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Legal recourse for evictees
International Bar Association (IBA)
Extracted from IBA Weekly Column on Zimbabwe – No 074
June 20, 2005

Since the Zimbabwean government began its campaign of razing shacks in the country’s urban areas on 19 May, ostensibly to remove ‘criminal elements’ from urban areas, more than 21,000 so-called ‘illegal structures’ have been destroyed and more than 32,000 people have been arrested, many during a recent strike against the evictions. In the process, people’s homes and businesses have been destroyed, leaving thousands of ordinary Zimbabweans destitute.

Wellington Murerwa, quoted on Zimonline, said: ‘I have lost the only source of income that I had after my vegetable stall was destroyed. Since 1981 the only place I have known as a home with my family was a backyard shack, and I cannot start all over again.’ According to estimates, more than two million Zimbabweans live in backyard corrugated-tin-and-wood shacks in urban areas - drawn to the cities from rural areas where sources of income are scarce and livelihoods are threatened.

Various organisations and human rights groups have condemned the forced evictions, including the Zimbawean Teachers‘ Association which described ‘the mental and physical anguish, social humiliation, psychological stress, and extent of material deprivation (as) too excessive to imagine’, Zimbabwe Doctors for Human Rights, Amnesty International and the United Nations Special Rapporteur on Human Rights, Miloon Kothari. Kothari said in a statement that evictions should ‘never result in rendering individuals homeless or vulnerable to the violations of other human rights’ and that governments must ensure that adequate alternative housing is available before evictions are implemented. He also reminded the Zimbabwe government that UN Commission on Human Rights resolutions have called ‘the practice of forced eviction (...) a gross violation of human rights’. Kothari made specific reference to the UN’s International Covenant on Economic, Social and Cultural Rights, ratified by Zimbabwe in 1991, which declares forced evictions as ‘prima facie incompatible with the provisions of the Covenant’.

While analysts argue that this ‘Operation Murambatsvina’ (‘drive out trash’) is the government’s way of punishing urban voters who favoured the opposition Movement for Democratic Change (MDC) over the ruling Zanu-PF in the recent parliamentary elections, for those left without shelter or a source of income, the real question is: what now?

Under the Zimbabwean Constitution, citizens have no explicit socio-economic rights. But there are legal options which the evictees could pursue, argues Gabrial Shumba, a human rights lawyer and director of the Zimbabwe Exiles Forum in South Africa. However, their chances of getting speedy - or any - legal redress are slim.

Shumba says under Zimbabwean law, the Urban Councils Act could be invoked. The Act states that adequate notice must be given before evictions take place. The government gave the owners of the shacks no such prior warning. The country’s Consitution, in Section 15, guarantees people’s right to dignity and protects against ‘inhuman and degrading treatment’. The evictees could justifiably argue that they were treated inhumanely and in a degrading manner when they were thrown out of their homes and their belognings were bulldozed.

However, in light of the severely compromised judiciary, which has systematically been populated with pro-government judges who have shown clear bias in politically sensitive cases, the evictees case is ‘hopeless’, Shumba argues. An urgent application by Zimbabwe Lawyers for Human Rights on behalf of a group of evictees failed. The ruling could be appealed in the Supreme Court, but for the above reasons the evictees have little chance of a fair hearing.

‘Once they have exhausted the Zimbabwe legal system, the next step is to go through the African system,’ Shumba says, referring specifically to the African Commission on and the African Charter on Human and People’s Rights, to which Zimbabwe is a signatory. In a case brought before the Commission in 2001 involving Nigeria’s Ogoni people, it found that there is ‘an implicit right in the African Charter on Human and People’s Rights to adequate housing and that the destruction of houses and evictions violate that right,’ Shumba says.

The relevant articles in the African Charter include Article 14 which guarantees the right to property and states that ‘(i)t may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws’. The government is likely to describe this ‘operation’ necessary for the removal of ‘criminal elements’ and therefore in the interests of Zimbabwe’s security.

Article 16 guarantees the individual’s right to ‘the best attainable state of physical and mental health’ and enjoins member states to ‘take the necessary measures to protect the health of their people’. It could be argued that the Zimbabwean government did the opposite in this case, causing the evictees undue stress and threatening their physical health by throwing them out of their homes and destroying their sources of income.

Shumba also believes that Article 18 may be applicable in this case. This section requires the state to protect the family ‘as the natural unit and basis of society’ from physical harm. While the right to shelter is not explicitly mentioned, the right to property and the protection of the individual’s and the family unit’s health were severly adversely affected by the ‘wanton destruction’ of their homes and businesses by the government, Shumba argues.

However, given the clear pro-government bias in the judiciary and the long time it takes for cases to be heard by the African Commission on Human and People’s Rights, the evictees‘ chances of legal redress are almost non-existent, at least not in the short term. Brian Raftopoulos, professor of Development Studies at the University of Zimbabwe, said, quoted on Zimonline: ‘It may well be that the ruling party is looking to remove ‘surplus’ elements of the urban population ahead of the next presidential election by drawing them into more controllable rural political relations. The long-term implications of this process do not bode well for democratic politics.’

Shumba believes that political rather than legal action is now necessary to halt human rights abuses in Zimbabwe. ‘My feeling is that there comes a time when legal mechanisms are failing the citizen, that recourse to political solutions are the best option. It begs political more than legal intervention. It is only fair to observe that this is a situation in which the international community should act quickly. Human rights violations in Zimbabwe cannot be prevented through legal means.’

* This column is provided by the International Bar Association - An organisation that represents the Law Societies and Bar Associations around the world, and works to uphold the rule of law. For further information, visit the website www.ibanet.org.

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