The constitutional right of children to shelter can be
enforced through the courts, the Supreme Court has ruled, when it stopped a set
of evictions that would leave children homeless and set the High Court a
six-tier inquiry to follow when reconsidering the matter.
The ruling follows an appeal against a High Court decision
dismissing an application by six minor children and their two single mothers,
who are widows, living at Haydon Farm’s New Park, who were seeking to stop
their ejection from the informal settlement.
The families listed as applicants along with Zimbabwe
Homeless Peoples Federation (ZHPF) had also unsuccessfully sought a declaratory
order that the right of children to housing was justiciable and enforceable as
an independent right not dependent upon the general right to housing or
shelter.
They also wanted the Government to allocate them serviced
stands and construct core houses on the informal settlement or alternatively
for the State to provide alternative land on which they must allocate
residential stands.
Haydon Farm hosts the New Park informal settlement which is
home to over a thousand families, with children dominating its population.
In 2017 families were subjected to forced evictions by
three land developers: Leen Gate Civil Engineering Pvt Lt, Delatifin Civil
Engineering Pvt Ltd and Shine Plus Private Ltd.
These land developers, accrued development rights by virtue
of agreements which they entered into with the local authority, Zvimba Rural
District Council.
Through their lawyers, the families approached the High
Court to bar the evictions, arguing they were contrary to Section 74 of the
Constitution, which provides that no one can be arbitrarily evicted from their
homes or have them demolished without a lawful court after all relevant
circumstances have been taken into account.
They sought a declaratory order that the rights of children
to housing or shelter in Section 81 of the Constitution were justiciable and
enforceable. Since any evictions that would lead to homelessness of minor
children were not in the best interests of the children and would be a direct
violation of children’s right.
The Minister of Local Government and National Housing, the
Minister of Lands, Agriculture, Water and Rural Resettlement and Zvimba Rural
District Council opposed the application arguing that the Constitution does not
provide for the right to housing or shelter, and as such, the families were
trying to seek recourse to a non-existent right.
In deciding the case, the High Court refused to grant the
application on the grounds that the families had sought to assert a
non-existent right within the Constitution, thereby making them non-suited,
that is having no standing to bring the suit.
However, on appeal at the Supreme Court a three-judge panel
comprising Justices Barat Patel, Susan Mavangira and Nicholas Mathonsi upheld
the families’ contention and granted a partial appeal.
The court declared that the right of children to shelter as
provided for in section 81(1)(f) of the Constitution is justiciable and enforceable
as an independent right of all children, including children under parental
care, but subject to reasonable qualification and limitation where necessary
and justified.
The judgment, which was made available last week, also
interdicted all those claiming authority through the two ministries and the
local authority from ejecting the families from New Park Informal Settlement or
interfering with their homes or agricultural activities.
The court sent the matter to the High Court for
reconsideration, along with a six-tier inquiry that the court must adopt in
assessing extent of the State’s obligation in realising the right to housing
and shelter, which the judges set out.
Writing the judgment for the court Justice Patel said the
primary duty of care reposed with parents in respect of their own children, but
this did not absolutely absolve the State of its underlying obligation of care
towards those children.
The court said the State had obligations even when there
were parents or other family, with these obligations being complementary to the
parental duty.
“In particular, the State must fulfil its own obligation to
provide shelter to children whose parents are financially or otherwise
incapacitated from fulfilling their parental obligations. In short, the primary
duty of parental care does not absolve the State of its direct obligation to
secure and provide for the best interests of the child.”
In determining the appeal, the Supreme Court noted that
when deciding constitutional questions, the Constitution required courts to
make orders that are just and equitable.
Ms Venranda Munyoro of the Attorney-General’s Civil
Division appeared for the Government. Herald
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