UNDERMINING THE INDIGENOUS RIGHT TO LAND AND PERPETUATING COLONIAL WRONGS:
BORDER TIMBERS & VON PEZOLD vs ZIMBABWE
In Zimbabwe’s Eastern Highlands, thousands of indigenous families face the imminent risk of forced eviction from their ancestral lands, which they have cultivated for centuries. In blatant disregard of the rights of indigenous people under international law, three investment arbitrators have ordered Zimbabwe to ‘restitute’ their land to Austrian-Swiss-German investors operating large timber plantations in the area, which had been partly seized during Zimbabwe’s land reform programme. The tribunal disdainfully declined to even hear the communities that would be displaced yet again by its judgement.
The South-Eastern Chimanimani region of Zimbabwe is a mountainous area where people’s livelihoods traditionally depended on planting small fields and raising cattle and goats. But after British colonisation in the 1890s, the most fertile areas were taken by white settlers, forcing the local population to move up into the hills and to less accessible and productive lands further afield. To honour the graves of their ancestors and other sacred sites however, some remained behind, cultivating fields in restricted areas, often in return for a form of slave labour known as ‘vhicki’, or ‘chibharo’ for the new land ‘owners’.1
Most of this area was taken away from us by white settlers… Our homes were destroyed, and… we had to live in compounds on our own territory, little more than slaves for the white settlers.
Chadworth Ringisai Chikukwa, late chief of the Chikukwa people2
After Zimbabwe’s independence in 1980, many dispossessed families moved back to their traditional homeland. By then, however, their traditional territories were controlled by Border Timbers Limited (BTL), a successor of the British South Africa Company, which led the imperial conquest under a mandate from the British Crown.
In the 2000s, as part of much-needed land reforms in a country where a small group of white farmers owned almost all land, the returnees proposed negotiations for a “Joint Forest Management” system, under which they would have regained access to the land, while BTL would have continued its business and a fair share of income would have gone to the local community. But Heinrich von Pezold, an Austrian-Swiss-German landholder and by then majority-owner of BTL, rejected the plan with a categorical “we will not yield an inch”.3 While the average size of a farm in Europe is 16 hectares, and 179 hectares in the United States, the Pezold family ‘owned’ at least 78,000 hectares at the time4 – about the size of New York City.
Forced evictions, harassment and violence
BTL and von Pezold launched a flurry of court cases, harassments and violence, forcibly evicting numerous families. One particularly brutal eviction took place in January 2013, when BTL security guards burned down over a hundred homes of the Maguta-Gadyadza community and three children died due to exposure to rain and cold. The clan’s former headman, Thomas Masengedzero Gadyadza, remembers: “They used blow-torches to set my home on fire… I was not able to save any of my possessions. My wife and I ran to the forest and my two children… ran to the forest from where we watched the burning of our home. There was a lot of noise. We were very frightened.”5
We were dispossessed of our land and territory on racial grounds, and we were treated, and in many ways still are treated, as a sub-human species by the very whites who openly have done their best to destroy our culture, our history, and our ability to gain decent livelihoods from our own land, our own labour and our own natural resources.
Phineas Zamani Ngorima, regent chief of the Ngorima people6
Neo-colonial investment arbitration
In 2010, BTL and the von Pezold family sued Zimbabwe under the country’s investment treaties with Germany and Switzerland.7 They challenged government actions during Zimbabwe’s post-2000 land reform programme, including the expropriation of some of the investors’ property in 2005, the violence that occurred at the time, as well as the government’s alleged failure to protect the von Pezolds from settlers on their plantations.8
Zimbabwe lost both disputes in 2015. The three arbitrators who decided both cases ordered the country to return the land to the von Pezolds and forcefully remove the settled communities – consistently referred to as “Invaders” in the award. In addition, Zimbabwe was ordered to pay US$65 million plus interest in compensation (or a hefty US$196 million in case there was no restitution).9 The state challenged both awards (which can be allowed on very narrow legal grounds), but lost again in November 2018.10 Like in colonial times, the twenty-first century tribunal followed the imperial logic of “whoever owns the land, the natives do not”.11
As independent researcher Ciaran Cross has observed, the ISDS tribunal, in an approach disturbingly similar to colonial times, “has effectively enjoined both parties (sovereign and corporate) to facilitate the invasion of the indigenous communities’ lands – to burn their crops and homes, and remove them by force if necessary – in the name of white European capital, again”.12
BTL is attempting to evict the Chinyai people from land and territory that is ours by historical right, which BTL or their predecessors, the British South Africa Company, obtained fraudulently and violently, without our agreement, without compensation, with violence and illegality.
John Sithole Ngezimana Chinyai, elder of the Chinyai people13
As Zimbabwe is obliged to comply with the award, more than 6,000 indigenous families (at least 1,400 of them living in Chimanimani) face the imminent risk of eviction from their ancestral lands and sources of livelihoods as this report goes to press (June 2019).14 Juliet Chirombo Mavare Mtisi, a member of the Gadyadza clan, describes the fear this creates: “I do not feel safe in my home and in my own fields, and I now fear to remain alone at home, if these BTL security guards can come with guns to arrest me and charge me at their will, even if I am innocent.”15
Arbitrators find human rights irrelevant
In 2012, four indigenous people living on the land at the heart of the dispute wrote to the tribunal to try to prevent this scenario unfolding. In partnership with the European Center for Constitutional and Human Rights (ECCHR), they wrote that human rights, and in particular the rights of indigenous people under international law, should be considered by the arbitrators. They argued that the tribunal could not legally reach a decision which would violate their internationally recognised rights to traditional land and to being consulted, for example by declaring the company the exclusive owner of the land, or by declaring their presence unlawful. To do so “would be to produce or make inevitable a violation of (our) fundamental human rights under international law”, the communities argued.16
But the arbitrators denied their petition. Despite acknowledging that the proceedings might impact on the rights of the indigenous people, they asserted that international human rights law had no relevance to the dispute.17 According to the UN Special Rapporteur on the Rights of Indigenous Peoples, this position “amounts to the subordination of indigenous peoples’ rights to investor protections, with no option provided for participation or appeal.”18 Moreover, the von Pezold case is no exception. According to the Special Rapporteur, indigenous peoples’ rights and interests were “effectively ignored” by all investor-state tribunals she looked at for a 2016 report on the issue.19
International investment agreements… contribute to the subordination of indigenous peoples’ rights to investor protections, as those protections become an obstacle to future recognition of indigenous peoples’ pre-existing rights.
Victoria Tauli Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples20
Land grabbing through investor-state lawsuits
As pressure on land is growing globally in a world increasingly impacted by climate change, more investor-state lawsuits concerning agricultural investments have been filed in recent years. Since 2004, at least one such claim has been lodged each year, with six cases initiated in 2018 alone.21
Many land-related investor-state disputes challenge government actions which respond to community opposition to damaging projects.22 One example is the US$52 million case by Swedish investor Agro EcoEnergy, which is suing Tanzania for revoking a land title for a sugar plantation. The revocation followed accusations that the company had grabbed the land because it had failed to obtain the free, prior and informed consent of the affected communities living there.23
Researchers have warned that such investor-state challenges could undermine human rights based approaches to land governance, and hinder necessary land distribution and restitution. Under investment treaties, compensation orders are based on the current full market price of a piece of land (even though it might have been acquired in colonial times at a price way below the full market price) and frequently include compensation for expected future profits. Such high levels of compensation, which go beyond what is required in national law, can make public interest land reforms and actions to address land grabbing too costly for governments to pursue.24
- Makomo e Chimanimani Community Trust: Indigenous Communities in Chimanimani, Zimbabwe, under threat, unpublished draft, 26 March 2018, 2. On file with the authors.
- Affidavit of then Chief Chadworth Ringisai Chikukwa, 30 May 2010, para 8. On file with the authors.
- Makomo e Chimanimani Community Trust: Indigenous Communities in Chimanimani, Zimbabwe, under threat, unpublished draft, 26 March 2018, 52. On file with the authors.
- Eurostat: Farm structure statistics, May 2019 (accessed 12 May 2019); Statista, Average farm size in the United States from 2000 to 2018, 2019 (accessed 12 May 2019). The arbitration award in the von Pezold case mentions 3 properties with a total size of 78,275 hectares: Bernhard von Pezold and others v. Republic of Zimbabwe, Award, 28 July 2015, 45-47.
- Affidavit of Headman Thomas Masengedzero Gadyadza, January 2015, paras 62-63. On file with the authors.
- Affidavit of then Acting Chief Phineas Zamani Ngorima, 22 September 2009, para 85g. On file with the authors.
- Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15; Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25.
- The investors’ arguments are summarised in the award: Bernhard von Pezold and others v. Republic of Zimbabwe, Award, 28 July 2015. For a good summary of the investor claims and the award, see: Jacob Greenberg: ICSID tribunal orders Zimbabwe to return expropriated farms, Investment Treaty News, 16 May 2016. The award from the Border Timbers Limited case remains unpublished.
- Bernhard von Pezold and others v. Republic of Zimbabwe, Decision on annulment, 21 November 2018.
- Ciaran Cross: “Whoever owns the land, the natives do not”: In Re Southern Rhodesia, Critical Legal Thinking, 26 July 2018.
- Ciaran Cross: Invasions in International Investment Law: Re-examining Property Rights, Race and Redistribution, April 2018, unpublished draft, 10.
- Affidavit of John Sithole Ngezimana Chinyai, 16 May 2007, para 42. On file with the authors.
- Email communication with Rob Sacco of the Nyahode Union Learning Centre in Chimanimani, 1 June 2019.
- Quoted in: Makomo e Chimanimani Community Trust: Indigenous Communities in Chimanimani, Zimbabwe, under threat, unpublished draft, 26 March 2018, 54. On file with the authors.
- ECCHR, Human Rights inapplicable in International Investment Arbitration? A commentary on the non-admission of ECCHR and Indigenous Communities as Amici Curiae before the ICSID tribunal, July 2012, 8.
- Ibid, 6-7.
- Special Rapporteur on the rights of indigenous peoples: Report to the Human Rights Council on the impacts of investment agreements on the rights of indigenous peoples, 11 August 2016, para 66.
- Ibid, para 55.
- Ibid, para 35.
- CCSI, IIED and IISD: Agricultural Investments under International Investment Law, October 2018, 4. Additional research for cases filed in 2018 via the databases of UNCTAD and ICSID.
- Ibid, 4, 11.
- For more information, see: War on Want: Agro EcoEnergy v Tanzania, January 2019.
- Lorenzo Cotula: Land rights and investment treaties. Exploring the interface, 2015.
- Ibid, 4.