Reviewing Ministerial Powers in House Demolitions: Legal Boundaries and Remedies

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The Minister of Lands, Housing and Human Settlements Development ordered and oversaw the demolitions of a palatial home. Now, the advocate of the house’s owner is claiming the Minister did not have the power to destroy his client’s home, and the home owner was armed to the teeth with official documents. This discussion interrogates whether the minister acted within his orbit or exceeded his powers and what remedies are available to both parties.

Minister Jerry Silaa’s demolition order that led to a house being bulldozed has attracted outrage and criticism, with many questioning whether the minister can destroy houses. Demolition orders are not new. Since 1996, we have come to be accustomed to executive orders to do just that.

Road reserves allegedly encroached on by developers have destroyed those infrastructural developments without court orders. The aggrieved parties, by demolitions, were the ones rushing to courts to seek judicial remedies. Some were successful, while others were not.

So, from the point of practice, ministers can order developments to be destroyed, and the victims can assail those orders in a court of law. In 2006, Tanzania’s government demolished 7,351 houses in Kurasini to expand the port, leaving about 36,000 people evicted with their homes destroyed. In this situation, executive order preceded judicial redress.

In 2017, the then Minister for Land, Damian Lukuvi, abolished his three-room house after TANROADS was earmarked for demolition. Lukuvi said he had built the house in 1995 when he became an MP, but road development compelled him to part ways with his keepsake.

Executive orders to demolition are within the ambits of the law, and if those directives have been harsh or excessive, the affected parties can seek judicial intervention. Ministerial powers can assert public interests, but when it comes to private interests, matters are diametrically different.

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In private land disputes, executive orders tend to overlap institutional processes of conflict resolution, and a minister for land cannot be deemed acting in the public interest. True justice to all is a public good, but the minister is not a court of law that administers that right.

There has been goodwill effort from politicians to short-circuit the lengthy and often frustrating judicial process, but the final outcome is to undermine the rule of law and good governance. A minister may have noted that the owner of the land has forged documents or had bribed her way into overturning the rights of a true owner, but the issuance of executive orders to rectify the anomalies have far-reaching ramifications.

The more people believe politicians are their final arbiter in their private disputes, the more trust in the judiciary is irreversibly eroded. When CCM publicity secretary Makonda urged the public to seek his intervention in legal-related disputes, little did he know chiding the courts only succeeded in legalising anarchy. If the judiciary has issues, the best way is to fix them with meaningful internal reforms rather than undermining them by overlapping her statutory functions.

Absalom was the son of King David of Israel, who opted to challenge his daddy’s kingdoms. Absalom began standing before the gate, urging everyone to come to him for dispute resolution. Before long, all the people took their squabbles to him, and he sat as a self-appointed judge whose decisions were final and conclusive. Everybody began to perceive Absalom as an heir apparent, and gradually, he formed parallel lines of authority. King David was later informed that the people were with Absalom, forcing the King to run for his dear life.

The lesson we learn from the Biblical narratives is that circumventing the judiciary stokes treason well covered with an aura of service to the people. Mistrust in the institution of governance is growing, but undermining them in any way is not the right way to go.

Again, it is always in the best interest of justice if politicians restrain themselves from being judges of their own cause. Jerry Silaa, rightly or not, believed that the true owner of the piece of land in question was defrauded of her rights, and she went on to strike out the documentary evidence of the current owners. The law requires lawful organs to adjudicate on that.

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Suppose the minister had made a mistake, and the current owner is the legitimate owner. How can he compensate the victim for his overzealousness? Will public money be released to compensate ministerial illegal orders, or will the minister pay from his own pockets?

Had the land dispute violated written laws to preserve public land with clear demarcations, then the acts of the minister, even if illegal, can be deemed to have been carried out in good faith. But when the minister does the acts of commission in a manner that violates the rights of true owners, will the minister be perceived as having acted in good faith, deserving total clemency, paving the way for the government to shoulder the cost of restoration from wrongdoing like meeting the full value of the demolished home?

Obviously, where executive orders infringe upon private rights in which the public is remotely involved, the issuer of the orders must bear the full costs of the remedies required. I say so because no public interest was involved, but the minister, out of his own volition, chose to risk his own political career by picking a fight that was not his. Parties in that conflict should have been allowed to pursue legal avenues as they deem fit without political interference.

If all judicial reliefs have been sought but the authorities perceive justice was not served, dealing with judicial officers who upended the rule of law and good governance should not be brooked but arraigned for their wrongful deeds. That is how we can strengthen our institutions of governance rather than weaken them by exalting the “cult of personality,” which is now a bane in African public administration.

Read more article from Rutashubanyuma Nestory here.

The author is a Development Administration specialist in Tanzania with over 30 years of practical experience, and has been penning down a number of articles in local printing and digital newspapers for some time now.

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