by Hannes Wessels
The question of legal responsibility with regard to the Zimbabwean farmers dispossessed in the course of the state-orchestrated land seizures beginning in 2000 may never be fully resolved but there are compelling reasons to conclude that Mugabe may be at least partly correct when he insists the British government may have a case to answer and for reasons not widely discussed.
To understand the genesis of the problem one really needs to reach back into history and look at the events that unfolded following the arrival of the Pioneer Column in 1890 which heralded the successful ‘occupation’ of the territory now known as Zimbabwe.
We have listened to interminable blandishments from the Zimbabwean politicos reminding us that the ‘settlers’ or ‘British’ stole the land. Taking that as a platform for discussion the next issue then hangs on identifying the original culprits who dispossessed the ‘natives’. The immediate and understandable response is to blame the ‘British’ colonisers. But here the ‘accused’ (the British government) are ready with what they believe is a watertight response which is based on the English legal maxim that holds simply and bluntly that ‘The King is not a thief’ (the occupation took place during the reign of Queen Victoria) and therefore the Crown cannot commit a crime and is therefore not culpable.
Following on from this the official British position avers the land in question was legitimately acquired through conquest, as was much of the Empire, and therefore, indisputably ‘Crown property’. But in the unique case of Rhodesia/Zimbabwe this is a shaky proposition simply because, if there was ‘conquest’ it was not achieved through the endeavours of the British government. It was financed, facilitated and planned by the British South Africa Company, a privately owned and capitalised company at the behest of Cecil John Rhodes (the world’s first billionaire). So in this case the original ‘thief’ was not the King but Rhodes and his buccaneers and the maxim does not apply.
It is also worth noting at this point that in order to acquire a veneer of legitimacy, Rhode’s emissaries turned to Chief Lobengula of the Matabele who they prevailed upon to sign the Rudd Concession granting the company certain rights within the confines of his poorly defined ‘kingdom’. Bearing in mind Lobengula was almost certainly born in the Marico district of what is now the North West Province of South Africa he was as much a conquering interloper as Rhode’s column-commander Frank Johnson and his men were and therefore his legal standing at the time is also worthy of closer scrutiny.
But as far as The Crown’s possible liability there is a second chink in their legal armour. It arises out of the events leading up to the acquisition of self-rule known as ‘Responsible Government’ in 1923 which led to the election of Sir Charles Coghlan as the first prime minister of the colony then known as Southern Rhodesia.
A precondition set by London for acquisition of self-governing status was that the ‘settlers’ purchase the ‘un-alienated'[i] land in the colony and the price set was £2,000,000 plus interest.
This demand outraged the ‘settlers’ who correctly complained a parsimonious British government had contributed precisely nothing to the entire colonisation process and were therefore not entitled to receive any payment at all. However the British were adamant and the ‘settler’ political leadership of the day prevailed upon their constituents to accede to the demand in order to conclusively clear all real or invented liabilities so the greater goal of nation-building unfettered by debt and British meddling could be engaged upon.
Grudgingly the Rhodesians agreed, payment was made (ahead of the time demanded) and a contract of purchase and sale therefore took place. It is on the basis of that contract that successive title was transferred leading up to the seizures starting in 2000. The billion-pound question that now demands an answer is did the British government of the day ‘sell’ the settlers something they did not own; technically ‘stolen property’? And if they did, are they not then liable for having fraudulently misrepresented themselves and obliged to compensate successive title holders accordingly? On the face of it, it certainly looks like the purchasers acted in good faith and were duped by the vendors. As a result, their successors in title, who also acted bona fide in acquiring transfer of land were the ultimate losers.
For the dispossessed farmers of Zimbabwe maybe they should reconsider their position and look for redress in the land where ‘The King is not a Thief’!
* [i] ‘Alienated’ land in Rhodesia comprising 31 ‘reserves’, was land already set aside for Native habitation following an Order of British South Africa Company Council, promulgated in 1898 .