Chief Court Reporter
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 families, 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.