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This article participates on the following special index pages:
Operation Murambatsvina - Countrywide evictions of urban poor - Index of articles
Operation
Murambatsvina/Restore Order - "Knowing Your Rights is Protecting
Your Rights"
Zimbabwe Lawyers For Human Rights (ZLHR) and Zimbabwe Women Lawyers'
Association (ZWLA)
August 12, 2005
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Facts
Zimbabweans countrywide have, since 19 May 2005, been subjected
to the effects of a wide-ranging set of actions undertaken by a
comprehensive set of state actors, including various Ministries,
local authorities, the Zimbabwe Republic Police (ZRP), the military
police and the army, and named Operation Murambatsvina
and Operation Restore Order ("the Operations").
Action
In its implementation the Operations have seen:
- a clamping
down on the activities of informal traders (with confiscation
and/or destruction of their goods and stalls and arrest of individuals),
although a great number of these informal traders were carrying
out activities authorised by local authorities, for which activities
they paid monthly rentals to the local authorities;
- similar action
against street vendors, many of whom hold licences and permits
from the local authorities;
- the demolition
of buildings said to be "illegal structures" in high
density and other residential areas, but which, in fact, were
buildings that had been planned and approved by local authorities.
Many of these buildings were people's homes, and so the
demolitions resulted in the affected people being rendered homeless
and exposed to the elements. Some of the homeless had no rural
homes or relatives to assist them including Zimbabweans of Mozambican
and Malawian descent, and so were forced to relocate to transit
camps such as Caledonia Farm in Harare and the Sports Oval in
Mutare
Effects
The United Nations Special Envoy on Human Settlements Issues in
Zimbabwe who was sent to investigate and report on the Operations
estimated that at least 700 000 people in urban areas lost their
homes or livelihoods or both, while at least 2.4 million people
were indirectly affected in varying degrees. The affected include
children (300 000 children are said to have been forced out of school),
the elderly, and the sick (some of whom were benefiting from home-based
care and were on essential life-saving medication). There were also
reports of several deaths arising as a direct result of the Operations.
Generally many people lost their homes, their jobs and livelihoods,
children stopped going to school, and some people died. The massive
internal displacement of people has also not yet been fully appreciated.
Your
Rights
Human rights are those rights that are inherent in human kind, are
universal, indivisible and interdependent. Such rights are not owned
or bought, do not belong to any government or authority, but belong
to every human being by virtue of their being human. As such, human
rights are said to be "an entitlement or legal
claim you have - by virtue of being human - against
the State (or against any person or authority)".
Human rights
are therefore protected by the law - both the domestic laws of Zimbabwe,
and other regional and international legal instruments to which
Zimbabwe is willingly a party, and which the state is legally obliged
to promote and protect. The Operations have clearly caused the violation
and abuse of these human rights.
Zimbabwe's
Laws
In Zimbabwe there is a supreme Constitution
and laws that promote and protect the human rights of all people
living in Zimbabwe. Not only are there laws that generally protect
rights, but there are also laws that provide for proper procedures
to be followed by the authorities before people can be evicted or
made to abide by local planning policies. If these laws are followed,
they mitigate the violation of human rights that may be caused by
such Operations.
- Constitution
of Zimbabwe
- The Constitution is the most powerful law in Zimbabwe, which
provides for human rights in the Declaration of Rights. Our Constitution
does not contain economic, social and cultural rights such as
the right to shelter, food, education, work, health and a good
standard of living
- However, the doctrine of legitimate expectation entails
that Zimbabwe must protect all rights that are guaranteed in the
regional and international instruments to which it is party. Further
the interdependent nature of human right means rights cannot be
enjoyed separate from each other. For example, the right to life
(which is in our Constitution) cannot be enjoyed without the right
to health, food or shelter (which are not in our Constitution)
- Regional,
Town and Country Planning Act [Chapter 29:12]
- A local authority has power to implement a local plan. It can
remove, demolish or alter existing buildings or discontinue or
modify uses or operations therein. Before it takes any such
action it must give notice to the affected person, stating the
nature and grounds upon which it proposes such action and allow
time for such a decision to be contested by the affected person
- One can in fact regularise any unplanned buildings, "illegal
structures", and make them legal, without the need to demolish
the entire structure
- Housing
Standards Control Act [Chapter 29:08]
- This Act creates the Housing Court, which is any Magistrates'
Court around the country
- A local authority may apply to the housing court for
a demolition order or closure order for any building that it deems
to be of unsatisfactory standard
- Administrative
Justice Act [Chapter 10:28]
- Where a local planning authority seeks to take any administrative
action that affects the rights, interests or legitimate expectations
of any person that authority must act lawfully, reasonably and
in a fair manner
- Those affected must have explained to them the nature and purpose
of the action and must be given reasonable opportunity to make
representations in their defence before any action is taken by
the authorities
Regional
& International Standards
Zimbabwe
ratified and became a State Party to such regional and international
instruments as the Universal Declaration of Human Rights (UDHR),
the International Covenant on Economic, Social and Cultural Rights
(CESCR), the International Covenant on Civil & Political Rights
(CCPR), the African Charter on Human & People's Rights
(ACHPR), the African Charter on the Rights & Welfare of the
Child (ACRWC), the Convention on the Elimination of Discrimination
Against Women (CEDAW), and the Convention on the Rights of the Child
(CRC). As a State Party to these regional and international instruments
Zimbabwe's government has an obligation/duty to make sure
that every person living in the country enjoys the rights contained
in these international and regional instruments and that they are
not taken away from them or violated. Some of the rights protected
include:
- Right
to adequate standard of living, including housing, and to continuous
improvement of living standards
CESCR General Comment 4 provides for the right to adequate housing
for everyone regardless of age, economic status, affiliation,
group, etc. Aspects of the right include legal security of
tenure, accessibility, and location. This right cannot be
viewed in isolation from other rights such as human dignity, non-discrimination,
and the right not to be subjected to arbitrary interference with
one's privacy, family, and home
- Protection
Against Forced Eviction
The CESCR's General Comment 7 obliges the State (Zimbabwe)
to refrain from forced evictions and ensure that the law is enforced
against its agents or third parties who carry out forced evictions.
Forced evictions are defined as: the permanent or temporary
removal against their will of individuals, families and/or communities
from the homes and/or land which they occupy, without the provision
of, and access to, appropriate forms of legal or other protection
and with or without State sanction.
- Right
to Property
Every person has the right to own property in his own name and
to claim compensation where such property has been taken or destroyed
without a lawful cause
- Provision
of alternative Accommodation
Where evictions are necessary the government must make
provision for alternative accommodation so that people are not
left in the open
- Protection
of the family unit
Zimbabwe is obliged to protect, assist and respect the family
unit as the natural and fundamental group in society
- Right
to the enjoyment of the highest attainable standard of physical
and mental health
- Right
to work and choose where to work and obtain income for oneself
and his family
- Right
to life; liberty (not to be arrested without cause)
- Protection
against torture or other forms of cruel, inhuman or degrading
treatment or punishment
The destruction of people's homes or forcing them to destroy
them, leaving them in the open to brave the cold and taking away
their livelihoods so that families cannot fend for themselves,
amounts to cruel, inhuman and degrading treatment
- Right
not to be discriminated against
Discrimination includes a situation where an individual or group
of people whether because of their sex, race, political affiliation,
poverty or social status, are subject to some kind of ill treatment
as opposed to another group that is spared the same
What
to do if your rights have been, are being, or are about to be violated
The
law generally provides safeguards which one can use to protect,
retain or claim his/her human rights:
- Section 18
of the Constitution of Zimbabwe guarantees the right to secure
protection of the law
- Section 24
of the Constitution of Zimbabwe gives opportunity to a person
whose rights, as provided in the Declaration of Rights, have been,
are being, or are likely to be violated or abused, to seek protection
from the Supreme Court of Zimbabwe
- Generally
one can also approach the High Court or Magistrates Court or Administrative
Court in the area in which they have been affected in the following
cases:-
- where
someone is threatened with eviction from their home one can
seek an interdict in the Magistrates' Court to stop
such eviction
- where
someone has already been evicted s/he can apply for a spoliation
order allowing the evicted person to return to her/his home
- There is
a general principle that no one can evict a person from a place
s/he occupies, whether legally or illegally, without a court order
authorising such eviction. This principle of law seeks to stop
people from taking the law into their own hands and abusing it
against others
- Where a
person has lost property due to the conduct of another, that person
has a right to claim compensation for his/her loss against the
authorities and against the individuals responsible for that loss
where their identities are known - that is to say, the monetary
value of the property as at time when the loss was suffered
- A person
can also claim damages for pain and suffering caused by physical
harm such as beatings; for unlawful arrest and detention; and
for loss of income
Where can one go for assistance?
There
are various organisations which you can approach for assistance/advice
if any of rights listed above have been violated in relation to
yourself or those you know, or where you are unsure of how to proceed
or handle the authorities. You can approach the following service
providers, who will either provide assistance or refer you to other
organisations better able to handle your specific queries or difficulties:
***The information
contained herein is offered in the public interest as general advice
and should not be considered to be legal advice to be relied upon
in specific cases. In such instances affected persons are urged
to approach the legal service providers listed above, or a registered
legal practitioner, for legal assistance and/or representation***
Visit the ZLHR
fact
sheet
Visit the ZWLA fact
sheet
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