housing and esc rights law

Vol. 6 - No. 1 March 2009 1 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 The Central Kalahari Game has been home for a thousand Setlhobogwa and Others v. the Reserve (the CKGR) is a semi- years or more. Unfortunately Attorney General before the High arid desert about the same size as the Government Notice by which Court of Botswana dealt with Belgium. It was formed in 1961 by the Reserve was created said remedies for the forced eviction the colonial administration of Be- nothing about the legal right of of the San Bushmen, an indig- chuanaland, as it then was called, the Bushmen to remain there. enous people, from their lands to protect wildlife from big game Nor do the laws of independ- in the Central Kalahari Game hunters who flocked to the area in ent Botswana. On the contrary, Reserve. The Court ordered search of sport. Another, equally the Wildlife Regulations 2000 restitution of the land leading important, purpose was to provide expressly state that “No person to the return of the Bushmen a safe haven for the Bushmen shall enter or be within a national to their ancestral home. to whom the Central Kalahari park or game reserve unless he »

1 Gordon Bennet represented the Applicants at trial.

1 2 5 • Roy Sesana et al v Attorney General: • Summary • Case notes The San Bushmen case European Committee of Social Rights Land Restitution for Indigenous decision on the right to education for Peoples of Botswana 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 6 7 8 • Declaration of incompatibility with • High Court of Australia judgment on • Cases to watch European Convention of Human Rights land rights for indigenous people: South African Supreme Court: made relating to a law allowing local Minister Administering the Crown Lands Mazibuko & Ors v. City of Johannesburg authorities to evict tenants without Act v NSW Aboriginal Land Council, & Ors: Phiri Right to Water Case first holding an independent inquiry: [2008] HCA 48, Case no. S217/2008, • Shadow Report to the Committee entre on housing rights and evictions and rights housing on C entre the Gallagher case 2 October 2008. 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 »[or she] is in possession of a valid entry permit issued by the Officer in Charge.” Anyone who commits This edition of the Quarterly opens with an article on a ground an offence under these Regula- breaking decision from the High Court of Botswana in the case tions faces a fine of 10,000 Pula of Roy Sesana et al v. Attonry General. The case involves the (about $ 2,000) or seven years in forced eviction of the indigenous San Bushmen from the Central prison. Kalahari Game Reserve and their challenge seeking the remedy of restitution of homes and lands. The means of eviction included None of the 650 Bushmen, violations of the right to water including the destruction of wells women and children who still necessary to support human life in the reserve. lived in the Reserve in 2002 had ever held a valid permit. The Following are several Case Notes, including cases before the Government must therefore have European Social Committee involving disability and education thought that it was on safe ground rights as well as non-discrimination in the context of children in when it sent in the cattle trucks in Bulgaria; housing rights in Ireland before the European Court of February 2002 to move everyone Human Rights; and indigenous property rights in Australia before out, ostensibly in the interests domestic courts. of wildlife protection. Without permits, the argument ran, the Finally, two cases to watch including the landmark right to water Bushmen were trespassers who case of Lindiwe Maxibuko & Ors v. The City of Johannesburg & Ors, could be evicted at the whim of on appeal before the Supreme Court of South Africa, and a Shadow the State. Besides, the State Report to the Committee Against Torture raising violations of the asserted that they had agreed right to adequate housing, in particular forced evictions and home to go in return for a promise of demolitions, and the right to water and sanitation is Israel and the generous compensation. They occupied Palestinian territory. were told that they would in any event be far better off in We are thankful to the Housing Rights Programme, a joint initia- resettlement villages where tive of UN‑HABITAT and the UN Office of the High Commissioner medical clinics, schools and other for Human Rights, and the Canadian International Development facilities were readily to hand. Agency (CIDA) for providing the funding necessary to make the Housing and ESC Rights Law Quarterly a regular publication and Many Bushmen did not accept to ensure its widest possible distribution. this offer, however. Over 220 of them applied to the Botswana For additional information on the justiciability of ESC rights, High Court for orders that they see www.cohre.org/litigation and the Case Law Database at had been forcibly evicted from www.escr-net.org. their settlements against their will, and therefore unlawfully, and We welcome any comments, submissions of case notes and arti- that they should be allowed to cles, as well as information on new cases and relevant events and return to their homes and lands. publications. Please feel free to contact us at: [email protected] 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)

2 Housing and ESC Rights Law Quarterly was committed to prison for A further argument became The same two judges went on four days for contempt of court; available to the Applicants only to hold that the Bushmen had a and after the longest and most towards the end of the trial when right under the Constitution of expensive trial in the country’s the Government belatedly dis- Botswana to return to and leave history, the first time that a court closed, apparently without appre- the Reserve as they wished. judgement was broadcast live on ciating their significance, at least The Government’s insistence Botswana television. some of the records that its offic- that they first obtain an official ers had generated in the course of permit under the Regulations was When the judgement was finally the relocation. These showed that deemed to be an unlawful denial delivered in December 2006, in most settlements one member of that right. almost five years after the pro- of each extended family had been ceedings had started, it heralded persuaded to put their mark on The right was said to derive from a great victory not just for the a statement confirming that all Section 14(1) of the Constitution, Bushmen but for the independ- property listed on the statement which in common with the consti- ence of the Botswana judiciary. belonged to him or her. No one tutions of other countries in Africa Two of the three judges upheld had attempted to verify these and elsewhere, provides that: the Bushmen’s claim that they statements, which were untrue had been unlawfully removed from as items of any significance are No person shall be deprived of their homes, the 2000 Regulations almost always owned by the group his freedom of movement, and for notwithstanding, and rejected the as a whole. the purposes of this section the evidence of a score of Government said freedom means the right to witnesses that the Bushmen had Armed with the “signature”, move freely throughout Botswana, agreed to leave. however, officers had dismantled the right to reside in any part any hut or kraal and removed any of Botswana, the right to enter The Government had argued that livestock that appeared on the Botswana and immunity from it would not have compensated list. Other members of the family, expulsion from Botswana …. those who lost huts and kraals if confronted with the loss of their it had intended that they should re- principal means of survival, were This provision was introduced as main free to return to the Reserve left little choice but to clamber a result of the apartheid era, and erect new huts as and when onto the truck with the relative almost certainly to demonstrate they chose. Against this, it was who had signed the form. They the unequivocal rejection of poli- submitted for the Applicants that had been deliberately denied the cies prohibiting freedom of move- they had not been informed how right to decide for themselves ment and residence by the newly or by whom their compensation whether to stay or go. independent State. The Bushmen was to be calculated, or whether were able to make good use of they would have any right of appeal The majority of the Court accepted it, however, to demonstrate their if they thought the amount inad- these submissions, and ruled that “right to reside” in the CKGR. equate, and that they had received the Bushmen had therefore been The Applicants referred to Sec- no independent advice on any of forcibly evicted from the Reserve tion 14 in opening arguments – for these matters. Above all, people against their will and unlawfully. the first time in forty years relying were not told whether they were One of the two judges who found upon it in a court proceeding. The being compensated for the loss of in the Bushmen’s’ favour on this Government, however, soon after a particular hut or compound or issue also relied upon General announced that it intended to re- for the surrender of any right they Recommendation XXIII of the UN peal it. A Bill was duly approved believed they had to live in the Committee on the Elimination of by a two thirds majority of the Reserve. It followed that the mere All Forms of Racial Discrimination. National Assembly and the Con- fact that a Bushman had put his This General Recommendation stitution was formally amended mark on an official form and had stresses the need to ensure that while the trial was still in progress. accepted compensation, did not “no decisions directly relating to Fortunately for the Bushmen, the mean that he had given his free, the rights and interests of indig- amendment repealed the wrong prior and informed consent to give enous peoples are taken without portion of the section. » up his or her rights. their informed consent”.

Housing and ESC Rights Law Quarterly 3 »All three judges decided that a the Government and the Bushmen a landmark case. It has shown hunting ban which the Government seems as far away as ever. In the that with the necessary degree of had sought to impose throughout meantime, in October 2008 envi- determination, an impoverished the Reserve was unlawful and un- ronmental clearance was issued and vulnerable group can suc- constitutional, because it had not for a diamond mine at Gope, and ceed against an all-powerful op- been introduced to protect game the Government has also given ponent with apparently unlimited from excessive hunting. Rather, permission for a tourist lodge resources. Equally important, the its sole purpose had been to force near Molapo. The development decision may influence the future the Bushmen to leave their homes. of these sites, both of them deep conduct of African states which As one of the Judges remarked, inside the CKGR, could mark a until now have been accustomed the ban was tantamount to con- radical change in the way of life to relocate their people almost at demning the Bushmen to starva- of those who have returned to will in the name of “development”, tion, and violated their right to life the Reserve in the wake of the “integration” or some other sup- under the Constitution. judgment. posedly greater good. As often as not, the wishes of the people If the judgment was a vindication The most pressing problem, themselves have simply not been a of much that the Bushmen had however, is to re-commission consideration. Governments may fought for, it has not solved all a borehole in the Reserve from now have to accept that the age of their difficulties. Litigation rarely which water used to be provided free, prior and informed consent is does. In April 2008 the UN to the Bushmen settlements. The finally upon us. Human Rights Committee ex- Government removed the pump pressed its concern that: and engine at the time of the re- The most important achievement location, and has refused to allow of Sesana, however, may have not all relocated persons will them to be replaced. It is perhaps been to provide a viable foothold benefit from the High Court a mark of its determination to in Africa for the doctrine of abo- decision in Roy Sesana et al v obstruct the Bushmen’s return riginal title. This holds, in effect, Attorney-General, and that the to the CKGR that the Govern- that unless a colonial power has practical enjoyment of the right to ment has made it a term of its expressly extinguished the land return is conditional on providing environmental clearance for the rights of the indigenous peoples identity documents prior to entering Gope mine that water extracted in its new territory those rights the CKGR, obtaining a Special from boreholes in the mining area are deemed to have remained in Game Licence to hunt and that “will be utilized strictly to provide place, and will survive into the the State party will not provide water for the mine.” The sole newly independent state. They acces s to ground water for such purpose of this decision appears ought therefore to be enforced by persons. The State Party should to be to ensure that Bushmen are a modern court, especially where ensure that all persons who were denied access to water surplus to rights of property are constitution- relocated are granted the right to the mine’s requirements, however ally guaranteed. return to the CKGR, consistent with desperate their need may be. the reasoning of the High Court Aboriginal title as a concept is decision, and that all necessary In a land where a reliable source well established in those common measures are taken to facilitate the of water can mean the difference law jurisdictions with indigenous enjoyment of Covenant rights by between life and death, this policy populations. It has been devel- those persons upon their return. could have disastrous conse- oped particularly in Australia and quences. If it cannot be reversed New Zealand but has also been While the strategy of using UN by agreement, the Bushmen may applied, for example, in Malaysia treaty-monitoring mechanisms have to go back to court. Papers and Belize. In Richtersveld Com- as a means to influence the im- have already been prepared, invok- munity v Alexkor and Govt of Repub- plementation of domestic court ing the human right to water and lic of South Africa (2005), the Con- decisions is generally quite useful, the duty assumed by Botswana stitutional Court of South Africa it remains to be seen whether when it ratified the Covenant on appeared to acknowledge that the the Government will pay any Civil and Political Rights “not to doctrine also formed a part of Ro- heed to these strictures. The deprive a people of its means of man Dutch law, but did not make a new President has recently held subsistence.” specific ruling to that effect. talks with the main Applicant, Roy Sesana, but a negotiated settle- Wherever these developments may Sesana appears to be the first ment of the differences between ultimately lead, Sesana remains occasion on which an African

4 Housing and ESC Rights Law Quarterly court has formally recognised been ignored because those in land rights do not easily fit with indigenous land rights which form power have consistently supposed “modern” notions of property, part of the tradition and culture that rights in State land come into whether in a common law or of an indigenous community, even being only if and when the State mixed jurisdiction, because abo- if ignored by the national law. It chooses formally to grant them. riginal title is sui generis. does not matter that they have Nor does it matter that indigenous

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 are at stake, for instance educa- conducted in special homes can- Centre (MDAC) alleges that the tional institutions and curricula not be considered a form of educa- situation in Bulgaria is not in con- have to be accessible to everyone, tion. Finally, the State’s argument formity with Article 17(2) alone and without discrimination and teach- that the right of children with intel- in conjunction with Article E of the ing has to be designed to respond lectual disabilities residing in spe- Revised European Social Charter to children with special needs. cial homes is being implemented because children living in (special) While the Committee takes note of progressively is not convincing homes for intellectually disabled the efforts of the State to respect according to the Committee. While children in Bulgaria receive no the right to education for disabled being aware of the State’s financial education. According to Article children through the adoption of constraints, the Committee notes 17(2) of the Revised Charter, State legislation and the setting up of that progress has been slow and parties are obliged to provide to action plans it reiterates that the mainly concerns the adoption of children and young persons a free manner in which this legislation legislation and polices with little or primary and secondary education and these action plans are imple- no implementation. Consequently, as well as to encourage regular mented is decisive. In this regard the Committee considers that the attendance at schools. According the Committee notes that main- measures taken do not fulfil the to Article E this right shall be stream educational institutions three criteria of a reasonable time- secured without discrimination. and curricula are not accessible in frame, measurable progress and According to MDAC these provi- practice to children with intellec- financing consistent with the maxi- sions require the Republic of tual disabilities residing in special mum use of available resources. Bulgaria to provide primary edu- homes. Further, the adaptability The Committee considers that cation for all children, including criterion is not met. Mainstream Bulgaria’s financial constraints children with intellectual disabili- school are not suited to meet the cannot be used to justify the fact ties living in special homes. The needs of children with intellectual that children with intellectual dis- Committee considers that Article disabilities because teachers have abilities in special homes cannot 17(2) applies fully in this case and not been trained sufficiently and enjoy their right to an education, considers, inter alia, that the State training materials are inadequate. whereas children with no intellec- must fulfil the criteria of availabil- Furthermore, special education is tual disabilities can, and holds that ity, accessibility, acceptability and also not accessible to children with Bulgaria is violating Article 17(2) of adaptability. In this case, the crite- intellectual disabilities residing the Revised Charter alone and in ria of accessibility and adaptability in special homes. And activities conjunction with Article E.

Case Note by Margarita Ilieva

Housing and ESC Rights Law Quarterly 5 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 for a short period in the nineties. Council & Ors [2008] IHEC 288 Iarfhlaith O’Neill declared that Sec- The case went before the District earlier in 2008. In this case the tion 63 of the Housing Act 1966 is Court which made a finding of same provision of the Housing Act incompatible with Article 8 of the fact upholding his claim, but the was held to be incompatible with European Convention on Human court then expressed concern that Article 8 of the ECHR because it Rights (ECHR). The provision in Section 62 of the Housing Act did allows councils to evict tenants for questions allows for possession not allow the court to assess the anti-social behaviour with no op- orders for council (social) houses merits of applications for posses- portunity to challenge the allega- when there is a genuine dispute as sion orders. These issues were tions against them before a court to the reason for the order. then referred to the High Court for or impartial tribunal. The judge clarification. ruled that this was disproportion- The case involves a person who ate in a case where the person claimed that he was entitled to The judge said that the Applicant was at risk of losing their home. success to his mother’s tenancy at should not be made to take High a house in Coolock, Dublin after Court judicial review proceedings In all, the Gallagher case is the her death in 2005. After discov- in order to acquire procedural third declaration of the Housing ering that the Applicant had not safeguards and that this would Act being incompatible with the resided at his mother’s home for have been avoidable had the coun- ECHR. The first declaration was two years prior to her death, the cil put in places the procedures handed down in the Foy case in Dublin City Council rejected his that would safeguard his rights. October 2007. The question of application and issued a notice to This was the case in particular whether the Government will re- quit and demand for possession in light of a previous declaration spect the declarations and amend in 2006. The Applicant, however, of incompatibility handed down the laws which have been deemed claimed to have been living with my Ms. Justice Mary Laffoy in incompatible with the Convention his mother continuously except the case of Donegan v. Dublin City remains to be seen.

Case Note by Kees Wouters

6 Housing and ESC Rights Law Quarterly 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, was fixed. The Minister for Lands Wagga Land Council. The Minister on behalf of the Wagga Wagga refused the claim, concluding that appealed to the High Court. The Local Aboriginal Land Council, the land was not claimable Crown Court unanimously dismissed made a claim under the New land because it was lawfully used the appeal. It held that sale of the South Wales Aboriginal Land and occupied by the Department land would amount to exploitation Rights Act to the 815 square of Lands in preparing it for sale. of the land as an asset but it did metre allotment in the Wagga The Land Rights Act’s definition not follow that exploitation by business district. A derelict of “claimable Crown lands” was sale amounted to use of the land. two-story brick building stood on limited to lands that were “not The steps taken to bring about the the site. It was used as a motor lawfully used or occupied”. The sale did not amount to lawful use. registry from 1958 to 1985 and Land Council appealed to the Nothing was being done on the afterwards has been used to store NSW Land and Environment land when the claim was made old office furniture. After a plan to Court against the refusal of the and nothing had been done for a turn the building into a laboratory claim. Justice Peter Biscoe dis- considerable time before then. was abandoned in 2004, the State missed the appeal and held that Visits by surveyors and the real government decided to sell the the decision to sell the land and estate agent did not amount to a site. Before the land claim was the steps taken to do so were an use of the land for the purposes made, a real estate agent was actual use of the land. The Land of the Land Rights Act and every- appointed, an identification survey Council appealed to the Court of thing else that was being done of the land was made, the Regis- Appeal which allowed the appeal, towards selling the land occurred ter-General issued a certificate of held that the land was not being elsewhere. title, reservation of the land for a used when the claim was made, “government supply department declared that the land was claim- office and workshop” was revoked, able Crown land, and ordered the and an auction date of 8 July 2005 Minister to transfer the land to the

Case note by High Court of Australia Press Release

Housing and ESC Rights Law Quarterly 7 The Editorial Board of the CASES TO WATCH Housing and ESC Rights Law Quarterly is: South African Supreme Court: Mazibuko & Ors v. City of Johannesburg & Ors : Phiri Right to Water Case • Salih Booker, Executive Director, Centre on Housing Rights and In the landmark case of Lindiwe Maxibuko & Ors v. The City of Johannesburg Evictions (COHRE), Switzerland; & Ors, the High Court of South Africa ruled that the City of Johannesburg’s • Colin Gonsalves, Executive prepayment water meters scheme in Phiri, a township in Soweto, was un- Director, Human Rights Law constitutional. This judgment also reaffirmed the principle of progressive Network, India; realisation and increases the minimal amount of safe drinking water that • Dr Aoife Nolan, Assistant the City is obligated to provide. The City, however, appealed the case to Director, Human Rights Centre, the Supreme Court of South Africa. Queen’s University, Belfast, Northern Ireland. In February 2009, the Supreme Court of South Africa heard oral arguments • Bruce Porter, Executive Director, in the case. One of the more specific issues discussed was whether or not Social Rights Advocacy Centre, the concept of the minimum core should be used by a court in its analysis Canada; of what is considered reasonable in the context of progressive realisation. • Julieta Rossi, Director, Other issues before the Supreme Court include those dealing with proce- ESCR-Net, USA; dural fairness, equality and non-discrimination, the obligation to take rea- • Bret Thiele, Coordinator, sonable measure to ensure the right to water and the obligation to respect COHRE ESC Rights Litigation the right to access to sufficient water as guaranteed by the Constitution of Programme, Switzerland. South Africa as informed by international human rights standards. Coordinating Editor: The Court is expected to issue its ruling in early 2009. • Bret Thiele, Coordinator, COHRE ESC Rights Litigation For more information, including the judgment, Programme, Switzerland. see: http://www.cohre.org/watersa

Case to watch by Bret Thiele

Contact Shadow Report to the Committee If you have any comments, Against Torture: Violations of require additional copies, wish to contribute to or wish the rights to housing, water and to subscribe to the mailing list for the Housing and ESC Rights sanitation by Israel Law Quarterly, please contact: [email protected]

COHRE has submitted a Shadow Report to the Committee Against Torture For general information on the in the context of the upcoming periodic reporting of Israel. The Report ar- COHRE ESC Rights Litigation gues that in many circumstances, violations of the right to adequate hous- Programme, please contact: ing, including in particular forced eviction and home demolition, as well as [email protected] violations of the right to water and sanitation, rise to violations of the Con- vention 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, in- human 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 Centre on Housing Rights sanitation may rise to violations of the Convention Against Torture. & Evictions (COHRE) COHRE ESC Rights Litigation The Committee Against Torture will consider Israel’s compliance with the Programme Convention Against Torture in May 2009 and issue its Concluding Observa- Rue de Montbrillant 83 tions soon thereafter. 1202 Geneva, Switzerland tel.: +41.22.734.1028 For more information, including the Shadow Report, see: www.cohre.org/opt fax: +41.22.733.8336 e‑mail: [email protected] Case to watch by Bret Thiele web: http://www.cohre.org

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