6.1 Violations of human rights during the forced evictions 6.1.1 Forced evictions53 and the right to housing The UN Commission on Human Rights has considered that “the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing”. 54 Forced eviction has been defined by the UN Committee on Economic, Social and Cultural Rights (CESCR), as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of and access to, appropriate forms of legal or other protection.”55 The CESCR has further noted that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."56 The African Commission on Human and Peoples’ Rights, in a decision concerning a complaint against the Federal Republic of Nigeria, has similarly stated that "[a]t a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes."57 The CESCR sets out a number of measures to be followed by States parties to the ICESCR to safeguard the rights of those persons subjected to evictions. The Zimbabwean government has not taken these into account and has provided no justification for its failure to do so. 58 First, notice given to the Porta Farm community was inadequate, being less than 24 hours before the evictions took place.59 The community was not consulted about the process, and no alternative housing arrangements were considered or offered to people, making the majority homeless and vulnerable to further violations of their human rights. The evictions were carried out in defiance of the 1995 and 2004 court order, thus questioning whether any effective remedy is available to them. The term “forced evictions” is used to refer to the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or lands which they occupy, without provision of, and access to, appropriate forms of legal or other protection. See, CESCR General Comment No. 7 on the right to adequate housing: forced evictions (1997), para. 3. 54 UN Commission on Human Rights, Resolution 1993/77, para 1. 55 UN Committee on Economic, Social and Cultural Rights, General Comment No. 7, The Right to Adequate Housing (Art.11(1) of the Covenant): forced evictions, UN Doc. E/C.12/1997/4, para 3. 56 CESCR General Comment No. 4 on right to adequate housing (1991), para. 18. 57 Center for Economic and Social Rights and Social and Economic Rights Action Center (SERAC) v. Nigeria, see the decision done at the 30th ordinary session of the African Commission of Human and Peoples’ Rights, Banjul, 13-27 October 2001, available on URL www.elaw.org/assets/pdf/ng.afr.commission.hrights.pdf, para. 61. 58 See, CESCR General Comment No. 7 on right to adequate housing: forced evictions (1997), para. 15, which requires states to put in places the following procedural measures in relation to evictions:"(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.” 59 Although the Chairperson of the Harare Commission had announced the start of Operation Murambatsvina in Harare on 19 May and a notice had appeared in The Herald newspaper on 19 and 26 May, neither of these actions can be considered serving of notice on the community of Porta Farm. The community at Porta Farm was not identified specifically by the notice. Also, although Porta Farm is owned by the City of Harare it falls under the jurisdiction of a different local authority. Moreover, the enforcement notice published in the newspaper was made in terms of Section 32 of the Regional Town and Country Planning Act, (Chapter 29:12) Revised Edition 1996, and an Affidavit submitted to the High Court in HC 3225/05 by the Chairperson of the Harare Commission stated that the residents of Porta Farm were being evicted in terms of the Urban Councils (Model) (Use and Occupation of Land and Buildings) By Laws R.G.N. 109/79, which allows for just 48 hours notice. The period of 48 hours notice was challenged in the 1995 court action as being inconsistent with the Section 18(9) of the Constitution of Zimbabwe. A period of 48 hours notice before eviction is also inconsistent with international law. Furthermore, in the case of the June evictions the community was not given even 48 hours notice. Finally, the Porta Farm community was in possession of the 1995 High Court order directed at Harare City Council. 53