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Operation Murambatsvina - Countrywide evictions of urban poor - Index of articles
Magistrates
shirk judicial responsibilities: Vulnerable groups further exposed
Zimbabwe Lawyers For Human Rights (ZLHR)
October 06, 2005
http://www.zlhr.org.zw/media/releases/oct_06_05.htm
Zimbabwe Lawyers
for Human Rights (ZLHR) is currently representing a group of 252
Mbare residents affected by Operation Murambatsvina who,
after having been illegally evicted from their homes and had their
property and livelihoods destroyed in May and June 2005, have once
again been threatened with eviction from the open fields they now
occupy and further destruction of their homes and other property
by the police and the local authorities. The community has, since
June 2005, been forced to live in the open in squalid and inhuman
conditions, exposed to the elements, at Tsiga Grounds, Ground No.5
and an open area between the two in Mbare, as they have nowhere
else to go.
The community
was visited on Sunday 2 October 2005 by officers of the Zimbabwe
Republic Police (ZRP) with police dogs, and warned to leave the
area they were inhabiting by Wednesday 5 October 2005 or else face
eviction, destruction of their property and possible harm to their
persons. These ZRP officials did not provide formal written notice,
nor a court order, nor notice from the City of Harare, as is required
by law, in yet another incident which highlights the blatant illegality
and impunity with which the authorities continue to act against
the people of Zimbabwe despite local and international public outcry
and condemnation.
On Wednesday
5 October 2005, lawyers from ZLHR sought to file at the Harare Civil
Magistrates’ Court an ex parte application for an interdict
to protect the vulnerable group from this intended action and the
possible attendant damage to person and property without the authorities
first following the correct legal process and before providing them
with suitable alternative accommodation meeting minimum international
human rights standards.
To our dismay,
after perusing the application, the Duty Magistrate disappeared
with the papers, purporting to seek the "advice" of the
Provincial Magistrate. He returned after some time, only to advise
that the Provincial Magistrate, one Ms Chigwaza, had informed him
that the Magistrates’ Court "has no jurisdiction over cases
linked to Operation Murambatsvina". Our lawyer then
sought audience with Ms Chigwaza, who confirmed her contentious
position and advised that the application should be filed in the
High Court. She further indicated that the Harare Magistrates’ Court
had never entertained any cases relating to Operation Murambatsvina.
ZLHR expresses
its deepest concern at the latest actions emanating from judicial
officers, for several reasons:
First, the Magistrates’
Court clearly has jurisdiction to entertain applications for interdicts
and/or spoliation orders. In fact, ZLHR has successfully obtained
ex parte orders, which were later confirmed, from Magistrates’
Courts throughout the country, including the Harare Civil Magistrates’
Court, in relation to Operation Murambatsvina as well as
other unrelated cases. Any issues concerning jurisdiction can only
be raised during formal legal proceedings before a Magistrate in
open court after a file has been opened at the court and a case
number has been allocated. Therefore the actions of the officers
at the Harare Civil Magistrates’ Court were clearly unprocedural
and seemingly calculated to prevent access to the courts by a vulnerable
group exposed to eviction from their homes and the possible danger
of severe harm to person and property.
Second, the
Magistrate’s assertion that the Magistrates’ Courts do not deal
with cases relating to Operation Murambatsvina is clearly
incorrect. A register of such cases handled by ZLHR members and
other legal practitioners is available, and the cases are a matter
of public record. To suggest otherwise is an attempt to mislead
other officers of the court, as well as affected litigants and the
general public.
Third, it is
clear and most unfortunate that senior judicial officers in this
matter have failed to carry out their responsibilities and protect
the rights of those who seek the assistance and intervention of
the courts where their fundamental rights have been violated or
are likely to be violated. The only possible conclusions which can
be drawn by a right-minded person are either that the actions were
taken by the magistrates on the basis of an unlawful instruction
or instructions not to deal with such matters from their superiors
within the Ministry of Justice, Legal & Parliamentary Affairs,
or else that they are afraid to consider cases relating to Operation
Murambatsvina due to their political sensitivity and the
very real threats to their office and/or their personal security
in the event that they rule against the local authorities, the Ministries
concerned or the ZRP, in such a matter.
ZLHR condemns
this situation in the strongest possible terms. A litigant’s right
to secure protection of the law is guaranteed under the Constitution
of Zimbabwe, as well as many international human rights instruments
to which Zimbabwe is a State Party, including the African Charter
of Human and Peoples’ Rights, the International Covenant on Civil
and Political Rights, the Convention on the Elimination of All Forms
of Discrimination Against Women, the Convention on the Rights of
the Child, and the African Charter on the Rights and Welfare of
the Child.
It is clear
that the judicial authorities have, once again, failed to protect
the rights of vulnerable groups and continue to express a worrying
lack of desire to take a rights-based approach to ensuring justice
to those affected by unlawful actions against them by the State.
We call on the
Ministry of Justice, Legal & Parliamentary Affairs to take immediate
and public steps to assure the nation that they are committed to
upholding the fundamental rights and freedoms guaranteed to the
people of Zimbabwe, and we further call on the Executive and Legislature
to confirm publicly their commitment to the separation of powers
so necessary in maintaining the rule of law in Zimbabwe.
ZLHR has since
filed an urgent application with the High Court of Zimbabwe, and
has reserved its clients’ rights to take action against the officials
concerned, both in their official and personal capacities, should
any harm occur to its clients as a result of the unprocedural and
unlawful barriers they imposed in allowing our clients to challenge
the intended unlawful actions of the Commissioner of Police, the
Ministry of Home Affairs and the City of Harare in this matter.
Visit the ZLHR fact
sheet
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