The Right to have Access to Housing of Women who are Victims of Gender-Based Violence. Hel é ne Combrinck Centre for Disability Law and Policy Law Faculty, UWC. Outline. Background of research Two propositions Research findings: SA Constitution International and regional law
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Centre for Disability Law and
Law Faculty, UWC
Background of research
International and regional law
Evaluation: Housing delivery programmes
Joint project 2005-2007: CLC and SBC (ICRW)
Building on previous work of WCN Shelter Focus Group
2008: Establishment of WC Special Needs Housing ForumBackground of Research
Domestic violence as forced evictionTwo Propositions
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?Domestic Violence as Forced Eviction
Section 26 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.:
(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.
Everyone has the right to be free from all forms of violence from either public or private sources.SA Constitution
Sec 26(2): state to take 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.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 casesRight to Have Access to Adequate Housing
Series of judgments 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. 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 equalityRight to Freedom from Violence
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 housingInternational and Regional Law
“… 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
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 evictionInternational and Regional Law
African Women’s Protocol – Article 16International and Regional Law
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
Looked at various housing delivery programmes at different levels of government (following model of ‘Housing Ladder’):
Shelters (Institutional and Transitional housing programmes)
Rental and individual home ownership programmesEvaluation
Based on levels of government (following model of ‘Housing Ladder’):Grootboom criteria:
Adopted through legislative and policy means
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 needsEvaluation
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 requirementsEvaluation
Grootboom in 2007: 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