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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.

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