Background Briefing

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Zimbabwe’s Obligations under International Law

Evictions conducted by a state can give rise to serious human rights violations. This is particularly true when they are carried out by force or without procedural guarantees.  Zimbabwe acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in May 1991 and is bound by its provisions. Zimbabwe also ratified the African Charter on Human and Peoples’ Rights in 1986. The Charter does not specifically provide for protection against forced evictions, but has extensive provisions on the protection of human rights that are typically affected by the practice of forced evictions, such as the right to freedom of movement and residence, the right to personal security and the rights to education and to enjoy the best attainable state of physical and mental health. Decisions by the African Commission have articulated the obligations of state parties in protecting these rights.

As the testimonies in this report show, the way in which the evictions were conducted in Zimbabwe had a devastating impact on the most vulnerable sections of the population. Many sick individuals were denied their right to basic medical attention. Children in the areas affected by evictions and relocated though displacement, were unable to receive the education they are entitled to. Zimbabwe is also a state party to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR regulates among others, the right to freedom of movement and to choose residence, and the right to an effective remedy to prevent or seek redress in the event of human rights violations.

There may be highly exceptional circumstances where it is justifiable for the state to conduct forced evictions.149 In terms of Article 4 of the ICESCR, evictions can be done when they are in accordance with national law which is compatible with international instruments, and the purpose of the evictions is to promote the general welfare in a democratic society.  In such cases, important procedural guarantees in the conduct of evictions must be followed. The Zimbabwe government failed to follow any of the required procedures. Prior to the evictions, the authorities did not consult with those to be evicted. The evictions were carried out with little or no notice, without due process and frequently by force, using harassment and intimidation. Finally, they rendered most of the people affected homeless and vulnerable.

Zimbabwe’s national laws such as the Regional, Town and Country Planning Act and the Housing Standards Act refer to certain procedures for carrying out evictions which the government failed to follow.150 These include the provision of adequate notice and court orders by local council authorities. However, Zimbabwe’s national laws on the right to adequate housing are only partly in line with international standards. No law exists in Zimbabwe that prohibits arbitrary evictions and grants a measure of protection of tenure to the persons who could be affected.

Right to freedom of movement and choice of residence

By compelling people to move to the rural areas against their wishes, Zimbabwe is violating article 12 of the ICCPR which declares that everyone shall have “the right to liberty of movement and freedom to choose his residence.” It is widely agreed that incorporated in the freedom of residence is the right not to be moved. As noted by article 12 (3), restrictions on the freedoms of movement and to choose residence are permitted only when provided by law and for reasons of “national security, public order, public health or morals, or the rights and freedoms of others.” Such restrictions must narrowly be interpreted so as to not to “impair the essence of the right.”151 The restrictions must be proportionate and suitable to achieve the lawful end intended, that is, the protection of fundamental values such as the rights and freedoms of others.   Finally, the restrictions must also be consistent with other rights recognized by the ICCPR.

Right to adequate housing

The right to housing is a fundamental component of the right to an adequate standard of living and is vital to the enjoyment of other human rights.

Article 11.1 of the ICESCR calls on state parties to “recognize 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. State parties will take appropriate steps to ensure the realization of this right.”

The right to adequate housing not only includes adequate privacy, space, security, protection from the elements and threats to health, ventilation at a reasonable cost, but also, among other things legal security of tenure—including protection against forced eviction, harassment and threats.152

Security of tenure

A basic protection against forced eviction is for the state to take prompt steps to confer legal security of tenure on people who lack such protection and, as soon as possible, to develop legislation to prevent forced eviction in accordance with human rights standards.

The Zimbabwe government has no legislation which regularizes the situation of those living in the “illegal” sector.153  The result is that few people in Zimbabwe—especially those living in informal houses in urban high density areas—have legal security of tenure. But, Zimbabwe has an obligation to respect the right to housing, not only in the case of those who can show documents to prove legal title, but also to those living on informal settlements.

Both the Committee on Economic Social and Cultural Rights and the UN Commission on Human Rights154 have called on states to provide legal tenure to those threatened with forced eviction. In its General Comment 4, paragraph 8, the ICESCR lists various types of tenure, including informal settlements, and adds: “[n]otwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with the affected persons and groups.”155

General Comment 7 of the ICESCR on forced evictions calls for legislative measures which “(a) provide the greatest possible security of tenure to occupiers of houses and land, (b)conform to the Covenant and (c) are designed to control strictly to the circumstances under which evictions may be carried out.”156

Due process and the right to effective remedy

The CESCR holds that the right to adequate housing is at least consistent with the provision of legal remedies such as legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions and legal procedures seeking compensation following an illegal eviction.157

Article 2 (3) of the ICCPR requires that State Parties, including Zimbabwe, ensure that any persons whose rights or freedoms spelled out in the Covenant are violated has a right to an effective remedy, determined by a competent authority.

As state party to the ICESCR, Zimbabwe is required to “…see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.”158

[149] The CESCR, in its General Comment 4 on the right to adequate housing, paragraph 18, states that “[t]he Committee considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.” In its General Comment 7, the Committee makes it clear that forced eviction and house demolition as a punitive measure are also inconsistent with the norms of the ICESCR.

[150] Refer to section 32 of the Regional Town and Country Planning Act and sections 16-22 of the Housing Standards Act.

[151]   Human Rights Committee, General Comment 27 on freedom of movement. Para 13.

[152]   CESCR, General Comment 4, paras 7 and 8.

[153] Zimbabwe State Party Report on the implementation of the International Covenant on Economic, Social and Cultural Rights, 25 September 1995.

[154] See Commission on Human Rights resolution 1993/77a on forced evictions.

[155] CESCR, General Comment 4, para 8.

[156] CESCR, General Comment 7.

[157] CESCR, General Comment 4, para 17. See also the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, who in paragraph 46 (c) of his 2002 report to the Commission on Human Rights, called on governments to “[g]uarantee access to judicial remedies for violations of the right, such as forced evictions, deliberate denial of civic services, including reparations for damages suffered…”

[158] CESCR, General Comment 7, para 13.

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