The right to adequate housing has been recognized in numerous texts at both the international and the regional level. At the international level, the two most important texts are the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. At the regional level, the most important texts are the various African instruments for the protection of the rights of the child and of women.
AREAS OF FOCUS
THE HOUSING RIGHTS IN UGANDA
AT AN INTERNATIONAL LEVEL
The right to adequate housing was recognized for the first time at the international level in the 1948 Universal Declaration of Human Rights. In this declaration, the states parties proclaimed that:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” (Art. 25)
The strength of the Universal Declaration of Human Rights lies in its having been accepted by all countries.
In 1966, almost 20 years after the Universal Declaration of Human Rights, United Nations member states adopted the International Covenant on Economic, Social and Cultural Rights (ICESCR), in which they recognized the right to adequate housing. In Article 11, governments committed themselves to taking necessary measures to realize:
“The right of everyone to an adequate standard of living for himself and his family, including… to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”
The same year, member states adopted the International Covenant on Civil and Political Rights, in which they recognized the right to life (Article 6), the right not to be subjected to subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7) and the right not to be subjected to arbitrary or unlawful interference in one’s privacy, family or home (Article 17).
The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights are treaties. They are legally binding on all states parties (156 and 160 in number, respectively) that have ratified them.
The right to adequate housing is everybody’s right, without discrimination. The fundamental right was established in the International Convention on the Elimination of All forms of Racial Discrimination (1965), in which the states parties committed themselves
“To prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the right to housing,” (Article 5, e, iii)
However, to protect particularly vulnerable groups, such as women, children, the elderly, indigenous and tribal peoples, refugees or stateless persons, other treaties have been accepted by countries at the international level:
The right to adequate housing for women was recognized in the Convention on the Elimination of all Forms of Discrimination against Women (1979). According to Article 14, § 2(h), the states parties commit themselves to:
“To eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women… adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications”.
In the Convention on the Rights of the Child, the states parties commit themselves to helping parents or other persons in charge of the child, particularly in providing shelter. Its Article 27, § 3, provides that:
“States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing.”
Tribal and Indigenous Peoples
Common Article 1, § 2, of the 1966 International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights, which applies to tribal and indigenous peoples, provides that:
“In no case may a people be deprived of its own means of subsistence.”
The right of tribal and indigenous peoples to adequate housing is also recognized, through their right to land, by the ILO Convention 169, Article 16, regarding tribal and indigenous peoples.
The right of refugees to adequate housing is recognized in the 1951 Convention Relating to the Status of Refugees. Its Article 21 provides that:
“As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”
The right to adequate housing of the ever growing number of migrants and their families,26 has been recognized in Article 43, § 1(d), of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. According to this Convention:
“Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to: Access to housing, including social housing schemes, and protection against exploitation in respect of rents.”
All the above mentioned treaties are legally binding on the states that have ratified them.
Besides the international human rights treaties, governments have recognized the right to adequate housing and have committed themselves to realizing it in numerous international declarations. In 1976, for example, in the Vancouver Declaration, adopted by the United Nations Conference on Human Settlements, the governments declared that:
“Adequate shelter and services are a basic human right which places an obligation on Governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programs of self help and community action. Governments should endeavor to remove all impediments hindering attainments of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through the creation of better balanced communities, which blend different social groups, occupation, housing and amenities,” (Section III, 8)
While reaffirming the legal status of the right to adequate housing, the heads of state and of government, assembled at Istanbul (Turkey) in 1996, on the occasion of the second United Nations Conference on Human Settlements (Habitat II), adopted a declaration in which they committed themselves, inter alia, to:
“Ensuring adequate shelter for all and making human settlements safer, healthier and more livable, equitable, sustainable and productive,” (§ 1)
And they promised:
“The full and progressive realization of the right to adequate housing as provided for in international instruments. To that end, we shall seek the active participation of our public, private and non-governmental partners at all levels to ensure legal security of tenure, protection from discrimination and equal access to affordable, adequate housing for all persons and their families,” (§ 8)
Many other international declarations have also denounced the practice of forced evictions. Agenda 21, adopted at the 1992 United Nations Conference on Environment and Development, speaks of:
“right to adequate housing as a basic human right” declaring that “people should be protected by law against unfair eviction from their homes or land.”28
In 1993, the Commission on Human also declared “the practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing.”
Non-discrimination against women in access to adequate housing and to land has also been the object of several declarations at the international level. In a resolution on the right to adequate housing and equality of women regarding property, the Commission on Human Rights reaffirmed, in 2005:
“Women’s right to an adequate standard of living, including adequate housing, as enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights” and urges Governments:
“To comply fully with their international and regional obligations and commitments concerning land tenure and the equality of women to own, have access and to control property, land and housing, irrespective of their marital status, and to an adequate standard of living, including adequate housing.”
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AT THE AFRICAN REGIONAL LEVEL
The African Charter of Human and Peoples’ Rights (1990)
The African Charter of Human and Peoples Rights does not explicitly recognize the right to adequate housing, but several other recognized rights, such as the right to health (Article 16) and the right of peoples to a general satisfactory environment favorable to their development (Article 24), can be interpreted as protecting the right to adequate housing. The African Charter of Human and Peoples Rights also provides that African states should realize the right to adequate housing that they have recognized at the international level, including by accepting the International Covenant on Economic, Social and Cultural Rights (Article 60 of the African Charter). Thus, all those states that have accepted the African Charter and the International Covenant on
Economic, Social and Cultural Rights are under obligation to take measures to realize the right of their people to adequate housing. The African Charter of Human and Peoples Rights has been ratified by 53 member states of the African Union.
The African Charter of the Rights and Well Being of the Child (1990)
The African Charter of the Rights and Well Being of the Child is more explicit. The states that have accepted it commit themselves to taking all appropriate measures, according to their means, to assist parents and other person responsible for the child, and to provide, in case of need, programs of material assistance and support, in particular regarding housing (Article 20). Observance of the African Charter of the Rights and Well Being of the Child is currently compulsory for the 41 states of the African Union that have ratified it.
The Protocol of the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa (2003)
The Protocol of the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa is also explicit. Article 16 provides that:
“Women shall have the right to equal access to housing and to acceptable living conditions in a healthy environment. To ensure this right, States Parties shall grant to women, whatever their marital status, access to adequate housing.”
Article 21, § 1, protects the right to inheritance in these terms:
“A widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it.”
The implementation of the Protocol of the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa is currently binding for the 21 states of the African Union that have ratified it.
The Constitution of the Republic of Uganda was adopted in 1995. It contains one Chapter which provides extensive protection of human rights, including: the right to equality and freedom from discrimination; protection from deprivation of property; right to privacy of person, home and other property; right to a fair and public hearing; freedom of movement and assembly; right to marry and ‘equal rights in marriage, during marriage and at its dissolution’; and a right to just and fair treatment in administrative decisions.10 All of these rights, which are in line with international human rights standards, could have a potential bearing on land rights and this issue is discussed further in Chapter Four of this Guide.
This Chapter of the Constitution also provides for ‘affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.’11 It states that: ‘Women shall be accorded full and equal dignity of the person with men. Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities. Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status are prohibited.’12 It guarantees children’s rights and states that: ‘the law shall accord special protection to orphans and other vulnerable children.’13 It also upholds cultural rights, stating that: ‘Every person has a right as applicable, to belong to, enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.’
The construction of structures for shelter in Uganda is guided by the National Shelter Strategy (1993). In 1992, the National Shelter Strategy (NSS) was adopted as a means of formulating viable shelter strategies which are conducive to full mobilization of local resources and to strengthen policy making and housing programming capacities of key actors in housing delivery at all levels of administration. National Shelter Strategy (NSS) adopted the “enabling approach” as its major policy under which Government operated to identify and remove bottlenecks that hamper housing development, by encouraging private sector participation in housing development. However, due to changes in national development ideology and other policies, National Shelter Strategy (NSS) policy objectives were rendered irrelevant.
In 2005, a National Housing policy was drafted based on the ideologies and principles of the national shelter strategy. The goal of the draft National Housing policy is a “well integrated sustainable human settlements, where all have adequate shelter with secure tenure, enjoy a healthy and safe environment with basic infrastructure services”. It responds to a number of challenges that are relevant to slum improvement such as:
• The recognition that in urban areas, over 60% of residents stay in slums, characterized by poor sanitation, high disease incidence and frequent epidemics;
• The private nature of housing; the enforcement of minimum standards and prevention of negative externalities associated with overcrowding and poor sanitation and;
• The improvement of living conditions of the urban poor is of potential benefit to urban market for investment in properties and an effective land sector reform.