Statement of Mr. Miloon Kothari, Special Rapporteur on adequate housing at the Commission on Human Rights 60th session

30 March 2004 CHECK AGAINST DELIVERY


COMMISSION ON HUMAN RIGHTS
Sixtieth session
Agenda item 10


as a component
of the right to an adequate standard of living


Mr. Chairman, distinguished delegates, ladies and gentlemen,

Since the thematic focus of my report to the Commission this year is forced evictions, let me begin with a poem that reflects the need of the hour:


If we fail to speak up today
Deadly silence we will earn

Every home will be on fire
Every dwelling we will see burn

From beyond the silence then
A cry of anguish will return

There’s no one here
No one at all

No one.


Sahir Ludhiyanwi
(Original poem in Urdu – translated by Kamla Bhasin)


“Adequate housing as a component of the right to an adequate standard of living” – what do these words really signify? It can not be repeated enough, they mean more than the simple right to a roof over one’s head. As you are aware, I have adopted an indivisibility approach in my mandate, strongly arguing that the right to adequate housing cannot be fully realized if separated from other rights such as the rights to food, water, sanitation, electricity, health, work, property, security of the person, security of home, and protection against inhuman and degrading treatment. This approach has required me to examine a range of issues related to adequate housing, including land, forced eviction, access to water and sanitation, health, poverty and impact of globalization. Within this broad framework, my particular focus has been to develop a strong gender perspective, consistent with the right to non-discrimination and on the rights of particular groups, such as children, indigenous people and minorities.

All of these human rights are threatened and violated by impending and actual forced evictions, the involuntary removal of people and communities from their homes. The Commission as far back as 1993 (resolution 1993/77) took note of this phenomenon and recognized forced evictions to constitute gross violations of human rights, especially the right to adequate housing. Whereas in my last report to the Commission (E/CN.4/2003/5), I presented a comprehensive overview of my activities since my appointment I have this year chosen to focus my annual report on forced evictions, which continue to occur with new found vigour, and tragic consequences for affected people, worldwide, preventing women, men, youth and children to gain and sustain a secure home and community in which to live in peace and dignity. The ongoing practice of forced evictions accentuates the necessity of an examination based on the interrelatedness and indivisibility of human rights.

In my statement, I will elaborate on the phenomenon of forced evictions and highlight a number of main findings from country missions – to Peru, Afghanistan and Kenya - undertaken in the course of the reporting period. I will also briefly report to the Commission of activities undertaken in order to adhere to the request of the Commission that I prepare a study on women and housing for its 61st session. For full details, the Commission has before it three reports (E/CN.4/2004/48 and Add. 1 and 2).

Forced evictions and the right to adequate housing

Since my appointment, I have continued to receive reports about forced evictions from all corners of the world. I have witnessed the impact of this practice first-hand during my country missions, in the form of homelessness and displacement. Forced evictions undertaken without consultation or prior notice. Forced evictions undertaken at night or in the early hours of the morning, accompanied by the excessive use of force. I have received testimonies from communities who for years have been and continue living under a constant threat of being forcibly evicted. Causes of forced evictions are diverse and multi-faceted. I have carefully studied cases of development-induced displacement, the effects of globalization, forced evictions in conflict and post-conflict situations, and forced evictions applied as collective punishment. Where appropriate, I have joined in urgent actions with other special procedures, including the Special Rapporteur on torture, the Special Rapporteur on migrants, the Special Rapporteur on indigenous peoples and the Special Rapporteur on the right to health.

My report also highlights efforts made by other various actors to address the issue of forced evictions, from Governments, to treaty bodies, UN agencies and programmes and civil society organizations. Such initiatives include the UN-Habitat Global Campaign for Secure Tenure where the opposition to forced eviction is an important element. UN-Habitat’s recently established task force on forced evictions should also be mentioned and I wish to follow its work closely in the future. I have been particularly encouraged by positive inter-agency initiatives at the field level. As an example I would like to mention the setting up and the work of the Housing Rights Task Force in Cambodia, coordinated by the the field office of the High Commissioner on Human Rights with the participation of relevant UN agencies and programmes, Phnom Penh Municipality, the Ministry of Land and representatives from civil society. The Task Force was specifically set up in order to prevent forced evictions and address related emergency situations. Following my missions to Afghanistan and Kenya, I have been made aware that similar positive initiatives are also being undertaken there. Notwithstanding these developments I strongly feel that UN agencies must exercise more moral authority in speaking out against forced evictions wherever they occur. In the case of UN-Habitat this could begin with the situation in their host country, Kenya.

I also participated in an Expert Group Meeting on housing rights monitoring jointly organised by the OHCHR and UN-Habitat under the United Nations Housing Rights Programme (in Geneva on 26-28 November 2003). The suggested framework of indicators that emerged from this expert meeting makes a contribution towards the objective of developing rights sensitive indicators and monitoring tools. There are, however, issues where considerable further work needs to be done in terms of disaggregation of data for the rural and urban areas, and for vulnerable groups, including people and communities threatened with or having faced evictions.

General Comment No. 7 on forced evictions, adopted by the Committee on Economic, Social and Cultural Rights, constitutes an invaluable tool in elaborating on the responsibilities of State parties with respect to eviction.. Likewise, the existing Comprehensive Human Rights Guidelines on Development-based displacement and guiding principles on internal displacement are useful in this respect. However, as pointed out in my report to the Commission these instruments are not comprehensive enough to tackle all dimensions of forced evictions and new standards are urgently necessary.

I was happy to participate in the first meeting of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights, where I also highlighted the relevance of a possible complaints procedure for groups threatened or affected by forced evictions. I strongly feel that the doubts being raised by States on questions related to resources, justiciability and so forth have been adequately answered during the negotiations of the Optional Protocol to the CEDAW Convention and in ever increasing regional and national court judgments, including on the right to housing. I would, therefore, urge the Commission to renew the mandate of the Working Group including giving it the authority to negotiate the text of the Optional Protocol.

Country missions

In 2003, I undertook two country missions, to Peru and to Afghanistan, and I have just recently completed a mission to Kenya. During all these missions I have been greatly encouraged by the cooperation extended to me by governments, United Nations agencies and programmes and other actors, and also by the dynamism and professionalism of civil society and national institutions. I have also been encouraged by the signs of country missions having concrete impact and contributing to – directly or indirectly – positive changes.

The housing deficit in Peru is of enormous proportions. During the mission, numerous testimonies, petitions and information were received on lack of title, civic services and secure tenure, houses built in high risk zones and the collapse of land from mining activities, and families and communities facing evictions. Lack of adequate water and sanitation was a top priority concern to almost all the poor communities the visited. Over the years, large numbers of people have been displaced due to political violence and informal settlements have mushroomed largely fuelled by poverty.

It should be recognized that the Government is tackling existing housing problems at various levels, but have failed, thus far, to address all aspects of the problem. As observed in many other countries there is an urgent need to review existing housing programmes and initiatives to orient towards the benefits of the poorest segment of the population. In this context, there is also a need to carefully asses the impact of privatization of civic services, avoiding de facto discriminatory impact on the very poor. I visited poor communities in Lima, where people only have access to water through tankers which cost them as much as seven times the tariffs for piped water. Similarly, some communities and families pay an inordinate amount for electricity, or are threatened with having their electricity cut due to inability to pay the charges. I also noticed the lack of an indivisibility of human rights approach illustrated by the piecemeal approach of Hernando de Soto, as adopted by the Peruvian government and its agency COFOPRI, whereby the stress is on giving on titles alone to the detriment of people’s rights to safe housing, water, sanitation and recognition of women’s equal rights to housing and land.

I also emphasize that the seemingly lack of priority and resources given to improving the situation of housing in rural and less developed areas. The responsibility for rural development including housing falls within the purview of a relatively small government agency whose assistance focuses mostly on areas affected by natural disasters. The institutional network to address housing issues in the rural areas is significantly weaker than in health or education sectors.

At the same time I wish to commend the Government of Peru for its creativity, linking work being done at different levels and by different actors and thereby producing novel solutions. It is very important that the State take fully into account the impressive work that is going on throughout the country and leads active dialogue with civil society in order to bring about a more humane and human rights-based housing policy. Nevertheless, the challenges in the housing sector in Peru needs be to tackled through a reorientation towards a human rights indivisibility approach. The Government of Peru needs to restructure its approach to the grave housing and land crisis by prioritizing funds, instruments, programmes, and the legislations and policies that drive these, to focus on people’s efforts and initiatives, and the most vulnerable segments of society.

At the session of the Commission in 2003, I ended my statement by underlining that global efforts should concentrate on restoring the right to adequate housing, and maintaining attention to the urgent reconstruction efforts necessary in countries like Afghanistan, rather than increasing destruction and overburdening the international community with new needs for reconstruction. The almost 25 years of conflict, has obviously left the country scarred, and this is most visible in the area of housing with the severe destruction of houses, public buildings, sanitation facilities and water sources. An estimated 60 per cent of Kabul has been destroyed or damaged.

During the two years of post-conflict situation, the struggle for housing and land rights has been a critical factor, including to the unprecedented number of returnees mainly from Pakistan and Iran trying to recuperate their houses and lands, which have often been occupied by those who stayed behind. Other issues include land and house occupation by “war lords”, and the regular occurrence of forced evictions without compensations and alternative arrangements. Land speculation is reportedly increasing with money allegedly stemming from poppy and marijuana cultivation invested into real-estate. The result has been a dramatic increase in prizes, making houses and lands inaccessible for large parts of the population.

All these and other factors, to a large extent fuel the prevailing lack of security in many parts of the country. However, the main security concerns of the Government, the international community at large and the Afghan people are linked to prevailing presence and resistance in, particularly, remote rural areas of the country of Taliban and reported al-Qa’idah forces, continuing clashes between factions on the regional level, rivalry between local commanders, or ‘war-lords’, and the abuse of power in the absence of an enforceable system based on the rule of law. I do not question that an improved security situation is essential for a successful transitional process. However, it is important to closely examine and incorporate all underlying reasons for prevailing insecurity, as opposed to only its symptoms, in any reconstruction strategy. This is particularly true with respect to housing, land and property rights, as conflict over such rights have been one of the main causes of conflict for the past more than two decades, and remains a major contributing factor to prevailing insecurity across the country.

One of the main obstacles to the realization of adequate housing in the context of Afghanistan is the consistent pattern of land grabbing land occupation across the country – and the climate of impunity that currently exists for those who are responsible for such acts. During my mission and in my mission report, I urged the transitional Government and relevant actors from the international community to intensify investigations into such human rights violations and, when appropriate, ensure prosecution of those actors - including commanders and other members of the security establishment.

Women have suffered greatly from the destruction, homelessness and the culture of violence and lawlessness created by decades of war. Also, among the almost 2 million returnees, the vast majority are women and children, including widows. Through my meetings with women I received countless testimonies of obstacles faced relating the right to adequate housing. Difficulties to claim inheritance; forced marriages of widows to ensure that land and property remain within the family; refused access to courts, and lack of a safe and secure home.

As you will be aware my mission report on Afghanistan covers vast, complex and diverse issues that can not all be covered in a brief statement. Given the theme of my annual report, I would particularly like to highlight that forced evictions, sometimes accompanied by violence and the excessive use of force, and are reported from all parts of Afghanistan. In a country where the housing stock and related essential service systems have been severely damaged, it is necessary to find a balance between development priorities and housing, land and property rights. However, the lack of clarity of the legal system and existing remedies, the incapacity of the judiciary to deal effectively with housing rights, including land and property disputes, and the disregard for the right to participation in the decision-making process, may contribute to evictions being undertaken without respect to national law and international human rights treaties, often at the expense of the poor.

During my mission, I intervened in a case of forced evictions taking place in Kabul City. A hundred armed police officers accompanied by bulldozers and trucks, destroyed the homes of around 30 families. The destruction of the houses was made without immediate warning. According to information received, the land concerned is public, the property of the Ministry of Defense and the land had reportedly been allotted by the Ministry to high-ranking dignitaries, including within the Government, for a fraction of market value prizes. However, the residents, most of them poor, had according to testimonies lived in their houses for many years, some families for 25-30 years. Notwithstanding the legal considerations as to property rights in this case, I expressed the view that the way in which the forced evictions took place, including excessive use of force, amounted to serious human rights violations according to international human rights law.

In light of the events above, a welcomed Presidential Order was issued establishing an Independent Investigative Commission in September 2003 to investigate the forced eviction and destruction of houses in the area. The Commission has completed its report and I commend its courageous work. Unfortunately as of last week, it has not yet been made public. From reports received from numerous sources I understand that instead delays by the transitional Government in reacting to the Commission’s report has created doubts as to its willingness to seriously take action in a case clearly involving, as it seems to have been confirmed, illegal transaction and land-speculation by the establishment. The building of homes for the Ministers has also continued as has speculation with which many Ministers have financially benefited at the cost of homes lost by poor people that were residing in Shirpur. A presidential decree has recently been issued, 27 March 2004, which has a direct bearing on this so called “Shirpur case” – and yet the Commission report has still to be made public. However, I have strongly recommended and continue to recommend that the findings of the Commission be made public, as this can contribute to a serious discussion on the current practice, prevalent across the country, of forced evictions. Failure to be transparent in this process and to take action against those that have violated human rights, even if they are State Ministers, sends out a wrong signal to the many across the country, including war lords and commanders, to continue to illegally occupy land with impunity. The Commission must also be allowed to expeditiously look at the situation, as was its original mandate, of forced evictions and land grabbing across the country.

My mission to Afghanistan coincided with the preparations of the Constitutional Loya Jirga, increased security tensions in certain rural provinces, and continuing incidents of land occupation and forced evictions country-wide. A new Constitution has since been adopted, with some positive elements. I am also encouraged by the fact that my visit and the initiatives of other actors seemingly have contributed to a new resolve amongst UN agencies, the AIHRC and civil society to focus more on housing, land, property and forced eviction issues.

The recommendations contained in my report are directed at the transitional Government, the international community and civil society alike. They range from the development of a comprehensive National Housing and Land Policy, establishing a clear division of responsibility within the Government and institutions as to decision making, to the adoption of a moratorium on all forced evictions until such a has been adopted and an effective judicial system to address disputes in this regard is in place. However, the main challenge will be to elaborate a conscious combination of the humanitarian, the human rights and the sustainable development approach. Towards this end, the international community needs to direct financial and technical assistance.

Mr. Chairman, although my written report will not be before the Commission until its next session, I wish to refer to some preliminary findings from my recent mission to Kenya in February. First of all I wish to express my appreciation of the Government of Kenya that extended an invitation to me as Special Rapporteur, since I have attempted to undertake a mission to the country since my appointment in 2000.

Positive actions have been taken by the Ministry of Water Resources and the Ministry of Planning and National Development. I was encouraged by the establishment of other bodies such as the Ministry of Gender and the Ministry of Justice, a Parliamentary Select Committee on Housing, Health, Labour and Social Welfare, an inter-ministerial Inter-Agency Task Force on Housing, as well as the establishment of statutory bodies, i.e. the Kenya National Commission on Human Rights, and, in the near future, a Gender Commission. Likewise a lot of time and effort has gone into the development of policy on various important areas, such as housing and gender.

Despite these positive developments, I also observed and raised a number of areas of concern. The emerging policies are not consistently based upon the human rights obligations of Kenya, nor on the reality on the ground, despite the existence of impressive disaggregated data. Other concerns include the discrimination faced by women with respect to land, property and inheritance, the existence of ‘land cartels’ and illicit land markets, supposedly involving powerful individuals, and the massive logging having affected communities traditionally living in and out of forest areas.

The situation in Kenya also highlights the need for the development of comprehensive guidelines on forced evictions. One of the most urgent concerns is the lack of a coherent procedure in place with respect to forced evictions and demolition of structures and houses, in order to ensure respect for the human rights of those affected by these evictions, including the very poor. Motivating its actions with the need to reduce congestion in Nairobi and the need to reduce safety threats, the Government has recently initiated evictions and large-scale demolitions in Kibera, Nairobi’s largest slum. The evictions that were initiated during my mission are unprecedented in scale and include evictions from road reserves, and from structures built close to the railway and power lines. If carried out as planned these evictions will affect, as figured meticulously collected by civil society groups, 354, 390 people in Kibera alone.

It is clear that measures have to be taken to address the situation in Kibera and other slum areas. And ironically enough, the forced evictions in Kibera were initiated only a year after the official memorandum of understanding entered into by UN-Habitat and the Ministry of Roads, Public Works and Housing to upgrade one part of Kibera. During my meetings with various relevant ministries I emphasized that slum upgrading cannot take place in isolation. In order for slum upgrading to be effective and achieve its ends, it must be done in conjunction with a comprehensive citywide strategy and action plan, based on consultation and participation, to identify geographical housing alternatives, which will enable those relocated to sustain their livelihoods. I also spoke out on the issue of forced evictions including by insisting that the government follow the procedure laid down in General Comment No. 4. I have also written to Kenya’s Foreign Minister and am expecting an official response outlining steps taken by the government

Due to pressure also from a dynamic national and international civil society groups, the forced evictions have now been temporarily suspended to give the possibility for further coordinated planning. I welcome this step by the government. However, I am concerned that the forced evictions, in Nairobi and across Kenya, will resume in the near future without regard to the human rights of affected people and I look forward to assurances from the government to the contrary.

Women and adequate housing

Mr. Chairperson,

The Commission has also entrusted me with the additional task of reporting separately under the Commission resolution on women’s equal ownership of, access to and control over land and equal rights to own property and to adequate housing. Although the Commission has requested me to submit a study on women and adequate housing to its next study, I nevertheless wish to briefly mention some activities undertaken during the last year to that end.

In its resolution 2003/22, the Commission encouraged the holding of regional consultations on women and housing to follow on a regional consultation held in Nairobi in 2002. Two additional regional consultations were held, in New Delhi and Mexico City, in October and December 2003 respectively. I especially wish to thank the governments of Mexico and Germany for logistical and financial support without which the consultations would not have been possible. The intention is to organize another two consultations during 2004, in order to get an overview of the legal status of women in terms of housing, land and property, identify the major gaps and measures to address them, and gather case studies and testimonies from women on the ground. The outcome of the consultations will be reflected in my report to the sixty-first session of the Commission.

Already now I can say that the consultations have confirmed my firm opinion that continued strong focus by the Commission is needed on this issue. Testimonies received from grass-root women in Latin-America, Asia and in Africa clearly demonstrate that women continue to face discrimination, de facto or otherwise, with respect to the right to adequate housing which as attested by the testimonies, is integrally linked to women’s rights to land, property and inheritance.

In my annual report I have also emphasized the gender-dimension of forced evictions. Women who are domestic workers, sex workers and migrant workers are vulnerable to being evicted from accommodation provided with their work, and women living with their husband’s family are vulnerable to being evicted as widows or due to domestic violence or divorce, just to mention a few examples of the kind of testimonies received. However, planners, evictors and sometimes even the victims of evictions themselves continue to ignore or neglect gender aspects before, during and after forced evictions take place.


Conclusion and recommendations

In conclusion, Mr. Chairperson, I would like to reiterate some of the general recommendations made in my reports this year and to flag some areas which I would like to focus in the coming year:

Despite initiatives and existing documents, I believe that the Commission could play an important role by reaffirming its condemnation of the practice of forced evictions. I hope that the Commission will authorize an Expert Seminar to elaborate comprehensive guidelines or guiding principles, based on international human rights law and interpretive documents, to capture in a comprehensive manner, preventative and compensatory measures that need to be taken to tackle the growing phenomenon of forced evictions. While this process of the elaboration of clear guidelines continues the Commission can also urge States to begin the process towards adoption of policies and legislations on forced evictions based on provisions in the international human rights instruments.

I look forward to further contribute to the work of Commission Working Group on the draft optional protocol to the Covenant on Economic, Social and Cultural Rights.

I would like to encourage States and other partners to provide necessary support for the effective implementation of the joint UN-Habitat/OHCHR UN Housing Rights Programme.

During the course of the next year of my mandate I will focus on the study on Women and Housing and on the phenomenon of homelessness which is growing across the world.

Before ending, I would like to express my appreciation to all actors who have encouraged me in my work during the past hectic year, including a dynamic civil society sector. I wish to extend a particular word of gratitude to the Office of the High Commissioner for Human Rights that have continuously supported me, by providing me with assistance and advice.

Mr. Chairperson, the poem that I read out at the beginning of this statement implores us to not hesitate in taking action against the gross injustice that forced evictions of people and communities entails. In the spirit of the poem and keeping in mind the authority vested in the Commission, as the highest policy making body on human rights in the UN System, I would urge the Commission to take a leadership role in tackling forced evictions.

Thank you very much.
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