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If the law proves useless throw it away


When in 2005 “illegal structures” that 700 000 Zimbabweans called “home” were demolished by the police and army, the authorities claimed that they had to take this outrageous action out of respect for the law.

Guest Column with Fr Oskar Wermter SJ

The international community took a different view.

The United Nations report on the Operation Restore Order (Murambatsvina) said: “Operation Restore Order, while purporting to target illegal dwellings and structures and to clamp down on alleged illicit activities, was carried out in an indiscriminate and unjustified manner, with indifference to human suffering, and, in repeated cases, with disregard to several provisions of national and international legal frameworks. . . . the government of Zimbabwe should set a good example and adhere to the rule of law before it can credibly ask its citizens to do the same.”

But this call made little difference. Nine years later, Zimbabwean citizens are once more fearing for the roofs over their heads.

Once more officials claim that they have to take these brutal measures of demolishing shelters and turning their occupants into persons “without fixed abode” and “fixed income” because it is the “law”.

If the “law” is having such terrible effects, we must ask: What is the law? Who has created it? Who is responsible for it? Who applies it? Why do we have to obey it?

What is its authority?
There are basic human rights which merely spell out our fundamental right to life and liberty.

Such fundamental rights go together with our basic human dignity which is “given” to us simply because we are human. It is not a privilege bestowed upon us by human agents.

One such right is spelled out in the African Charter on Human and Peoples’ Rights’: “All people have the right to a satisfactory environment in which they can develop” (Article 24).

Surely this includes basic shelter. Being forced to live in the open as a homeless person, without being offered alternative accommodation, is surely a breach of this basic rule. Our Constitution of 2013 says that “the State must
. . . enable every person to have access to adequate shelter” (no 28).

The powers of the State are limited as to eviction from shelter: “No person must be evicted from their home, have their home demolished, without an order of court, made after considering all the relevant circumstances” (No 74). The powers of the State are limited because the State has no right to interfere with basic human dignity and rights “given” as part of our humanity.

Land, property and housing are also closely related to the family which is the basic building block of society, “It is desirable that every family should be able to acquire a home of its own, because home ownership contributes to the stability and welfare of the family which the State has a duty to foster and protect” (Zimbabwe Catholic Bishops Conference, 1989). Depriving families of their homes is a severe blow against family life and society as a whole.

All the other laws are man-made, passed by men and women in parliament, legal instruments to serve the common good, the good of the nation.

They do not have absolute authority and are not cast in stone like basic human rights.

They are means towards an end, instruments for a purpose. If they no longer serve that purpose they can be changed or abolished. Take the example of land laws. Land is supposed to produce food. Landowners who do not produce any food may be deprived of their (agricultural) land.

Landownership is a means towards an end. If the end is not achieved, the land may be taken away from the current owners and put to better use for the common good of the nation. There is no absolute right to landownership.

Conversely, people must not be deprived of the land they are occupying if the housing built on that land does serve a good purpose, namely giving shelter to an otherwise homeless family.

Even if the law says that the land in question is not lawfully acquired, this alone is no reason to demolish the house.

Housing is so scarce it should be preserved as far as possible to lessen the housing shortage. The “illegal structure” can be legalised, unless there are some serious reasons against it (wetland, land earmarked for some public purpose like education or health care etc) .

Thousands of houses have been built illegally in communal lands. Are we going to sacrifice them all on the altar of “legality”? Clearly the law no longer fits the social and economic reality.

Is it not better to change the law rather than to destroy extremely valuable and very much needed housing? Positive laws as produced by parliament are mere tools. If they don’t fit the purpose they can be discarded and replaced by something better.

Government officials condemning countless families to terrible misery of living out in the open with their belongings unprotected, pretend that they must adhere to the law as if it was something sacred. It is not. People are more important than the law.

“The Sabbath was made for man, not man for the Sabbath” (Mark 2:27). “Sabbath” here stands for “law”. “The law was made for man (and woman), not man (and woman) for the law”.

If some law forces a family to live on the banks of the Mukuvisi River then that law is plain nonsense and does not deserve to be respected. Or at least it is like a tool that is broken: throw it away.

What is the purpose of a government?

To work for and achieve the common good of the nation, to produce prosperity, ie feed the people, provide them with health care, give the new generation a good education.

If it fails to do that, it is like a useless tool. Now apply your own logic to the performance of government, and you will know what needs to be done.

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