LITIGATION ALERT! 22 March 2021 CHILONGA CASE UPDATE
CHILONGA CASE UPDATE
Introduction
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[5] 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
URGENT CHAMBER APPLICATION
The update on this case will be given in a timeline format.
- 5th March 2021 – The Urgent Chamber application was filed with the court.
- 9th 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.
- 12th 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.
- 16th 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.
- 18th 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.
CONSTITUTIONAL CHALLENGE CASE
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.
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