Livison Chikutu & Ors v Minister of Lands & Ors

The applicants, members of the Hlengwe Shangaani ethnic community occupying the south-eastern Lowveld of Zimbabwe for over 500 years, challenged sections 4 and 6(1)(b) of the Communal Land Act. The challenge arose after government issued several statutory instruments in February-March 2021 (SI 50, 51, 63A, and 72A of 2021) to excise 12,940 hectares from Chiredzi Communal Land for an irrigation scheme. The applicants claimed their ancestors occupied this land before colonialism and it should not be classified as communal land. Section 4 of the Act vests all communal land in the President, while section 6(1)(b) empowers the President to declare that land shall cease to form part of communal land. The applicants argued these provisions have racist colonial origins, tracing back through the Tribal Trust Land Act 1979, Land Tenure Act, Land Husbandry Act 1951, and Land Apportionment Act 1930, all designed to segregate land and deny indigenous people title to their ancestral lands.

• Whether sections 4 and 6(1)(b) of the Communal Land Act are ultra vires the Constitution of Zimbabwe
• Whether the impugned provisions violate constitutional rights to life, human dignity, property, equal protection, culture and language under sections 48, 51, 56(1), 63, 68 and 71-72 of the Constitution
• Whether the denial of private title to communal land dwellers constitutes unlawful discrimination
• Whether the issue of private ownership of communal lands is justiciable or a political question for the Executive and Legislature
• Whether the applicants had locus standi under section 85 of the Constitution

The application was dismissed with no order as to costs.

Sections 4 and 6(1)(b) of the Communal Land Act are not ultra vires the Constitution of Zimbabwe. The question of whether to grant private title to occupiers of communal land is a political question that falls within the domain of the Executive and Legislature, not the courts. Courts must observe constitutional limits on their authority and not usurp powers reserved for other branches of government, especially on policy-laden and polycentric matters. The fact that legislation has racist colonial origins does not automatically render it unconstitutional if the post-independence government has retained it as a matter of political policy. The vesting of communal land in the President does not constitute unconstitutional discrimination against communal land dwellers, as the President holds such land subject to statutory parameters and not in a personal capacity.

The court observed that there are simply some problems that law and courts alone cannot resolve - some issues require political solutions, and where politics has not yet spoken, there may be a lacuna in the law that courts are ill-equipped to fill. The judge noted it was not unreasonable to fear that granting title carte blanche to communal land occupiers might result in undesirable consequences such as foreign land barons owning vast tracts of land, disrupting customary ways of life. The court suggested that a holistic approach through a commission of enquiry on agrarian reform would be preferable to providing "some random remedy under some constitutional fiat." The judge remarked that such constitutional challenges to communal land tenure "may actually dog the courts in the future," indicating this issue is likely to recur.

This case is significant in Zimbabwean jurisprudence for: (1) explicitly acknowledging the racist colonial origins of communal land legislation while declining to strike it down on constitutional grounds; (2) applying the political question doctrine to land reform issues, holding that fundamental agrarian reform decisions are for the Executive and Legislature rather than the courts; (3) recognizing the limits of judicial power under the separation of powers doctrine in policy-laden and polycentric matters; (4) illustrating the tension between historical injustice and contemporary constitutional adjudication; (5) confirming that public interest litigation challenging land tenure systems, though unsuccessful, is not frivolous; and (6) suggesting that comprehensive agrarian reform, particularly regarding private ownership of communal lands, requires political rather than judicial solutions, possibly through a commission of enquiry.