Expropriation: S. Africa’s landmark headache

By Prof John Harbeson

South Africa’s government appears to be actively considering amending the Constitution to permit some degree of expropriation of land without compensation to the owners. South Africa’s Constitution states that land may only be expropriated for a public purpose or in the public interest provided that any such expropriation is “subject to compensation,” the amount and the timing of payment for which must be agreed to by the parties involved or by a court.

A parliamentary motion approving expropriation without compensation approved in February of this year passed with 75 percent voting in favour. The administration of President Cyril Ramaphosa has recently reported that public hearings have generated “overwhelming” support for the proposal. His government has given this initiative high priority ahead of forthcoming elections in 2019. The President has appointed a panel of experts to advise him on land reform, with their report due by March of 2019, shortly ahead of the elections.

The reason for all this is that nearly a quarter century after the end of apartheid, a South African audit has found that 72 percent of land in the country is still owned by the 9 percent of the population, who are White. To this point, all South African governments since the end of apartheid have adhered to the willing buyer-willing seller principle.

For a great many South Africans, these stark facts attest an enduring failure by ANC governments under presidents Mandela and Mbeki as well as Zuma to end a defining feature of apartheid. From their perspective, South Africa’s experience with land reform dramatically exemplifies the problem that instituting liberal democracy per se does not guarantee any particular socioeconomic outcomes. Economic freedom paralleling political freedom can result in entrenched rights for the few at the expense of the many, or it can result in wholesale trashing of property rights for the many in the cause of expropriating the few.

Thus, Ramaphosa’s government contemplates a distinctive approach to addressing this problem. It emphasizes that it is taking this path by democratic constitutional processes whereas the wholesale seizures of land in Zimbabwe took place under the aegis of then president Robert Mugabe. In effect, Ramaphosa appears to hypothesise that democratic constitutional processes can be a guarantee of sorts that land expropriation will somehow be fair: those most deserving of access to land will receive at the expense of those who possession of it is most excessive or unmerited in some way, so that at least the worst inequalities in landholding are ameliorated. This heroic expectation seems particularly problematic in the South African case, given its levels of corruption, particularly during the term of Ramaphosa’s predecessor, Jacob Zuma.

For Kenyans well acquainted with the country’s history, South Africa’s current situation must evoke a range of emotions and recollections. European settlers never possessed as high a percentage of land as those in South Africa have and still retain, but their importance at the time to Kenya’s economy was arguably relatively greater if also to some extent exaggerated as post-independence economic analysts were quick to observe.

Perhaps the biggest difference in Kenya’s situation then and South Africa’s now is the external international dimension. International investors today are understandably troubled by the current South African debate. In the 1960’s, the World Bank and the British Government financed land resettlement which took much of the steam out of the kettle of land hunger while relieving the fears of European settler farmers that I think it fair to say helped facilitated a peaceful transition to independence – allowing bygones to be bygones, as President Jomo Kenyatta urged. South Africa was in no position to receive any such external leveraging at the time for any number of reasons, nor obviously would it be now. Zimbabwe did receive external funding from Britain for land resettlement when it became independent in 1980 but broadly failed to put it to good use.

Scepticism about the viability of the course the South African government has chosen must be tempered by realisation of how complex and difficult it is and will be to arrange any fair and effective course of action. Any fair and comprehensive approach to redistribution will make huge demands on the country’s human and financial resources to ensure long term beneficial results. Done constitutionally as Ramaphosa proposes, redistribution will be a lengthy process. Selection and vetting of beneficiaries will be an immensely complex and probably agonising process because of the numerous specific claims to particular parcels and because more claims will be advanced than can be accommodated.

The ANC government proposes a bold, risky pathway to ending this bitter apartheid legacy and reclaiming its historic mandate. Kenya’s own experience with land reform since independence may serves as a cautionary tale of what a long-term true land reform can be and how readily its potential benefits can be compromised or lost along the way.