CHILONGA CASE UPDATE
On the 5th of March 2021, the Zimbabwe Environmental Law Association (ZELA) filed two cases at Masvingo High Court on behalf of Chilonga Community. The Chilonga community was facing imminent eviction from their ancestral lands through the gazetted Statutory Instrument 50 of 2021 in which the government ordered the community members to depart permanently from the land extending approximately to 12 940 hectares by the date of publication of the statutory instrument which was 26th February 2021. ZELA working together with MACRAD Trust and community members filed a court application. This case alert thus seeks to give stakeholders and the public an update on the two cases filed.
Brief description of
the cases filed.
The first case was an
urgent chamber application. In this case applicants sought an urgent interim
order and relief interdicting the respondents (Minister of Local Government,
Chiredzi Rural District Council, Minister of Lands, Agriculture, Water and Rural
Resettlement and Minister of Provincial Affairs Masvingo) and those acting in
concert with or under its instructions from carrying out any eviction in any
part of the Chilonga community flowing from the provisions of SI50/2021 pending
the determination of a Constitutional challenge to the validity of Section
10(3)(d) of the Communal Lands Act read together with statutory Instrument (SI)
50 of 2021 Communal Land (Setting Aside of Land) Chiredzi Notice, 2021.
The second case
that was placed before the court by ZELA is an ordinary court application. ZELA,
MACRAD Trust and community members are seeking an order to the effect that
Section 10 (3) (d) of the Communal Lands Act is constitutionally invalid as it
violates section 74 of the Constitution of Zimbabwe. The applicants make the
argument that SI 50 of 2021 read together with Section 10 (3) (d) of the
Communal Land Act is unconstitutional as it infringes on the right not to be
subject to arbitrary eviction as provided for under Section 74 of the
Constitution of Zimbabwe, right to administrative action that is fair and just
as provided under Section 68 of the Constitution of Zimbabwe, right to equal
protection and benefit of the law in terms
of section 56 of the Constitution of Zimbabwe and , right to dignity enshrined
in section 51 of the Constitution of Zimbabwe.
UPDATE ON THE CASES
The update on
this case will be given in a timeline format.
March 2021 – The Urgent Chamber
application was filed with the court.
of March 2021 the initial set down
date for the case before Justice Wamambo at 1000 am. The specified time was to
allow the Sheriff to serve the court papers on the Respondents and give the
Respondents time to Respond as well. There was a delay in the service of the
papers so the matter could not proceed on the 9th of March 2021.
March 2021 – The new set down
date. Before the hearing on the 12th of March 2021 the government
issued Statutory instrument 63A/21 changing the purpose of the setting aside
the land from “lucerne grass project” to establishing an “irrigation scheme”.
Further, S150/2021 was corrected by the removal of the Minister of Local
Government, Urban and Rural Development substituting the same with the Minister
of Local Government and Public Works.
At the hearing of the matter on the 12th
of March 2021, ZELA made oral submissions on the merits of the case. The
lawyers for the Respondents sought the court’s indulgence to file opposition
papers and seek further instructions from their clients. The Court gave the
Respondents a directive to file their opposition papers by the 16th
of March 2021 and scheduled the matter for hearing to the 18th of
March 2021, two (2) days before
the new set down date, ZELA received opposing papers from Chiredzi Rural
District Council and the
government issued another Statutory Instrument 72A/2021 this time repealing
SI50/2021. The statutory instrument set aside the land for an irrigation scheme
and does not specifically mention eviction.
March 2021, on this day of
hearing, the court heard that SI 72A/2021 has repealed the basis of the urgent
chamber application and the matter was removed from the roll.
This is still an
ongoing case which is not substantially affected by the statutory instruments
discussed above. ZELA awaits notice of opposition from the Respondents.
ANALYSIS OF THE
CHILONGA CASE: MOVING GOAL POSTS DURING PENALTY KICKS!
The Chilonga case
clearly demonstrates the effect of the use of public interest litigation as a
tool to hold the State accountable and overturn unjust laws. The government was
forced firstly to amend and ultimately to repeal statutory instrument SI
150/2021 in response to the legal arguments raised by ZELA. This case has also
shown the abuse of Statutory instruments as a strategy to frustrate ongoing
court cases a tactic should be frowned upon.More than anything else, the case
has also demonstrated that the government just like any litigating parties does
not want Court orders against it. Most importantly, the response from Chiredzi
Rural District Council shows the need to amend and come up with human
rights-based approaches and policies on development induced relocations.
It is important to
note that this case reflects the dire need to amend the Communal Lands Act and
align it with the Constitution. Though ZELA challenged only section 10(3)(d)
there are several other sections of the Act which can be challenged. One critical
issue that needs to be investigated and prioritised is public consultation and
consent in developmental projects. The Chilonga Community was not adequately
consulted as can be gleaned from the opposition papers by Chiredzi Rural
District Council on the urgent chamber application. Free, Prior and Informed
Consent matters (FPIC) and is specifically embedded in the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 32 (2) of the
UNDRIP obliges Member States to consult and cooperate in good faith with
communities concerned through their own representative institutions to obtain
FPIC prior to approval of any project affecting their land or territories.
Under FPIC, communities have the right to give or withhold consent to a project
that may affect them. The State has an obligation
to adopt legislative, administrative, budgetary, judicial, and other
appropriate measures towards the full realisation of the citizens environmental
rights such as FPIC. Thus, the public interest organisation will continue
monitoring the situation in Chilonga.
A sudden change from
‘lucerne grass project’ to ‘irrigation scheme’ shows lack of proper planning
and designing of community projects on the part of the government. The
government is urged to stop the reactionary approach to projects but come up
with projects that are people centred. The case demonstrates that the rights of
indigenous communities need to be protected and Zimbabwe needs to come up with
a proper mechanism for that.
Zimbabwe Environmental Law Association
“Celebrating two decades of Promoting
Environmental justice through sustainable and equitable utilisation of natural
resources and environmental protection.”
Zimbabwe Environmental Law
26 B Seke Road, Hatfield,
Website : www.zela.org |Twitter: @ZELA_Infor | Facebook: Zimbabwe Environmental Law
Tel: +263 242 573 601-3