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3.3.1 Meaning and codification of the right to adequate housing

Research into the relationship between housing rights and climate change cannot be fully comprehended without a clear articulation of the meaning of housing rights, and what states’ obligations are, in general, and under the constraints of climate change. Simply defined, ‘adequate housing’ en- compasses more than just the four walls of a room and a roof over one’s head; it fulfills deep-seated psychological needs for privacy and personal space, physical needs for security and protection from

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inclement weather, and social needs for basic gathering points where important relationships including economic activities are forged and nurtured (Morka, 2000). By implication, adequate housing is a basic asset that can improve the overall quality of an individual’s life including health, personhood, and dignity (Leckie, 1995; Bengtsson, 2001; Kenna, 2005; Bratt et al., 2006). Guarantees of adequate housing therefore can strengthen the likelihood of people being able enjoy other rights such as the rights to life and health, even in a changing climate.

The human right to adequate housing is recognized and protected under a range of international and regional human rights treaties including the Universal Declaration of Human Rights (UDHR) (Article 25 (1), 1948); the Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 11 (1), 1976); the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Article 5 (e), 1969); the Convention on the Rights of the Child (CRC) (Article 27) , 1989 ); and the African Charter on Human and People’s Right (ACHPR) (Article 4, 1986). Article 11(1) of the ICESCR provides that “State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate... housing, and to the continuous improvement of living conditions”. The UN Committee on Economic, Social, and Cultural Rights (CESCR) noted that the rights to adequate housing should not be interpreted narrowly; rather it should be seen as the right to live in an environment that guarantees security, peace, and dignity (CESCR General Comment, No. 4, 1991). The CESCR also laid out seven other preconditions as the basis of adequate housing claims, these include: location; affordability; accessibility; habitability; availability of basic services and infrastructure; security of tenure (and consequent protection against arbitrary or forced eviction); and cultural adequacy of housing

(CESCR General Comment, No. 4, 1991).

The precise nature of state obligation is best clarified by giving specific examples to describe the duty to respect, protect and fulfil housing rights. The duty to respect entails that the state must not do anything to deprive people of their access to housing— for example, by forcibly taking lands away from peasants, or by implementing development or urban renewal programmes that result in forcible eviction.

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The duty to protect goes one step further, by requiring the state not only to refrain from violating people’s right to housing, but also to prevent third parties from violating it. Thus, if a landlord tries to illegally evict a tenant from his land, thereby violating the tenant’s right to housing, then it is the obligation of the state to protect the tenant from such landlords. If the state fails to take the required protective measure, then the state would be culpable even though it was not itself a party to the violation of the tenant’s right. The duty to fulfil is a positive obligation that requires states to provide adequate dwellings to persons and families without accommodation. If there were no obligation to fulfil, then the poor and marginalized who lack access to housing would not be able to claim their rights. With reference to positive obligations, it is relevant to point out that ICESCR Article 2 (1) provides for progressive realization (i.e., states should use their ‘maximum available resources’). It does not mean that State Parties must immediately fulfil housing rights but rather that they must take measures that are “deliberate, concrete, and targeted…towards fully realizing housing rights (CESCR General Comment No. 4, 1990). In the light of these obligations, therefore, State Parties are expected to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to guarantee adequate housing (ICESCR, Art 2:1, 1976).

3.3.2 Implementing housing rights: Constitutional approach vs. enabling strategies

Constitutional approach: Many countries including Mexico, Russia, South Africa, India, Belgium and France, embody explicit or implied provisions for the right to adequate housing in their national constitution or municipal laws (UNHRP, 2009, Report no 21). However, it remains difficult at best to make legal complaints concerning housing rights before a court of law exclusively upon constitutional provisions. South Africa is perhaps one of the most progressive countries that expressly guarantee rights of access to adequate housing and also confers legal standing to aggrieved persons and their

representatives to approach the court to enforce their rights (South African Constitution, 1996). A number of court cases in South Africa signify an enforcement of housing rights. An example is the landmark

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Grootboom case2 – where the Court granted an order requiring the state to adopt and implement a comprehensive programme that addressed effectively the situations of slum dwellers especially in flood prone areas (Government of the Republic of South Africa v. Grootboom and others, 2000). The

Grootboom case and others have propelled the South African government to go beyond constitutional recognition, to actively translate housing rights into concrete benefits for the urban poor by constructing low-cost housing, providing housing subsidies, and giving temporary assistance grants to municipalities for the provision of secure access to land and improvement of infrastructure and basic services (Chenwi, 2011; Govender et al., 2011). This does not mean the housing challenges in South Africa are solved; rather the lesson is that constitutional guarantee, clear articulation of housing rights, and a related bundle of entitlements such as access to land and social services, can make a difference in the lives of the urban poor living in hazardous conditions. In the context of climate change, this approach serves as a means to provide immediate relief to those whose living conditions are likely to be adversely affected by the impacts of climate change.

Enabling strategies: If there is anything that is abundantly clear since the international

codification of housing rights, it is the simple truth that no State has been able to accommodate all people in need of housing in state-built housing resources. While social housing remains a crucial dimension of the total approach towards satisfying housing rights, such an approach can only solve part of the problem. Consequently, housing policy in most countries has shifted discernibly away from a social housing approach, to what is generically labelled as ‘enabling strategies’ (Leckie, 1995). An enabling strategy may involve the construction of some housing resources by the State, but primarily it infers the

responsibility of the State to create maximally conducive conditions throughout society whereby everyone

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The Grootboom case concerned right of access to adequate housing for those subject to eviction. The applicants- who were effectively homeless in a flood prone area challenged the State for implementing a housing programme that ignored the housing plight of the most vulnerable sections of the society including women and children in informal settlements. In its decision, the Court held that the obligation imposed on the government is to put in place a reasonable programme subject to available resources. It found the government’s housing programme to be unreasonable because it made no provision for access to housing for people in desperate need, thus in violation of the right to have access to adequate housing.

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can have sustained, suitable, affordable and accessible housing (Leckie, 1995). This means that the State must regulate land use, housing and land costs and landlord-tenant relations, stimulate self-help housing initiative, ensure the universal provision of tenure security, and prohibit forced evictions and housing discrimination. This strategy is particularly relevant in the context of climate change where a state may not have the resources to provide housing for its citizens due to the need to prioritize among pressing social goals. Although this approach is less confrontational, a state can still violate housing rights where its acts (e.g., through forcible eviction of people) or omissions (e.g., through failure to curb private actors from displacing people) undermine people’s ability to guarantee or improve their own housing conditions (CESCR General Comment No. 7, 1997). Since poor housing conditions can contribute to weak capacity to cope with climate extremes, it is crucial that States take proactive steps to enable the poor and

vulnerable to acquire decent shelters that can protect them from such impacts (Adelekan 2010; Barnett, 2010).

In the next section, we discuss housing challenges and land use policy in Nigeria and draw linkages to slum communities’ vulnerability to contemporary flooding in Lagos. We link historical local struggles in the city with their global context, and explicitly incorporate a human rights framework into our analysis.

3.4 Housing rights: The Nigerian context