The Right to have Access to Housing of

The Right to have Access to Housing of Women who are Victims of Gender. Based Violence Heléne Combrinck Centre for Disability Law and Policy Law Faculty, UWC

Outline • Background of research • Two propositions • Research findings: – SA Constitution – International and regional law – Evaluation: Housing delivery programmes • Conclusions

Background of Research • Work with SBC Legal Advice and Training Project (partnership CLC) • Joint project 2005 -2007: CLC and SBC (ICRW) • Building on previous work of WCN Shelter Focus Group • 2008: Establishment of WC Special Needs Housing Forum

Two Propositions • Housing needs as a continuum • Domestic violence as forced eviction

Domestic Violence as Forced Eviction • Forced eviction: permanent or temporary removal against their will of individuals, families or communities from the home or land that they occupy, without the provision of, or access to, legal and other forms of protection. • Causes of forced eviction can be gender-specific • Where victim leaves home because of DV, seeks alternative accommodation? • ‘Forced’ eviction?

SA Constitution • Section 26: (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. • Section 12(1)(c): Everyone has the right to be free from all forms of violence from either public or private sources.

Right to Have Access to Adequate Housing • Sec 26(2): state to take reasonable measures, within its available resources, to progressively realise right to access to housing • “Reasonableness”: first considered and interpreted in Grootboom • Refined in Rudolph and Olivia Road cases

Right to Freedom from Violence • Series of judgments state’s duty to respond to violence against women • Eg state held liable for failure of state agents to prevent acts of violence against women committed by private actors • Considering housing rights of women subjected to DV: not only sec 26 read with sec 12(1)(c), also substantive equality

International and Regional Law • Clear standards emerging: relationship between women’s right of access to adequate housing and freedom from violence • Include recognition of state duty to provide women experiencing DV with access to safe housing

International and Regional Law • Example: Committee on Economic, Social and Cultural Rights – “… States parties [are required], inter alia, to provide victims of domestic violence, who are primarily female, with access to safe housing, remedies and redress for physical, mental and emotional damage. ” [Genl Comment 16, para 27] • CEDAW Committee: A. T. v Hungary (2005)

International and Regional Law • UN Special Rapporteur on Adequate Housing: – Women living in situations of DV inherently living in inadequate housing – Different groups of women particularly vulnerable to discrimination face additional obstacles in accessing housing – Special attention required for some groups or categories of women more vulnerable than others, eg victims of DV, women with disabilities, women widowed by AIDS, etc. – Adopted view that DV could amount to forced eviction

International and Regional Law • Work amplified by UN Special Rapporteur on Violence against Women • African Women’s Protocol – Article 16

Evaluation • National Housing Code: doesn’t provide for women who are victims of DV as such • May benefit from existing housing programmes (depending on…) • Availability varies from province to province • Reasonable?

Evaluation • Looked at various housing delivery programmes at different levels of government (following model of ‘Housing Ladder’): – Emergency housing – Shelters (Institutional and Transitional housing programmes) – Social Housing – Rental and individual home ownership programmes

Evaluation • Based on Grootboom criteria: – – – Adopted through legislative and policy means Reasonably implemented Flexible and balanced Must not exclude a significant segment of society Must be clear and efficient assignment of functions to three spheres of government • Clear that current approach falls short – not only for women experiencing DV, but all persons with special housing needs

Evaluation • Former Special Rapporteur on Adequate Housing: mission to SA in 2007 • Report: observed many women still forced to remain in, or return to situations of DV • Noted lack of specific housing programme to address vulnerable housing groups • Recommendations included restructuring rental housing, formulate national policy for groups with specific housing requirements

Conclusions • Grootboom: consider housing problems in socio-economic and historic context • Women’s increased vulnerability to HIV/AIDS and DV due to lack of access to adequate housing • “Flexible and balanced” – full spectrum • Policy approach: full extent of violation of rights prioritisation (Rudolph case)

Conclusions • State duties to address violence against women • Reinforced by conceptualisation of DV as forced eviction • Unvoidable conclusion: current approach to access to housing for women experiencing DV (and other persons with specific housing needs) falls short of standards set in Constitution and international human rights law

THANK YOU Contact Details: Helene Combrinck Tel: (021) 959 -3601 Fax: (021) 959 -2960 hcombrinck@uwc. ac. za