Women, International Human Rights Law, and the Right to Adequate Housing in Africa

• Publication year: 2023

Women, International Human Rights Law, and the Right to Adequate Housing in Africa

John Mukum Mbaku

WOMEN, INTERNATIONAL HUMAN RIGHTS LAW, AND THE RIGHT TO ADEQUATE HOUSING IN AFRICA

John Mukum Mbaku^*

Abstract

In many African countries, the rights of women and girls to adequate housing are under threat and remain vulnerable to violation by state- and non-state actors. This is so even though these rights are guaranteed by international human rights instruments and national constitutions. Of particular note is the existence of customary laws that discriminate against women and frustrate their ability to realize the right to adequate housing. To enhance the ability of women to realize their right to adequate housing, each African State must domesticate the various international and regional human rights instruments that guarantee this right in order to create rights that are justiciable in domestic courts. In the meantime, however, progressive judiciaries are using their power to interpret the constitution to eliminate or modify customary and other laws that are not in conformity with the provisions of international human rights instruments and the country's Bill of Rights. For example, in several African countries, courts have been adjudicating cases involving the right to adequate housing (e.g., discrimination against women by customary laws and forced evictions of women and other vulnerable individuals by state- and non-state actors). These courts have issued directives that can help the political branches develop and implement policies to ameliorate the deplorable living conditions that many women and their children face on a daily basis. Unfortunately, in many countries, the political branches have not been amenable to implementing court orders. However, recent socio-economic rights jurisprudence by the South African Constitutional Court offers a possible solution to this quagmire. That solution is found in the engagement approach, which emphasizes robust dialogue between the political branches, the affected individuals and groups,

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and civil society and its organizations. While such a holistic approach can proffer solutions that reflect the values and norms that are enforced by the socio-economic rights guaranteed by the constitution, it can also encourage democratic engagement and make the courts an important force in the protection of human rights, particularly those of women and girls. Of greater importance is that this approach places women at the center of public efforts to confront the problems that afflict them.

Table of Contents

Introduction..........................................................................................219

I. International Law and the Right to Adequate Housing......227

A. Introduction............................................................................ 227

II. The Human Right to Adequate Housing..................................233

A. Introduction............................................................................ 233
B. Key Aspects of the Right to Adequate Housing ........................ 234
C. What is Not Included in the Right to Adequate Housing........... 237

III. Women and the Right to Adequate Housing in Africa..........241

IV. Violence Against African Women and the Right to Adequate Housing........................................................................................248

A. Introduction............................................................................ 248
B. Urban Slums as a Form of Violence Against Women ............... 250
C. Forced Evictions as a Form of Violence Against Women in Africa ......................................................................................253

V. Comparative Case law and the Right to Adequate Housing in Africa ..........................................................................................258

A. Introduction............................................................................ 258
B. The Government of the Republic of South Africa & Others v. Irene Grootboom & Others (CC, S. Africa) ...................................... 262
C. Government Efforts Post-Grootboom ...................................... 265
D. South African Courts Post-Grootboom: Occupiers of 51 Olivia Rd. v. City of Johannesburg .......................................................... 268

VI. Lessons from Post-Grootboom Jurisprudence.......................272

A. The South African Constitutional Court's Engagement Approach................................................................................ 272
B. Women's Right to Adequate Housing and the Engagement Approach................................................................................ 275

Conclusion.............................................................................................280

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Introduction

The Universal Declaration of Human Rights (UDHR), which was adopted by the United Nations General Assembly (UNGA) on December 10, 1948, created the foundation for the modern effort to recognize and protect human rights. Since that time, the international community has adopted several other conventions, treaties, and declarations, aimed at elaborating on and guaranteeing human rights for all members of the global community, "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."¹

Today, some of the most important human rights instruments are part of what is referred to as the International Bill of Human Rights and these include: (1) UDHR; (2) International Covenant on Economic, Social and Cultural Rights (ICESCR); (3) International Covenant on Civil and Political Rights (ICCPR); (4) Optional Protocol to the International Covenant on Civil and Political Rights; and (5) Second Optional Protocol to the International Covenant on Civil and Political rights.² International and regional organizations, as well as national governments, have also adopted "procedures for protecting against and providing remedies for human rights abuses."³

The international community, however, does not have a "world government" that can ensure that the rights guaranteed by the various international human rights instruments are enforced in all United Nations member states. Although international human rights law is part of international law, international legal experts have argued that "[t]he most effective mechanism for enforcing international law [including international human rights law] is for each ratifying government to incorporate its treaties and customary obligations into national laws."⁴

Some African states have already internationalized their national constitutions through processes that create, out of the international human rights instruments, rights that are justiciable in domestic courts. Kenya, for example,

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adopted a new constitution in 2010, which has the following provisions: "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution"⁵ and "[t]he general rules of international law shall form part of the law of Kenya."⁶

In 2012, the U.N. High Commissioner for Human Rights released a report titled Women and the Right to Adequate Housing and declared that "[t]he right to adequate housing is clearly recognized in international human rights law, including the International Covenant on Economic, Social and Cultural Rights."⁷ The former U.N. Special Rapporteur on the right to adequate housing, Mr. Miloon Kothari, has declared that "[t]he human right to adequate housing is the right of every woman, man, youth and child to gain and sustain a safe and secure home and community in which to live in peace and dignity."⁸

Advocates for the poor have argued that "housing is a human right, not a commodity to maximize profit."⁹ Additionally, noted the U.N., the right to adequate housing must include, at the minimum, certain entitlements including (1) security of tenure; (2) housing, land and property restitution; (3) equal and non-discriminatory access to adequate housing; and (4) participation in housing-related decision-making at the national and community levels.¹⁰

Unfortunately, the "right to adequate housing continues to be unmet in all regions of the world, particularly for vulnerable groups of women but also for certain groups of men, such as men from minority communities."¹¹ Violence against women generally and domestic violence, in particular, have been linked to "the lack of enjoyment of the right to adequate housing."¹² In her 2000 report, The Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy noted that "[h]ousing policy is

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directly related to issues of violence against women," and "[i]nadequate housing provides living conditions that are conducive to violence."¹³

Throughout Africa, the rights of women and girls to adequate housing are extremely vulnerable to violation by state- and non-state actors. First, many African countries have ethnocultural groups whose customary laws and traditional practices interfere with the rights of women and girls to adequate housing. In many of these communities, women and girls are prohibited from owning or inheriting land and other forms of real property. For example, the customary laws of many ethnic groups in Nigeria, Kenya, Uganda, and Zimbabwe generally prohibit women from inheriting the real property of their deceased husbands or, in the case of girls, that of their deceased fathers, a practice that greatly interferes with the ability of these individuals to exercise their right to adequate housing.¹⁴

Second, in recent years, due to decreasing opportunities for self-actualization in the rural areas of many African countries, as well as the dispossession of widows of their lands by opportunistic male relatives of the widows' deceased husbands, many women and their children...