Banana farmers saved from arbitrary eviction
WILLIE MAFUTA AND 26 OTHERS VERSUS PARKS AND WILDLIFE MANAGEMENT AUTHORITY: A CASE OF HUMAN RIGHTS, LAND RIGHTS, EQUITABLE RESOURCE MANAGEMENT AND DEVELOPMENT
On the 7th of November 2018, the High Court of Zimbabwe made a ruling that the Vhimba people in Risitu, Chimanimani under Chief Ngorima in Chikware and Mapombere villages who had been issued with a 72 hours eviction notice should not be evicted from their homes as this would amount to unlawful and arbitrary evictions on the 27 families. A total of almost 300 people including children and women risked losing their livelihood in a blink of an eye.
Historically, the Vhimba people started losing their land in 1893 when the Pioneer Column reached what are now the Chimanimani and Chipinge Districts of Eastern Zimbabwe. Ever since then, it has been a struggle for Chief Ngorima’s people to retain their land. They lost their land from the colonial government in the 1890s, The Forest Commission in the 1950s, through the Chimanimani National Park in the 1960s and the creation of Botanical Gardens in the 1970s. The battle of retaining land by the Vhimba people continued into the post-colonial Zimbabwe and this was shown in the present case and now there seems to be a paradigm shift as rumours of gold discoveries in the area are becoming rampant.
FACTS LEADING TO THE CASE
The Vhimba community has occupied communal land with no title or ownership for over a century on record. The community is a banana farmer community who most of them were born in that industry having been born in banana farming families. They do not have any other source of income. From the year 1991, the community has had problems with Zimbabwe Parks and Wildlife Authority (Zim-Parks hereinafter referred to as the Respondent) whose Chimanimani Mountains National Park borders with their land. The community has lost most of its farming land to Zim-Parks following its unilateral alienation of land. In recent terms, in fact currently, the Respondent has been sending its officers to threaten the Vhimba community with eviction from their homesteads as it now claims to have the right to take over the land for its operations. One would be inclined to think that these are wildlife related operations. These however leave a lot to be desired as in Zimbabwe, communities living in wildlife areas have hardly been evicted in such a manner. Instead, a common ground to include them or to relocate them then include them in programmes like the famous CAMPFIRE have occurred in a number of districts around Zimbabwe. This strengthens the allegations of gold deposits being discovered in the area.
On the 21st of October 2018, four (4) officers from Chimanimani Zim-Parks office gathered the Applicants and their families and advised them that they were giving them final notice to vacate the land and that they had to do so by the 25th of October 2018 failure which they were going to evict them using force. After expiry of the deadlines, the Respondent’s officers allegedly visited the villagers armed with AK47 assault rifles threatening the villagers that if they do not vacate the land they will be dealt with. This continued from the 25th until the last day of October. The Respondent’s officers even threatened to torch down the villagers’ homes and destroy their banana fields upon their return to evict them if they were to find them still in the area. Some of the villagers were even arrested and chained after being found in their fields after the deadline dates for eviction.
THE LEGAL ISSUES OF THE CASE
The Zimbabwean Constitution under Sec 74 guarantees freedom from arbitrary eviction. This freedom includes people’s freedom from eviction from their homes or have their homes demolished without an order of Court after the Court has made consideration of all the relevant circumstances of that matter. This was the main legal concern for the Vhimba case. Recently in The City of Harare versus Tawanda Mukungurutse SC 46/18 the Supreme Court of Zimbabwe reiterated this position. Also, at stake was the community’s right to human dignity as protected by section 51 of the Constitution. The Respondent had not first secured an Order of the Court authorising it to evict the Vhimba community from their land which it unilaterally claimed was its land. In the absence of such Court Order, any eviction would be enforced, unlawful and illegal eviction as the Court has not been given a chance to determine and consider all relevant circumstances of the matter to agree to a lawful eviction.
Lawyer Darlington Chidarara of ZELA reading & explaining to the Vhimba People their rights from the Constitution
ZELA’S INTEVENTION & THE SIGNIFICANCE OF THE CASE TO ZELA’s WORK
The Zimbabwe Environmental Law Association (ZELA) heard of the Vhimba community’s plight and decided to take heed of the call to assist the Vhimba marginalised community. As a public interest organisation, ZELA’s vision is to attain environmental justice through sustainable and equitable utilisation of natural resources and environmental protection. In the spirit of that vision, ZELA moved in swiftly to assess the situation. After realising that the dispute of land rights and a possibility of the extractive industries pushing for an unlawful eviction to pave way for mining, ZELA realised that in light of the new Constitution and their vision, the case was worth a take. As per ZELA’s vision, the people of Vhimba have an abundance of natural resources in the form of woodlands, animals which they were found co-existing with by the Pioneer Column in 1893 not forgetting the recent gold deposits alleged to be in their area. This started their troubles as they were placed in reserves and since then have not enjoyed much of their natural resources. ZELA firmly believes in equitable utilisation of natural resources whereby the local people benefit from their locally found resources. The Vhimba community exist in an environment which allows them a huge capacity to earn them money from eco-tourism, birding experiences and the national park activities such as game drives and even controlled trophy hunting experiences and recently being part of the extractive industry if the gold deposits alleged are in existence. However, this has not been the case ever since the arrival of the Pioneer Column a century ago up until October 2018 as all the Vhimba people know are land grabs, unfair and unilaterally decided forced evictions, resource grabs and threats and poverty yet existing in a naturally resource rich environment. Their major natural resources have been nothing but a curse for them. These misfortunes could be changed if the relevant authorities engage the people of Vhimba and try to work on a model that can benefit and include the community rather than depriving the community which is what ZELA strongly believe in.
COURT’S ORDER & SIGNIFICANCE
The Court held that the Respondent was interdicted and prohibited from arbitrarily evicting the Vhimba community. This means that if the Respondent is to evict the people of Vhimba then they must follow set procedures as held in the Mukungurutse case stated above by getting a Court Order. This means that a new opportunity for engagement has been opened to realise equitable distribution of resources for the Vhimba community which could develop Vhimba as a community rather than destroying it and driving it into conflict as has happened previously. A community of almost 300 people was saved from arbitrary eviction and were given a lifeline. Thanks to ZELA.