Title deeds on agricultural land in Zimbabwe: A legal commentary

LLOYD MHISHI, MUNASHE OBRIAN GUTU, HAZEL TARIRO CHIMBIRO, JOE SINYORO & LINCOLN MAJOGO*

Introduction 

In 2024, the Cabinet surprised many by announcing that the Government of Zimbabwe (GOZ) would begin issuing title deeds on agricultural land, most of which was acquired from former white farmers during the Fast Track and Land Reform Program (FTLRP). The land tenure statement highlighted that while Zimbabweans are endowed with agricultural land, they continue to face challenges with accessing affordable, appropriately structured, and adequate finance for sustainable commercial agriculture. Also, in the absence of security of tenure, farmers and investors are not sufficiently motivated to invest adequately and to develop robust infrastructure on their farms to enhance sustainable production. In addition, the threat to land tenure, especially to successors entitled to land held by beneficiaries of the land reform programme arising from inheritance and fraudulent succession issues, has compounded the problem. 

The announcement marked a radical shift from previous government policy, where the agricultural land was acquired through mainly 99-year leases, offer letters, permits, and other documents that are generally regarded as inferior to title deeds in terms of security. Most recently, social media has been awash with speculation over the radical shift in government policy, and this naturally prompts one fundamental question: Does the State have legal authority to issue title deeds for agricultural land? This article is a legal insight into the legal framework that governs the issuance of title deeds on agricultural land and the related questions surrounding this topical subject. 

Background 

It has become almost impossible to discuss the land question without a refresher course into Zimbabwe’s liberation history. In 1890, Zimbabwe (then Rhodesia) was colonized by the British through the British Southern African Company (BSAC). Indigenous black people were dispossessed of their land and pushed into unhabitable reserves, commonly the Gwai and Shangani reserves. In an infamous decision in 1917, the Privy Council passed a decision that all “unalienated land” in Southern Rhodesia belonged to the British Crown. In other words, indigenous people did not have rights over that land. 

During that period, unalienated land was referred to as Crown Land, and it is that unalienated land which is now called State Land. In the early years following independence (1980-1990), attempts to address land imbalances caused by colonialism faced serious hurdles owing mostly to the Lancaster House Agreement and Constitution, which restricted the new indigenous government from acquiring agricultural land for resettlement purposes on favorable terms. 

Under the Lancaster House Constitution, the State could only acquire agricultural land through the willing buyer, willing seller principle. Due to the snail`s pace of this principle to equitably distribute agricultural land, the new government introduced several legislative amendments, mainly the Land Acquisition Act. This led to the FTLRP aimed at acquiring agricultural land that was owned by former white farmers and redistributing it to indigenous Zimbabweans. However, it is important to note that not all agricultural land that was available during the FTLRP was acquired. Title deeds for such land are still valid, and the land continues to be privately owned. 

Following the FTLRP, the GOZ promulgated section 16B of the former constitution (now section 72 of the current Constitution) to ring-fence agricultural land acquired through the FTLRP. The provision states that all agricultural land vests in the State and continues to vest in the State. Although the title deeds of land that was acquired from former white farmers were in their names, their ownership was superseded by those provisions of the Constitution. The title deeds are now in the name of the State, by virtue of endorsement, and the State, through the President in his official capacity, is lawfully authorized to own and transfer the land through section 16 of the Deeds Registries Act [Chapter 20:05]. 

Private ownership of land 

In Zimbabwe, private ownership of land is established in terms of the Constitution as read with various Acts of Parliament, including the Deeds Registries Act and the Common Law. Section 71 of the Constitution, also known as the property clause, recognizes private ownership of land. This section allows a private owner of property to exercise various forms of rights over land, such as the right to use, dispose, transfer, alienate, mortgage, and lease it for all intents and purposes that are permitted by law. 

In relation to ownership of agricultural land, section 72 of the Constitution clearly declares that the land vests in the State. Thus, the State is also a private owner of agricultural land and is empowered by virtue of section 293 of the Constitution to “alienate” agricultural land through either “transfer” or through lease or any other means. Section 294 then emphasizes the right of owners or occupiers of agricultural land, including the State, to transfer, hypothecate, lease, or dispose of their rights in agricultural land. 

Status of land acquired under the FTLRP

It is important to note that when the GOZ acquired agricultural land, the said acquisition was published in a gazette and the Registrar of Deeds effected endorsement on those title deeds to reflect that the title to that land now belongs to the State. The endorsement means that the state becomes the “owner” of the land in question, and as an owner of such land, the State has rights to transfer the land to any third party, subject to the principles laid down in section 289 of Chapter 16 of the Constitution. In other words, once an endorsement has been placed on the title deed following acquisition, the rights that ordinarily accrued to private owners (in this case, the former white farmers) would now accrue to the State. Hence, the State can alienate rights inland which it acquired under the FTLRP, and transfer of that land by title deed is one of such methods provided for under Section 293(1) of the Constitution. 

The only limitation to the State`s right to transfer agricultural land under section 293(1) is that the transfer must be consistent with guiding principles enshrined under section 289 of the Constitution. These principles fundamentally act to prevent discrimination in the transfer or allocation of agricultural land by the State and create transparency in line with the national objectives of the supreme law. Section 293 (3) of the Constitution further sanctions the state to have an Act of Parliament that prescribes the procedures for alienation or allocation of state land. This Act of Parliament is in place in the form of the Land Commission Act [Chapter 20:29], particularly sections 17 and 23. It is also noteworthy that this Act of Parliament was promulgated in 2016 after the 2013 Constitution to address land security of tenure issues, including the fate of acquired agricultural land post-FTLRP. 

Hitherto, the provisions of this Act were contained in several pieces of legislation, including the Agricultural Land Settlement Act. Therefore, the statutory support for transfer of agricultural land is in existence. The transfer process of State Land acquired or otherwise, respects the existing constitutional and legal framework. This means that an amendment to the Constitution is not necessarily required for this purpose. This then brings us to the fundamental question to be addressed in this write-up. 

Can agricultural land be transferred from the State to a third party? 

Broadly speaking, the current law allows the state to transfer agricultural land for value. This is despite the wording of section 72(4)(b) of the Constitution, which states that “all agricultural land continues to vest in the state”. The phrase simply entails that once the State has acquired agricultural land, the land continues to belong to it. What the State can do with the land after acquisition is governed by sections 71, 293, and 294 of the Constitution which allows “owners” of agricultural land to transfer the land for value, subject to any existing laws. 

As has been earlier stated, once acquired and the title endorsed, the State automatically became the owner of the land and with full rights to dispose of the land to any other party subject to set legal guidelines. The phrase “for value” means there must be a transaction, for example, an outright purchase for a fee or consideration whether cash or in-kind, a mortgage, or any other arrangement that secures value to the government. 

We understand that those who are receiving title transfer of agricultural land are paying for it including through mortgage financing. 

The current status of agricultural land and ongoing issuances of title deeds

Once the state has transferred the land to a private person, the person will now enjoy all the rights and entitlements of the Constitution, subject to the legal limitations, some of which have been in existence way before the FTLRP. For example, they can transfer the land to another citizen but this is subject to them obtaining a certificate of no present interest. 

This certificate is a document whereby the state certifies that it is currently not interested in acquiring the land in question and that it can be disposed to another person. This transferability of land is key in unlocking the muchneeded capital in the agricultural sector and doing away with the old system of offer letters, permits, and 99-year leases, which had transformed Zimbabwean land into dead capital. 

Conclusion 

The agricultural land question has been a topic of immense debate in Zimbabwe since postindependence Zimbabwe, the FTLRP, and to date. There have been arguments for and against opening agricultural land to title deed issuance, owing to past historical balances on one hand and the need to unlock value in the land on the other. The latest decision by the GOZ has the potential to promote agricultural productivity. It was high time the State issues title deeds to agricultural land holders post the FTLRP, since the Constitution had always provided for the fate of acquired agricultural land. This notwithstanding and going forward, it is necessary to ensure that there is a fair, transparent, effective, equitable and organized agricultural land redistribution exercise, as this is a Constitutional imperative. What is clear, though, is that as the law stands, the state can transfer agricultural land under title. 

*The authors are holders of Master’s degrees in Land Law.