COHRE Housing and ESC Rights Law Quarterly Vol6 No.1 2009

housing and esc rights law Centre on housing rights and evictions

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Vol. 6 - No. 1 March 2009

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and economic, social and cultural rights.

Roy Sesana et al v Attorney General: The San Bushmen case Land Restitution for Indigenous Peoples of Botswana

by Gordon Bennet1 The case of Roy Sesana Keiwa Setlhobogwa and Others v. the Attorney General before the High Court of Botswana dealt with remedies for the forced eviction of the San Bushmen, an indigenous people, from their lands in the Central Kalahari Game Reserve. The Court ordered restitution of the land leading to the return of the Bushmen to their ancestral home.

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The Central Kalahari Game Reserve (the CKGR) is a semiarid desert about the same size as Belgium. It was formed in 1961 by the colonial administration of Bechuanaland, as it then was called, to protect wildlife from big game hunters who flocked to the area in search of sport. Another, equally important, purpose was to provide a safe haven for the Bushmen to whom the Central Kalahari

has been home for a thousand years or more. Unfortunately the Government Notice by which the Reserve was created said nothing about the legal right of the Bushmen to remain there.

Nor do the laws of independent Botswana. On the contrary, the Wildlife Regulations 2000 expressly state that “No person shall enter or be within a national park or game reserve unless he

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Gordon Bennet represented the Applicants at trial.

1 • Roy Sesana et al v Attorney General: The San Bushmen case Land Restitution for Indigenous Peoples of Botswana

2 • Summary

6 • Declaration of incompatibility with European Convention of Human Rights made relating to a law allowing local authorities to evict tenants without first holding an independent inquiry: the Gallagher case

5 • Case notes European Committee of Social Rights decision on the right to education for children with intellectual disabilities: Mental Disability Advocacy Centre (MDAC) v. Bulgaria, European Committee of Social Rights, complaint no. 41/2007, decision on the merits of 3 June 2008

7 • High Court of Australia judgment on land rights for indigenous people: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, [2008] HCA 48, Case no. S217/2008, 2 October 2008.

8 • Cases to watch South African Supreme Court: Mazibuko & Ors v. City of Johannesburg & Ors: Phiri Right to Water Case • Shadow Report to the Committee Against Torture: Violations of the rights to housing, water and sanitation by Israel

This publication has been made possible with the support of the United National Housing Rights Programme, http://www.unhabitat.org/unhrp, and the Canadian International Development Agency, http://www.acdi-cida.gc.ca/index-e.htm.

The views expressed in this publication are not necessarily shared by the UN, UN-Habitat or CIDA. ISSN 1812-240 X

Summary This edition of the Quarterly opens with an article on a ground breaking decision from the High Court of Botswana in the case of Roy Sesana et al v. Attonry General. The case involves the forced eviction of the indigenous San Bushmen from the Central Kalahari Game Reserve and their challenge seeking the remedy of restitution of homes and lands. The means of eviction included violations of the right to water including the destruction of wells necessary to support human life in the reserve.

Following are several Case Notes, including cases before the European Social Committee involving disability and education rights as well as non-discrimination in the context of children in Bulgaria; housing rights in Ireland before the European Court of Human Rights; and indigenous property rights in Australia before domestic courts.

Finally, two cases to watch including the landmark right to water case of Lindiwe Maxibuko & Ors v. The City of Johannesburg & Ors, on appeal before the Supreme Court of South Africa, and a Shadow Report to the Committee Against Torture raising violations of the right to adequate housing, in particular forced evictions and home demolitions, and the right to water and sanitation is Israel and the occupied Palestinian territory.

We are thankful to the Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, and the Canadian International Development Agency (CIDA) for providing the funding necessary to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure its widest possible distribution.

For additional information on the justiciability of ESC rights, see www.cohre.org/litigation and the Case Law Database at www.escr-net.org.

We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications. Please feel free to contact us at: quarterly@cohre.org

» [or she] is in possession of a valid entry permit issued by the Officer in Charge.” Anyone who commits an offence under these Regulations faces a fine of 10,000 Pula (about $ 2,000) or seven years in prison.

None of the 650 Bushmen, women and children who still lived in the Reserve in 2002 had ever held a valid permit. The Government must therefore have thought that it was on safe ground when it sent in the cattle trucks in February 2002 to move everyone out, ostensibly in the interests of wildlife protection. Without permits, the argument ran, the Bushmen were trespassers who could be evicted at the whim of the State. Besides, the State asserted that they had agreed to go in return for a promise of generous compensation. They were told that they would in any event be far better off in resettlement villages where medical clinics, schools and other facilities were readily to hand.

Many Bushmen did not accept this offer, however. Over 220 of them applied to the Botswana High Court for orders that they had been forcibly evicted from their settlements against their will, and therefore unlawfully, and that they should be allowed to return to their homes and lands.

The case was an unusual one in numerous respects. It was the first time that High Court judges had visited the CKGR to see living conditions for themselves; the first time that hearings had been held in a resettlement village more than 120 kilometres from the nearest town; the first time too that the State’s lead attorney (who happened also to be the Special Advisor to the President)

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was committed to prison for four days for contempt of court; and after the longest and most expensive trial in the country’s history, the first time that a court judgement was broadcast live on Botswana television.

When the judgement was finally delivered in December 2006, almost five years after the proceedings had started, it heralded a great victory not just for the Bushmen but for the independence of the Botswana judiciary.

Two of the three judges upheld the Bushmen’s claim that they had been unlawfully removed from their homes, the 2000 Regulations notwithstanding, and rejected the evidence of a score of Government witnesses that the Bushmen had agreed to leave.

The Government had argued that it would not have compensated those who lost huts and kraals if it had intended that they should remain free to return to the Reserve and erect new huts as and when they chose. Against this, it was submitted for the Applicants that they had not been informed how or by whom their compensation was to be calculated, or whether they would have any right of appeal if they thought the amount inadequate, and that they had received no independent advice on any of these matters. Above all, people were not told whether they were being compensated for the loss of a particular hut or compound or for the surrender of any right they believed they had to live in the Reserve. It followed that the mere fact that a Bushman had put his mark on an official form and had accepted compensation, did not mean that he had given his free, prior and informed consent to give up his or her rights.

A further argument became available to the Applicants only towards the end of the trial when the Government belatedly disclosed, apparently without appreciating their significance, at least some of the records that its officers had generated in the course of the relocation. These showed that in most settlements one member of each extended family had been persuaded to put their mark on a statement confirming that all property listed on the statement belonged to him or her. No one had attempted to verify these statements, which were untrue as items of any significance are almost always owned by the group as a whole.

Armed with the “signature”, however, officers had dismantled any hut or kraal and removed any livestock that appeared on the list. Other members of the family, confronted with the loss of their principal means of survival, were left little choice but to clamber onto the truck with the relative who had signed the form. They had been deliberately denied the right to decide for themselves whether to stay or go.

The majority of the Court accepted these submissions, and ruled that the Bushmen had therefore been forcibly evicted from the Reserve against their will and unlawfully.

One of the two judges who found in the Bushmen’s’ favour on this issue also relied upon General Recommendation XXIII of the UN Committee on the Elimination of All Forms of Racial Discrimination.

This General Recommendation stresses the need to ensure that “no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent”.

The same two judges went on to hold that the Bushmen had a right under the Constitution of Botswana to return to and leave the Reserve as they wished.

The Government’s insistence that they first obtain an official permit under the Regulations was deemed to be an unlawful denial of that right.

The right was said to derive from Section 14(1) of the Constitution, which in common with the constitutions of other countries in Africa and elsewhere, provides that: No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana, the right to enter Botswana and immunity from expulsion from Botswana ….

This provision was introduced as a result of the apartheid era, almost certainly to demonstrate the unequivocal rejection of policies prohibiting freedom of movement and residence by the newly independent State. The Bushmen were able to make good use of it, however, to demonstrate their “right to reside” in the CKGR. The Applicants referred to Section 14 in opening arguments – for the first time in forty years relying upon it in a court proceeding. The Government, however, soon after announced that it intended to repeal it. A Bill was duly approved by a two thirds majority of the National Assembly and the Constitution was formally amended while the trial was still in progress.

Fortunately for the Bushmen, the amendment repealed the wrong portion of the section.

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» All three judges decided that a hunting ban which the Government had sought to impose throughout the Reserve was unlawful and unconstitutional, because it had not been introduced to protect game from excessive hunting. Rather, its sole purpose had been to force the Bushmen to leave their homes.

As one of the Judges remarked, the ban was tantamount to condemning the Bushmen to starvation, and violated their right to life under the Constitution.

If the judgment was a vindication of much that the Bushmen had fought for, it has not solved all their difficulties. Litigation rarely does. In April 2008 the UN Human Rights Committee expressed its concern that: not all relocated persons will benefit from the High Court decision in Roy Sesana et al v Attorney-General, and that the practical enjoyment of the right to return is conditional on providing identity documents prior to entering the CKGR, obtaining a Special Game Licence to hunt and that the State party will not provide acces s to ground water for such persons. The State Party should ensure that all persons who were relocated are granted the right to return to the CKGR, consistent with the reasoning of the High Court decision, and that all necessary measures are taken to facilitate the enjoyment of Covenant rights by those persons upon their return.

While the strategy of using UN treaty-monitoring mechanisms as a means to influence the implementation of domestic court decisions is generally quite useful, it remains to be seen whether the Government will pay any heed to these strictures. The new President has recently held talks with the main Applicant, Roy Sesana, but a negotiated settlement of the differences between

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the Government and the Bushmen seems as far away as ever. In the meantime, in October 2008 environmental clearance was issued for a diamond mine at Gope, and the Government has also given permission for a tourist lodge near Molapo. The development of these sites, both of them deep inside the CKGR, could mark a radical change in the way of life of those who have returned to the Reserve in the wake of the judgment.

The most pressing problem, however, is to re-commission a borehole in the Reserve from which water used to be provided to the Bushmen settlements. The Government removed the pump and engine at the time of the relocation, and has refused to allow them to be replaced. It is perhaps a mark of its determination to obstruct the Bushmen’s return to the CKGR that the Government has made it a term of its environmental clearance for the Gope mine that water extracted from boreholes in the mining area “will be utilized strictly to provide water for the mine.” The sole purpose of this decision appears to be to ensure that Bushmen are denied access to water surplus to the mine’s requirements, however desperate their need may be.

a landmark case. It has shown that with the necessary degree of determination, an impoverished and vulnerable group can succeed against an all-powerful opponent with apparently unlimited resources. Equally important, the decision may influence the future conduct of African states which until now have been accustomed to relocate their people almost at will in the name of “development”, “integration” or some other supposedly greater good. As often as not, the wishes of the people themselves have simply not been a consideration. Governments may now have to accept that the age of free, prior and informed consent is finally upon us.

The most important achievement of Sesana, however, may have been to provide a viable foothold in Africa for the doctrine of aboriginal title. This holds, in effect, that unless a colonial power has expressly extinguished the land rights of the indigenous peoples in its new territory those rights are deemed to have remained in place, and will survive into the newly independent state. They ought therefore to be enforced by a modern court, especially where rights of property are constitutionally guaranteed.

In a land where a reliable source of water can mean the difference between life and death, this policy could have disastrous consequences. If it cannot be reversed by agreement, the Bushmen may have to go back to court. Papers have already been prepared, invoking the human right to water and the duty assumed by Botswana when it ratified the Covenant on Civil and Political Rights “not to deprive a people of its means of subsistence.”

Aboriginal title as a concept is well established in those common law jurisdictions with indigenous populations. It has been developed particularly in Australia and New Zealand but has also been applied, for example, in Malaysia and Belize. In Richtersveld Community v Alexkor and Govt of Republic of South Africa (2005), the Constitutional Court of South Africa appeared to acknowledge that the doctrine also formed a part of Roman Dutch law, but did not make a specific ruling to that effect.

Wherever these developments may ultimately lead, Sesana remains

Sesana appears to be the first occasion on which an African

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court has formally recognised indigenous land rights which form part of the tradition and culture of an indigenous community, even if ignored by the national law. It does not matter that they have

been ignored because those in power have consistently supposed that rights in State land come into being only if and when the State chooses formally to grant them.

Nor does it matter that indigenous

land rights do not easily fit with “modern” notions of property, whether in a common law or mixed jurisdiction, because aboriginal title is sui generis.

CASE NOTES European Committee of Social Rights decision on the right to education for children with intellectual disabilities: Mental Disability Advocacy Centre (MDAC) v. Bulgaria, European Committee of Social Rights, complaint no. 41/2007, decision on the merits of 3 June 2008

The Mental Disability Advocacy Centre (MDAC) alleges that the situation in Bulgaria is not in conformity with Article 17(2) alone and in conjunction with Article E of the Revised European Social Charter because children living in (special) homes for intellectually disabled children in Bulgaria receive no education. According to Article 17(2) of the Revised Charter, State parties are obliged to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools. According to Article E this right shall be secured without discrimination.

According to MDAC these provisions require the Republic of Bulgaria to provide primary education for all children, including children with intellectual disabilities living in special homes. The Committee considers that Article 17(2) applies fully in this case and considers, inter alia, that the State must fulfil the criteria of availability, accessibility, acceptability and adaptability. In this case, the criteria of accessibility and adaptability

are at stake, for instance educational institutions and curricula have to be accessible to everyone, without discrimination and teaching has to be designed to respond to children with special needs.

While the Committee takes note of the efforts of the State to respect the right to education for disabled children through the adoption of legislation and the setting up of action plans it reiterates that the manner in which this legislation and these action plans are implemented is decisive. In this regard the Committee notes that mainstream educational institutions and curricula are not accessible in practice to children with intellectual disabilities residing in special homes. Further, the adaptability criterion is not met. Mainstream school are not suited to meet the needs of children with intellectual disabilities because teachers have not been trained sufficiently and training materials are inadequate.

Furthermore, special education is also not accessible to children with intellectual disabilities residing in special homes. And activities

conducted in special homes cannot be considered a form of education. Finally, the State’s argument that the right of children with intellectual disabilities residing in special homes is being implemented progressively is not convincing according to the Committee. While being aware of the State’s financial constraints, the Committee notes that progress has been slow and mainly concerns the adoption of legislation and polices with little or no implementation. Consequently, the Committee considers that the measures taken do not fulfil the three criteria of a reasonable timeframe, measurable progress and financing consistent with the maximum use of available resources.

The Committee considers that Bulgaria’s financial constraints cannot be used to justify the fact that children with intellectual disabilities in special homes cannot enjoy their right to an education, whereas children with no intellectual disabilities can, and holds that Bulgaria is violating Article 17(2) of the Revised Charter alone and in conjunction with Article E.

Case Note by Margarita Ilieva

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Declaration of incompatibility with European Convention of Human Rights made relating to a law allowing local authorities to evict tenants without first holding an independent inquiry: the Gallagher case On 11 November 2008, Mr. Justice Iarfhlaith O’Neill declared that Section 63 of the Housing Act 1966 is incompatible with Article 8 of the European Convention on Human Rights (ECHR). The provision in questions allows for possession orders for council (social) houses when there is a genuine dispute as to the reason for the order.

The case involves a person who claimed that he was entitled to success to his mother’s tenancy at a house in Coolock, Dublin after her death in 2005. After discovering that the Applicant had not resided at his mother’s home for two years prior to her death, the Dublin City Council rejected his application and issued a notice to quit and demand for possession in 2006. The Applicant, however, claimed to have been living with his mother continuously except

for a short period in the nineties.

The case went before the District Court which made a finding of fact upholding his claim, but the court then expressed concern that Section 62 of the Housing Act did not allow the court to assess the merits of applications for possession orders. These issues were then referred to the High Court for clarification.

The judge said that the Applicant should not be made to take High Court judicial review proceedings in order to acquire procedural safeguards and that this would have been avoidable had the council put in places the procedures that would safeguard his rights.

This was the case in particular in light of a previous declaration of incompatibility handed down my Ms. Justice Mary Laffoy in the case of Donegan v. Dublin City

Case Note by Kees Wouters

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Council & Ors [2008] IHEC 288 earlier in 2008. In this case the same provision of the Housing Act was held to be incompatible with Article 8 of the ECHR because it allows councils to evict tenants for anti-social behaviour with no opportunity to challenge the allegations against them before a court or impartial tribunal. The judge ruled that this was disproportionate in a case where the person was at risk of losing their home.

In all, the Gallagher case is the third declaration of the Housing Act being incompatible with the ECHR. The first declaration was handed down in the Foy case in October 2007. The question of whether the Government will respect the declarations and amend the laws which have been deemed incompatible with the Convention remains to be seen.

High Court of Australia judgment on land rights for indigenous people: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, [2008] HCA 48, Case no. S217/2008, 2 October 2008.

On 23 May 2005, the Land Council, on behalf of the Wagga Wagga Local Aboriginal Land Council, made a claim under the New South Wales Aboriginal Land Rights Act to the 815 square metre allotment in the Wagga business district. A derelict two-story brick building stood on the site. It was used as a motor registry from 1958 to 1985 and afterwards has been used to store old office furniture. After a plan to turn the building into a laboratory was abandoned in 2004, the State government decided to sell the site. Before the land claim was made, a real estate agent was appointed, an identification survey of the land was made, the Register-General issued a certificate of title, reservation of the land for a “government supply department office and workshop” was revoked, and an auction date of 8 July 2005

was fixed. The Minister for Lands refused the claim, concluding that the land was not claimable Crown land because it was lawfully used and occupied by the Department of Lands in preparing it for sale.

The Land Rights Act’s definition of “claimable Crown lands” was limited to lands that were “not lawfully used or occupied”. The Land Council appealed to the NSW Land and Environment Court against the refusal of the claim. Justice Peter Biscoe dismissed the appeal and held that the decision to sell the land and the steps taken to do so were an actual use of the land. The Land Council appealed to the Court of Appeal which allowed the appeal, held that the land was not being used when the claim was made, declared that the land was claimable Crown land, and ordered the Minister to transfer the land to the

Wagga Land Council. The Minister appealed to the High Court. The Court unanimously dismissed the appeal. It held that sale of the land would amount to exploitation of the land as an asset but it did not follow that exploitation by sale amounted to use of the land.

The steps taken to bring about the sale did not amount to lawful use.

Nothing was being done on the land when the claim was made and nothing had been done for a considerable time before then.

Visits by surveyors and the real estate agent did not amount to a use of the land for the purposes of the Land Rights Act and everything else that was being done towards selling the land occurred elsewhere.

Case note by High Court of Australia Press Release

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CASES TO WATCH South African Supreme Court: Mazibuko & Ors v. City of

The Editorial Board of the Housing and ESC Rights Law Quarterly is:

Johannesburg & Ors : Phiri Right to Water Case

In the landmark case of Lindiwe Maxibuko & Ors v. The City of Johannesburg & Ors, the High Court of South Africa ruled that the City of Johannesburg’s prepayment water meters scheme in Phiri, a township in Soweto, was unconstitutional. This judgment also reaffirmed the principle of progressive realisation and increases the minimal amount of safe drinking water that the City is obligated to provide. The City, however, appealed the case to the Supreme Court of South Africa.

In February 2009, the Supreme Court of South Africa heard oral arguments in the case. One of the more specific issues discussed was whether or not the concept of the minimum core should be used by a court in its analysis of what is considered reasonable in the context of progressive realisation.

Other issues before the Supreme Court include those dealing with procedural fairness, equality and non-discrimination, the obligation to take reasonable measure to ensure the right to water and the obligation to respect the right to access to sufficient water as guaranteed by the Constitution of South Africa as informed by international human rights standards.

The Court is expected to issue its ruling in early 2009.

For more information, including the judgment, see: http://www.cohre.org/watersa

• Salih Booker, Executive Director, Centre on Housing Rights and Evictions (COHRE), Switzerland; • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Dr Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

• Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCR-Net, USA; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme, Switzerland.

Coordinating Editor: • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme, Switzerland.

Case to watch by Bret Thiele

Shadow Report to the Committee Against Torture: Violations of the rights to housing, water and sanitation by Israel COHRE has submitted a Shadow Report to the Committee Against Torture in the context of the upcoming periodic reporting of Israel. The Report argues that in many circumstances, violations of the right to adequate housing, including in particular forced eviction and home demolition, as well as violations of the right to water and sanitation, rise to violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While the Committee has previously found forced evictions and home demolitions in violation of Article 16’s prohibition on cruel, inhuman or degrading treatment or punishment, the Shadow Report is one of the first to argue that in certain circumstances violations of the right to adequate housing amount to violations of Article 1’s prohibition on torture.

The Report is also the first to argue that violations of the right to water and sanitation may rise to violations of the Convention Against Torture.

The Committee Against Torture will consider Israel’s compliance with the Convention Against Torture in May 2009 and issue its Concluding Observations soon thereafter.

For more information, including the Shadow Report, see: www.cohre.org/opt Case to watch by Bret Thiele

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Housing and ESC Rights Law Quarterly

Contact If you have any comments, require additional copies, wish to contribute to or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org