Ruling On Land Threat To Foreign Investment - lawyer
27 November 2008
The judgement by the Supreme Court this week dismissing a Danish land suit against the government has shown that any foreign investment in land will not be protected by the law, defence lawyer Advocate Lewis Uriri has said.
The Supreme Court dismissed a constitutional lawsuit brought by Danish farmer Kim Bikertoft, former owner of Nyahondo Farm (Pvt) Ltd in Chinhoyi, who challenged the acquisition of the farm under the controversial land resettlement programme.
Uriri argued that the farm could not be acquired by Retired Brigadier General Walter Tapfumaneyi as it would be a breach of the Bilateral Investment and Protection Agreement (Bipa) signed between Zimbabwe and Denmark in 1996.
The agreement states that foreign land investments of Danes should not be expropriated except in the public interest, on the basis of non-discrimination, carried out under due process of law, and against prompt, adequate and effective compensation.
The judgement has also been interpreted to mean that the government has failed to respect the Bipa which should afford protection of investments by Danish nationals.
However, Chief Justice Godfrey Chidyausiku sitting with Deputy Chief Justice Luke Malaba and Justices Paddington Garwe, Wilson Sandura and Misheck Cheda as a constitutional bench, dismissed the appeal. They said detailed reasons for the ruling would be provided in due course.
Uriri commenting on the judgment said: “The judgement in other words implied that foreign land investment in the country is not protected by the law... the state can expropriate the land.”
This, he said, was as a result of Section 16 B of the Constitution that was amended in 2005 to prohibit a person from challenging the acquisition of land by the state.
“But the rules of natural justice demand that a man be heard. A man must be heard,” said Uriri.
Bemoaning some of the provisions of the Zimbabwe Constitution, Uriri said they had exhausted all approaches to justice in the country and now looked forward to take the case further.
“The way the Zimbabwean Constitution is amended is not consistent with the Sadc Charter. Since we have exhausted all approaches, the advice I have been given is to make a specific declaration to the Sadc Tribunal that Zimbabwe acts in accordance with international law,” he said.
He said even though the Danish company was entitled to compensation and interest, there was no indication that this was going to be done soon.
Uriri said if one approached Section 16 (B) of the constitution literally, the judgement would be correct.
However, Tapfumanyei, through his lawyer Gerald Mlotshwa said the acquisition was lawful under Constitution of Zimbabwe Amendment 17.