Court Declares Provisions Allowing Demolitions Without Court Orders Unconstitutional
The High Court of Zimbabwe has declared unconstitutional the provisions in the Regional, Town and Country Planning Act that allowed Local Authorities to demolish homes without a court order.
In a statement, the Zimbabwe Lawyers for Human Rights (ZLHR), said in 2020, the Chitungwiza Municipality issued a demolition order for homes in several suburbs, citing the provisions of Sections 32 and 37 of the Regional, Town and Country Planning Act.
Aggrieved residents, represented by the Chitungwiza Residents Trust (CHITREST), filed a court application challenging the constitutionality of these provisions.
CHITREST argued that Sections 32(2)(c), 32(2)(d), and 37(1)(a)(i) of the Act violated Section 74 of the Constitution, which protects people against arbitrary eviction.
The High Court, in a ruling by Justice Never Katiyo, agreed with CHITREST and declared these sections of the Act to be unconstitutional and invalid.
The High Court order gives the government 12 months to amend the law to bring it in line with the Constitution’s protections against arbitrary eviction. Reads the statement:
The High Court has dismantled an archaic and obnoxious law, which several local authorities had abused for several years to demolish people’s houses across the country.
In 2020, Chitungwiza Municipality issued and published a demolition order in the state-run Herald newspaper, wherein the local authority indicated that some residents with houses situated in specific areas of St Mary’s, Zengeza, Seke and Nyatsime suburbs in Chitungwiza, had to demolish their houses for the reason that the stands on which the houses were built on and the houses, were reportedly constructed without the local authority’s approval.
In issuing the demolition order, Chitungwiza Municipality said it was acting in terms of provisions of sections 32 and 37 of the Regional, Town and Country Planning Act.
This then compelled some aggrieved residents represented by Chitungwiza Residents Trust (CHITREST) to file an application in 2020 seeking an order of declaration of constitutional invalidity of some offensive by-laws, which permitted local authorities to demolish houses without obtaining a court order as is required by the Constitution.
In the application, CHITREST, which was represented by Tinashe Chinopfukutwa, Paida Saurombe and Kelvin Kabaya of the Zimbabwe Lawyers for Human Rights, asked the High Court to issue an order impugning section 32(2)(c) and (d) of the Regional, Town and Country Planning Act as well as section 37(1)(a)(i) of the Regional, Town and Country Planning Act.
Chinopfukutwa, Saurombe and Kabaya argued that the Constitution is the supreme law of the land and any law which is inconsistent with it is invalid to the extent of the inconsistency hence section 32(2)(c) and (d) and section 37(1)(a)(i) of the Regional, Town and Country Planning Act, are inconsistent with the provisions of section 74 of the Constitution.
The human rights lawyers requested the High Court to issue an order declaring the said offending provisions constitutionally invalid because section 32(2)(c) and (d) as well as section 37(1)(a)(i) of the Regional, Town and Country Planning Act, infringes section 74 of the Constitution, which confers a right on people against arbitrary eviction from their homes.
Chinopfukutwa, Saurombe and Kabaya also requested the High Court to declare the demolition order issued by Chitungwiza Municipality in 2020 as invalid.
Apart from Chitungwiza Municipality, CHITREST also cited Local Government and Public Works Minister Hon. Daniel Garwe, Justice, Legal and Parliamentary Affairs Minister Hon. Ziyambi Ziyambi and Attorney-General Virginia Mabhiza, as respondents in their application.
Now, the High Court has taken a significant step in securing a lasting solution to the recurring problem of arbitrary demolitions in Zimbabwe after Justice Never Katiyorecently granted an order of constitutional invalidity sought by CHITREST.
On 24 July 2024, Justice Katiyo declared section 32(2)(c) and (d) of the Regional, Town and Country Planning Act as well as section 37(1)(a)(i) of the Regional, Town and Country Planning Act to be ultra vires section 74 of the Constitution and therefore unconstitutional.
The High Court Judge also declared the demolition order issued by Chitungwiza Municipality on 8 October 2020 to be invalid.
Justice Katiyo declared that the order of constitutional invalidity would be suspended for a period of 12 months from the date of confirmation by the Constitutional Court in order to enable Hon. Garwe, Mabhiza and Hon. Ziyambi to amend the impugned legislation so that it complies with section 74 of the Constitution.
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