The right to adequate housing under African regional human rights law: exploring the extent of protection accorded to refugees

1 INTRODUCTION

The lack of adequate housing is a major challenge that affects a significant number of people in Africa. Although accurate and updated data on the situation of the right to adequate housing in Africa is not available, various sources show that this right has been realised only to a very limited extent. The number of homeless people is estimated to be in the tens of millions.1 A 2019 report of the UN Habitat for Humanity International showed that 55.4 per cent of households in sub-Saharan Africa lived in unaffordable housing.2 The majority of urban dwellers in Africa live in informal settlements in inadequate houses or shelters.3 It is estimated that, by 2050, the number of informal settlement dwellers in Africa will reach 1.2 billion.4 One of the main causes of the housing challenges in Africa is the lack of affordable housing in sufficient quantity. 5

People in vulnerable situations are disproportionately and uniquely affected by the lack of adequate housing. A significant number of women, persons with disabilities, children, older persons, and refugees who live in homelessness or inadequate housing face peculiar housing challenges.6 Many refugees experience housing challenges that are linked to their refugee status, poverty, sex or gender, disability, and their status as children.7 Since most of them live in refugee camps8 that are located in remote areas,9 they do not have adequate access to infrastructure, services and amenities.10 Their encampment also confines them to live in overcrowded shelters that do not give them adequate protection from the elements. Encamped refugees may also lack legal security of tenure to their shelters in refugee camps.11 A 2019 study showed that 65 per cent of refugee shelters in refugee settlements in Uganda were damaged,12 and ‘female-headed households’ were particularly affected because most of them lived in shelters that had ‘structural damage’.13 Ironically, they were not allowed to construct their shelters using durable and culturally appropriate materials. 14

Refugees living in urban areas also experience housing challenges. They are seldom included in national housing schemes, and, therefore, do not benefit from enabling mechanisms that facilitate their access to housing.15 Many of them face discrimination in accessing housing in the market, expressed either in the denial to let housing to them, or in landlords requiring them to pay exorbitant rent.16 In one instance, refugee women and their children were rendered homeless because they were unable to pay rent.17 To make matters worse, state authorities evicted them from their makeshift shelters and demolished their shelters.18

Although refugees often face housing challenges that are distinct in their nature and extent, it is clear that many citizens of asylum states also face housing challenges. For example, in Uganda, one of the most generous refugee hosting countries in Africa, the government reported that more than 1 in 10 people were homeless,19 and over three-fourths of the population lived in ‘sub-standard housing conditions’.20 Therefore, an intuitive reaction to any discourse about refugees’ right to adequate housing in a country like Uganda may be ‘these states should not be required to ensure the right to housing of refugees because they do not have sufficient resources and most of their own citizens have significant housing problems’. However, it must be noted that the housing challenges faced by citizens do not absolve these states from their obligations towards refugees. One may also argue that housing problems in any given country reflect the level of attention paid to the right to adequate housing and the measures taken by the state to ensure this right. In light of this, one may raise a counter question: in a country that has adequate legal and policy frameworks, mobilised and allocated sufficient resources for adequate housing, adopted all appropriate measures and prioritised the most disadvantaged sections of its population, will a significant proportion of its population experience serious housing problems? Resource-related scepticism may also be countered. African states are endowed with enormous amounts of natural and human resources21 that are more than enough to ensure that their populations live a dignified life. As Olowu points out, the problem is not the lack of resources: ‘the bigger crisis of [African states’] incapacity lies in corruption and malevolent governance exemplified by skewed policy prioritisation’.22

These issues show that realising the right to adequate housing of refugees is often indistinguishable from realising the same right for other sub-groups of a country’s population.23 After all, in a state that has not ensured that sufficient affordable housing is available for its own people, how can refugees find affordable housing? While responses tailored to the unique housing challenges of refugees are crucial, in many cases, it would be appropriate to ensure that they are integrated into responses that address the housing challenges of all segments of the population of an asylum state. Such an approach must comply with the normative frameworks in place at the African regional level. In order to ensure this, articulating the applicable normative framework is in order. It is precisely for this reason that this article seeks to shed new light on the regional normative framework on the right to adequate housing applicable to everyone.

However, there are differences in the nature and scope of the protection given to the right to adequate housing under the treaties discussed in this article. In order to clarify and bring out a consistent interpretation of the relevant provisions of the treaties, this article employs the rules of treaty interpretation set out under the Vienna Convention on the Law of Treaties (VCLT). For the purpose of clarifying the meaning of the relevant provisions of treaties, this article relies on the ‘general rule of treaty interpretation’ laid out in article 31 of the VCLT. According to article 31 of the VCLT, the meaning ascribed to treaty provisions must accord with the ‘ordinary meaning of the terms of the treaty in their context and in the light of its object and purpose’.24 The context of a treaty includes the ‘text, including its preamble and annexes’, subsequent legal instruments, including agreements between all the state parties, or by ‘one or more state parties’, that relate to the treaty in question.25 Article 31(3) of the VCLT requires that subsequent agreement or practice of the state parties and any other pertinent ‘rules of international law applicable in the relations between the parties’ must be considered along with the context of a treaty. It is only in cases where using the general rule leads to an ‘ambiguous’ or ‘manifestly absurd or unreasonable’ meaning that the supplementary rule of interpretation (interpretation based on the drafting history and conclusions of the drafters of a treaty) becomes utilisable.26 In other words, if one uses the general rule of interpretation and ascribes a sufficiently clear and reasonable meaning to a treaty provision, it is neither permissible, nor necessary to use the supplementary rule of interpretation.27

In order to interpret the relevant provisions of each treaty in relation to other treaties considered in this article, and to demonstrate their applicability to refugees, this work relies on article 30 of the VCLT. This work seeks to identify, analyse, and explore the applicability to refugees of treaties that offer relatively more favourable standards of protection to the right to adequate housing. Except for the OAU Refugee Convention, all of the treaties considered in this article contain express provisions that either allow or require the application of more favourable standards enshrined in other treaties.28 Because the more favourable clauses of these treaties are self-explanatory, this article does not foresee any interpretative issues.29 This view is supported by article 30(2) of the VCLT, which provides that, if a treaty specifies that ‘it is not to be considered as incompatible with an earlier or later treaty, the provisions of the other treaty prevail’.30

Regarding the OAU Refugee Convention, two alternatives may be pursued in order to apply the more favourable standards enshrined in other treaties. First, because the OAU Refugee Convention provides that it is the ‘effective regional complement’ to the UN Refugee Convention, the ‘more favourable treaty clause’ contained under article 5 of the UN Refugee Convention serves as a gateway for applying the higher normative standards enshrined under other treaties. Second, one may invoke the relevant rule of the VCLT that applies in situations where a treaty does not contain a ‘more favourable treaty clause’. Article 30(3) of the VCLT provides that ‘the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty’.31

This article is divided into eight sections. The introduction is the first section. Section 2 explores the protection of the ‘right’ to housing under the UN Refugee Convention.32 Section 3 analyses how and to what extent the OAU Refugee Convention protects this right. Section 4 discusses how the indirect protection accorded to the right to housing under the African Charter on Human and Peoples’ Rights (African Charter) complements the protection accorded to this right under the global and African regional refugee-specific treaties. Section 5 analyses the novel legal protection accorded to (refugee) women’s right to adequate housing under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol). Section 6 analyses the protection accorded to the right to adequate housing of persons with disabilities under the Protocol to the African Charter on the Rights of Persons with Disabilities in Africa (African Protocol on PWDs). In this section, the article spotlights the unique nature of the right to adequate housing of persons with disabilities and the corresponding obligations of states under the African Protocol on PWDs and its applicability for refugees with disabilities in Africa. Section 7 analyses the indirect protection accorded to refugee children’s right to adequate housing under the African Charter on the Rights and Welfare of the Child (African Children’s Charter). Section 8 concludes the article.

2 THE PROTECTION OF REFUGEES’ ‘RIGHT’ TO HOUSING UNDER THE UN REFUGEE CONVENTION

The UN Refugee Convention33 does not expressly provide for refugees’ right to housing using a rights language. Under article 21, it merely lays down obligations on its state parties with respect to refugee housing. As discussed below, the obligations it imposes are contingent on three factors: the level of the relationship that a refugee has with the state, the state’s role with regard to housing, and the level of treatment it is required to grant refugees.

Under article 21 of the UN Refugee Convention, state parties’ obligation towards refugees does not apply to all refugees. Instead, it is limited to refugees ‘lawfully staying’. Lawful stay is determined based on the length of the refugees’ stay in the country of asylum. If a refugee stays in an asylum state for more than a temporary period, they meet the criteria of lawful stay.34 This clearly excludes refugees who have stayed in an asylum state for a short period of time. Because the personal scope of article 21 is restricted to this group of refugees, refugees who do not satisfy the requirement of lawful stay do not qualify as holders of the ‘right’ under article 21.35 For this reason, Leckie and Simperingham suggest that these refugees ‘will be limited, as regards housing, to protection under general human rights law’. 36

In addition, under the UN Refugee Convention, state parties’ obligation regarding refugees’ ‘right’ to housing is conditional upon whether housing is ‘regulated by laws or regulations or is subject to the control of public authorities’. This implies that a state party does not have housing-related obligations towards refugees if (and to the extent that) housing is a matter left outside its control, for example, if housing is entirely left to the private sector.

Unlike the typical formulation of housing related state obligations in human rights treaties, housing related state obligations under the UN Refugee Convention are formulated in relative terms. There are two types of relative obligations under article 21 in this regard, which may be understood as obligations pertaining to the minimum and higher standards of treatment. The minimum obligation of states is to grant protection to refugees to the extent that they protect the right to housing of ‘aliens generally in the same circumstances’.37 The higher standard enjoins states to grant refugees ‘treatment as favourable as possible’. Although both types of obligations have similarity in that they are formulated in relative terms, there are also clear differences between these levels of obligations. Whether a state has complied with the minimum obligation can be ascertained by looking at the treatment it gives to the comparator group, namely, ‘aliens generally in the same circumstances’. In contrast, establishing whether a state has complied with its obligation concerning the higher standard of treatment may not be easy. The higher standard obliges states to give protection to refugees’ ‘right’ to housing to the extent they can, as favourable as possible. Clearly, this obligation is contingent on different factors, including the capacity of the asylum state and the particular circumstances of the refugees.

The relative standard adopted regarding the minimum standard is problematic. This is not only because the comparator group is ‘aliens generally in the same circumstances’. The relative standard is problematic even if the comparator group were nationals. For example, in the latter case, this provision would have little or no significance to refugees in a state party that does not protect the right to housing of its citizens. The use of a comparator group under article 21 of the UN Convention also implies that state parties to the Convention do not have an obligation to treat refugees on par with their citizens. The non-discrimination provision of the Convention is clear in this regard because it does not prohibit asylum states from making a distinction between refugees and citizens.38 The Convention only prohibits discrimination among refugees. The prohibited grounds of discrimination are also limited: states are required to refrain from discriminating between refugees based on race, religion or country of origin.39

Refugees’ ‘right’ to housing is also implicitly protected under article 23 of the UN Refugee Convention, which deals with public relief. Public relief concerns state interventions to provide services or benefits for those who are in need.40 Under article 23, the Convention requires state parties to provide public relief for refugees on equal terms with their ‘nationals’. However, Hathaway points out two major limitations of article 23 of the UN Refugee Convention. First, this provision applies for refugees lawfully staying, which means that refugees who do not meet this criterion are outside the scope of this provision.41 Second, if public relief programmes are not in place in a state party, the Convention does not require it to provide public relief for refugees.42 If an asylum state provides public relief to its citizens, but the extent of public relief provided by the state is insufficient to meet the housing needs of refugees, the Convention does not require it to provide an adequate level of relief for refugees.43 Similarly, if housing is not part of the existing public relief programmes of an asylum state, the Convention does not enjoin the state to include housing as part of its public relief programmes. Therefore, though article 23 is significant in addressing the housing needs of refugees, its significance is also limited.

The UN Refugee Convention was not intended to set a static standard of protection for the rights of refugees. Instead, it was intended to enshrine minimum standards.44 State parties to the Convention can ‘grant’ refugees ‘more liberal rights’.45 Under its article 5, the UN Refugee Convention provides that ‘[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention’. A state party to the Convention may give a better protection for the rights of refugees by enacting legislation or by ratifying treaties that accord better protection for refugees’ rights as compared to the UN Refugee Convention.46 If new legislation or a treaty subsequently ratified more favourably protects refugees’ right to housing as compared to the protection of this right under the UN Refugee Convention, the minimum standard of protection enshrined under the UN Refugee Convention should not bar refugees from benefiting from such protection.47

Subsequent to the coming into force of the UN Refugee Convention in 1954, several human rights treaties that protect the right to adequate housing have been adopted at the global and regional level. This contribution mainly deals with African regional refugee-specific and ‘general’ human rights treaties that, in many ways, complement the protection of refugees’ ‘right’ to housing enshrined under the UN Refugee Convention. Although this article makes a specific reference to refugees, the analyses and arguments of this article pertaining to the ‘general’ human rights treaties are also relevant for people other than refugees.

3 REFUGEES’ RIGHT TO ADEQUATE HOUSING UNDER THE OAU REFUGEE CONVENTION

The OAU Refugee Convention contains provisions that are distinct from the provisions of the UN Refugee Convention. This includes the expanded definition of the term refugee,48 (which, in relation to refugees’ right to adequate housing, means that persons falling under the broader definition are holders of the right to housing); the recognition, in the broader sense, of the obligation not to return refugees to their country of origin against their will;49 and the obligation it imposes on states of origin to ‘make adequate arrangements’ for the repatriation of refugees and ‘facilitate their re-settlement’.50

Unlike the UN Refugee Convention, the OAU Refugee Convention does not contain a broad range of substantive provisions. The limited number of substantive provisions under the OAU Refugee Convention are, just like in the UN Refugee Convention, framed as state obligations. However, as Viljoen notes, ‘entitlements (or “indirect rights”) are implied by the imposition of obligations on states’.51 The substantive provisions under the OAU Refugee Convention, from which ‘indirect rights’ can be inferred, are the ones that deal with refugee status and the protection against refoulement,52 non-discrimination,53 the issuing of travel documents,54 and the obligation to ‘secure the settlement’ of refugees.55

The absence of explicitly stated substantive rights in the OAU Refugee Convention was because this Convention was designed to be an ‘effective regional complement in Africa’ to the UN Refugee Convention.56 The aim was to ensure that the substantive provisions under the UN Refugee Convention would be applicable in African states that become parties to both the UN Refugee Convention and the OAU Refugee Convention.57 This is why the Assembly of Heads of State and Government requested state parties of the OAU Refugee Convention to accede to the UN Refugee Convention and its Protocol of 1967, and to ‘apply their provisions to refugees in Africa’.58 Consequently, the ‘right’ to housing enshrined under article 21 of the UN Refugee Convention is applicable in asylum countries that are parties to both the UN and OAU Refugee Conventions.59

In addition to the applicability of article 21 of the UN Refugee Convention, the right to adequate housing is more robustly, but impliedly, protected under the OAU Refugee Convention. The obligation to ‘secure the settlement of refugees’, set out under article 2(1) of the OAU Refugee Convention imposes positive obligations on state parties. The term ‘to secure the settlement of refugees’ implies that state parties have an obligation to ensure that refugees have access to adequate housing, without which their settlement cannot be secured. It is crucial to note that this phrase imposes immediate and positive obligations (including the obligation to fulfil (provide)) on state parties to the Convention. This interpretation is consistent with state practice in several African countries.

The obligation to secure the settlement of refugees concerns the duty of states to find long term solutions for refugees.60 Karadawi distinguishes between different phases of assistance that were provided to refugees in Sudan. The first phase is the ‘relief phase’ during which refugees are provided with emergency assistance upon their arrival.61 The second phase is the ‘settlement phase’, which is defined by some level of permanence.62 During this stage, refugees are given land, while ‘infrastructure and services are financed by UNHCR’.63 The allocation of plots of land for refugees, the primary aim of which was to enable refugees’ self-reliance,64 also facilitates their access to housing (for example, through self-help housing) and therefore, can be regarded as part of the state’s performance of its Convention obligation to secure the settlement of refugees. While this is a widespread practice in many African countries that place refugees in refugee camps and refugee settlements, it is crucial that African states also pay attention to securing the settlement of refugees living in urban settings by facilitating and fulfilling their right to adequate housing.

It is also useful to note that the personal scope of article 2(1) is broader than the personal scope of article 21 of the UN Refugee Convention. In other words, the obligation to secure the settlement of refugees is not restricted to a portion of refugees, unlike article 21 of the UN Refugee Convention, which merely applies to a sub-group of refugees who have stayed in the country of asylum beyond a prescribed period of time.

The limitation of article 2(1) is that the right is circumscribed by the proviso ‘consistent with their respective legislation’. Accordingly, the measures that states are required to take, including measures to ensure refugees’ right to housing, are subject to their domestic legislation. This has the potential of jeopardising the protection of refugees’ right to housing implied in this provision65 because article 2(1) does not include a clause that stipulates limitations on domestic legislation, for example, where domestic legislation is too restrictive. However, the jurispru-dence of the African Commission and the African Court on Human and Peoples’ Rights (African Court) affirms that the term ‘law’ in such clauses does not give states an open remit to arbitrarily restrict human rights.

The protection of refugees’ right to housing under the OAU Refugee Convention also has its limitations. Although article 2(1) can be interpreted broadly in a manner that addresses the housing challenges of diverse sub-groups of refugees, such as refugees with disabilities, refugee women, refugee children, and older refugees, its potential is yet to be unlocked through interpretation and application. A related setback to addressing refugees’ housing challenges through the OAU Refugee Convention is that its non-discrimination provision has a very limited scope because it does not prohibit discrimination based on refugee status, sex, gender, disability and many other markers of identity or status.

To sum up, the OAU Refugee Convention indirectly protects refugees’ right to housing in two ways. The first is by referring to article 21 of the UN Refugee Convention which deals with housing. The second indirect protection is through its article 2(1). As much as its value may be circumscribed by a clawback clause, the nature of states’ obligations under article 2(1) reaffirms, and gives refugees a robust legal basis to claim their right to housing. Moreover, the expanded definition of the term ‘refugees’ under the OAU Refugee Convention provides a legal basis for the protection of the right to housing of a broader category of refugees included under article 1(2) of the OAU Refugee Convention, as compared to the narrow definition of the UN Refugee Convention. Furthermore, unlike the limited personal scope of application of article 21 of the UN Refugee Convention (which restricts the applicability of the right to housing to a sub-group of refugees), article 2(1) of the OAU Refugee Convention has a broader personal scope. However, its prohibition of discrimination is limited because it does not prohibit discrimination based on refugee status, sex or gender, and disability, among other grounds.

In what follows, this article explores how the African Charter, the African Women’s Protocol, the African Protocol on PWDs, and the African Children’s Charter strengthen the indirect protection of refugees’ ‘right’ to housing under the OAU Refugee Convention, and respond to the specific housing challenges that different groups of refugees experience.

4 THE PROTECTION OF REFUGEES’ RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN CHARTER

The right to adequate housing is not explicitly recognised in the African Charter. However, the African Commission on Human and Peoples’ Rights (African Commission) has, in its jurisprudence, applied the principle of interdependence of rights66 and ‘read into’ other rights contained in the Charter in order to recognise and give meaning to the right to housing. In Social and Economic Rights Action Centre and Another v Nigeria (SERAC case), the Commission stated that the right to housing is impliedly protected in the rights to property, health and to the protection of family life, all of which are explicitly recognised in the African Charter.67 It held that the destruction of the houses and villages of the Ogoni people by the Nigerian state violated its minimum obligations.68 The Commission found that the minimum obligations with respect to the right to housing are the obligation to refrain from interfering in the enjoyment of the right to housing and the obligation to protect the enjoyment of this right.69 It concluded that the state’s acts amounted to a ‘massive violation of the right to shelter’.70 Similarly, the Commission has recognised the right to housing in other communications brought before it by invoking the interdependence of rights recognised in the Charter. 71

The Commission elaborated on the content of the right to adequate housing. In its Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights’ (Principles and Guidelines), it incorporated the ‘elements’ of adequate housing,72 which are useful for assessing the adequacy of housing.73 The Commission made an important contribution to the clarification of the contents of the right to adequate housing. For example, its Principles and Guidelines spell out the elements of the right to adequate housing in a rights language and clearly state the corresponding obligations of states. This contrasts with the formulation of the ‘elements of adequate housing’ in General Comment 4 of the UN Committee on Economic, Social and Cultural Rights (Committee on ESCR), which, for the most part, does not couch the ‘elements of adequate housing’ as entitlements and freedoms, and fails to specify the obligations of states in relation to each element.74 In addition, in its Principles and Guidelines, the Commission has made it clear that state parties to the African Charter have an obligation to ‘ensure, at the very least, basic shelter for everybody’.75 The Principles and Guidelines denote that states have an immediate obligation that includes the obligation to fulfil (provide).

Perhaps most people who lack adequate housing would be able to realise their right to housing if states merely respect, protect, promote, and facilitate favourable conditions that enable them to meet their housing needs. For those who cannot do so for various reasons, states have the obligation to fulfil (provide), at minimum, basic shelter. This is because the obligation of states to ‘ensure, at the very least, basic shelter for everybody’ is an immediate obligation of result. In other words, for those who cannot or will not meet their shelter needs even if states respect and protect the right to adequate housing and facilitate favourable conditions, an immediate obligation of result triggers states’ obligation to fulfil (provide) basic shelter (at a minimum).

It is clear that the African Commission has adopted a minimalist approach in its Principles and Guidelines.76 However, this should not come as a surprise given the absence of an express provision on the right to adequate housing under the Charter, which would have provided a solid legal basis and guidance for the Commission. As discussed in sections 5 and 6 below, the African Women’s Protocol and the African Protocol on PWDs contain express provisions on the right to adequate housing and impose immediate obligations of result on their state parties.

The rights enshrined under the African Charter apply to every individual. The Charter requires that the rights contained in it must be applied ‘without distinction of any kind’.77 The list of the prohibited grounds of distinction under the African Charter are not exhaustive, which means that it is possible to recognise the prohibition of distinction based on unenumerated arbitrary grounds, such as refugee status and intersectional discrimination that involves refugee status. It is particularly worth noting that one of the prohibited grounds listed in the Charter is ‘fortune’. As discussed in sections 6 and 7 of this article, the explicit legal recognition of fortune as a prohibited ground of distinction is significant with regard to the right to adequate housing.

The implied right to adequate housing is also applicable to refugees in their countries of refuge. The jurisprudence of the African Commission and its soft laws provide support to this interpretation. For example, in a matter that concerns human rights violations including the mass expulsion and forced eviction of Sierra Leonean refugees from their houses in Guinea,78 the Commission based its findings both on the African Charter and the OAU Refugee Convention. It held that Guinea violated articles 2, 4, 5, 12(5) and 14 of the African Charter and article 4 of the OAU Refugee Convention.79 In addition, the Principles and Guidelines recommend that states ‘take measures to ensure that [...] refugees are guaranteed equal access to [...] adequate housing and shelter’.80 The most explicit recognition of refugees as holders of the right to adequate housing is found in the African Guiding Principles on the Rights of All Migrants, Refugees, and Asylum Seekers (Guiding Principles on Migrants’ Rights), adopted by the African Commission on 21 October 2023. 81

In sum, although the African Charter does not expressly enshrine the right to adequate housing, its provisions have been relied on to infer this right. As demonstrated in the jurisprudence and soft law of the Commission, this right applies to refugees. It is possible for the regional judicial and quasi-judicial human rights bodies to interpret this ‘derived’ right in a manner that addresses the peculiar housing challenges of various sub-groups of refugees.82 In order to do so, these bodies may invoke other provisions of the African Charter and the relevant provisions of the group-specific regional human rights treaties. The next three sections analyse how and to what extent the African Women’s Protocol, the African Protocol on PWDs, and the African Children’s Charter protect this right, with a particular reference to refugees.

5 THE PROTECTION OF WOMEN’S RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN WOMEN’S PROTOCOL AND ITS APPLICABILITY FOR REFUGEE WOMEN

The African Women’s Protocol aims to ensure the elimination of discrimination against women83 and the ‘promotion, realisation, and protection’ of their rights.84 This Protocol enhances the protection of women’s rights under the African Charter. For example, it includes rights that are not explicitly recognised in the African Charter. Banda has aptly stated that the ‘introduction of the right to adequate housing’ was ‘an important innovation of the African Protocol’.85 Viljoen has also commented that, ‘by including the right to food security and the right to adequate housing’, the Protocol has ‘gone beyond the scope’ of the rights enshrined under the African Charter.86 Their observations elucidate that the Protocol has added more subsistence related rights to the catalogue of the rights enshrined in the African Charter.

In its article 16, the African Women’s Protocol specifically deals with the right to adequate housing. Unlike article 14(2)(h) of the International Convention against the Elimination of All forms of Discrimination against Women (CEDAW), which applies only to women living in rural areas, article 16 of the African Women’s Protocol applies to all women. It states that

[w]omen 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.

This provision has started to attract scholarly attention.87 Building on existing literature, this article analyses this provision and its significance for addressing the housing challenges of women (including refugee women). Before proceeding to the analysis of this provision, it is appropriate to note that the Principles and Guidelines of the African Commission have dealt with the right to housing, mentioned women and refugees as part of vulnerable groups, and specified state obligations regarding their right to housing.88 However, the Principles and Guidelines only relate to the African Charter, which does not contain an express provision on this right. The robust protection accorded to women’s right to adequate housing is not the legal basis for the Principles and Guidelines. Although the Principles and Guidelines have substantially clarified the contents of the right to adequate housing, some aspects of the Principles and Guidelines, such as the ‘minimum core obligations’ regarding the right to housing are at variance with the level of obligation imposed by the Women’s Protocol.89 Therefore, further clarification of women’s right to adequate housing in line with article 16 of the African Women’s Protocol and the object and purpose of this Protocol is essential. Women’s right to adequate housing under the African Women’s Protocol and the corresponding obligations of state parties to this Protocol are analysed below.

One of the most important and innovative features of article 16 of the Protocol concerns its formulation of the nature of women’s right to adequate housing and the corresponding obligations of states. This article identifies four distinct features of women’s right to adequate housing under the Protocol.

First, article 16 protects women’s ‘equal access’ to adequate housing as an immediately claimable right and requires states to ensure this right immediately.

Second, by including the qualifier ‘in a healthy environment’, women’s right to adequate housing under the African Women’s Protocol strengthens the habitability element of adequate housing found in General Comment 4 of the Committee on ESCR.90 By doing so, it crystalises the soft law obligation of states (regarding the habitability of housing) into a binding obligation. This responds to several housing challenges experienced by women in general, and refugee women in particular. It recognises their right to live in housing that protects them from, and is free from, threats to their health. This should also be understood as protection from physical threats, including domestic violence,91 harassment in housing, and discriminatory rental levels that jeopardise the affordability of housing and ultimately compromise women’s health, for example, by undermining their ability to cater for their needs.

Third, by proclaiming that ‘women shall have the right to equal access to housing’,92 it transforms the accessibility dimension of the right to adequate housing, adopted in General Comment 4 of the Committee on ESCR93 into a claimable right and a binding obligation on state parties. In addition to this relative standard (equal access), the Protocol also lays down an immediate and absolute standard by requiring state parties to ‘grant to women [...] access to adequate housing’.

The ‘equal access’ clause under the first sentence of article 16 has profound significance and further comment is in order. Two issues stand out in this regard: (i) This right is framed as an immediately claimable right which means that state obligations are also immediate.94 (ii) The term ‘equal access’ is not qualified by the comparator group found in CEDAW, namely, men. This addresses women’s unequal access to housing more comprehensively. This is because inequality in access is not only related to gender-based factors, but also to other factors that play a role in women’s access to housing.

Fourth, in the second sentence of article 16, which deals with what state parties must do in order to realise women’s right to adequate housing, the Protocol imposes a combination of an obligation of conduct and an obligation of result on state parties. This underscores the important role of state parties in the realisation of women’s right to housing, mainly by taking positive measures that guarantee this right. This includes facilitating women’s access to housing and fulfilling this right.

The word ‘access’ in this phrase has been interpreted as implying that what is required of states is ‘to create and maintain conducive environment within which individuals are able to acquire [housing] for themselves and not to provide them directly, except in certain exceptional cases’.95 However, I argue that the obligation to ‘grant access’ is broader than merely facilitating conditions for women to realise their right to housing.

Given the multiple challenges that must be overcome in order to finally create a conducive condition for many women in Africa to realise their right to housing, and the fact that states in which most women lack access to housing might find it easy to claim that they are taking measures towards creating such conditions, a narrow interpretation of this word is not beneficial to women who are deprived of access to housing.

The steps to be taken to ensure women’s access to adequate housing depend on the circumstances prevailing in a state party and on the challenges faced by each woman deprived of access to housing. In many contexts, what is required might be facilitating conditions for them to secure their own housing,96 for example, by ensuring their access to land, and providing housing finance. Given the multiple barriers many women in Africa experience in accessing housing, removing all barriers and creating suitable conditions that enable all of them to ‘acquire’ housing might take a long time.

The obligation of states to ‘grant to women [...] access to adequate housing’ is not qualified by the progressive realisation terminology. The ordinary meaning of the terms ‘grant’ and ‘access’ both imply an obligation to fulfil (provide) and an obligation to fulfil (facilitate).97 The Merriam-Webster’s Dictionary defines the term ‘grant’ as follows (these are the relevant ones to this analysis): ‘to consent to carry out for a person: allow fulfilment of’, ‘to permit as a right, privilege or favour’, and ‘to bestow or transfer formally’. The Cambridge Dictionary defines this term as follows: ‘to give or allow someone something, usually in an official way’.98 From these definitions, one may conclude that this term not only implies permission, but also ‘bestowing, giving, and officially

transferring something to someone’.99 Consequently, one may conclude that states’ obligation to grant access to adequate housing includes a positive obligation to fulfil (provide) as one of its main components to realise this right. While the obligation to fulfil (provide) is not always relevant to realise this right, it is indispensable in many contexts, and it is enshrined in the Protocol to serve a purpose.

The African Women’s Protocol was adopted to rectify a critical challenge that women in Africa face. As stated in the preamble to the Protocol, the central concern that necessitated the adoption of the Protocol was the fact that ‘despite the ratification of the African Charter [...] and other human rights instruments’ by African states, ‘women in Africa still continue to be victims of discrimination’.100 In other words, the Protocol was a ‘response to the lack of implementation’ of the rights of women enshrined under African and global human rights law.101 Its aim is to ‘ensure that the rights of women are promoted, realised and protected’.102 It is in light of this aim that the right to adequate housing of women enshrined in the Protocol must be interpreted.

More support can be provided to the interpretation advanced in this article. 1) The formulation of accessibility of the right to health by the UN Committee on ESCR: Drawing on and adapting the four dimensions of the term ‘accessibility’ in its General Comment 15,103 it would be helpful to construe ‘access to adequate housing’ in a multi-dimensional way that encompasses economic, informational, physical, and non-discrimination aspects. 2) The decision of the South African Constitutional Court in Grootboom, in which the Court interpreted the ‘right to have access to adequate housing’ enshrined under article 27(1) of the South African Constitution. It stated that ‘[f]or a person to have access to adequate housing, all of these conditions must be met: there must be land, there must be services, there must be a dwelling’.104 It further emphasised that state policy must respond to the different needs of people. It stated that ‘for those who can afford to pay for adequate housing, the state’s primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses’.105 Whereas, for ‘those who cannot afford to provide themselves with housing’, the Court stated that the state must ‘pay special attention’ and suggested that it must respond to their particular situation by providing ‘adequate social assistance’.106 It is worth noting that this decision, as well as the articulation of the different dimensions of ‘accessibility’ by the UN Committee on ESCR relate to provisions of the South African Constitution and the ICESCR respectively, under which state obligations are qualified.107 For this reason, although they provide insight into what ‘access to adequate housing’ entails, their interpretations of state obligations do not entirely correspond to how state obligations under article 16 of the African Women’s Protocol should be interpreted. This is because the African Women’s Protocol does not subject the realisation of women’s right to adequate housing to the availability of resources.108

In light of this, state parties’ obligation to fulfil (provide) women’s right to adequate housing should not be treated as an exception without even assessing the barriers to their right to housing and identifying the most suitable way of ensuring their access to adequate housing.

Research shows that domestic laws and customary practices in various African countries subject women’s right to housing to their marital status.109 In response, by enshrining women’s equal access to housing regardless of their marital status, the Protocol addresses another dimension of access, and is useful to challenge laws and practices that anchor women’s right to housing on their marital status. State parties’ obligations in this regard are also immediate and are not subject to progressive realisation.

The African Women’s Protocol contains provisions that specifically refer to refugee women. This includes article 4(2)(k), which concerns refugee women’s equal access to refugee status determination and obliges states to give refugee women the ‘full protection and benefits guaranteed under international refugee law, including their own identity and documents’. Under the rubric of ‘the right to peace’, the Protocol enjoins states to secure the participation of asylum seeker and refugee women at all levels of decision making regarding the protection of refugees.110 Evidently, the fact that the Protocol contains specific provisions dealing with refugee women does not mean that other rights contained in the Protocol do not apply to refugees. The specific provisions deal with matters that are specific to refugee women. In light of this, women’s right to adequate housing, enshrined under the African Women’s Protocol equally applies to refugee women.

It may be concluded that the African Women’s Protocol provides a robust protection to the right to adequate housing of women. The main feature of the right to adequate housing of women under the African Women’s Protocol is its formulation of the obligation of states as an immediate obligation of conduct and result. The other important feature of the right to adequate housing under the Protocol is the transformation of some aspects of the components of the right to adequate housing from soft law-based, non-binding obligations into binding obligations. This section has also shown that the rights contained in the Protocol, including the right to adequate housing apply to refugee women.

6 THE RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN PROTOCOL ON PWDS AND ITS APPLICABILITY FOR REFUGEES WITH DISABILITIES

The African Protocol on PWDs was adopted with the aim of providing a legal response to multiple factors that constitute, and contribute to, the violation of the rights of PWDs in Africa. In its preamble, this Protocol mentions some of the factors that necessitated its adoption, which include the ‘extreme levels of poverty’,111 and the ‘systemic discrimination, social exclusion, prejudice within political, social and economic spheres’,112 which PWDs experience, and the absence of an appropriate and binding legal and institutional framework at the regional level.

One of the serious challenges that PWDs face relates to housing.113 Difficulties in access, caused by financial and physical inaccessibility,114 discrimination,115 harassment, violence, and the lack of essential services and facilities could be cited as some examples of the housing challenges that PWDs face. As shown below, by providing tailored legal responses to these challenges, the African Protocol on PWDs addresses the shortcomings of the African Charter, and the OAU Refugee Convention and its global counterpart.

7 THE LEGAL PROTECTION OF REFUGEE CHILDREN’S RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN CHILDREN’S CHARTER

The African Charter on the Rights and Welfare of the Child (African Children’s Charter) is the only African human rights treaty that expressly proclaims that the rights it contains, including the right to housing, apply to refugee children. This sets it apart from other African human rights treaties and the UN Refugee Convention. It also enshrines child-specific principles and rights, such as the right to life and development,149 non-discrimination,150 the best interests of the child, and the right to participation.151

Unlike the UN Convention on the Rights of the Child, the African Children’s Charter does not contain an express provision on the right to adequate housing.152 However, as discussed below, this right is implied in the provisions dealing with the freedom against interference in the home and parental responsibilities. The protection against interference in the home is one of the guarantees for housing rights that the Charter provides for the (refugee) child. Under article 10, it stipulates a non-interference obligation stating that ‘[n]o child shall be subject to arbitrary or unlawful interference with his privacy, family, home ...’ As the prohibition relates to arbitrary or unlawful interference, this provision suggests that reasonable and lawful interference is permissible and recognises the rights of parents or legal guardians to ‘exercise reasonable supervision over the conduct of their children’. Clearly, an interference amounting to harassment or forced eviction is outside the ambit of the rights of parents and guardians. To protect a child from arbitrary or unlawful interference, the provision guarantees the child’s right to be legally protected against such an interference.153 This provision has the potential of protecting a child’s housing rights, for example, from various forms of interference including forced eviction.

The African Children’s Charter explicitly provides for the obligation to fulfil (provide) both on parents and those responsible for the child, and on state parties. It recognises parents and other persons responsible for the child as primary duty bearers in the provision of housing for the child.154 State parties must take ‘all appropriate measures’ to assist parents or those responsible for the child especially if they are in need. The African Children’s Charter requires state parties to take ‘all appropriate measures’ to ‘provide material assistance and support programmes’ for such parents or people responsible for the child. The measures that state parties are required to take must be ‘in accordance with their means and national conditions’. The phrase ‘in accordance with their means and national conditions’ is a key determinant of the scope of states’ obligations under article 20(2)(a). As discussed below, it may be interpreted in two ways - restrictively or broadly:

i) Whether a state party has an obligation to provide ‘material assistance or support programmes’ depends on its ‘means and national conditions’. A state party can invoke the lack of resources to justify its failure to provide assistance and support for those in need. In other words, any measure required of states towards fulfilling this obligation is resource dependent and progressively realisable. States are required to ‘take all appropriate measures’, which means that the obligation to fulfil (provide) is not an immediate obligation.

ii) The phrase ‘in accordance with their means and national conditions’ does not make state parties’ obligations entirely conditional. The obligation of states to ‘take all appropriate measures’ to provide assistance or support for children in need is a given. The phrase in question only deals with the extent of the assistance required of states. It is not permissible for states to sidestep their obligation of providing ‘material assistance or support programmes’ by invoking the lack of resources. States have an immediate obligation to take measures. Regardless of the extent of resources available for a state, if the state takes all appropriate measures immediately, it can provide some form of assistance and support for children in need.

The second interpretation is more favourable for children in need because it does not open room for states to avoid fulfilling their article 20(2)(a) obligation on the pretext of the lack of resources. This interpretation also aligns with article 5 of the Charter, which deals with the ‘survival and development’ of children. Article 5 proclaims that ‘every child has an inherent right to life’, and requires state parties to ‘ensure, to the maximum extent possible, the survival, protection and development of the child’.155 Given the fact that the lack or deprivation of adequate housing is a threat to a child’s life, the failure to ‘take all appropriate measures’ to provide assistance for a child with a housing need would constitute a violation of article 5 of the Children’s Charter. A consideration of the object and purpose of the Charter also supports the second interpretation. As the object and purpose of the African Children’s Charter includes the provision of a legal response to the specific ‘needs of [the child’s] physical and mental development’, which are not met for a significant proportion of children in Africa,156 an interpretation of article 20(2)(a) that better responds to the situation of deprived children is certainly preferable. Finally, the second interpretation is consistent with the right to housing provisions of the African protocols on women and persons with disabilities. As shown in the forgoing sections, the provisions of these protocols dealing with the right to adequate housing, which require states to fulfil (provide) this right, do not subject this obligation to the availability of resources.

When read in conjunction with the qualifier ‘all appropriate measures’, the clause ‘in accordance with their means and national conditions’ also serves as an important tool for assessing the appropriateness of measures taken by states towards ‘provid[ing] material assistance and support programmes’, including adequate housing. It can also be used to question states that have not fulfilled this obligation. A 2020 data released by the UNICEF shows that, in a number of African states South of the Sahara, only a small percentage of children benefitted from state provided social protection schemes.157 In light of this, the obligation of states enshrined under article 20(2)(b) of the African Children’s Charter can be understood as a key legal response to the prevailing situation and as guidance for states that are yet to fulfil their obligation towards children in need.

8 CONCLUSION

The lack of adequate housing is one of the most critical challenges that affect a significant number of people in Africa, particularly those in vulnerable situations. Refugees in vulnerable situations, who are also unevenly affected by the lack of adequate housing, experience this challenge in dismally unique ways. Adequate legal responses are part of the range of essential tools that guide African states to address this problem. Given the fact that these challenges have persisted despite the existence of robust legal frameworks in African regional human rights law, interpreting and clarifying the normative standards in a manner that is responsive to the prevailing situation is necessary and aligns with the object and purpose of relevant human rights treaties of this region. It is with the aim of doing so that this article has analysed applicable normative standards of African regional human rights law.

In addition to analysing the legal protection of the right to adequate housing under African human rights law, this article has explored the extent of protection given to refugees. It has found that, although the OAU Refugee Convention does not explicitly provide for the right to housing of refugees, and its non-discrimination provision fails to protect refugees from discrimination based on their refugee status, gender, disability, and many other markers of identity, it imposes an obligation on its state parties to secure the settlement of refugees. It has asserted that this obligation is broad and includes obligations pertaining to refugees’ right to adequate housing. The article has shown that the shortcoming of the OAU Refugee Convention with regard to non-discrimination has been addressed by the African Charter, its protocols on women and persons with disabilities, and the African Children’s Charter. The African Women’s Protocol and the Protocol on PWDs provide robust protection to the right to adequate housing, for example, by imposing immediate obligations on state parties to fulfil (provide) adequate housing. This article has demonstrated why the protection of these protocols applies to refugee women and refugees with disabilities, respectively. Although the right to adequate housing is not expressly enshrined under the African Children’s Charter, this article has shown the indirect ways in which the Charter protects refugee children’s right to adequate housing.