Protection of property rights versus economic development in emergent states with emphasis on Zambia

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Zimba, Lawrence Silas
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The domain of this study is entitled, "the protection of property rights and the needs of economic development in the emergent African states with special emphasis on Zambia". The central point intended to be pursued is the proposition that economic development is a fundamental aim of any new, emerging state. Throughout Africa the notion that political independence is meaningless unless accompanied by the indigenization of the economy is accepted. In fact the peoples of Africa had been promised (by their respective nationalist leaders) improvement from self government. Dr. Nkrumah assured his listeners that ”if we get self-government we’ll transform the gold coast into a paradise in ten years". His fellow nationalist leaders elsewhere on the continent had made similar promises. And the African people genuinely believed their leaders. Consequently, support for anti-colonialism contained a greater weight of economic and social expectation than simply a desire to gain indigenous rulers. Political independence was eventually achieved by many of the countries. Indeed the 1960s is correctly termed as the decade of African independence. Firstly, it is argued in this paper that African leaders found it difficult to proceed with the implementation of economic development, based on the nationalization of foreign-owned enterprises because the legal order which they inherited was not so conducive to the attainment of these objectives. Going through the bills of rights written in the independence constitutions for most of the Commonwealth African countries, there are provisions which have had the undesirable effect of limiting the power of the nationalist governments to initiate development programmes along socialist lines. Indeed there is evidence in support of the contention that the protection of property rights in the Commonwealth African bills of rights were consciously written in order to entrench, not the economic interests of the ex-colony, but those of the foreign power and its allied profit motivated companies. The adverse effects on economic independence induced by these kind of property provisions perhaps weighed more heavily on Zambia than any other Commonwealth African country, because the backbone of her economy, copper, was owned by a foreign company, the British South Africa Company. The extraordinary extent of the country's dependence upon copper, coupled with the immoral method by which the company acquired its title to the minerals, made its ownership intolerable to the nationalist government which took office in 1963. Yet the independence constitution written for Zambia 'completely’ prohibited confiscation of property by the nationalist government. This obviously entrenched the rights of the company at the expense of the proper development of the country's mineral resources for the benefit of the community as a whole. In this paper, measures which the Zambia government took to revise the colonially-inherited provisions relating to the protection of property rights so as to render them responsive to economic needs of the country are discussed. A similar discussion is undertaken with respect to the position in Uganda and Botswana. The neighbouring Tanzania has no bill of rights so that the situation there is slightly different. But, the discussion on protection of property rights and economic development in this paper is by no means limited to constitutional provisions on property rights; it covers any law, statutory or otherwise, insofar as it has some relation to the individual ownership of property - so that the nationalization legislation in Tanzania is properly in the scope of this inquiry and is discussed in the light of the economic development objectives and political philosophy which characterizes Tanzania's approach to the tackling of modernization problems. It must also be pointed out that the proposition which this work seeks to establish is that every country, whether African or not, is entitled to take measures intended to protect her economy, and that these measures invariably aim at destroying the very legal foundation upon which protection of foreign-owned property rights is based. The paper then demonstrates that the principle of economic self determination is solidly entrenched in inter¬national law. According to the latter, the principle of economic Self determination is bound up with the idea of the sovereignty of the state. As such every state possess a paramount sovereignty over its natural wealth and resources. In the exercise of this sovereignty, a state government may deem it fit, in the name of public security or national interest to nationalise, expropriate, or requisition any of the property lying within its boundaries. Surely national interest should override purely individual or private interests, both domestic and foreign. But although nationalization of private property of aliens is permitted in international law yet the same imposes conditions under which these can be carried out. The paper discusses these conditions (which also found their way in the national constitutions of Commonwealth Africa) from the background of the exigencies engendered by the needs of economic development. Apart from arguing that economic development in a new nation Must start from the point of restructuring the colonially-inherited legal order to one which would support the economic evolution, the paper also demonstrates that the only one reliable and effective instrument at the disposal of the African socio-economic reformers, is law. Law, and its personification, the state, are the only principal instruments through which the aims of economic development can be implemented. In making this statement, the author views economic development to comprise of other interrelated elements which exist side by side with economic development but which may not be purely economic. Three of these "co operant factors" involved in economic planning which are discussed elsewhere in this paper can easily be identified, viz: social equality, increased national productivity and equal distribution of wealth. In a very big way the work attempts to show that law and legal institutions have an important place in social change in general and in the rate of economic development in particular. Necessarily implicit in the contents of the paper is the assertion that an African legal scholar must abandon the habit of looking at law as merely a mechanism of conflict-resolution or as a regulative mechanism concerned only with reconciling social tensions among citizens. There is no question that this is one of the functions of law. But there are other functions of law aside from these, and in conditions of development, it is not even clear that those aforementioned ones are, in some transcendental sense, better than others. In the areas chosen for this study. Commonwealth Africa, legal education is generally oriented towards training lawyers in their craft, largely by teaching doctrine and technical legal skills. This education is highly deficient in development states as will become clear from the text of the paper. Broadly, then one may say that, in part, the subject matter of this investigation covers a study of the use of the normative system called law to bring about economic development. It Is a study of how law and legal institutions can be used, in the words of professor Lawrence Friedman, "to set off, monitor, or otherwise regulate the fact or pace of social change"• In fact a long time ago Max Weber had already seen and forged connections between law, economy, and society. It will be noticed that the third part of the paper deals with law as an instrument of social equality in emergent states: The subject of social equality has become very topical in socialist states of Africa. It must be stressed that African leaders are in as much search for 'social democracy’ as they are for economic democracy and political democracy. Their commitment to socialism has instinctively led them to believe in the African version of social justice which implies building a social order based OD social equality and egalitarianism. The colonially-inherited social order was naturally intrinsically bound up with the values of capitalism which meant prevalence of social inequalities among the population, and also exploitation of man by man Part three of the dissertation discusses the law which at least two African countries, Tanzania and Zambia, have passed to close up the inequity incidents among the population, and also the laws preventing, or at least making It difficult for, anyone to exploit his fellow man. Two legal institutions which have been set up in Tanzania and Zambia to achieve the above stated social objectives are, (i) the leadership regulations, and (ii) the nationalisation of land. As will be explained, Zambia has not as yet socialized its land tenure system although the legislation to this effect is in the pipeline. But the important point here is that both Tanzania and Zambia have passed legislation whose ultimate purpose is to maximize social justice and to advance the ideals of building their respective societies based on egalitarianism. In the abstract then, it is sufficient to summarize the objective of this dissertation by saying that it is concerned with a review of the activities of the Commonwealth African legislatures insofar as these activities are aimed at introducing a certain legal order considered ideal to economic development, increased national productivity and social equality. This can be ensured, at least in a socialist state, by restricting the individual rights to property, and by giving legal power to the state to intervene in the national economy so as to give the latter a new socialist orientation.
Property -- Zambia. , Property and socialism. , Right of property -- Zambia. , Zambia -- Economic policy.