respect chiefs because that is where we came from.  I like what Hon. Sen. Chief Chiduku said - that every person who is here has an identity document which speaks to another chief.  That is what we are saying and encouraging each other to ensure that our laws are aligned so that our job becomes easy.  As PLC, we do not want to do things that will in the future be blamed on us because we will have been given the mandate to ensure that everything we do is in alignment with the laws.  We do not want to be blamed for having done the wrong thing.  If we had been given the mandate to give an opinion to point out how things should be done we would do so.  So, I apologise if I appeared as if I am denigrating the office of the chiefs.  I like them very much and I support the position of the chiefs however, I am merely stating the unfortunate position of the law.

          Finally, I would like to thank all Hon. Senators.  I am not saying do not vote for the passing of the amendment, do not get me wrong.  All I am simply doing is expressing on behalf of the PLC the things that we saw and believed that if they are not addressed might impinge on the work that the Minister has to do.  More so, if you go and look at Section 296, Section 297 and why the Bill is here, we believe that we cannot then use an Act of Parliament to amend the appointment procedures when we are dealing with a Bill that is looking into giving operational procedures to the Commission.  So, that is our submission but we are very happy that we have had this debate.  It allows all of us to think with an open mind, to look into the functions of our traditional leaders, to start interrogating ourselves on whether we have done enough in this Constitution and whether we should have done things differently.  This debate will also help to open up our eyes so that we start debating, which will lead to passing of laws that will direct us to good governance and proper order of our communities.  I thank you.

          HON. SEN. MARAVA:  On a point of order Mr. Chairman.  I just want to clarify one issue where I referred to the word nonsense; I was actually referring to the Bill which I believe is a bit of nonsense in the sense that it was taking away powers from the chiefs.  I was not denigrating the PLC.

          THE TEMPORARY CHAIRPERSON:  You are only stressing what you said earlier on.

          HON. SEN. CHIEF CHARUMBIRA:  Mr. Chairman, can I make the last contribution.  I am very happy with you Senators and I want to be very honest.  I was once in the Lower House and I noticed that in this House, there is usually reluctance to genuinely go into depth about the business that we do but today we really went into depth with everything.  That is very, very good.  Do not even worry about the other comments that were passed.  One clear thing Mr. Chairman is that the adverse report says we do not want chiefs on the Commission because they have no jurisdiction in areas outside communal lands.  We were speaking of things outside the report but what we want is to address what is in the report.  That report, we are rejecting because the only reason that they are giving for chiefs not to be represented is that chiefs have nothing to do with areas outside communal lands.  That is the real issue that we have to debate.

          Going forward, I need to make these points very clear.  There is an issue where they said the commissioners have already been appointed but fortunately that was addressed by Hon. Sen. Chief Chiduku.  That concern addresses a futuristic issue.  If we amend it, it will not have a retrospective effect but the gap will be seen maybe after five to ten years when you now want to appoint and the law will be saying consider the chiefs.  When you last appointed the law was not there and the Minister sitting here can confirm that we had such a meeting with the Attorney General Representative, Mr. Dias.  We discussed these issues together with the Minister and we found a solution.  As the Minister sits here, we have no quarrels with him and I am being very honest.  Let me rest this one.

          The other issue is that the PLC is our institution because we put it there so that they can scrutinise whether the Bills are ultra-vires the Constitution is true, but we are the ones who said they do not give us a final position.  We said when they come here they only bring an opinion and the law says we can reject their report.  Although we set them up we still said we can reject their report.  The law again says that.  That is why here, in the Senate, it looks like something new and probably threatening.  The lower House rejected the adverse report on the Labour Amendment Bill by the PLC.  Their report was rejected by the National Assembly on the Labour Amendment Bill.  The National Assembly said ‘we do not agree with the PLC.’  The Act which we have today, the Labour Amendment Act is a result of a rejection of a PLC report. The law is there after we registered our rejection.  Do not think that when we reject, we are being rebels, no, when we reject, we are doing our work. 

That is our duty of scrutinising what they bring here.  We have a right to reject.  Do not think that rejection is a bad thing, it is good and it actually shows the relevancy of the Senate.  Senate just agrees to everything and you wonder why we are here.  We also have to show that there are things which we can detect which would not have been detected by the National Assembly, which is good.  People should not ask us how far we have gone.

Let me comment on the issue of Section 282.  There is a law that allows chiefs to be appointed as chiefs in resettlement areas.  Section 29 of the Traditional Leaders Act, provides for that.  That is why we are having installations of chiefs which we also witness on national television in the A2 resettlement areas.  We have 11 chiefs in this country who were appointed in resettlement areas.  For the purposes of emphasising, it is gazetted, before appointing a chief in a resettlement area, it is gazetted.  That gazetting goes to the PLC.  So far, the PLC has agreed or approved 11 appointments of chiefs in resettlement areas.  So, for the PLC to come back here and say chiefs have no jurisdiction in A2 resettlement areas, when that same PLC is saying to the gazette this is the correct…

HON. ZIYAMBI: Point of order Mr. Chairman.  I think the Hon. Chief was not listening to me when I responded to say, the chief said that there is gazetting which was done.  I agreed and said, if you go to the Section he is referring to, there is a section that says the Minister is empowered to appoint chiefs in resettlement areas and I quoted it to those who were listening.  I quoted and said, this is allowed by the Act and I read out Section 39 and I even showed you the Traditional Leaders’ Act.  I have it here. 

However, for my Hon. Chief to say that we are not acknowledging that, I do not think it is fair on the PLC.  All that we have said is, if you look, the chiefs are being appointed in terms of the Traditional Leaders’ Act and it says that, they will be appointed – in fact if you go to Section 29, it says; the heading is; ‘Inhabitants of resettled land.’  I said this and I also said placing of communities on resettlement land under authority of a chief.  I said it Hon. Chief.  If you read it, it talks about placement of chiefs in those areas by a gazette which the Hon. Member talked about and I agreed.

However, I said, if you go to Section 30, it says the land and if you go to this Traditional Leaders’ Act, it talks about communities and it defines what a community is.  PLC, I repeat, is not the author of the Traditional Leaders’ Act.  When we pass those gazettes that come to PLC, they are very clear.  They state about placement of communities in resettlement areas and there is no contradiction with the Constitution or with the Act.  So, for the Chief to say that we are contradicting ourselves, with all due respect, I think it is not the correct position.  I thank you.

HON. SEN. CHIEF CHARUMBIRA: I will wind out.  It is healthy that we debate.  However, let us just agree that Senators should have the confidence that in coming up with this amendment; we went very far and wide.  We also consulted a lot of lawyers in Zimbabwe, I will not mention names.  So…

HON. ZIYAMBI: Objection Chief.  I believe as a constitutional body, we are mandated to do this.  When we give our report - I feel that as a member of PLC, for the Hon. Chief to then come and say they consulted a lot of people, he will be demeaning the work of a constitutional body.  Our work is premised on us and he should debate and not give an opinion of somebody who is outside.  You would have preferred a situation at that particular moment…

HON. SEN. MLOTSHWA: On a point of order.

THE TEMPORARY CHAIRPERSON: We cannot have a point of order on a point of order.  Please, that is not practical; let him finish his point of order.

HON. SEN. MLOTSHWA: He is debating and not giving a point of order.

THE TEMPORARY CHAIRPERSON: No, he was debating and then he rose on a point of order.

HON. ZIYAMBI: My point of order is, surely, my Hon. Chief can put his point to say, this is what we want without giving reference to unknown legal persons.  We are the constitutional committee of Parliament, mandated to looking into issues of constitutionality of legislation.  However, if we have names of legal minds or gurus outside the constitutional committee that is mandated – that is my point.  Thank you.

HON. SEN. CHIEF CHARUMBIRA: Thank you very much for all this debate, it is healthy.  At the end of the day, we do not agree with the PLC’s position, so we move that the Adverse Report be rejected.  Thank you.

House resumed.

HON. ZIYAMBI: Thank you Mr. President.  Mr. President, I now with leave, move that this House, having given consideration to the Report of the PLC on the Land Commission Bill (H.B, 2A, 2016), resolves that the Bill would, if enacted be in contravention of the Declaration of Rights and some of the provisions of the Constitution. I thank you Mr. President.

Motion put and Report of the PLC negatived.

Consideration Stage: With leave, forthwith.

CONSIDERATION STAGE

LAND COMMISSION BILL [H.B. 2A, 2016]

          Amendments to Clauses 2, 3 and 36 put and agreed to.

Bill, as amended, adopted.

Third Reading: With leave, forthwith.

THIRD READING

LAND COMMISSION BILL [H.B. 2A, 2016]

          THE MINSITER OF LANDS AND RURAL RESETTLEMENT (          HON. DR. MOMBESHORA: I move that the Bill be now read the third time.

Motion put and agreed to.

Bill read the third time.

On the motion of THE MINISTER OF LANDS AND RURAL RESETTLEMENT ( HON. DR. MOMBESHORA), the Senate adjourned at Twenty Six Minutes past Four o’clock p.m.

 

 

 

       

 

 

 

 

Senate Hansard SENATE HANSARD 19 JULY 2017 VOL 26 NO 70