HUMAN RIGHTS MONTHLY

Number 37                                          July 2005

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Housing Rights in Zimbabwe

     What are housing rights?

Adequate housing includes such necessities as adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at reasonable cost. The above implies that the right to housing is much more than simply a roof over one’s head. Housing rights therefore also mean people must be protected from forced evictions such as recently occurred in Zimbabwe under the clean up exercise code named “Operation Murambatsvina”.

As the principal issues relating to housing rights are highly topical in Zimbabwe, it is important that this Human Rights Monthly clarifies any misunderstandings and misinterpretations that people might have surrounding the scope of the right to housing and its implications. More importantly, this Monthly seeks to discuss the inhumanness and disregard of the human rights of the evictees who are protected by Zimbabwe’s Constitution and international laws. It is not intended to address the legality or otherwise of the structures that have been destroyed.

Housing and Zimbabwe’s International Obligations

Zimbabwe is a signatory to the International Covenant on Economic, Social and Cultural Rights which contains the most significant foundation of the right to housing. Article 11.1 of the Covenant declares that:

The State Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right.

The right to adequate housing finds explicit recognition within an array of other international instruments to which Zimbabwe is a party, including the Universal Declaration of Human Rights (Article 25 (1), and other international human rights instruments which go a step further in guaranteeing the housing rights of certain groups such as migrant workers, disabled persons, the elderly, women and children.

Under the general obligations clause of Article 2 (1) of the International Covenant on Economic, Social and Cultural Rights, a State Party is required to take legislative and other steps to the ‘maximum of its available resources’, with a view to achieving ‘progressively’ the full realisation of the rights recognised in the Covenant, including the right to housing. This means that the Government of Zimbabwe has a legal obligation to all its citizens to be concerned about their shelter needs, and to accept the fundamental obligation to protect and improve houses rather than destroy them. More importantly, any member state to the United Nations or the African Union has a right to voice concern on any breaches of the international and human rights instruments which Zimbabwe has voluntarily signed.

Furthermore, the 1998 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights notes in Guideline No. 10 that “resource scarcity does not relieve States of certain minimum obligations in respect of their implementation of economic, social and cultural rights”. Thus if the Zimbabwe Government should argue that it is unable to meet its minimum obligations to the right to housing for its citizens because of a lack of resources, it must at least be able to demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy those obligations.

Apart from these obligations, international law creates a number of legal obligations on every state to respect, protect, promote and fulfill the enjoyment of human rights by all those under its jurisdiction. The obligation to respect housing rights requires the Government of Zimbabwe, and thereby all of its organs and agents, to desist from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the rights of the individual to housing. In Zimbabwe’s case the responsibility to respect housing rights requires the State to refrain from rendering people homeless by carrying out forced and arbitrary evictions of persons from their homes under “Operation Murambatsvina”. By pleading some of its obsolete national laws to justify “Operation Murambatsvina”, the Government of Zimbabwe is in breach of its legal international obligations.

Concurrently, the obligation to protect the right to housing obliges the State and its agents to prevent the violation of any individual’s right to housing by any other individual or non State actor. The Government of Zimbabwe, therefore, has a duty to protect its people from abuse by landlords, property developers, land - owners or any other third party capable of abusing these rights. Where such infringements do occur, public authorities should act to preclude further deprivations as well as guaranteeing access to legal remedies for any infringement caused.

It is clear from the prevailing dire economic situation in Zimbabwe that the Government cannot be expected to build a house free, for every Zimbabwean. However, the Government of Zimbabwe is obliged to fulfill its duty to provide housing by undertaking measures necessary for guaranteeing for each person under its jurisdiction opportunities to access the entitlements of housing rights which cannot be obtained or secured through exclusively personal efforts.

Clarifying what governments are not obliged to provide

The former United Nations Special Rappoteur on housing rights, Justice Rajindar Sachar in his final report in 1995, noted that housing rights should not be taken to imply:

a) that the State is required to build housing for the entire population;

b) that housing is to be provided free of charge by the State to all who request it;

c) that the State must necessarily fulfill all aspects of this right immediately upon assuming duties to do so;

d)   that the State should exclusively entrust either itself or the unregulated market to ensuring this right to all.

International law and forced evictions

General Comment No. 7 of the Committee on Economic, Social and Cultural Rights, the body of independent experts that monitors implementation of the Covenant by its States parties, defines forced evictions as “the permanent or temporary removal against the 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”. However, the prohibition on forced evictions does not apply to evictions carried out by force in accordance with domestic law and in conformity with the provisions of international human rights law.  Therefore, in cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international law and in accordance with general principles of reasonableness and proportionality.

The Committee on Economic, Social and Cultural Rights has considered procedural protections which should be applied in relation to forced evictions. These include:

(a) making sure that the evictions do not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available;

(b) affording the evictees an opportunity for genuine consultation;

(c) giving adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;

(d) making sure that especially where groups of people are involved, government officials or their representatives be present during an eviction;

(e) guaranteeing that evictions do not take place in particularly bad weather or at night unless the affected persons consent;

(f) providing legal remedies to those affected by the eviction orders.

“Operation Murambatsvina” and its implications

On 19 May 2005, the Chairperson of the Harare Commission, Ms Makwavarara, announced the official launch of “Operation Murambatsvina”. An Enforcement Order requiring Greater Harare residents to demolish any illegal structures such as outbuildings, wooden and metal shanties was advertised  in the Herald of  24 May 2005. The advertisement purported that the Enforcement Order would come into operation on 20 June 2005. Barely 24 hours after this notice, and clearly in breach of the Enforcement Order, police officers dressed in riot kit and armed with automatic firearms loaded with live ammunition, descended on poor urban people in high-density suburbs, in and around towns and cities, all over Zimbabwe. The ensuing operation involved the bulldozing, smashing, and burning of structures housing many thousands of poor urban dwellers.

The main official explanation for the campaign against the informal settlements and shanty dwellings was that the housing was erected illegally without proper permits and planning permission. There is no doubt that in most instances these settlements had no proper sanitation and posed a health hazard. However, what remains repugnant is not the illegality or otherwise of the homes but the total disregard that “Operation Murambatsvina” had for people’s human rights to shelter, education, health, dignity and inherently to life.

For a considerable period of time, the Government of Zimbabwe has not been able to meet the housing needs of its low-income citizens within urban and peri-urban areas. The National Task Force on Housing in 2000 acknowledged a cumulative backlog of over 1 million housing units. In 2003, the Ministry of Local Government, Public Works and National Housing further noted the inability of Government to provide decent and affordable housing. It noted that Government plans for housing fell far short of the annual target of 162, 000 units between 1985 and 2000 with actual production ranging between 15, 000 and 20, 000 units per annum. By 2002, formal sector housing production rates had decreased and only 5, 500 units were serviced in eight major areas compared to an estimated annual demand of 250, 000 units. Given this huge shortfall in available legal housing facilities, people were forced to build makeshift structures to house their families, or to obtain lodgings in other people’s houses, often in highly congested conditions. The Combined Harare Residents Association estimates that prior to the clean up operation, in Harare alone over half the city’s estimated 3 million residents had been living in makeshift housing. In Mutare, Zimbabwe’s fourth largest city, the City Council said that there were less than 30 000 legal housing structures, and the rest of the city’s estimated 1.5 million people lived in wooden shacks.

Faced with such a daunting challenge the Government and its local authorities, for several years acquiesced and in some instances encouraged the establishment of these so called ‘illegal’ settlements. At the height of the Fast Track Land Reform Programme in 2000, Government encouraged the setting up of Housing Cooperatives for war veterans and other individuals who needed housing. The Government through various officials such as Minister of Local Government, Ignatius Chombo, Resident Minister of Harare, Governor Witness Mangwende, then Minister of Local Government, John Nkomo recognized and approved a number of the so called ‘illegal’ housing projects in Harare. In some instances, the City of Harare surveyed land to be divided into housing stands and in other areas constructed roads and other basic amenities such as schools and clinics.

The destruction of structures that housed thousands of people was done in most cases without providing any alternate accommodation whatsoever. At Porta Farm, one of the areas affected in Operation Murambatsvina, an operative High Court Order, issued in September 2004 preventing the Government from evicting the residents until alternative accommodation including basic infrastructure and services had been provided, was disregarded. Many of the evictees had nowhere to go, and were forced to sleep out in the open for several weeks during the peak of winter. Some evictees, however, were forced to go to transit camps in which the conditions were worse than where the people originally stayed. Estimates have put the number of people displaced at well over a million.

The indiscriminate nature of the demolitions, in addition to rendering many people homeless, also compromised an estimated 300 000 school children who have now been put out of school. Many displaced children were taken out of their original school catchment areas and without ready or affordable means of transportation, attending school became impossible. With regards to  HIV/AIDS, an estimated 79, 500 persons over 15 years of age living with HIV/AIDS were displaced. Consequences include an increase in vulnerability to HIV/AIDS and a disruption in HIV/AIDS services particularly Anti Retro - Viral (ARV) treatment , home based care and prevention. In cases where ARV treatment has been disrupted, this could result in drug resistance, declining health and ultimately death.

Apart from breaching international law, “Operation Murambatsvina” was so grossly and unjustifiably inhumane and degrading that it amounts to a contravention of Zimbabwe’s Constitution. Section 15 of the Constitution provides that no person may be subjected to torture or inhuman or degrading punishment or other such treatment. “Operation Murambatsvina” also violated a number of the rights proclaimed in the Administrative Justice Act, particularly the provision requiring that all administrative authorities, including the City Councils and the Police Force, act lawfully, reasonably and in a fair manner.

Various Government officials have erroneously made statements encouraging now homeless people to return to their rural homes. Much to the contrary, many of those living in shanty accommodation are originally from other countries, such as Malawi and Mozambique and have no right of residence in any rural area in Zimbabwe. Furthermore, many rural areas are already facing acute food shortages. Forcing those deemed Zimbabwean into these areas will obviously increase this problem. Very much after the event, and probably in response to the heavy criticism of these destructive actions, the Government of Zimbabwe embarked on a massive 3 trillion dollar reconstruction operation to provide more decent accommodation. The Human Rights Forum applauds this move and hopes that the Government of Zimbabwe will work on restoring the affected people’s lost dignity and human rights by assisting them in building and finding alternative housing.

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