3.3 Right to health including sexual and reproductive health

The Maputo Protocol covers the right to health including sexual and reproductive health in article 14. States are obliged to ensure the right to health of women, including sexual and reproductive health is respected and promoted. The right therefore entails obligations to respect, protect and fulfil women's health including sexual and reproductive health. This main clause of article 14 is framed within the principle of substantive equality. As such, substantive equality is embedded in all provisions of article 14 including the right to control fertility; the right to decide whether to have children, the number of children and spacing of children; the right to choose any method of contraception; right to self-protection and to be protected against sexually transmitted infections including HIV; right to be informed on one's health status and on the health status of one's partner; and right to have family planning education.189 The General Comment 2 on article 14(1)(a), (b), (c), and (f) and article 14(2)(a) and (c) of the Maputo Protocol (General Comment 2) explains that these rights are inextricably linked, interdependent and indivisible.190 They are also interlinked with the rights to dignity, non-discrimination, and life.191 The right to family planning education incorporates in it an obligation upon states to provide complete and accurate information necessary for enjoyment of health, including the choice of contraceptive methods.192 The African Commission's Principles and Guidelines on the Implementation of economic, social and cultural rights in the African Charter on Human and Peoples' Rights demonstrate that access to health-related education and information, control over one's own body and health, including sexual and reproductive freedom are the vital components of the right to health.193

Despite the above promising analysis that gives hope regarding the
protection of the right to health and reproductive health the
Commission issued a regressive decision recently in *Community Law
Centre and three Others (on behalf of the Five Victims) v Nigeria
(Community Law Centre)*.<fnref n="194" /> In this communication the complainants
submitted to the African Commission on Human and Peoples' Rights
complaints on behalf of five (5) women in Nigeria (the victims) who
suffer from lifelong injuries such as obstetric fistulas, haemorrhage,
and those who have died as a result of complications related to

<footnote n="189">189 Art 14(1)(a)-(e) of the Maputo Protocol.</footnote>

<footnote n="190">190 African Commission General Comment 2 on art 14(1)(a), (b), (c) & (f) & art 14(2)(a) & (c) of the Protocol to African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted during the 54th ordinary session of the African Commission held in Banjul, The Gambia, 22 October-5 November 2013 para 23 (African Commission General Comment 2).</footnote>

<footnote n="191">191 African Commission General Comment 2 (n 189) paras 24-27.</footnote>

<footnote n="192">192 African Commission General Comment 2 (n 189) para 28.</footnote>

<footnote n="193">193 Principles and guidelines (n 167) para 64.</footnote>

<footnote n="194">194 *Community Law Centre and three Others (on behalf of the Five Victims) v The Federal Republic of Nigeria*, Communication 564/15.</footnote>
pregnancy or childbirth.<fnref n="195" /> The Complainants argued that the Respondent State failed to provide adequate access to maternal healthcare services. They alleged the violation of the right to health and reproductive health in article 14, and the right to life in article 4 respectively.<fnref n="196" />

The Commission noted that though the complainants identified the violation of certain provisions of the Maputo Protocol they failed to elaborate on or show what the violation was.<fnref n="197" /> It held that it could not find a basis for a decision on whether the said provisions have been violated or not.<fnref n="198" /> On the right to life, it held that the right is a significant component of the right to sexual and reproductive health but the complainant's submissions did not show how maternal deaths were the result of a failure by the respondent state to take necessary measures to prevent such deaths. The Commission further stated that in particular, the respondent state has sufficient resources to prevent maternal deaths and, more importantly, that despite the existence of resources, it has failed to take necessary steps to ensure the continuous and sustainable improvement of the right to maternal health. Surprisingly, it stated that the complainants failed to demonstrate that the respondent state has promoted or adopted measures that undermine access to healthcare or social security benefits, including laws, policies or practices that have discriminatory effects. The Commission concluded that due to the absence of such explanation, the right to life in article 4 was not violated.<fnref n="199" />

Regarding the violation of the right to health, and sexual and reproductive health in article 14(1)(a), (b), (c), (f), and 2(a) and (c), the Commission held that the complainants had failed to demonstrate the causal link between the facts described and the mentioned provisions of article 14 on how the facts impeded the victims' personal decision-making of the right to exercise control over their fertility, on the right to decide on the number of children and the spacing of births, or on family planning in general. The Commission concluded therefore, that article 14 of the Maputo Protocol was not violated.<fnref n="200" />

Concerning the right to equality and non-discrimination relating to the right to health and reproductive health, the Commission held that article 2 of the Maputo Protocol exclusively focuses on non-discrimination on the basis of sex through the phrase 'discrimination against women'.<fnref n="201" /> As such, in the context of article 2 of the Maputo Protocol differential treatment must be based on the sole ground of sex. In particular, law must guarantee the equality of women and men.<fnref n="202" /> While noting the complainants' argument that the patriarchal system

<footnote n="195">195 *Community Law Centre* (n 194) para 1.</footnote>

<footnote n="196">196 *Community Law Centre* (n 194) paras 10, 13, 57-58 & 60-88.</footnote>

<footnote n="197">197 *Community Law Centre* (n 194) para 91.</footnote>

<footnote n="198">198 *Community Law Centre* (n 194) para 92.</footnote>

<footnote n="199">199 *Community Law Centre* (n 194) paras 104-105.</footnote>

<footnote n="200">200 *Community Law Centre* (n 194) paras 117-118, and 121.</footnote>

<footnote n="201">201 *Community Law Centre* (n 194) para 133.</footnote>

<footnote n="202">202 *Community Law Centre* (n 194) para 135.</footnote>
and adherence to cultural practices subject women to daily discriminatory practices concerning maternal health, the Commission held that the Complainants failed to show the kind of discriminatory treatment the victims had been subjected to. It further held that the Complainants failed to demonstrate how the patriarchal system and cultural practices had caused differential treatment of the victims compared to the treatment accorded to other similar categories in the same situation as the victims.<fnref n="203" />

Regarding the right to information as a component of the right to health and reproductive health in article 14(1) the Commission noted that the right to information is a gateway to all other human rights, including the right to health and reproductive health.<fnref n="204" /> The Commission noted further that the right to health and reproductive health impose upon states an obligation to provide complete and accurate information necessary for the respect, protection, and enjoyment of health, including contraceptive methods.<fnref n="205" /> However, the Commission held that the Complainants had failed to demonstrate how the ignorance of Nigerian women about contraception had contributed to maternal mortality and, more importantly, how the respondent state had played a passive role in providing family planning education. The Commission was of the view that the Complainants failed to establish a causal link between family planning education and maternal mortality.<fnref n="206" /> Based on this reasoning, the Commission found that there was no violation of the right to information in article 14(1)(f) of the Maputo Protocol.<fnref n="207" />

The Commission could have benefited from the application of the dominance approach and avoid the regressive decision it arrived at. This is a good decision where the Commission applied the teleological approach but missed an opportunity to engender it. The application of the dominance approach would have allowed the Commission to use the argument that women are denied their right to health including sexual and reproductive health based on their sex 'as women'. The Commission could also apply the tenet 'as a woman' to find that women's experiences of sex inequality have shaped contours of sex discrimination. This line of reasoning would have helped the Commission to establish the violation of the right to equality and non-discrimination relating to the right to health and reproductive health.

The Commission could use the dominance approach argument that emphasises power imbalance underlying issues relating women's sexuality and reproductive health. This power imbalance tenet would have enriched the Commission's reasoning by considering that male-dominated practices view women's reproductive capacity as a symbol of male domination. This discriminatory practice is oppressive, as it perceives women as sources of childbearing, child rearing, breast-

<footnote n="203">203 *Community Law Centre* (n 194) para 136.</footnote>

<footnote n="204">204 *Community Law Centre* (n 194) para 146.</footnote>

<footnote n="205">205 *Community Law Centre* (n 194) para 148.</footnote>

<footnote n="206">206 *Community Law Centre* (n 194) para 149.</footnote>

<footnote n="207">207 *Community Law Centre* (n 194) para 150.</footnote>
feeding, and sexual pleasure. As a result women's health and life is put
in danger. This reasoning would have helped the Commission avoid the
regressive decision it arrived at in relation to the relationship between
health and reproductive rights and right to life.

The Commission could apply the argument of the dominance approach that men dominate women socially by perpetuating a legal system that reinforces gender inequality. The application of this tenet would help to show the respondent state's promotion or adoption of measures that undermine access to healthcare or social security benefits, including laws, policies or practices that have discriminatory effects.

Moreover, the Commission could have applied the dominance approach's argument that women's subordination to men leaves women powerless. This could be applied by the Commission as a causal link between the facts of this case and their implication on women's decision-making regarding rights in article 14. Generally, male domination affects women's personal decision-making of the right to exercise control over fertility, the right to decide on the number of children and the spacing of births, or on family planning. This reasoning could have assisted the Commission to establish the violation of article 14 on the right to health including sexual and reproductive health.

4 CONCLUSION

This article has shown that in Africa women have continued to be the
victims of socio-economic rights by simply being women. The research
carried out in this article has shown that male dominance is prevalent
in all socio-economic rights. Women's socio-economic rights
experience is the experience of inequality and male dominance.
Importantly, the article has illustrated that the Maputo Protocol
protects socio-economic rights extensively, but the interpretation that
addresses women's experience is required. The article has also
demonstrated that the teleological approach is relevant for the
interpretation of socio-economic rights in the Maputo Protocol,
however, it needs to integrate a feminist gender perspective. The article
has also shown that the teleological interpretation that engages a
gender perspective enables the interpretive organs to inquire into the
object and purpose of the Maputo Protocol as well as women's socio-
economic lived reality. Importantly, the research conducted in this
article has demonstrated that the dominance approach can be
integrated into the teleological approach and substantive equality for
effective interpretation of socio-economic rights. Importantly, the
article has developed the methodological model to guide the
interpretive organs in the application of the developed gendered
teleological interpretation. Finally, the article has analysed selected
socio-economic rights and analysed the relevant jurisprudence to show
how application of the dominance approach could help engender the
socio-economic rights in question and its implication on all socio-economic rights.
# The right to adequate housing under African regional human rights law: exploring the extent of protection accorded to refugees

Abiy Ashenafi*

https://orcid.org/0000-0002-8520-0612

**ABSTRACT:** A considerable portion of disadvantaged people in Africa live in inadequate housing and are particularly prone to homelessness, forced evictions and other housing challenges. These people include refugees in vulnerable situations, who face multiple challenges linked to their refugee status and other factors such as gender, disability, status as a child and poverty. African regional human rights law provides a robust protection for the right to adequate housing. However, for those who live in homelessness and precarious housing conditions, the regional legal protection is only useful if it is given effect at the domestic level. The clarification of the nature of the right to adequate housing and the corresponding obligations of states through the work of the three African regional human rights bodies, scholars and other actors is a worthwhile endeavour that can potentially contribute to the realisation of this right. So far, important contributions have been made in this regard, but further clarification of applicable norms is necessary. Situated in two areas of the African human rights system, namely the regional human rights law and refugee law regimes, this article builds on the rather limited literature in these areas and sheds new light on relevant provisions of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Charter on Human and Peoples' Rights and its Protocols on the Rights of Women in Africa and the Rights of Persons with Disabilities in Africa, and the African Charter on the Rights and Welfare of the Child. It articulates the group-specific dimensions of the right to adequate housing and argues that the corresponding obligations imposed on states, including the immediate obligation to fulfil (or 'provide') adequate housing, must not be overlooked in the interpretation of this right.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### Le droit à un logement adéquat en droit africain des droits de l'homme: analyse de l'étendue de la protection accordée aux réfugiés

**RÉSUMÉ:** En Afrique, un nombre significatif de personnes économiquement et socialement marginalisées vivent dans des conditions de logement inadéquates, les exposants à des risques accrus de sans-abrisme, d'expulsions forcées et d'autres formes de précarité résidentielle. Parmi elles figurent les réfugiés, une catégorie particulièrement vulnérable, confrontés à des défis complexes découlant de leur statut juridique, auxquels s'ajoutent des facteurs aggravants tels que le genre, le handicap, l'âge ou la pauvreté. Le cadre juridique régional africain en matière de droits de l'homme reconnaît et protège le droit à un logement adéquat. Toutefois, pour les populations vivant dans des conditions de logement précaires ou privées de logement,

<footnote>* LLB (Gondar); LLM (Addis Ababa); LLM, LLD (Pretoria); Manager, Migrants' Rights Unit and Doctoral candidate, Centre for Human Rights, University of Pretoria; Abiyaashenafi@gmail.com or Abiy.ashenafi@up.ac.za (The article draws on the author's doctoral thesis, which is being finalised at the University of Pretoria, under the supervision of Prof Frans Viljoen).</footnote>
cette protection juridique n'est efficace que si elle est dûment mise en œuvre et appliquée au niveau national. Une clarification des contours de ce droit ainsi que des obligations des États en la matière, menée à travers les travaux des organes africains de protection des droits de l'homme, des chercheurs et d'autres parties prenantes, constitue une démarche essentielle pour en garantir la réalisation effective. Bien que des avancées significatives aient été réalisées dans ce domaine, des incertitudes subsistent quant à la portée normative et opérationnelle des obligations imposées aux États. S'inscrivant dans le cadre du système africain des droits de l'homme, cet article explore les interactions entre le droit régional des droits de l'homme et le droit des réfugiés. Il s'appuie sur des contributions doctrinales encore limitées pour examiner les dispositions clés de la Convention de l'OUA régissant les aspects propres aux réfugiés en Afrique, de la Charte africaine des droits de l'homme et des peuples, ainsi que de ses Protocoles relatifs aux droits des femmes et des personnes handicapées, et de la Charte africaine des droits et du bien-être de l'enfant. L'analyse met en lumière les dimensions spécifiques au groupe des réfugiés du droit à un logement adéquat, tout en insistant sur l'importance d'interpréter ce droit à la lumière des obligations immédiates et progressives des États. L'obligation de garantir un accès effectif à un logement adéquat, y compris par des mesures immédiates, ne saurait être sous-estimée dans la mise en œuvre et l'interprétation des droits garantis.

**KEY WORDS:** right to adequate housing; refugees; African regional human rights law; economic, social and cultural rights; the rights of refugees

**CONTENT:**

<table><tr><td>1</td><td>Introduction</td><td>60</td></tr><tr><td>2</td><td>The protection of refugees' 'right' to housing under the UN Refugee Convention</td><td>65</td></tr><tr><td>3</td><td>Refugees' right to adequate housing under the OAU Refugee Convention</td><td>68</td></tr><tr><td>4</td><td>The protection of refugees' right to adequate housing under the African Charter</td><td>71</td></tr><tr><td>5</td><td>The protection of women's right to adequate housing under the African Women's Protocol and its applicability for refugee women</td><td>74</td></tr><tr><td>6</td><td>The right to adequate housing under the African Protocol on PWDs and its applicability for refugees with disabilities</td><td>80</td></tr><tr><td>6.1</td><td>An overview of general and housing-specific obligations</td><td>80</td></tr><tr><td>6.2</td><td>The formulation of the right to adequate housing of PWDs</td><td>82</td></tr><tr><td>7</td><td>The legal protection of refugee children's right to adequate housing under the African Children's Charter</td><td>85</td></tr><tr><td>7.1</td><td>The prohibition of discrimination against refugee children</td><td>88</td></tr><tr><td>7.2</td><td>The applicability of more favourable standards under other legal regimes</td><td>89</td></tr><tr><td>7.3</td><td>Unaccompanied or separated refugee children</td><td>90</td></tr><tr><td>8</td><td>Conclusion</td><td>91</td></tr></table>

# 1 INTRODUCTION

The lack of adequate housing is a major challenge that affects a significant number of people in Africa. Although accurate and updated data on the situation of the right to adequate housing in Africa is not available, various sources show that this right has been realised only to a very limited extent. The number of homeless people is estimated to be in the tens of millions.<fnref n="1" /> A 2019 report of the UN Habitat for Humanity International showed that 55.4 per cent of households in sub-Saharan

<footnote n="1">1 For the number of homeless persons in African countries, see World Population Review 'Homelessness by country 2024' https://worldpopulationreview.com/country-rankings/homelessness-by-country (accessed 17 December 2024).</footnote>
Africa lived in unaffordable housing.² The majority of urban dwellers in Africa live in informal settlements in inadequate houses or shelters.³ It is estimated that, by 2050, the number of informal settlement dwellers in Africa will reach 1.2 billion.⁴ One of the main causes of the housing challenges in Africa is the lack of affordable housing in sufficient quantity.⁵

People in vulnerable situations are disproportionately and uniquely affected by the lack of adequate housing. A significant number of women, persons with disabilities, children, older persons, and refugees who live in homelessness or inadequate housing face peculiar housing challenges.⁶ Many refugees experience housing challenges that are linked to their refugee status, poverty, sex or gender, disability, and their status as children.⁷ Since most of them live in refugee camps,⁸ that are located in remote areas,⁹ they do not have adequate access to infrastructure, services and amenities.¹⁰ Their encampment also confines them to live in overcrowded shelters that do not give them adequate protection from the elements. Encamped refugees may also

2. UN Habitat for Humanity International 'The global housing affordability challenge: a more comprehensive understanding of the housing sector' (2019) Urban Data Digest 5.

3. B Chitekwe-Biti and others 'Upgrading informal settlements in African cities' 24 March 2022 *African Cities Research Consortium* available https://www.african-cities.org/upgrading-informal-settlements-in-african-cities/(accessed 17 December 2024).

4. UN Habitat International 'Urban development in Africa, and the role of participatory city-wide slum upgrading for urban sustainability and the prevention of new slums' (year not provided) Policy recommendation paper 1.

5. M Maina and others 'Housing: domain report' African Cities Research Consortium working paper 18 (2024) 4.

6. See M Sobantu 'Revisiting gender and housing: housing as seen through the eyes of women in social rental housing in Gauteng, South Africa' (2019) 56 *Social Work/Maatskaplike* 65; S Tesemma & S Coetzee 'Manifestations of spatial exclusion and inclusion of people with disabilities in Africa' (2023) 38 *Disability and Society* 1938-1939; UNICEF & Ministry of Labour and Social Affairs 'Situation and access to services of people with disabilities and homeless people in two sub-cities of Addis Ababa' (2019) 23-25, 38-40.

7. See Y El-Lahib 'Social work at the intersection of disability and displacement: Rethinking our role' (2020) 31 *Journal of Progressive Services* 2; J van der Goltz and others 'The labour market impact of forced displacement: Jobs in host communities in Columbia, Ethiopia, Jordan, and Uganda' Executive summary booklet (2023) World Bank Group vii.

8. UNHCR's report shows that 78.5 per cent of refugees in Africa live in refugee camps. See UNHCR 'Global Report: 2018' 65.

9. ND Coniglio and others 'The geography of displacement, refugees' camps and social conflicts' (2022) World Bank Group: Policy research Working Paper 3.

10. The UNHCR's Handbook for Emergencies confirms that although 'the availability of an adequate amount of water' is crucial in camps, it is also 'the most problematic'. See UNHCR *Handbook for emergencies* (2007) 210. In Kenya, Kakuma refugee camp is camp is the largest urban settlement in North-West Turkana County, but only five per cent of its residents have access electricity. See UNHCR 'Kakuma camp and Kalobeyei settlement: Briefing kit, May 2019'. See also EO Abuya 'Past reflections, future insights: African asylum law and policy in historical perspective' (2007) 19 *International Journal of Refugee Law* 54.
lack legal security of tenure to their shelters in refugee camps.<fnref n="11" /> A 2019 study showed that 65 per cent of refugee shelters in refugee settlements in Uganda were damaged,<fnref n="12" /> and ‘female-headed households’ were particularly affected because most of them lived in shelters that had ‘structural damage’.<fnref n="13" /> Ironically, they were not allowed to construct their shelters using durable and culturally appropriate materials.<fnref n="14" />

Refugees living in urban areas also experience housing challenges. They are seldom included in national housing schemes, and, therefore, do not benefit from enabling mechanisms that facilitate their access to housing.<fnref n="15" /> Many of them face discrimination in accessing housing in the market, expressed either in the denial to let housing to them, or in landlords requiring them to pay exorbitant rent.<fnref n="16" /> In one instance, refugee women and their children were rendered homeless because they were unable to pay rent.<fnref n="17" /> To make matters worse, state authorities evicted them from their makeshift shelters and demolished their shelters.<fnref n="18" />

Although refugees often face housing challenges that are distinct in their nature and extent, it is clear that many citizens of asylum states also face housing challenges. For example, in Uganda, one of the most generous refugee hosting countries in Africa, the government reported that more than 1 in 10 people were homeless,<fnref n="19" /> and over three-fourths of the population lived in ‘sub-standard housing conditions’.<fnref n="20" /> Therefore, an intuitive reaction to any discourse about refugees’ right to adequate housing in a country like Uganda may be ‘these states should not be required to ensure the right to housing of refugees because they do not have sufficient resources and most of their own citizens have significant housing problems’. However, it must be noted that the housing challenges faced by citizens do not absolve these states from their obligations towards refugees. One may also argue that housing problems in any given country reflect the level of attention paid to the right to adequate housing and the measures taken by the state to ensure this right. In light of this, one may raise a counter question: in a country that has adequate legal and policy frameworks, mobilised and allocated sufficient resources for adequate housing, adopted all appropriate

<footnote n="11">11 For example, in refugee settlements in Uganda, almost all refugees lack documents attesting ownership or ‘legal occupancy’. See REACH Initiative and Norwegian Refugee Council ‘Refugee access to livelihoods and housing, land and property in Uganda’ (2019) 24.</footnote>

<footnote n="12">12 REACH Initiative and Norwegian Refugee Council (n 11) 2.</footnote>

<footnote n="13">13 REACH Initiative and Norwegian Refugee Council (n 11) 18.</footnote>

<footnote n="14">14 REACH Initiative and Norwegian Refugee Council (n 11) 18.</footnote>

<footnote n="15">15 See eg C Kavuro ‘Housing and integrating refugees: South Africa’s exclusionary approach’ (2019) 40 *Obiter* 81-82.</footnote>

<footnote n="16">16 See eg Women’s Refugee Commission ‘The living ain’t easy: urban refugees in Kampala’ (2011) 12.</footnote>

<footnote n="17">17 Women’s Refugee Commission (n 16) 13.</footnote>

<footnote n="18">18 E Lyytinen ‘Congolese refugees’ “right to the city” and urban (in)security in Kampala, Uganda’ (2015) 9 *Journal of Eastern African Studies* 602.</footnote>

<footnote n="19">19 Committee on Economic, Social and Cultural Rights ‘Initial reports submitted by states parties due in 1990: Uganda’ (2013) paras 120 & 136.</footnote>

<footnote n="20">20 As above, paras 120 & 136.</footnote>
measures and prioritised the most disadvantaged sections of its population, will a significant proportion of its population experience serious housing problems? Resource-related scepticism may also be countered. African states are endowed with enormous amounts of natural and human resources<fnref n="21" /> that are more than enough to ensure that their populations live a dignified life. As Olowu points out, the problem is not the lack of resources: ‘the bigger crisis of [African states’] incapacity lies in corruption and malevolent governance exemplified by skewed policy prioritisation’.<fnref n="22" />

These issues show that realising the right to adequate housing of refugees is often indistinguishable from realising the same right for other sub-groups of a country’s population.<fnref n="23" /> After all, in a state that has not ensured that sufficient affordable housing is available for its own people, how can refugees find affordable housing? While responses tailored to the unique housing challenges of refugees are crucial, in many cases, it would be appropriate to ensure that they are integrated into responses that address the housing challenges of all segments of the population of an asylum state. Such an approach must comply with the normative frameworks in place at the African regional level. In order to ensure this, articulating the applicable normative framework is in order. It is precisely for this reason that this article seeks to shed new light on the regional normative framework on the right to adequate housing applicable to everyone.

However, there are differences in the nature and scope of the protection given to the right to adequate housing under the treaties discussed in this article. In order to clarify and bring out a consistent interpretation of the relevant provisions of the treaties, this article employs the rules of treaty interpretation set out under the Vienna Convention on the Law of Treaties (VCLT). For the purpose of clarifying the meaning of the relevant provisions of treaties, this article relies on the ‘general rule of treaty interpretation’ laid out in article 31 of the VCLT. According to article 31 of the VCLT, the meaning ascribed to treaty provisions must accord with the ‘ordinary meaning of the terms of the treaty in their context and in the light of its object and purpose’.<fnref n="24" /> The context of a treaty includes the ‘text, including its preamble and annexes’, subsequent legal instruments, including agreements between all the state parties, or by ‘one or more state parties’, that relate to the treaty in question.<fnref n="25" /> Article 31(3) of the VCLT requires that subsequent agreement or practice of the state parties and any other pertinent ‘rules of international law applicable in the relations between the parties’

<footnote n="21">21 F Viljoen *International human rights law in Africa* (2012) 544.</footnote>

<footnote n="22">22 D Olowu *An integrative rights-based approach to human development in Africa* (2009) 206.</footnote>

<footnote n="23">23 In the context of the rights of refugee children, Kaime has also emphasised the importance of addressing the challenges faced by children who are citizens of asylum states. See T Kaime ‘The protection of refugee children under the African human rights system: finding durable solutions in international law’ in J Sloth-Nielsen (ed) *Children’s rights in Africa: a legal perspective* (2008) 193-194.</footnote>

<footnote n="24">24 VCLT, art 31(1); M Waibel ‘Demystifying the art of interpretation’ (2011) 22 *The European Journal of International Law* 574.</footnote>

<footnote n="25">25 VCLT, arts 31(2)(a) & (b).</footnote>
must be considered along with the context of a treaty. It is only in cases where using the general rule leads to an 'ambiguous' or 'manifestly absurd or unreasonable' meaning that the supplementary rule of interpretation (interpretation based on the drafting history and conclusions of the drafters of a treaty) becomes utilisable.<fnref n="26" /> In other words, if one uses the general rule of interpretation and ascribes a sufficiently clear and reasonable meaning to a treaty provision, it is neither permissible, nor necessary to use the supplementary rule of interpretation.<fnref n="27" />

In order to interpret the relevant provisions of each treaty in relation to other treaties considered in this article, and to demonstrate their applicability to refugees, this work relies on article 30 of the VCLT. This work seeks to identify, analyse, and explore the applicability to refugees of treaties that offer relatively more favourable standards of protection to the right to adequate housing. Except for the OAU Refugee Convention, all of the treaties considered in this article contain express provisions that either allow or require the application of more favourable standards enshrined in other treaties.<fnref n="28" /> Because the more favourable clauses of these treaties are self-explanatory, this article does not foresee any interpretative issues.<fnref n="29" /> This view is supported by article 30(2) of the VCLT, which provides that, if a treaty specifies that 'it is not to be considered as incompatible with an earlier or later treaty, the provisions of the other treaty prevail'.<fnref n="30" />

Regarding the OAU Refugee Convention, two alternatives may be pursued in order to apply the more favourable standards enshrined in other treaties. First, because the OAU Refugee Convention provides that it is the 'effective regional complement' to the UN Refugee Convention, the 'more favourable treaty clause' contained under article 5 of the UN Refugee Convention serves as a gateway for applying the higher normative standards enshrined under other treaties. Second, one may invoke the relevant rule of the VCLT that applies in situations where a treaty does not contain a 'more favourable treaty clause'. Article 30(3) of the VCLT provides that 'the earlier treaty applies only

<footnote n="26">26 VCLT, arts 32(a) & (b).</footnote>

<footnote n="27">27 U Linderfalk *On the interpretation of treaties: the modern international law as expressed in the 1969 Vienna Convention on the Law of Treaties* (2007) 323.</footnote>

<footnote n="28">28 See eg UN Refugee Convention, art 5; African Women's Protocol, art 31; African Protocol on PWDs, art 36(1).</footnote>

<footnote n="29">29 Regarding the UN Refugee Convention and other treaties, a similar approach has been adopted by notable writers in the field. See eg MG Wachenfeld & H Christensen 'Note: an introduction to refugees and human rights' (1990) 59 *Nordic Journal of International Law* 183; T Clark & F Crépeau 'Mainstreaming refugee rights: the 1951 Refugee Convention and international human rights law' (1999) 17 *Netherlands Quarterly of Human Rights* 389-392, 401; A Edwards 'Human rights, refugees and the right to "enjoy" asylum' (2005) 17 *International Journal of Refugee Law* 306; V Chetail 'Are refugee rights human rights? An unorthodox questioning of the relations between refugee law and human rights law' in R Rubio-Marin (ed) *Human rights and immigration: collected courses of the Academy of European Law* (2014) 22.</footnote>

<footnote n="30">30 VCLT, art 30(2).</footnote>
to the extent that its provisions are compatible with those of the later
treaty'.<fnref n="31" />

This article is divided into eight sections. The introduction is the first section. Section 2 explores the protection of the 'right' to housing under the UN Refugee Convention.<fnref n="32" /> Section 3 analyses how and to what extent the OAU Refugee Convention protects this right. Section 4 discusses how the indirect protection accorded to the right to housing under the African Charter on Human and Peoples' Rights (African Charter) complements the protection accorded to this right under the global and African regional refugee-specific treaties. Section 5 analyses the novel legal protection accorded to (refugee) women's right to adequate housing under the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol). Section 6 analyses the protection accorded to the right to adequate housing of persons with disabilities under the Protocol to the African Charter on the Rights of Persons with Disabilities in Africa (African Protocol on PWDs). In this section, the article spotlights the unique nature of the right to adequate housing of persons with disabilities and the corresponding obligations of states under the African Protocol on PWDs and its applicability for refugees with disabilities in Africa. Section 7 analyses the indirect protection accorded to refugee children's right to adequate housing under the African Charter on the Rights and Welfare of the Child (African Children's Charter). Section 8 concludes the article.

2 THE PROTECTION OF REFUGEES’ ‘RIGHT’
TO HOUSING UNDER THE UN REFUGEE
CONVENTION

The UN Refugee Convention<fnref n="33" /> does not expressly provide for refugees’ right to housing using a rights language. Under article 21, it merely lays down obligations on its state parties with respect to refugee housing. As discussed below, the obligations it imposes are contingent on three factors: the level of the relationship that a refugee has with the state, the

<footnote n="31">31 In this case, the interpretative issue must relate to ‘the same subject matter’ governed by the treaties in question. The OAU Refugee Convention does not contain a provision that expressly deals with refugees’ right to housing. However, as the analysis in section 3 shows, the ‘right’ to housing is implied in article 2(1) of this Convention. It is worth noting that the rule provided under art 30(3) also applies in cases where not all the parties to the earlier treaty are parties to the latter treaty. If all the parties to the earlier treaty are not parties to the latter treaty, the latter treaty applies to the states that are parties to it. See VCLT, art 30(4)(a)-(b).</footnote>

<footnote n="32">32 This is necessitated by the fact that the OAU Refugee Convention does not contain a provision that expressly deals with refugees' right to housing, and instead, encourages its state parties to accede to the UN Refugee Convention and its Protocol of 1967, and apply the provisions of these treaties. See the preamble to the OAU Refugee Convention, para 11.</footnote>

<footnote n="33">33 The temporal and geographic scope of application of this Convention has been by article 1(1) & (2) of the Protocol Relating to the Status of Refugees in 1967.</footnote>
state's role with regard to housing, and the level of treatment it is required to grant refugees.

Under article 21 of the UN Refugee Convention, state parties' obligation towards refugees does not apply to all refugees. Instead, it is limited to refugees 'lawfully staying'. Lawful stay is determined based on the length of the refugees' stay in the country of asylum. If a refugee stays in an asylum state for more than a temporary period, they meet the criteria of lawful stay.<fnref n="34" /> This clearly excludes refugees who have stayed in an asylum state for a short period of time. Because the personal scope of article 21 is restricted to this group of refugees, refugees who do not satisfy the requirement of lawful stay do not qualify as holders of the 'right' under article 21.<fnref n="35" /> For this reason, Leckie and Simperingham suggest that these refugees 'will be limited, as regards housing, to protection under general human rights law'.<fnref n="36" />

In addition, under the UN Refugee Convention, state parties' obligation regarding refugees' 'right' to housing is conditional upon whether housing is 'regulated by laws or regulations or is subject to the control of public authorities'. This implies that a state party does not have housing-related obligations towards refugees if (and to the extent that) housing is a matter left outside its control, for example, if housing is entirely left to the private sector.

Unlike the typical formulation of housing related state obligations in human rights treaties, housing related state obligations under the UN Refugee Convention are formulated in relative terms. There are two types of relative obligations under article 21 in this regard, which may be understood as obligations pertaining to the minimum and higher standards of treatment. The minimum obligation of states is to grant protection to refugees to the extent that they protect the right to housing of 'aliens generally in the same circumstances'.<fnref n="37" /> The higher standard enjoins states to grant refugees 'treatment as favourable as possible'. Although both types of obligations have similarity in that they

<footnote n="34">34 'Where the term "habitual residence" is used in other articles of the 1951 Convention [other than art 1A(2)], it signifies more than a stay of short duration, but was apparently not intended necessarily to imply permanent residence or domicile'. See G Goodwin-Gill & J McAdam *The refugee in international law* (2007) 526.</footnote>

<footnote n="35">35 See S Leckie & E Simperingham 'Lodgment/housing' in E Zimmermann (ed) *The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: a commentary* (2011) 1009. However, refugees may be accorded a national treatment by virtue of art 23. But this depends on whether housing forms part of public relief in the relevant laws and policies of a state party. See E Lester 'Article 23 (Public relief/Assistance publique)' in E Zimmermann (ed) *The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: a commentary* (2011) 1055.</footnote>

<footnote n="36">36 Leckie & Simperingham (n 35) 1009. It is important to note that the protection of the right to adequate housing under international human rights law is also beneficial for 'refugees lawfully staying' in the territory of an asylum state.</footnote>

<footnote n="37">37 States are permitted to give preferential treatment to citizens of states with which they have bilateral or other treaties to this effect. This article, thus, permits states to exclude refugees and other aliens from the standard of protection accorded to foreigners who enjoy preferential treatment. See JC Hathaway *The rights of refugees under international law* (2005) 197-198.</footnote>
are formulated in relative terms, there are also clear differences
between these levels of obligations. Whether a state has complied with
the minimum obligation can be ascertained by looking at the treatment
it gives to the comparator group, namely, 'aliens generally in the same
circumstances'. In contrast, establishing whether a state has complied
with its obligation concerning the higher standard of treatment may not
be easy. The higher standard obliges states to give protection to
refugees' 'right' to housing to the extent they can, as favourable as
possible. Clearly, this obligation is contingent on different factors,
including the capacity of the asylum state and the particular
circumstances of the refugees.

The relative standard adopted regarding the minimum standard is problematic. This is not only because the comparator group is 'aliens generally in the same circumstances'. The relative standard is problematic even if the comparator group were nationals. For example, in the latter case, this provision would have little or no significance to refugees in a state party that does not protect the right to housing of its citizens. The use of a comparator group under article 21 of the UN Convention also implies that state parties to the Convention do not have an obligation to treat refugees on par with their citizens. The non-discrimination provision of the Convention is clear in this regard because it does not prohibit asylum states from making a distinction between refugees and citizens.<fnref n="38" /> The Convention only prohibits discrimination among refugees. The prohibited grounds of discrimination are also limited: states are required to refrain from discriminating between refugees based on race, religion or country of origin.<fnref n="39" />

Refugees' 'right' to housing is also implicitly protected under article 23 of the UN Refugee Convention, which deals with public relief. Public relief concerns state interventions to provide services or benefits for those who are in need.<fnref n="40" /> Under article 23, the Convention requires state parties to provide public relief for refugees on equal terms with their 'nationals'. However, Hathaway points out two major limitations of article 23 of the UN Refugee Convention. First, this provision applies for refugees lawfully staying, which means that refugees who do not meet this criterion are outside the scope of this provision.<fnref n="41" /> Second, if public relief programmes are not in place in a state party, the Convention does not require it to provide public relief for refugees.<fnref n="42" /> If an asylum state provides public relief to its citizens, but the extent of public relief provided by the state is insufficient to meet the housing needs of refugees, the Convention does not require it to provide an adequate level of relief for refugees.<fnref n="43" /> Similarly, if housing is not part of the existing public relief programmes of an asylum state, the

<footnote n="38">38 See UN Refugee Convention, art 3.</footnote>

<footnote n="39">39 UN Refugee Convention, art 3; Clark & Crépeau (n 29) 393.</footnote>

<footnote n="40">40 Hathaway (n 37) 824.</footnote>

<footnote n="41">41 Hathaway (n 37) 808.</footnote>

<footnote n="42">42 Hathaway (n 37) 808.</footnote>

<footnote n="43">43 Hathaway (n 37) 809.</footnote>
Convention does not enjoin the state to include housing as part of its public relief programmes. Therefore, though article 23 is significant in addressing the housing needs of refugees, its significance is also limited.

The UN Refugee Convention was not intended to set a static standard of protection for the rights of refugees. Instead, it was intended to enshrine minimum standards.<fnref n="44" /> State parties to the Convention can ‘grant’ refugees ‘more liberal rights’.<fnref n="45" /> Under its article 5, the UN Refugee Convention provides that '[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention'. A state party to the Convention may give a better protection for the rights of refugees by enacting legislation or by ratifying treaties that accord better protection for refugees' rights as compared to the UN Refugee Convention.<fnref n="46" /> If new legislation or a treaty subsequently ratified more favourably protects refugees' right to housing as compared to the protection of this right under the UN Refugee Convention, the minimum standard of protection enshrined under the UN Refugee Convention should not bar refugees from benefiting from such protection.<fnref n="47" />

Subsequent to the coming into force of the UN Refugee Convention in 1954, several human rights treaties that protect the right to adequate housing have been adopted at the global and regional level. This contribution mainly deals with African regional refugee-specific and ‘general’ human rights treaties that, in many ways, complement the protection of refugees’ ‘right’ to housing enshrined under the UN Refugee Convention. Although this article makes a specific reference to refugees, the analyses and arguments of this article pertaining to the ‘general’ human rights treaties are also relevant for people other than refugees.

## 3 REFUGEES' RIGHT TO ADEQUATE HOUSING UNDER THE OAU REFUGEE CONVENTION

The OAU Refugee Convention contains provisions that are distinct from the provisions of the UN Refugee Convention. This includes the expanded definition of the term refugee,<fnref n="48" /> (which, in relation to refugees' right to adequate housing, means that persons falling under

<footnote n="44">44 N Robinson *Convention Relating to the Status of Refugees: its history, significance and contents* (1952) 9-10; Hathaway (n 37) 109.</footnote>

<footnote n="45">45 Robinson (n 44) 9-10.</footnote>

<footnote n="46">46 A Grahl-Madsen *Commentary on the Refugee Convention* (1997) article 5; Hathaway (n 37) 109.</footnote>

<footnote n="47">47 If this relates to a treaty ratified by the state party subsequent to its ratification of the UN Refugee Convention, art 30(3) & (4) of the Vienna Convention on the Law of Treaties apply. See also Robinson (n 44) 17.</footnote>

<footnote n="48">48 Art 1(2).</footnote>
the broader definition are holders of the right to housing); the
recognition, in the broader sense, of the obligation not to return
refugees to their country of origin against their will;<fnref n="49" /> and the
obligation it imposes on states of origin to 'make adequate
arrangements' for the repatriation of refugees and 'facilitate their re-
settlement'.<fnref n="50" />

Unlike the UN Refugee Convention, the OAU Refugee Convention does not contain a broad range of substantive provisions. The limited number of substantive provisions under the OAU Refugee Convention are, just like in the UN Refugee Convention, framed as state obligations. However, as Viljoen notes, 'entitlements (or "indirect rights") are implied by the imposition of obligations on states'.<fnref n="51" /> The substantive provisions under the OAU Refugee Convention, from which 'indirect rights' can be inferred, are the ones that deal with refugee status and the protection against refoulement,<fnref n="52" /> non-discrimination,<fnref n="53" /> the issuing of travel documents,<fnref n="54" /> and the obligation to 'secure the settlement' of refugees.<fnref n="55" />

The absence of explicitly stated substantive rights in the OAU Refugee Convention was because this Convention was designed to be an 'effective regional complement in Africa' to the UN Refugee Convention.<fnref n="56" /> The aim was to ensure that the substantive provisions under the UN Refugee Convention would be applicable in African states that become parties to both the UN Refugee Convention and the OAU Refugee Convention.<fnref n="57" /> This is why the Assembly of Heads of State and Government requested state parties of the OAU Refugee Convention to accede to the UN Refugee Convention and its Protocol of 1967, and to 'apply their provisions to refugees in Africa'.<fnref n="58" /> Consequently, the 'right' to housing enshrined under article 21 of the UN Refugee Convention is applicable in asylum countries that are parties to both the UN and OAU Refugee Conventions.<fnref n="59" />

In addition to the applicability of article 21 of the UN Refugee
Convention, the right to adequate housing is more robustly, but

<footnote n="49">49 Art 2(3).</footnote>

<footnote n="50">50 Art 5(2) of OAU Refugee Convention. See also Viljoen (n 21) 244.</footnote>

<footnote n="51">51 Viljoen (n 21) 242.</footnote>

<footnote n="52">52 OAU Refugee Convention, arts 1 & 2(3).</footnote>

<footnote n="53">53 OAU Refugee Convention, art 4.</footnote>

<footnote n="54">54 OAU Refugee Convention, art 6(1) & (3).</footnote>

<footnote n="55">55 OAU Refugee Convention, art 2(1).</footnote>

<footnote n="56">56 OAU Refugee Convention, art 8.</footnote>

<footnote n="57">57 G Okoth-Obbo 'Thirty years on: a legal review of the 1969 Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa' (2001) 20 *Refugee Survey Quarterly* 98; BTM Nyanduga 'Refugee protection under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa' (2004) 47 *German Yearbook of International Law* 93.</footnote>

<footnote n="58">58 See the preamble of the OAU Refugee Convention, where the Assembly of Heads of State and Government requested Member States of the OAU to apply the provisions of the 1951 Refugee Convention.</footnote>

<footnote n="59">59 See also VCLT, art 30(2); M Sharpe 'The 1969 African Refugee Convention: innovations, misconceptions, and omissions' (2012) 58 *McGill Law Journal/ Revue de droit de McGill* 140-141.</footnote>
impliedly, protected under the OAU Refugee Convention. The obligation to 'secure the settlement of refugees', set out under article 2(1) of the OAU Refugee Convention imposes positive obligations on state parties. The term 'to secure the settlement of refugees' implies that state parties have an obligation to ensure that refugees have access to adequate housing, without which their settlement cannot be secured. It is crucial to note that this phrase imposes immediate and positive obligations (including the obligation to fulfil (provide)) on state parties to the Convention. This interpretation is consistent with state practice in several African countries.

The obligation to secure the settlement of refugees concerns the duty of states to find long term solutions for refugees.<fnref n="60" /> Karadawi distinguishes between different phases of assistance that were provided to refugees in Sudan. The first phase is the 'relief phase' during which refugees are provided with emergency assistance upon their arrival.<fnref n="61" /> The second phase is the 'settlement phase', which is defined by some level of permanence.<fnref n="62" /> During this stage, refugees are given land, while 'infrastructure and services are financed by UNHCR'.<fnref n="63" /> The allocation of plots of land for refugees, the primary aim of which was to enable refugees' self-reliance,<fnref n="64" /> also facilitates their access to housing (for example, through self-help housing) and therefore, can be regarded as part of the state's performance of its Convention obligation to secure the settlement of refugees. While this is a widespread practice in many African countries that place refugees in refugee camps and refugee settlements, it is crucial that African states also pay attention to securing the settlement of refugees living in urban settings by facilitating and fulfilling their right to adequate housing.

It is also useful to note that the personal scope of article 2(1) is broader than the personal scope of article 21 of the UN Refugee Convention. In other words, the obligation to secure the settlement of refugees is not restricted to a portion of refugees, unlike article 21 of the UN Refugee Convention, which merely applies to a sub-group of refugees who have stayed in the country of asylum beyond a prescribed period of time.

The limitation of article 2(1) is that the right is circumscribed by the proviso 'consistent with their respective legislation'. Accordingly, the measures that states are required to take, including measures to ensure refugees' right to housing, are subject to their domestic legislation. This has the potential of jeopardising the protection of refugees' right to housing implied in this provision<fnref n="65" /> because article 2(1) does not include a clause that stipulates limitations on domestic legislation, for example,

<footnote n="60">60 This does not necessarily imply durable solutions.</footnote>

<footnote n="61">61 A Karadawi 'Constraints on assistance to refugees: some observations from the Sudan' (1983) 11 *World Development* 541.</footnote>

<footnote n="62">62 As above, 541.</footnote>

<footnote n="63">63 As above.</footnote>

<footnote n="64">64 As above.</footnote>

<footnote n="65">65 See also J Oloka-Onyango 'Plugging the holes: refugees, OAU policy and the practices of member states' (1986) USC Issue Brief, Washington DC 7-8.</footnote>
where domestic legislation is too restrictive. However, the jurispru-
dence of the African Commission and the African Court on Human and
Peoples' Rights (African Court) affirms that the term 'law' in such
clauses does not give states an open remit to arbitrarily restrict human
rights.

The protection of refugees' right to housing under the OAU Refugee Convention also has its limitations. Although article 2(1) can be interpreted broadly in a manner that addresses the housing challenges of diverse sub-groups of refugees, such as refugees with disabilities, refugee women, refugee children, and older refugees, its potential is yet to be unlocked through interpretation and application. A related setback to addressing refugees' housing challenges through the OAU Refugee Convention is that its non-discrimination provision has a very limited scope because it does not prohibit discrimination based on refugee status, sex, gender, disability and many other markers of identity or status.

To sum up, the OAU Refugee Convention indirectly protects refugees' right to housing in two ways. The first is by referring to article 21 of the UN Refugee Convention which deals with housing. The second indirect protection is through its article 2(1). As much as its value may be circumscribed by a clawback clause, the nature of states' obligations under article 2(1) reaffirms, and gives refugees a robust legal basis to claim their right to housing. Moreover, the expanded definition of the term 'refugees' under the OAU Refugee Convention provides a legal basis for the protection of the right to housing of a broader category of refugees included under article 1(2) of the OAU Refugee Convention, as compared to the narrow definition of the UN Refugee Convention. Furthermore, unlike the limited personal scope of application of article 21 of the UN Refugee Convention (which restricts the applicability of the right to housing to a sub-group of refugees), article 2(1) of the OAU Refugee Convention has a broader personal scope. However, its prohibition of discrimination is limited because it does not prohibit discrimination based on refugee status, sex or gender, and disability, among other grounds.

In what follows, this article explores how the African Charter, the African Women's Protocol, the African Protocol on PWDs, and the African Children's Charter strengthen the indirect protection of refugees' 'right' to housing under the OAU Refugee Convention, and respond to the specific housing challenges that different groups of refugees experience.

4 THE PROTECTION OF REFUGEES’ RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN CHARTER

The right to adequate housing is not explicitly recognised in the African
Charter. However, the African Commission on Human and Peoples'
Rights (African Commission) has, in its jurisprudence, applied the
principle of interdependence of rights<fnref n="66" /> and ‘read into’ other rights contained in the Charter in order to recognise and give meaning to the right to housing. In *Social and Economic Rights Action Centre and Another v Nigeria* (SERAC case), the Commission stated that the right to housing is impliedly protected in the rights to property, health and to the protection of family life, all of which are explicitly recognised in the African Charter.<fnref n="67" /> It held that the destruction of the houses and villages of the Ogoni people by the Nigerian state violated its minimum obligations.<fnref n="68" /> The Commission found that the minimum obligations with respect to the right to housing are the obligation to refrain from interfering in the enjoyment of the right to housing and the obligation to protect the enjoyment of this right.<fnref n="69" /> It concluded that the state’s acts amounted to a ‘massive violation of the right to shelter’.<fnref n="70" /> Similarly, the Commission has recognised the right to housing in other communications brought before it by invoking the interdependence of rights recognised in the Charter.<fnref n="71" />

The Commission elaborated on the content of the right to adequate housing. In its Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights’ (Principles and Guidelines), it incorporated the ‘elements of adequate housing’,<fnref n="72" /> which are useful for assessing the adequacy of housing.<fnref n="73" /> The Commission made an important contribution to the clarification of the contents of the right to adequate housing. For example, its Principles and Guidelines spell out the elements of the right to adequate housing in a rights language and clearly state the corresponding obligations of states. This contrasts with the formulation of the ‘elements of adequate housing’ in General Comment 4 of the UN Committee on Economic, Social and Cultural Rights (Committee on ESCR), which, for the most part, does not couch the ‘elements of adequate housing’ as entitlements and freedoms, and fails to specify the obligations of states in relation to each element.<fnref n="74" /> In addition, in its Principles and Guidelines, the Commission has made it clear that state parties to the African Charter have an obligation to

<footnote n="66">66 For a discussion on the Commission's use of the interdependency of rights in order to give recognition to the right to housing, see L Chenwi 'The right to adequate housing in the African regional human rights system: convergence between the African Commission and South African approaches' (2013) 17 *Law Democracy & Development* 355-357.</footnote>

<footnote n="67">67 *SERAC and Another v Nigeria* (2001) AHRLR 60 (ACHPR 2001) para 60.</footnote>

<footnote n="68">68 *SERAC* para 61.</footnote>

<footnote n="69">69 As above.</footnote>

<footnote n="70">70 As above.</footnote>

<footnote n="71">71 *Sudan Human Rights Organisation and Another v Sudan* (2009) AHRLR 153 (ACHPR 2009) para 159, 164, 205; and *Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya* (2009) AHRLR 75 (ACHPR 2009) para 218.</footnote>

<footnote n="72">72 Principles and Guidelines, paras 79(g)-(l).</footnote>

<footnote n="73">73 The elements of adequacy were adopted by the Committee on ESCR in its General Comment 4, paras 8(a)-(g).</footnote>

<footnote n="74">74 See eg Principles and Guidelines, para 79(j).</footnote>
‘ensure, at the very least, basic shelter for everybody’.<fnref n="75" /> The Principles and Guidelines denote that states have an immediate obligation that includes the obligation to fulfil (provide).

Perhaps most people who lack adequate housing would be able to realise their right to housing if states merely respect, protect, promote, and facilitate favourable conditions that enable them to meet their housing needs. For those who cannot do so for various reasons, states have the obligation to fulfil (provide), at minimum, basic shelter. This is because the obligation of states to ‘ensure, at the very least, basic shelter for everybody’ is an immediate obligation of result. In other words, for those who cannot or will not meet their shelter needs even if states respect and protect the right to adequate housing and facilitate favourable conditions, an immediate obligation of result triggers states’ obligation to fulfil (provide) basic shelter (at a minimum).

It is clear that the African Commission has adopted a minimalist approach in its Principles and Guidelines.<fnref n="76" /> However, this should not come as a surprise given the absence of an express provision on the right to adequate housing under the Charter, which would have provided a solid legal basis and guidance for the Commission. As discussed in sections 5 and 6 below, the African Women’s Protocol and the African Protocol on PWDs contain express provisions on the right to adequate housing and impose immediate obligations of result on their state parties.

The rights enshrined under the African Charter apply to every individual. The Charter requires that the rights contained in it must be applied ‘without distinction of any kind’.<fnref n="77" /> The list of the prohibited grounds of distinction under the African Charter are not exhaustive, which means that it is possible to recognise the prohibition of distinction based on unenumerated arbitrary grounds, such as refugee status and intersectional discrimination that involves refugee status. It is particularly worth noting that one of the prohibited grounds listed in the Charter is ‘fortune’. As discussed in sections 6 and 7 of this article, the explicit legal recognition of fortune as a prohibited ground of distinction is significant with regard to the right to adequate housing.

The implied right to adequate housing is also applicable to refugees in their countries of refuge. The jurisprudence of the African Commission and its soft laws provide support to this interpretation. For example, in a matter that concerns human rights violations including the mass expulsion and forced eviction of Sierra Leonean refugees from their houses in Guinea,<fnref n="78" /> the Commission based its findings both on the African Charter and the OAU Refugee Convention. It held that Guinea violated articles 2, 4, 5, 12(5) and 14 of the African Charter and

<footnote n="75">75 Principles and Guidelines, para 79(c).</footnote>

<footnote n="76">76 See also SERAC para 61.</footnote>

<footnote n="77">77 African Charter, art 2.</footnote>

<footnote n="78">78 *African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) v Guinea* (2004) AHRLR 57 (ACHPR 2004) para 3.</footnote>
article 4 of the OAU Refugee Convention.<fnref n="79" /> In addition, the Principles and Guidelines recommend that states ‘take measures to ensure that [...] refugees are guaranteed equal access to [...] adequate housing and shelter’.<fnref n="80" /> The most explicit recognition of refugees as holders of the right to adequate housing is found in the African Guiding Principles on the Rights of All Migrants, Refugees, and Asylum Seekers (Guiding Principles on Migrants’ Rights), adopted by the African Commission on 21 October 2023.<fnref n="81" />

In sum, although the African Charter does not expressly enshrine the right to adequate housing, its provisions have been relied on to infer this right. As demonstrated in the jurisprudence and soft law of the Commission, this right applies to refugees. It is possible for the regional judicial and quasi-judicial human rights bodies to interpret this ‘derived’ right in a manner that addresses the peculiar housing challenges of various sub-groups of refugees.<fnref n="82" /> In order to do so, these bodies may invoke other provisions of the African Charter and the relevant provisions of the group-specific regional human rights treaties. The next three sections analyse how and to what extent the African Women’s Protocol, the African Protocol on PWDs, and the African Children’s Charter protect this right, with a particular reference to refugees.

## 5 THE PROTECTION OF WOMEN'S RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN WOMEN'S PROTOCOL AND ITS APPLICABILITY FOR REFUGEE WOMEN

The African Women's Protocol aims to ensure the elimination of discrimination against women<fnref n="83" /> and the 'promotion, realisation, and protection' of their rights.<fnref n="84" /> This Protocol enhances the protection of women's rights under the African Charter. For example, it includes rights that are not explicitly recognised in the African Charter. Banda has aptly stated that the 'introduction of the right to adequate housing' was 'an important innovation of the African Protocol'.<fnref n="85" /> Viljoen has also commented that, 'by including the right to food security and the right to adequate housing', the Protocol has 'gone beyond the scope' of

<footnote n="79">79 Although the Commission cited the non-discrimination provision, it did not reason that it interpreted 'other status' to include refugee status. It merely invoked article 2 of the Charter along with other provisions without any explanation.</footnote>

<footnote n="80">80 Guiding Principles, para 79(p).</footnote>

<footnote n="81">81 See Guiding Principles, Principle 28(1).</footnote>

<footnote n="82">82 This is possible because the Commission is required to 'draw inspiration' from African regional and UN human rights instruments that do so. See art 60(1) of the African Charter.</footnote>

<footnote n="83">83 African Women's Protocol, preamble, para 13.</footnote>

<footnote n="84">84 African Women's Protocol, preamble, para 14.</footnote>

<footnote n="85">85 F Banda 'Blazing a trail: the African Protocol on Women's Rights comes to force' (2006) 50 *Journal of African Law* 23.</footnote>
the rights enshrined under the African Charter.<fnref n="86" /> Their observations elucidate that the Protocol has added more subsistence related rights to the catalogue of the rights enshrined in the African Charter.

In its article 16, the African Women's Protocol specifically deals with the right to adequate housing. Unlike article 14(2)(h) of the International Convention against the Elimination of All forms of Discrimination against Women (CEDAW), which applies only to women living in rural areas, article 16 of the African Women's Protocol applies to all women. It states that

[w]omen shall have the right to equal access to housing and to acceptable living conditions in a healthy environment. To ensure this right, states parties shall grant to women, whatever their marital status, access to adequate housing.

This provision has started to attract scholarly attention.<fnref n="87" /> Building on existing literature, this article analyses this provision and its significance for addressing the housing challenges of women (including refugee women). Before proceeding to the analysis of this provision, it is appropriate to note that the Principles and Guidelines of the African Commission have dealt with the right to housing, mentioned women and refugees as part of vulnerable groups, and specified state obligations regarding their right to housing.<fnref n="88" /> However, the Principles and Guidelines only relate to the African Charter, which does not contain an express provision on this right. The robust protection accorded to women's right to adequate housing is not the legal basis for the Principles and Guidelines. Although the Principles and Guidelines have substantially clarified the contents of the right to adequate housing, some aspects of the Principles and Guidelines, such as the 'minimum core obligations' regarding the right to housing are at variance with the level of obligation imposed by the Women's Protocol.<fnref n="89" /> Therefore, further clarification of women's right to adequate housing in line with article 16 of the African Women's Protocol and the object and purpose of this Protocol is essential. Women's right to adequate housing under the African Women's Protocol and the corresponding obligations of state parties to this Protocol are analysed below.

One of the most important and innovative features of article 16 of the Protocol concerns its formulation of the nature of women's right to adequate housing and the corresponding obligations of states. This article identifies four distinct features of women's right to adequate housing under the Protocol.

<footnote n="86">86 F Viljoen 'An introduction to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa' (2009) 16 *Washington and Lee Journal of Civil Rights and Social Justice* 20.</footnote>

<footnote n="87">87 See M Killander 'Right to adequate housing' in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a commentary* (2023) 351; Viljoen (n 86) 20; Banda (n 85) 23.</footnote>

<footnote n="88">88 Principles and Guidelines, para 79(n)-(r).</footnote>

<footnote n="89">89 See Principles and Guidelines, para 79.</footnote>
First, article 16 protects women's 'equal access' to adequate housing as an immediately claimable right and requires states to ensure this right immediately.

Second, by including the qualifier 'in a healthy environment', women's right to adequate housing under the African Women's Protocol strengthens the habitability element of adequate housing found in General Comment 4 of the Committee on ESCR.<fnref n="90" /> By doing so, it crystalises the soft law obligation of states (regarding the habitability of housing) into a binding obligation. This responds to several housing challenges experienced by women in general, and refugee women in particular. It recognises their right to live in housing that protects them from, and is free from, threats to their health. This should also be understood as protection from physical threats, including domestic violence,<fnref n="91" /> harassment in housing, and discriminatory rental levels that jeopardise the affordability of housing and ultimately compromise women's health, for example, by undermining their ability to cater for their needs.

Third, by proclaiming that 'women shall have the right to equal access to housing',<fnref n="92" /> it transforms the accessibility dimension of the right to adequate housing, adopted in General Comment 4 of the Committee on ESCR<fnref n="93" /> into a claimable right and a binding obligation on state parties. In addition to this relative standard (equal access), the Protocol also lays down an immediate and absolute standard by requiring state parties to 'grant to women [...] access to adequate housing'.

The 'equal access' clause under the first sentence of article 16 has profound significance and further comment is in order. Two issues stand out in this regard: (i) This right is framed as an immediately claimable right which means that state obligations are also immediate.<fnref n="94" /> (ii) The term 'equal access' is not qualified by the comparator group found in CEDAW, namely, men. This addresses women's unequal access to housing more comprehensively. This is because inequality in access is not only related to gender-based factors, but also to other factors that play a role in women's access to housing.

Fourth, in the second sentence of article 16, which deals with what state parties must do in order to realise women's right to adequate housing, the Protocol imposes a combination of an obligation of

<footnote n="90">90 See Committee on Economic, Social and Cultural Rights 'General Comment 4' para 8(d).</footnote>

<footnote n="91">91 In relation to this, the African Commission Guidelines prescribe that 'alternative housing should be provided to women victims of domestic violence. See African Commission Principles and Guidelines para 67(xxxv)(g). See also Chenwi (n 66) 352. It is important to note that refugee women and refugee girls living in refugee camps are highly vulnerable to sexual and gender-based violence.</footnote>

<footnote n="92">92 Emphasis added.</footnote>

<footnote n="93">93 Committee on ESCR, General Comment 4, para 8(e).</footnote>

<footnote n="94">94 See also SA Yeshanew *The justiciability of economic, social and cultural rights in the African regional human rights system: theories, laws, practices and prospects* (2013) 258. It is important to note that non-discrimination is one of the immediate obligations.</footnote>
conduct and an obligation of result on state parties. This underscores
the important role of state parties in the realisation of women's right to
housing, mainly by taking positive measures that guarantee this right.
This includes facilitating women's access to housing and fulfilling this
right.

The word ‘access’ in this phrase has been interpreted as implying
that what is required of states is ‘to create and maintain conducive
environment within which individuals are able to acquire [housing] for
themselves and not to provide them directly, except in certain
exceptional cases’.<fnref n="95" /> However, I argue that the obligation to ‘grant
access’ is broader than merely facilitating conditions for women to
realise their right to housing.

Given the multiple challenges that must be overcome in order to
finally create a conducive condition for many women in Africa to realise
their right to housing, and the fact that states in which most women lack
access to housing might find it easy to claim that they are taking
measures towards creating such conditions, a narrow interpretation of
this word is not beneficial to women who are deprived of access to
housing.

The steps to be taken to ensure women’s access to adequate housing
depend on the circumstances prevailing in a state party and on the
challenges faced by each woman deprived of access to housing. In many
contexts, what is required might be facilitating conditions for them to
secure their own housing,<fnref n="96" /> for example, by ensuring their access to
land, and providing housing finance. Given the multiple barriers many
women in Africa experience in accessing housing, removing all barriers
and creating suitable conditions that enable all of them to ‘acquire’
housing might take a long time.

The obligation of states to ‘grant to women [...] access to adequate housing’ is not qualified by the progressive realisation terminology. The ordinary meaning of the terms ‘grant’ and ‘access’ both imply an obligation to fulfil (provide) and an obligation to fulfil (facilitate).<fnref n="97" /> The Merriam-Webster’s Dictionary defines the term ‘grant’ as follows (these are the relevant ones to this analysis): ‘to consent to carry out for a person: allow fulfilment of, ‘to permit as a right, privilege or favour’, and ‘to bestow or transfer formally’. The Cambridge Dictionary defines this term as follows: ‘to give or allow someone something, usually in an official way’.<fnref n="98" /> From these definitions, one may conclude that this term not only implies permission, but also ‘bestowing, giving, and officially

<footnote n="95">95 Yeshanew (n 94) 290, citing C Heyns & D Brand 'Introduction to socio-economic rights in the South African Constitution' in G Bekker (ed) *A compilation of essential documents on economic, social and cultural rights* (1999) 1 *Economic and Social Rights Series* 7.</footnote>

<footnote n="96">96 Yeshanew (n 94) 290.</footnote>

<footnote n="97">97 I rely on the ordinary meaning of these terms because the ordinary meaning of the terms of a treaty, read in their context, is the main means or rule of interpretation of treaties. See VCLT, art 31.</footnote>

<footnote n="98">98 Cambridge dictionary, available https://dictionary.cambridge.org/dictionary/english/grant (accessed 9 January 2024).</footnote>
transferring something to someone'.<fnref n="99" /> Consequently, one may conclude that states' obligation to grant access to adequate housing includes a positive obligation to fulfil (provide) as one of its main components to realise this right. While the obligation to fulfil (provide) is not always relevant to realise this right, it is indispensable in many contexts, and it is enshrined in the Protocol to serve a purpose.

The African Women's Protocol was adopted to rectify a critical challenge that women in Africa face. As stated in the preamble to the Protocol, the central concern that necessitated the adoption of the Protocol was the fact that 'despite the ratification of the African Charter [...] and other human rights instruments' by African states, 'women in Africa still continue to be victims of discrimination'.<fnref n="100" /> In other words, the Protocol was a 'response to the lack of implementation' of the rights of women enshrined under African and global human rights law.<fnref n="101" /> Its aim is to 'ensure that the rights of women are promoted, realised and protected'.<fnref n="102" /> It is in light of this aim that the right to adequate housing of women enshrined in the Protocol must be interpreted.

More support can be provided to the interpretation advanced in this article. 1) The formulation of accessibility of the right to health by the UN Committee on ESCR: Drawing on and adapting the four dimensions of the term 'accessibility' in its General Comment 15,<fnref n="103" /> it would be helpful to construe 'access to adequate housing' in a multi-dimensional way that encompasses economic, informational, physical, and non-discrimination aspects. 2) The decision of the South African Constitutional Court in *Grootboom*, in which the Court interpreted the 'right to have access to adequate housing' enshrined under article 27(1) of the South African Constitution. It stated that '[f]or a person to have access to adequate housing, all of these conditions must be met: there must be land, there must be services, there must be a dwelling'.<fnref n="104" /> It further emphasised that state policy must respond to the different needs of people. It stated that 'for those who can afford to pay for adequate housing, the state's primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses'.<fnref n="105" /> Whereas, for 'those who cannot afford to provide themselves with housing', the Court stated that the state must 'pay special attention' and suggested that it must respond to their particular situation by providing 'adequate social assistance'.<fnref n="106" /> It is worth noting that this decision, as well as the articulation of the different dimensions of 'accessibility' by the UN Committee on ESCR

<footnote n="99">99 This is a synthesised meaning of one aspect of the term.</footnote>

<footnote n="100">100 Preamble to the African Women's Protocol, para 12; Banda (n 85); Viljoen (n 86) 16-17.</footnote>

<footnote n="101">101 Viljoen (n 86) 17.</footnote>

<footnote n="102">102 Preamble to the African Women's Protocol, para 14.</footnote>

<footnote n="103">103 Committee on ESCR 'General Comment 15: the right to the highest attainable standard of health' para 12(b).</footnote>

<footnote n="104">104 *Grootboom and others v Government of the Republic of South Africa and Others* (CCT38/00) [2000] ZACC 14 (21 September 2000) para 35.</footnote>

<footnote n="105">105 *Grootboom*, para 36.</footnote>

<footnote n="106">106 *Grootboom*, para 36.</footnote>
relate to provisions of the South African Constitution and the ICESCR respectively, under which state obligations are qualified.<fnref n="107" /> For this reason, although they provide insight into what ‘access to adequate housing’ entails, their interpretations of state obligations do not entirely correspond to how state obligations under article 16 of the African Women’s Protocol should be interpreted. This is because the African Women’s Protocol does not subject the realisation of women’s right to adequate housing to the availability of resources.<fnref n="108" />

In light of this, state parties’ obligation to fulfil (provide) women’s right to adequate housing should not be treated as an exception without even assessing the barriers to their right to housing and identifying the most suitable way of ensuring their access to adequate housing.

Research shows that domestic laws and customary practices in various African countries subject women's right to housing to their marital status.<fnref n="109" /> In response, by enshrining women's equal access to housing regardless of their marital status, the Protocol addresses another dimension of access, and is useful to challenge laws and practices that anchor women's right to housing on their marital status. State parties' obligations in this regard are also immediate and are not subject to progressive realisation.

The African Women’s Protocol contains provisions that specifically refer to refugee women. This includes article 4(2)(k), which concerns refugee women’s equal access to refugee status determination and obliges states to give refugee women the ‘full protection and benefits guaranteed under international refugee law, including their own identity and documents’. Under the rubric of ‘the right to peace’, the Protocol enjoins states to secure the participation of asylum seeker and refugee women at all levels of decision making regarding the protection of refugees.<fnref n="110" /> Evidently, the fact that the Protocol contains specific provisions dealing with refugee women does not mean that other rights contained in the Protocol do not apply to refugees. The specific provisions deal with matters that are specific to refugee women. In light of this, women’s right to adequate housing, enshrined under the African Women’s Protocol equally applies to refugee women.

It may be concluded that the African Women’s Protocol provides a robust protection to the right to adequate housing of women. The main feature of the right to adequate housing of women under the African Women’s Protocol is its formulation of the obligation of states as an immediate obligation of conduct and result. The other important feature of the right to adequate housing under the Protocol is the transformation of some aspects of the components of the right to

<footnote n="107">107 See the Constitution of the Republic of South Africa, secs 26(1)-(2); ICESCR, art 12.</footnote>

<footnote n="108">108 In addition, the interpretation of the Court must be viewed by taking into account other factors such as the overall difference in the level of socio-economic development between South Africa and the majority of the rest of African states.</footnote>

<footnote n="109">109 See eg L Chenwi & K McLean “A woman’s home is her castle?” – Poor women and housing inadequacy in South Africa’ (2009) 25 *South African Journal on Human Rights* 531-532.</footnote>

<footnote n="110">110 African Women’s Protocol, art 10(2)(c) - (d).</footnote>
adequate housing from soft law-based, non-binding obligations into
binding obligations. This section has also shown that the rights
contained in the Protocol, including the right to adequate housing apply
to refugee women.

# 6 THE RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN PROTOCOL ON PWDS AND ITS APPLICABILITY FOR REFUGEES WITH DISABILITIES

The African Protocol on PWDs was adopted with the aim of providing a
legal response to multiple factors that constitute, and contribute to, the
violation of the rights of PWDs in Africa. In its preamble, this Protocol
mentions some of the factors that necessitated its adoption, which
include the ‘extreme levels of poverty’,<fnref n="111" /> and the ‘systemic
discrimination, social exclusion, prejudice within political, social and
economic spheres’,<fnref n="112" /> which PWDs experience, and the absence of an
appropriate and binding legal and institutional framework at the
regional level.

One of the serious challenges that PWDs face relates to housing.<fnref n="113" />
Difficulties in access, caused by financial and physical inaccessibility,<fnref n="114" />
discrimination,<fnref n="115" /> harassment, violence, and the lack of essential
services and facilities could be cited as some examples of the housing
challenges that PWDs face. As shown below, by providing tailored legal
responses to these challenges, the African Protocol on PWDs addresses
the shortcomings of the African Charter, and the OAU Refugee
Convention and its global counterpart.

## 6.1 An overview of general and housing-specific obligations

In response to the above mentioned and other challenges, the African
Protocol on PWDs enshrines the right to housing of PWDs and related
PWDs-specific rights. The PWD-specific rights include, and are
reflected in the Protocol's provisions dealing with, the right to

<footnote n="111">111 African Protocol on PWDs, para 16, 20, of preamble.</footnote>

<footnote n="112">112 African Protocol on PWDs, para 17 of preamble.</footnote>

<footnote n="113">113 El-Lahib (n 7) 2.</footnote>

<footnote n="114">114 United Nations Department of Economic and Social Affairs 'Factsheet on persons with disabilities' available https://www.un.org/development/desa/disabilities/resources/factsheet-on-persons-with-disabilities.html (accessed 30 September 2023).</footnote>

<footnote n="115">115 United Nations General Assembly 'Report of the Special Rapporteur on adequate housing as a component of an adequate standard of living, and non-discrimination in this context' A/72/128 (2017) para 13.</footnote>
equality<fnref n="116" /> and non-discrimination based on disability,<fnref n="117" /> reasonable accommodation,<fnref n="118" /> accessibility,<fnref n="119" /> and the ‘right to live in the community’.<fnref n="120" />

The Protocol provides that the rights it contains apply to every person with disabilities ‘without distinction of any kind on any ground’.<fnref n="121" /> Just like the African Charter, it mentions prohibited grounds of distinction but does not exhaustively list them. One of the prohibited grounds of distinction is ‘fortune’.<fnref n="122" /> Given the fact that access to adequate housing mainly depends on one’s economic resources, those who lack the economic resources needed to secure adequate housing live either in substandard housing or homelessness. In recognition of the strong link between the availability or lack of economic resources and access or deprivation of adequate housing, the Committee on ESCR has stated that ‘the right to housing should be ensured to all persons irrespective of income or access to economic resources’.<fnref n="123" /> Because many PWDs lack adequate housing due to poverty, the fact that the African Protocol on PWDs states that the enjoyment of the rights it contains must not be contingent on the economic resources available for the PWDs is a significant legal protection.

Other general obligations applicable to the rights contained in the Protocol include obligations to ‘ensure, respect, promote, protect and fulfil’ the rights contained in the Protocol.<fnref n="124" /> The obligation to respect entails abstaining from ‘engaging in any act or practice’ that violates the rights of PWDs.<fnref n="125" /> The obligation to protect includes taking measures to protect PWDs from discrimination by non-state entities.<fnref n="126" /> The obligation to fulfil includes allocating sufficient resources for the realisation of the rights of PWDs enshrined in the Protocol, and ‘providing assistance and support’ to PWDs.<fnref n="127" />

The Protocol enjoins its state parties to take ‘appropriate and effective measures’ to ensure that PWDs live in the community,<fnref n="128" /> and stipulates various measures required for the full realisation of this right. Among the measures is that community services and facilities have to be provided to PWDs on equal terms with the general population.<fnref n="129" /> This requires modifying inaccessible infrastructure and

<footnote n="116">116 African Protocol on PWDs, art 6.</footnote>

<footnote n="117">117 African Protocol on PWDs, arts 4 & 5.</footnote>

<footnote n="118">118 African Protocol on PWDs, art 3(g).</footnote>

<footnote n="119">119 African Protocol on PWDs, art 15.</footnote>

<footnote n="120">120 African Protocol on PWDs, art 14.</footnote>

<footnote n="121">121 African Protocol on PWDs, art 5(1).</footnote>

<footnote n="122">122 African Protocol on PWDs, art 5(1).</footnote>

<footnote n="123">123 Committee on ESCR, General Comment 4, para 7.</footnote>

<footnote n="124">124 African Protocol on PWDs, art 4.</footnote>

<footnote n="125">125 African Protocol on PWDs, art 4(g).</footnote>

<footnote n="126">126 African Protocol on PWDs, art 4(f).</footnote>

<footnote n="127">127 African Protocol on PWDs, art 4(h) & (i).</footnote>

<footnote n="128">128 African Protocol on PWDs, art 14(2).</footnote>

<footnote n="129">129 African Protocol on PWDs, art 14(2)(g).</footnote>
ensuring that all new infrastructures are universally designed.<fnref n="130" /> State parties shall take ‘reasonable and progressive’ steps to ensure that such infrastructures are made accessible to PWDs.<fnref n="131" />

These obligations overlap with the specific obligations laid down in the article dealing with the right to adequate housing. State parties’ disability-specific obligations relating to housing include, inter alia, the obligation to ensure that PWDs have access to various services and ‘accessible housing’,<fnref n="132" /> and making available financial resources to ‘cover disability-related expenses’.<fnref n="133" /> State parties must ensure that PWDs get equal access to housing provided by the state.<fnref n="134" /> They must also ensure that such housing is accessible to PWDs.<fnref n="135" /> The obligation to ensure that PWDs shall be given equal access to housing provided by the state should not be interpreted in a formalistic and restrictive manner. In this regard, the Protocol does not expressly enjoin states to give PWDs priority of access to housing provided by the state.<fnref n="136" />

## 6.2 The formulation of the right to adequate housing of PWDs

The African Protocol on PWDs enshrines the right to adequate housing of PWDs and related disability-specific rights. The PWD-specific rights include and are reflected in the Protocol's provisions dealing with the right to equality (article 6) and non-discrimination based on disability (articles 4 and 5), reasonable accommodation (article 3(g), accessibility (article 15), and the 'right to live in the community' (article 14).

In addition to the abovementioned disability-specific rights and the corresponding state obligations they entail, the African Protocol on PWDs enshrines their right to adequate housing. Just like article 11(1) of the ICESCR, article 20 of the Protocol provides for PWDs' right to adequate housing as a component of the right to an adequate standard of living.

The African Protocol on PWDs does not subject the realisation of PWDs' right to adequate housing to the availability of resources or frame adequate housing as a progressively realisable right. Similarly, the 'general obligations' provision of the African Protocol on PWDs does not state that the realisation of the rights enshrined in the Protocol

<footnote n="130">130 African Protocol on PWDs, art 15(2)(e).</footnote>

<footnote n="131">131 African Protocol on PWDs, art 15(2).</footnote>

<footnote n="132">132 African Protocol on PWDs, art 20(2)(a).</footnote>

<footnote n="133">133 African Protocol on PWDs, art 20(2)(c).</footnote>

<footnote n="134">134 African Protocol on PWDs, art 14(2)(g).</footnote>

<footnote n="135">135 See African Protocol on PWDs, art 15(1) & (2)(b).</footnote>

<footnote n="136">136 The Commission's Principles and Guidelines require states to prioritise disadvantaged groups in their housing programmes. At the global level, the Committee on ESCR has, in its General Comment 4, included PWDs as a group that 'should be ensured some degree of priority in the housing sphere'. See General Comment 4 para 8(e).</footnote>
depends on the availability of resources for a state party.<fnref n="137" /> This contrasts with similar provisions of the ICESCR and the UN Convention on the Rights of Persons with Disabilities (CRPD), which contain clauses such as ‘progressive realisation’ and ‘maximum available resources’.<fnref n="138" /> Despite the fact that many provisions of the Protocol mirror the provisions of the CRPD, the omission of such a clause from the Protocol signals that the Protocol seeks to avoid giving states a leeway that they might misuse to cloak their failure to implement the rights enshrined under the Protocol. This interpretation of the omission of such a clause is also consistent with the general approach adopted in the African Charter and the African Women’s Protocol.

Under the African Protocol on PWDs, the scope of state obligations pertaining to the right to adequate housing is not limited by the 'availability of resources' clause.<fnref n="139" /> The Protocol requires state parties to 'take appropriate and effective measures to facilitate full enjoyment' by PWDs of 'this right'.<fnref n="140" /> 'Appropriate and effective measures' include 'policy, legislative, administrative, institutional and budgetary' measures that will 'ensure, respect, promote, protect and fulfil' the rights laid out in the Protocol.<fnref n="141" /> State parties have a margin of appreciation to decide on the kinds of measures that they deem appropriate. The fact that the measures required of state parties must be 'effective' further qualifies whether the measures taken by a state party are appropriate to eventually realise the full enjoyment of the right to adequate housing by PWDs. In many cases, an appropriate and effective measure to ensure the realisation of PWDs' right to adequate housing may require the deployment of all the abovementioned measures and a direct state intervention. If the realisation of PWDs' right to adequate housing depends on the direct intervention of the state (for example, the provision or facilitation of housing), the state party has an obligation to do so.<fnref n="142" />

Article 20 of the Protocol deals with the right to adequate housing of PWDs, nothing more, nothing less. It does not deal with the full realisation of this right (which refers to more than an adequate level of housing). The term 'full realisation' is used under article 2(1) of the ICESCR and article 4(2) of the CRPD. The full realisation of the right to housing can only be achieved progressively. The term 'full enjoyment of this right' is used under article 20(2) of the Protocol on PWDs and implies immediate obligations. This is because the (level of the) right it refers to is the right to adequate housing, which, in turn, is not formulated as a progressively realisable right. This is to flag the far reaching consequences that could result from confusing the terms 'full enjoyment of this right' and 'full realisation'.

<footnote n="137">137 African Protocol on PWDs, art 4.</footnote>

<footnote n="138">138 See ICESCR, art 2(1); CRPD, art 4(2).</footnote>

<footnote n="139">139 See African Protocol on PWDs, art 20(1) - (2).</footnote>

<footnote n="140">140 African Protocol on PWDs, art 20(2).</footnote>

<footnote n="141">141 Adapted from African Protocol on PWDs, art 4(1).</footnote>

<footnote n="142">142 See for example African Protocol on PWDs, arts 4(h) & 20(2)(a).</footnote>
Regarding the right to adequate housing of PWDs, the Protocol imposes disability-specific obligations on its state parties. The most explicit of these obligations is found in article 20(2)(a), which requires states to ensure access by PWDs to 'appropriate and affordable services, devices and other assistance for disability-related needs, including accessible housing'. In order to 'ensure' 'accessible housing' for PWDs, state parties to the Protocol must take measures that secure accessible housing for PWDs, and fulfil the 'access dimension' of the right to adequate housing. Again, one may argue that accessible housing encompasses inclusion and non-discrimination, economic accessibility, physical accessibility, and the accessibility of information.<fnref n="143" /> This level of state parties' obligation is not subject to progressive realisation.

The Protocol on PWDs explicitly provides for disability-related dimensions of the right to adequate housing and imposes binding obligations on states in this regard.<fnref n="144" /> Moreover, the African Protocol on PWDs transforms some aspects of the 'elements' of the right to adequate housing recognised in General Comment 4 of the Committee on ESCR from 'soft' obligations to binding obligations. For example, under this Protocol, the right to 'safe drinking water', 'sanitation', and 'accessible housing' entail binding obligations.<fnref n="145" /> Furthermore, by comparing the different components of the right to an adequate standard of living enshrined under article 20(1) of the with article 28 of the CRPD, Basson notes that 'the express inclusion of [safe drinking water and sanitation], which have historically proved to be socially and politically critical, reminds us that many persons with disabilities in Africa do not yet have access to these basic necessities'.<fnref n="146" />

The overview of state obligations analysed above shows the extent to which the African Protocol on PWDs protects the right to adequate housing of PWDs in Africa. Therefore, it is important to explore whether the Protocol extends this protection to refugees with disabilities. The Protocol does not expressly state that its provisions apply to refugees with disabilities. However, the term 'persons with disabilities' is an umbrella term that encompasses refugees with disabilities and therefore, the protection accorded to the right to adequate housing under the Protocol applies to refugees with

<footnote n="143">143 With respect to 'facilities and services open or provided to the public', see these dimensions under the African Protocol on PWDs, art 15(1) & (2)(b). Regarding these dimensions in the context of the right to health under ICESCR, see Committee on ESCR 'General Comment 15: the right to the highest attainable standard of health' para 12(b).</footnote>

<footnote n="144">144 See Committee on Economic, Social and Cultural Rights 'General Comment 5 on the rights of persons with disabilities'.</footnote>

<footnote n="145">145 See art 11(1) of CESCR; Committee on ESCR 'General Comment 4' paras 8(b) & (e), and art 20(1) of the African Protocol on PWDs. See also arts 28(2)(a) & (d) of the UN Convention on the Rights of Persons with Disabilities.</footnote>

<footnote n="146">146 Y Basson 'The right to an adequate standard of living in the protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa' (2019) 7 *African Disability Rights Yearbook* 262.</footnote>
disabilities.<fnref n="147" /> The non-discrimination provision of the Protocol also affirms that the rights contained in the Protocol apply to ‘every person with a disability’.

The Protocol requires state parties to take ‘specific measures to ensure the protection and safety of persons with disabilities in situations of [...] forced displacements’.<fnref n="148" /> The obligation of states to take ‘specific measures’ that protect forcibly displaced PWDs implies that these measures are additional to the general measures that are applicable to all PWDs. This indirectly confirms that the personal scope of the Protocol includes refugees with disabilities. It also confirms that the Protocol not only extends the same level of protection to refugees with disabilities, but also requires states to take further measures that particularly ensure the protection of refugees with disabilities. The Protocol enshrines specific rights and corresponding obligations that deal with women and girls with disabilities (article 27), children with disabilities (article 28), youth with disabilities (article 29), and older persons with disabilities (article 30).

To sum up, the African Protocol on PWDs is a crucial treaty that addresses many housing related challenges that refugees with disabilities experience. It transforms the nature of obligations regarding some aspects of the elements of adequate housing, for example, accessibility and the availability of services (including water) from soft obligations to binding obligations. The Protocol recognises the right to adequate housing of persons with disabilities and imposes immediate obligations on states. It also contains a number of disability-related dimensions of the ‘elements’ of the right to adequate housing. In general, the Protocol addresses the shortcomings of the African Charter, the OAU Refugee Convention, and the UN Refugee Convention.

## 7 THE LEGAL PROTECTION OF REFUGEE CHILDREN'S RIGHT TO ADEQUATE HOUSING UNDER THE AFRICAN CHILDREN'S CHARTER

The African Charter on the Rights and Welfare of the Child (African Children's Charter) is the only African human rights treaty that expressly proclaims that the rights it contains, including the right to housing, apply to refugee children. This sets it apart from other African human rights treaties and the UN Refugee Convention. It also enshrines child-specific principles and rights, such as the right to life

<footnote n="147">147 Except for the right to vote, the right to run for public office, and 'the right to enter and stay in a country', all human rights apply for refugees. See F Crépeau & I Atak 'Global migration governance: avoiding commitments on human rights, yet tracing a course for cooperation' (2016) 34 *Netherlands Quarterly of Human Rights* 117 (in relation to migrants in general). See for example African Charter, art 13. The African Protocol on PWDs is uncharacteristic in this regard. See art 21.</footnote>

<footnote n="148">148 African Protocol on PWDs, art 12(a).</footnote>
and development,<fnref n="149" /> non-discrimination,<fnref n="150" /> the best interests of the child, and the right to participation.<fnref n="151" />

Unlike the UN Convention on the Rights of the Child, the African Children's Charter does not contain an express provision on the right to adequate housing.<fnref n="152" /> However, as discussed below, this right is implied in the provisions dealing with the freedom against interference in the home and parental responsibilities. The protection against interference in the home is one of the guarantees for housing rights that the Charter provides for (the refugee) child. Under article 10, it stipulates a non-interference obligation stating that '[n]o child shall be subject to arbitrary or unlawful interference with his privacy, family, home ...'. As the prohibition relates to arbitrary or unlawful interference, this provision suggests that reasonable and lawful interference is permissible and recognises the rights of parents or legal guardians to 'exercise reasonable supervision over the conduct of their children'. Clearly, an interference amounting to harassment or forced eviction is outside the ambit of the rights of parents and guardians. To protect a child from arbitrary or unlawful interference, the provision guarantees the child's right to be legally protected against such an interference.<fnref n="153" /> This provision has the potential of protecting a child's housing rights, for example, from various forms of interference including forced eviction.

The African Children's Charter explicitly provides for the obligation to fulfil (provide) both on parents and those responsible for the child, and on state parties. It recognises parents and other persons responsible for the child as primary duty bearers in the provision of housing for the child.<fnref n="154" /> State parties must take 'all appropriate measures' to assist parents or those responsible for the child especially if they are in need. The African Children's Charter requires state parties to take 'all appropriate measures' to 'provide material assistance and support programmes' for such parents or people responsible for the child. The measures that state parties are required to take must be 'in accordance with their means and national conditions'. The phrase 'in accordance with their means and national conditions' is a key

<footnote n="149">149 African Children's Charter, art 5(1).</footnote>

<footnote n="150">150 African Children's Charter, art 3.</footnote>

<footnote n="151">151 African Children's Charter, art 4; See also C d'Orsi 'Legal protection of refugee children in Africa: positive aspects and shortcomings' (2019) 3 *African Human Rights Yearbook* 300-303; P Ériamiatoe 'Article 23: refugee children' in J Sloth-Nielsen, E Fokala & G Odongo (eds) *The African Charter on the Rights and Welfare of the Child: a commentary* (2024) 339.</footnote>

<footnote n="152">152 Viljoen (n 21), regarding the right to adequate standard of living.</footnote>

<footnote n="153">153 African Children's Charter, art 10.</footnote>

<footnote n="154">154 Art 20(1) imposes on parents and those responsible for the child the duty 'to secure, within abilities and financial capacities, conditions of living necessary to the child's development'. States also have the obligation ensure, to the maximum extent possible, the survival, protection and development of the child'. See art 5(2). Evidently, housing is one of the conditions necessary for the development of a child. See also art 20(2)(a), and the Committee's recommendation to Liberia, in which the Committee states that inadequate and substandard provision of [...] housing [...] affect[s] the healthy development of children'. ACRWC Committee 'Concluding recommendation to Liberia' (2014) 8. See also Kaime (n 23) 184.</footnote>
determinant of the scope of states' obligations under article 20(2)(a). As discussed below, it may be interpreted in two ways – restrictively or broadly:

i) Whether a state party has an obligation to provide 'material assistance or support programmes' depends on its 'means and national conditions'. A state party can invoke the lack of resources to justify its failure to provide assistance and support for those in need. In other words, any measure required of states towards fulfilling this obligation is resource dependent and progressively realisable. States are required to 'take all appropriate measures', which means that the obligation to fulfil (provide) is not an immediate obligation.

ii) The phrase 'in accordance with their means and national conditions' does not make state parties' obligations entirely conditional. The obligation of states to 'take all appropriate measures' to provide assistance or support for children in need is a given. The phrase in question only deals with the extent of the assistance required of states. It is not permissible for states to sidestep their obligation of providing 'material assistance or support programmes' by invoking the lack of resources. States have an immediate obligation to take measures. Regardless of the extent of resources available for a state, if the state takes all appropriate measures immediately, it can provide some form of assistance and support for children in need.

The second interpretation is more favourable for children in need because it does not open room for states to avoid fulfilling their article 20(2)(a) obligation on the pretext of the lack of resources. This interpretation also aligns with article 5 of the Charter, which deals with the 'survival and development' of children. Article 5 proclaims that 'every child has an inherent right to life', and requires state parties to 'ensure, to the maximum extent possible, the survival, protection and development of the child'.<fnref n="155" /> Given the fact that the lack or deprivation of adequate housing is a threat to a child's life, the failure to 'take all appropriate measures' to provide assistance for a child with a housing need would constitute a violation of article 5 of the Children's Charter. A consideration of the object and purpose of the Charter also supports the second interpretation. As the object and purpose of the African Children's Charter includes the provision of a legal response to the specific 'needs of [the child's] physical and mental development', which are not met for a significant proportion of children in Africa,<fnref n="156" /> an interpretation of article 20(2)(a) that better responds to the situation of deprived children is certainly preferable. Finally, the second interpretation is consistent with the right to housing provisions of the African protocols on women and persons with disabilities. As shown in the forgoing sections, the provisions of these protocols dealing with the right to adequate housing, which require states to fulfil (provide) this right, do not subject this obligation to the availability of resources.

When read in conjunction with the qualifier 'all appropriate measures', the clause 'in accordance with their means and national

<footnote n="155">155 African Children's Charter, arts 5(1)-(2).</footnote>

<footnote n="156">156 See preamble to the African Children's Charter, paras 4, 6 & 8.</footnote>
conditions' also serves as an important tool for assessing the appropriateness of measures taken by states towards 'provid[ing] material assistance and support programmes', including adequate housing. It can also be used to question states that have not fulfilled this obligation. A 2020 data released by the UNICEF shows that, in a number of African states South of the Sahara, only a small percentage of children benefited from state provided social protection schemes.<fnref n="157" /> In light of this, the obligation of states enshrined under article 20(2)(b) of the African Children's Charter can be understood as a key legal response to the prevailing situation and as guidance for states that are yet to fulfil their obligation towards children in need.

## 7.1 The prohibition of discrimination against refugee children

The rights and freedoms enshrined under the African Children's Charter are applicable to 'every child' regardless of the child's 'race, ethnic group, [...] fortune, birth or other status'.<fnref n="158" /> It is noteworthy to point out three features of the non-discrimination provision of the African Children's Charter. First, the list of 'prohibited grounds' is not exhaustive, which means that it is possible to recognise and remedy discrimination based on other arbitrary factors. Second, the Charter 'prohibits' discrimination by association. The rights and freedoms enshrined under the Children's Charter must not be denied to a child based on the race and other status of 'his or her parents or legal guardians'. Third, in the same way as the African Charter and the African Protocol on PWDs, the African Children's Charter expressly recognises that the rights it contains apply to every child irrespective of 'fortune'.<fnref n="159" /> By comparing the African Children's Charter and the CRC, Karabo and Nanima note that the inclusion of 'fortune' in the Children's Charter is unique as CRC does not have a similar ground listed in article 2 thereof.<fnref n="160" /> Earlier sections of this article have pointed out the significance of the recognition 'fortune' as a prohibited ground of distinction in the enjoyment of the right to adequate housing, so it will not be repeated here.

<footnote n="157">157 The report does not contain data regarding 38 African countries (because data was not available). There is also a significant disparity in the percentage of children covered by social protection schemes provided by the 16 states for which data was available. See UNICEF 'One billion strong: Protecting children's rights in Africa today and tomorrow' (2020) 28. Available https://data.unicef.org/resources/one-billion-strong-protecting-childrens-rights-in-africa-today-and-to-morrow/ (accessed 24 December 2024). See also L Mills 'Article 20: parental responsibilities' in J Sloth-Nielsen, E Fokala & G Odongo (eds) *The African Charter on the Rights and Welfare of the Child: a commentary* (2024) 289.</footnote>

<footnote n="158">158 African Children's Charter, art 3.</footnote>

<footnote n="159">159 See African Charter, art 2; ACHPR Protocol on PWDs, art 5.</footnote>

<footnote n="160">160 RL Karabo & RD Nanima 'Article 3: non-discrimination' in J Sloth-Nielsen, E Fokala & G Odongo (eds) *The African Charter on the Rights and Welfare of the Child: a commentary* (2024) 44.</footnote>
The African Children's Charter does not, either directly or indirectly, allow differential treatment between refugee children and children who are also citizens of the country of asylum. Instead, it states that the rights it contains apply to a refugee child.<fnref n="161" /> This guarantee against discrimination is distinctly framed when compared with references made to refugees in other African human rights treaties, and is the most straightforward legal protection accorded to refugees in this respect.

## 7.2 The applicability of more favourable standards under other legal regimes

Unlike the UN Convention on the Rights of the Child, the African Children's Charter does not contain an express provision dealing with the right to adequate housing.<fnref n="162" /> However, the Charter provides a partial remedy for this omission. One of the ways that the omission could be remedied (to some extent) is by reading into article 20(2)(a). However, article 20(2)(a) does not sufficiently protect the right to adequate housing of (refugee) children. This is because the entitlements, freedoms and state obligations pertaining to the right to adequate housing cannot be equated with a mere obligation to provide material assistance. For this reason, it is essential to resort to article 1(2) of the African Children's Charter, which deals with the applicability of more favourable standards contained under other treaties. Under article 1(2), the African Children's Charter acknowledges that the Charter's rights 'shall [not] affect any provisions [of other treaties] that are more conducive' for children. Whereas, under article 23(1), which deals with refugee children, the African Children's Charter requires states to make use of 'applicable international [...] law'. It provides that state parties shall 'take all appropriate measures' to ensure that a refugee child 'receives appropriate protection and humanitarian assistance in the enjoyment of the rights set out in [...] international human rights and humanitarian instruments' which they are party to.<fnref n="163" /> It is useful to note that the scope of protection accorded to refugees' right to adequate housing under 'general' international human rights instruments is broader than that of the UN Refugee Convention. In light of this, the African Children's Charter's reference to international human rights law means that, the more favourable legal protection given to the right to adequate housing under human rights law is applicable for the protection of refugee children.<fnref n="164" /> For example, as discussed in the previous sections, the Protocols to the African Charter on women and persons with disabilities enshrine key

<footnote n="161">161 African Children's Charter, art 23(1).</footnote>

<footnote n="162">162 Art 27(3) of the CRC deals with the right to adequate housing as part of the right to an adequate standard of living. See Viljoen (n 21) 395.</footnote>

<footnote n="163">163 African Children's Charter, art 23(1).</footnote>

<footnote n="164">164 See art 1(2) of the African Children's Charter, which provides that more favourable provisions contained under other treaties are applicable for the protection of children. See also Kaime (n 23) 184; Viljoen (n 21) 395.</footnote>
legal guarantees that protect the right to adequate housing of women and persons with disabilities respectively. They also contain principles and rights that are specific to women and persons with disabilities. The African Children's Charter obliges its state parties to apply these standards for refugee girls and refugee children who have disabilities.<fnref n="165" />

In order to bridge the omission of the right to adequate standard of living in the African Children's Charter, Viljoen has suggested that the recognition of the right to housing by the African Commission and the express inclusion of this right under the African Women's Protocol 'could justify an updated interpretation of the Children's Charter as a "living instrument"'.<fnref n="166" /> He further comments that the fact that 'all state parties to the Children's Charter are in any event also parties to the CRC', clearly suggesting the possibility of rectifying the omission of this right in the Children's Charter by resorting to the CRC.

## 7.3 Unaccompanied or separated refugee children

Unaccompanied or separated refugee children are more vulnerable than refugee children under the care of their parents or guardians.<fnref n="167" /> The African Children's Charter recognises their vulnerability and provides that they 'shall be accorded the same protection as any other child permanently or temporarily deprived of his family environment'.<fnref n="168" /> This means that, for unaccompanied or separated refugee children, the obligation of state parties is to ensure that alternative care is provided for them on equal terms with other similarly situated children, for example, unaccompanied or separated children who are also citizens of the asylum state.<fnref n="169" /> As housing is implied in alternative care, the protection of this right under the Charter responds to the peculiar housing challenges of such children.

The granting of nationality to unaccompanied or separated refugee children also gives them the legal basis (at the domestic level) to claim the same level of treatment accorded to unaccompanied or separated children who are citizens of a host state. This is especially important in cases where unaccompanied or separated refugee children are stateless. Recognising this, the African Committee of Experts on the Rights and Welfare of the Child (African Children's Rights Committee)

<footnote n="165">165 See also ACHPR Protocol on PWDS, art 27, which deals with 'women and girls with disabilities'.</footnote>

<footnote n="166">166 Viljoen (n 21) 395.</footnote>

<footnote n="167">167 Kaime (n 23) 188; SC Maioli and others 'International migration of unaccompanied minors: trends, health risks, and legal protection' (2021) 5 *Lancet Review* 882; Committee on the Rights of the Child 'General Comment 6(2005): treatment of unaccompanied and separated children outside their country of origin' paras 7-8.</footnote>

<footnote n="168">168 Art 23(3); See also Eriamiatoe (n 151) 348.</footnote>

<footnote n="169">169 African Children's Charter, art 25(2)(a); See also d'Orsi (n 151) 306.</footnote>
has made recommendations to state parties to grant nationality to such children.<fnref n="170" /> For example, in its concluding recommendation on the report of Ghana, it recommended that the state 'provide centres to house [migrant] children until [they] are united with their families'.<fnref n="171" />

In sum, the African Children's Charter responds to a wide range of specific housing challenges that many refugee children and sub-groups within them, such as unaccompanied or separated refugee children and refugee children living in poverty, experience. In addition to protecting their right to housing, the Charter recognises the applicability of their rights under human rights and humanitarian law. The African Children's Charter provides two alternative types of standards of treatment: national treatment (relative standard) and qualitative standards. This gives refugee children alternatives, for example, if the relative standard (national treatment) falls short of sufficiently protecting refugee children's right to housing, the standard of 'adequate housing' enshrined under other human rights treaties can be invoked. Also, if a state party accords better protection to children as compared to the standard of adequate housing under human rights treaties, claims based on the national treatment would be more beneficial for refugee children.

## 8 CONCLUSION

The lack of adequate housing is one of the most critical challenges that affect a significant number of people in Africa, particularly those in vulnerable situations. Refugees in vulnerable situations, who are also unevenly affected by the lack of adequate housing, experience this challenge in dismally unique ways. Adequate legal responses are part of the range of essential tools that guide African states to address this problem. Given the fact that these challenges have persisted despite the existence of robust legal frameworks in African regional human rights law, interpreting and clarifying the normative standards in a manner that is responsive to the prevailing situation is necessary and aligns with the object and purpose of relevant human rights treaties of this region. It is with the aim of doing so that this article has analysed applicable normative standards of African regional human rights law.

In addition to analysing the legal protection of the right to adequate housing under African human rights law, this article has explored the extent of protection given to refugees. It has found that, although the OAU Refugee Convention does not explicitly provide for the right to housing of refugees, and its non-discrimination provision fails to

<footnote n="170">170 ACRWC Committee 'Concluding Recommendations by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on the Federal Democratic Republic of Ethiopia's report on the status of implementation on the African Charter on the Rights and Welfare of the Child' (2014) para 33.</footnote>

<footnote n="171">171 ACRWC Committee 'Concluding recommendations by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on the Federal Democratic Republic of Ghana initial report on the status of implementation of the African Charter on the Rights and Welfare of the Child' (2016) para 16.</footnote>
protect refugees from discrimination based on their refugee status,
gender, disability, and many other markers of identity, it imposes an
obligation on its state parties to secure the settlement of refugees. It has
asserted that this obligation is broad and includes obligations
pertaining to refugees' right to adequate housing. The article has shown
that the shortcoming of the OAU Refugee Convention with regard to
non-discrimination has been addressed by the African Charter, its
protocols on women and persons with disabilities, and the African
Children's Charter. The African Women's Protocol and the Protocol on
PWDs provide robust protection to the right to adequate housing, for
example, by imposing immediate obligations on state parties to fulfil
(provide) adequate housing. This article has demonstrated why the
protection of these protocols applies to refugee women and refugees
with disabilities, respectively. Although the right to adequate housing is
not expressly enshrined under the African Children's Charter, this
article has shown the indirect ways in which the Charter protects
refugee children's right to adequate housing.
A critical appraisal of the national
institutional mechanisms for the
prevention of torture in Nigeria

Bayode Sunday Ayo-Ojo*

https://orcid.org/0009-0003-9427-5629

**ABSTRACT:** According to the Optional Protocol to the Convention against Torture (OPCAT), national preventive mechanisms (NPMs) are required to conduct regular visits to detention centres and provide recommendations to authorities for preventing torture. Following its ratification of OPCAT, Nigeria established its NPM, known as the National Committee Against Torture (NCAT), in 2009 and enacted the Anti-Torture Act of 2017, which prohibits the use of torture in Nigeria without any exceptions. To comply with OPCAT requirements and create an effective NPM, Nigeria dissolved the 2009 NCAT and inaugurated a new NCAT in 2022. In 2024, the National Human Rights Commission (NHRC) was designated as the NPM, with a specialised department tasked with preventing torture. This raises an important question: If the previous two NCATs as an NPM could not comply with OPCAT requirements, how could we be sure that the NHRC, with its specialised department, will effectively prevent torture as prescribed by OPCAT? To address this question, this article investigates the previous NCATs' compliance with OPCAT requirements. It then analyses the NHRC as the newly designated NPM and interrogates its ability to meet OPCAT standards. The article concludes that several factors, such as the lack of adequate legal documentation establishing the 2009 and 2022 NCATs, insufficient resources, lack of functional independence, and limited funding, played a role in non-compliance. However, the NHRC already has an established structure and the capability to investigate human rights violations, albeit not with a preventive focus. Therefore, while the designation of the NHRC as the NPM through the 2024 order, along with its specialised department, meets specific standards, the clarity regarding the structure, funding, and unannounced visitation of this specialised department remains uncertain.

TITRE ET RÉSUMÉ EN FRANÇAIS

Une évaluation critique des mécanismes institutionnels nationaux pour la prévention de la torture au Nigéria

RÉSUMÉ: Conformément au Protocole facultatif à la Convention contre la torture (OPCAT), les mécanismes nationaux de prévention (MNP) sont tenus d'effectuer des visites régulières dans les centres de détention et de formuler des recommandations aux autorités afin de prévenir la torture. Après sa ratification de l'OPCAT, le Nigéria a mis en place son premier MNP, le Comité national contre la torture (NCAT), en 2009, et a promulgué en 2017 une loi interdisant la torture sans exception. Dans un souci de conformité avec les exigences de l'OPCAT, le Nigéria a dissous le NCAT de 2009 pour instaurer un nouveau NCAT en 2022. En 2024, la Commission nationale des droits de l'homme (CNDH) a été désignée comme MNP, avec un département spécialisé pour la prévention de la torture. Cette évolution soulève une question essentielle : si les précédents NCAT n'ont pas respecté les normes de l'OPCAT, comment garantir que la

<footnote>* LLB (Kenyatta), LLM (KwaZulu-Natal), LLD (University of Pretoria); ayoojobayodesunday@gmail.com. This article is based on the author's doctoral thesis, completed in the Centre for Human Rights, Faculty of Law, University of Pretoria, in 2024.</footnote>
inaugurated the National Committee Against Torture (NCAT)⁴ and in 2022 inaugurated another NCAT. The inaugural NCATs acted as an NPM in Nigeria as required under article 3 and part IV of the OPCAT.⁵

However, before NCAT, the National Human Rights Commission had been protecting and promoting human rights in Nigeria under Decree No 22 of 1995.⁶ The government inaugurated the NHRC Governing Council eight months after its establishment. Furthermore, the law establishing the NHRC was amended in 2010,⁷ and in 2024, with an order establishing the NHRC as the NPM in Nigeria with a specialised department.⁸

This article aims to analyse NCAT and NHRC, checking whether these institutions are independent and created by legal texts. Each institution must comply with the requirements set forth in part IV OPCAT. It is divided into three parts. The first part looks at Nigeria's NCAT with the mandate to visit any detention area in Nigeria. This part aims to understand why the NCAT lacks effectiveness and in doing so, outlines the process by which the NCAT was formed and if it was established by a statutory act or by the Constitution. It also analyses the functional, personnel and financial independence of NCAT. It provides a list of persons who are members of the NCAT and analyses whether members of the NPM can be functionally independent from the government. It discusses the roles and effectiveness of the NCAT. This role includes the visits conducted by the NCAT, recommendations, cooperation with the SPT and the drafting of legislation. The second part looks at the NHRC in Nigeria. While the NHRC was set up to protect and promote human rights in Nigeria, this part analyses if the NHRC as the new designated NPM in Nigeria will be able to function as an NPM. In order to determine whether the NHRC is an NPM, this part looks at whether it has the same mandates and other requirements as specified in articles 18 and 21 of OPCAT. The third part provides a conclusion and recommendation to the article.

4. SS Ameh (Chairman National committee Against torture) '4th Quarterly report of the National Committee Against Torture for the Period Ending 31st December 2014 to the United Nations Subcommittee against torture in Geneva, Switzerland'. Available at https://www.ohchr.org/sites/default/files/Documents/HRBodies/OPCAT/NPM/Nigeria2014.pdf (accessed 3 November 2024)

5. Federal Ministry of Justice 'Mandate of the national committee on torture' https://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeriaterms-of-reference.pdf (accessed 26 July 2022).

6. Decree No 22 of October 1995. The military regime that is known for the abuse of human rights established a human rights institution. This was ironic as it is impossible for such an institution to function independently without state control or influence. It was later known as National Human Rights Commission Act Cap N46, Laws of the Federation of Nigeria, 2004.

7. National Human Rights Commission (Amendment) Act, 2010 (NHRC 2010 as Amended). See also, I Anaba 'Jonathan signs human rights commission bill into law' 28 March 2011 *Vanguard Newspaper* https://www.vanguardngr.com/2011/03/jonathan-signs-human-rights-commission-bill-into-law/ (accessed 14 December 2022).

8. Designation of the National Human Rights Commission as Nigeria Preventive Mechanism Order, 2024. S 1 No 21 of 2024. Available at https://www.apt.ch/sites/default/files/2024-09/NHRC%20NPM%20GAZETTE.pdf (accessed 3 November 2024).
## 2 THE NATIONAL COMMITTEE AGAINST TORTURE

The Anti-Torture Act 2017 failed to include the establishment of the NPM, apart from section 10, which provides that the Attorney General and other law enforcement or investigative agencies shall ensure the oversight of the implementation of the Anti-Torture Act 2017.<fnref n="9" /> Furthermore, the Attorney General may assert that he oversees the implementation by indicating that the directors of NCAT and NHRC report to him. Section 10 did not mention the establishment of an oversight mechanism that would see to the eradication of torture or act as an agency that would serve as an NPM.

The objective of this part of the study is to examine whether the NCAT meets the requirements for functional independence, is staffed by professional experts, and complies with the Paris Principles, as well as the rules on visitation and recommendation mandate, as specified in part IV of OPCAT.

### 2.1 Functional independence of the NCAT

A key component of OPCAT's provision for the establishment of NPMs is to assure that they are functionally independent.<fnref n="10" /> As explained by Nowak, functional independence must be based upon legislation that makes the NPMs stand out from the other branches of government, in order to maintain control over their institutions.<fnref n="11" /> In general, the relevant legislation should be an act of parliament that creates NPMs.<fnref n="12" /> As stated in the preliminary guidelines and the first annual report of the NPM, it is necessary for the state to establish the NPMs through legislation or within its constitution.<fnref n="13" /> The NPM needs legislative backing to function properly and remain stable.<fnref n="14" /> It also needs to be

<footnote n="9">9 Sec 10 of the Anti-Torture Act 2017.</footnote>

<footnote n="10">10 Art 18 of OPCAT.</footnote>

<footnote n="11">11 M Nowak & E McArthur *The United Nations Convention Against Torture: a commentary* (2008) 1075.</footnote>

<footnote n="12">12 E Steinerte 'The changing nature of the relationship between the United Nations Subcommittee on Prevention of Torture and national preventive mechanisms: in search for equilibrium' (2013) 31(2) *Netherlands Quarterly of Human Rights* 132-19.</footnote>

<footnote n="13">13 Committee against Torture. Fortieth session Geneva, 28 April-16 May 2008. First annual report of the subcommittee on prevention of torture and other cruel, inhuman or degrading treatment or punishment February 2007 to March 2008 CAT/C/40/2 para 28. See also, Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The twelfth session, Geneva, 15-19 November 2010 'Guidelines on national preventive mechanisms' CAT/OP/12/5 para 7.</footnote>

<footnote n="14">14 Subcommittee on Prevention of Torture Report on the visit of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment to Honduras CAT/OP/HND/1 10 February 2010, para 262.</footnote>
autonomous as an institution – a factor crucial to its success and stability.¹⁵

Both the 2009 and 2022 NCAT were established through terms of reference in order to fulfil the mandate of OPCAT, but no legislative text was attached to its establishment.¹⁶ NCAT was established under the authority of the Federal Ministry of Justice, but the instrument of establishment¹⁷ does not have legislative status because it is not an act of parliament or a part of the 1999 Constitution of Nigeria.¹⁸ Amnesty International in 2014 noted that NCAT does not possess the legal independence necessary to fulfil any of its functions and mandates.¹⁹

As NCAT has no law establishing it, its involvement with the Federal Ministry of Justice suggests that it is an institution controlled by whoever heads the ministry.²⁰ The Attorney General of the Federal Ministry of Justice is appointed by the President, who is confirmed by the Senate. In light of the fact that there is no legislative text establishing the existence of the NCAT, the Attorney General may arguably be able to prevent it from performing its duties, compare to the NHRC Act 2010 (as amended) which prescribed how members can

15 As above.

16 Nigeria. Joint alternative report submitted in application of article 19 of the UN Committee against Torture and Cruel Inhuman and degrading treatment 72nd session of the UN Committee against Torture for the examination of Nigeria 2021 at 11.

17 The inaugural documents contain the Nigerian coat of arms, a symbol of the federal government. This document begins with the phrase 'Federal Ministry of Justice' followed by the phrase 'Mandate of the National Committee on Torture.' All capital letters are used. The document can only be accessed through the University of Bristol website. A concise outline of the mandate can also be found in the document provided by the former Chairman of the NCAT, Dr Samson Sani Ameh to the SPT in 2014. Dr Samson Sani Ameh NCAT 4th quarterly report of the National Committee Against Torture for the period ending 31st December 2014 to the United Nations Subcommittee against torture in Geneva, Switzerland' 2014 15 https://www.ohchr.org/sites/default/files/Documents/HRBodies/OPCAT/NPM/Nigeria2014.pdf (accessed 12 October 2022). This implies that the NCAT had no website either on its own or under the Ministry of Justice that could be accessed by the general public who want to file a complaint, and thus the NCAT mandate is only accessible to those who possess the necessary skills to search the internet. For example, South Africa, an African country like Nigeria, has an NPM website that can be accessed through https://sahrc.org.za/npm/index.php/about-the-npm. This website makes it easy for people to access information and provides a phone number for contact. However, the NCAT does not have a similar resource. Moreover, the annual reports received by the Subcommittee from National Preventive Mechanisms regularly update their websites; however, it indicates that Nigeria has not yet submitted a report. This information is available at https://web.dev.ohchr.un-icc.cloud/en/treaty-bodies/spt/annual-reports-received-sub-committee-national-preventive-mechanisms (accessed 3 November 2024).

18 The document that established the NCAT can be seen here at https://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeriatermso-preference.pdf (accessed 7 July/2022).

19 Amnesty International 'Torture in Nigeria; in summary' AFR 44/005/2014 https://www.amnesty.org/en/wp-content/uploads/2021/07/afr440052014en.pdf (accessed 10 July 2022).

20 Nigeria. Joint alternative report submitted in application of article 19 of the UN Committee against Torture and Cruel Inhuman and degrading treatment 72nd session of the UN Committee against Torture for the examination of Nigeria 2021 at 12.
be appointed and how they cease office, which the term of reference did
not cover. This grants the AG broader powers than the NHRC.

OPCAT's torture prevention objective depends on an independent
national and international body capable of visiting places where people
are deprived of their liberties as a means of accomplishing this goal,
countries that have ratified the OPCAT must establish national bodies
to visit places where people are being deprived of their liberty.<fnref n="21" /> The
ostensible purpose of NCAT is to visit places of detention,<fnref n="22" /> but since
NCAT is not established by a legal text, it cannot function as required
by article 18 of OPCAT.<fnref n="23" />

Moreover, article 18(3) obligates states to provide ‘necessary resources for the functioning’ of the NPMs.<fnref n="24" /> According to Murray, and as noted above, the NPMs need ‘the necessary resources’ to function.<fnref n="25" /> The functional independence of NPM is characterised by an adequately staffed and funded statutory establishment based on an act of parliament or the constitution.<fnref n="26" /> The letter of reference did not specify how the NCAT is funded. Functional independence requires that an NPM have adequate staffing and provisions outlined in the statute that establishes the NPM regarding its funding.

## 2.2 Independence of personnel

According to article 18(2) of OPCAT, NPMs must have capable staff
members who possess professional expertise,<fnref n="27" /> in other words, experts
with appropriate knowledge in relevant areas (as per the APT).<fnref n="28" />
Through the Attorney General, the Nigerian Federal government
inaugurated a newly appointed NCAT on 11 September 2022 with a
broader mandate of preventing torture and liaising with NHRC in

<footnote n="21">21 Art 3 of OPCAT.</footnote>

<footnote n="22">22 Federal Ministry of Justice Mandate of the national committee on torture https://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeriatermso preference.pdf (accessed 26 July 2022).</footnote>

<footnote n="23">23 Amnesty International (n 19).</footnote>

<footnote n="24">24 Art 18(3) of OPCAT.</footnote>

<footnote n="25">25 R Murray 'National preventive mechanisms under the Optional Protocol to the Torture Convention: One size does not fit all' (2008) 26(4) *Netherlands Quarterly of Human Rights* 485, 496. (Among the resources that are required are offices, vehicles, furniture, computers, funds, and personnel. In spite of the fact that the necessary resources outlined in article 18(3) are a minimum requirement, many states argue that there is no additional funding available for NPMs Act.) As a result, the state is responsible for providing the necessary resources, which may be achieved by allocating funds to the NPMs through the appropriations process by the legislature.</footnote>

<footnote n="26">26 Murray (n 25). The Term of Reference did not specify how the NCAT is funded. Functional independence requires that an NPM have adequate staffing and provisions outlined in the statute that establishes the NPM regarding its funding. For example, see the NHRC Act.</footnote>

<footnote n="27">27 Art 18(2) of OPCAT.</footnote>

<footnote n="28">28 Association for the Prevention of Torture (APT) and Inter-American Institute for Human Rights (IIHR) *Optional Protocol to the UN Convention against Torture implementation manual* (revised edition) 2010 91.</footnote>
discharging its mandate, especially in the area of visitation to Correctional service facilities, to enable it to have first-hand information on the condition of inmate.<fnref n="29" /> The newly appointed committee has a comprehensive mandate to engage and liaise with the Committee Against Torture and the regional human rights mechanisms. Its responsibilities include conducting follow-up actions, collecting data and information, and consulting with the NHRC as well as civil society organisations.<fnref n="30" /> Among the newly appointed members are experts from a variety of fields, including human rights, police, academia, law, and non-governmental organisations (NGOs). They include the solicitor-general or the Permanent Secretary of the Ministry of Justice who serves as the chairperson, the Executive Secretary of the National Human Rights Commission who alternates as the chairperson; the Director of Citizens' Rights within the Ministry of Justice; the Director of Public Prosecutions of the Federation; The Director-General of the Legal Aid Council of Nigeria or any of the Director representatives; the Inspector-General of Police or any of his representatives not below the rank of Commissioner of Police; the Commandant-General of the Nigeria Security and Civil Defence Corps or any of his representatives but not below the rank of a commandant; the Director-General of the Department of State Service or any of his representatives not below the rank of a Director; and the Chief of Army Staff or any of his representatives not below the rank of colonel. In addition, the Chairman of the Economic and Financial Crimes Commission or any of his representatives not below the rank of a Director, and the President of the Nigerian Bar Association or any of his representatives act as members. Christy Mbonu Ezim, the Director-General of the Nigeria Institute of Advanced Legal Studies or any of staff of the Institute not below the rank of a director; the President of the International Federation of Woman Lawyer (FIDA) or any of her representatives; Avocats San Frontières, the Chairman of the Human Rights Agenda Network; Access to Justice; the Director of Nigerian Law School, Chibueze P Okoli also serve as members and the Director of Monitoring Department of the National Human Rights Commission serves as the Secretary.

Providing the necessary resources and selecting the appropriate members are specific responsibilities of each state's government.<fnref n="31" /> As required by article 18(4), the government must take into account the Paris Principles when establishing NPMs.<fnref n="32" /> The Paris Principles provide more guidance on how the members of a human rights institution should be appointed, instructing that representatives from a wide range of backgrounds should be appointed,<fnref n="33" /> including NGOs,

<footnote n="29">29 A Oluwafemi 'FG sets up committee to monitor compliance with laws against torture' *The Cable* https://www.thecable.ng/fg-sets-up-committee-to-monitor-compliance-with-laws-against-torture (11 September 2022) (accessed 8 October 2022).</footnote>

<footnote n="30">30 As above.</footnote>

<footnote n="31">31 Murray (n 25) 485-97.</footnote>

<footnote n="32">32 Art 18(4) of OPCAT.</footnote>

<footnote n="33">33 Composition and guarantees of independence and pluralism Paris Principle 1.</footnote>
members of parliament, lawyers, and government officials – but the latter should only serve as advisers.³⁴

In accordance with the Paris Principles, the appointment of members must be outlined and stipulated in an official act or legal document,³⁵ which must also embody pluralism.³⁶ However, the appointments cited above cannot be said to be made through an official act or legal document.

As outlined in the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to the Czech Republic in 2002, an NPM should be distinct from the police service³⁷ an independent body that is not administratively or organisationally subordinate to any government ministry.³⁸ In summary, this suggests that the government should not interfere with the duties of the NPM, but should provide adequate resources and ensure that the NPM is governed according to the Act of Parliament establishing it.³⁹

It can be asked whether all NPMs can be detached from the government. According to Murray, NPMs must maintain a close relationship with the government so that its recommendations and findings are implemented.⁴⁰ One benefit of an NPM is that it cannot be completely detached from the government as would be in the case of NGOs.⁴¹ Murray recommends that NPMs be established by statutes or legal documents that take on a status that extends beyond those of NGOs.⁴² This would bring them closer to the government while providing them with some influence.⁴³ While being an independent body does not mean the NPM must be ‘friends’ with the government,⁴⁴ it does mean that the NPM must be able to distance itself from the government while also engaging in constructive dialogue with the

34 Composition and guarantees of independence and pluralism Paris Principle 1(a)-(e).

35 Composition and guarantees of independence and pluralism in the Paris Principle 1(3).

36 As above.

37 Council of Europe 'Report to the Czech Government on the visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 to 30 April 2002. Strasbourg, 12 March 2004 CPT/INF/(2004) 4 para 102. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680695650 (accessed 10 October 2022).

38 As above.

39 As above.

40 Murray (n 25) 485-500.

41 As above.

42 As above.

43 University of Bristol *The optional protocol to the UNCAT: Preventive mechanism and standards' conference report*; report on the First Annual Conference on the Implementation of the Optional Protocol to OPCAT. Law School, University of Bristol April 19-20, 2007 32 https://research-information.bris.ac.uk/ws/portal/files/portal/190916323/First_Annual_Conference_on_the_implementation_of_OPCAT_19_20_April_2007_Bristol_UK_Final_Proceedings.pdf (accessed 10 October 2022).

44 As above.
government and monitoring detention centres.<fnref n="45" /> This would enable the NPM to create a relationship and a partnership with the government that would produce lasting trust.<fnref n="46" /> Thus, it is argued that the inclusion of the Chief of Army Staff, Inspector-General of Police, Director of Public Prosecutions, and Controller General of Corrections on the NCAT committee will provide a balance between NCAT's capacity as an NPM and the ability to maintain influence on government through these officials, which is not possible for an NGO. Nevertheless, when these government-appointed individuals are unable to distance themselves from the government's influence, the NCAT committee, as a whole, and its independence will be at risk.<fnref n="47" />

In addition, the Paris Principles stipulate that for an expert to be independent,<fnref n="48" /> a legal document detailing their terms of service and terms of renewal must be provided.<fnref n="49" /> However, it is not stated in the inaugural document of NCAT whether members can renew their positions or what the duration of the term of office will be.<fnref n="50" /> Moreover, the document that created NCAT members is neither in a constitutional document, nor in a statute.<fnref n="51" />

## 2.3 Financial independence

In accordance with OPCAT article 18(3), state parties are required to provide 'necessary resources' for the proper functioning of NPMs.<fnref n="52" /> OPCAT did not specify what 'necessary resources' entail, however, the NPMs guidelines indicate that adequate funding is required for the NPMs to perform their functions.<fnref n="53" /> Having adequate funding allows NPMs to be financially autonomous, allowing them to hire their own

<footnote n="45">45 As above.</footnote>

<footnote n="46">46 Murray (n 25) 485-500.</footnote>

<footnote n="47">47 In addition, the government may appoint members from different NGOs who have previous experience in civil society organisations. As such, any recommendations made may not be implemented on time or have less influence on the government. In this regard, the thesis argues that government members should serve only as advisers to the NCAT rather than being members. The members should possess expertise in civil society organisations and human rights. The government members would have an influence on the government and would also create a relationship of trust between the government and the NCAT committee. See also, Composition and guarantees of independence and pluralism Paris Principle 1(e) Government departments (If these are included, their representative should participate in the deliberations only in an advisory capacity).</footnote>

<footnote n="48">48 Composition and guarantees of independence and pluralism Paris Principle 1(3).</footnote>

<footnote n="49">49 As above.</footnote>

<footnote n="50">50 Federal Ministry of Justice 'Mandate of the National Committee on Torture' http://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeria termsofreference.pdf (accessed 10 October 2022).</footnote>

<footnote n="51">51 As above.</footnote>

<footnote n="52">52 Art 18(3) of OPCAT.</footnote>

<footnote n="53">53 Para 11 of the Guidelines on NPMs.</footnote>
staff and direct their own activities.<fnref n="54" /> Therefore, financial independence is a fundamental requirement for the NPM to function effectively, and without it, the NPM cannot make independent decisions or operate efficiently.<fnref n="55" />

According to the APT manual guide, the NPM must be able to develop its own budget that will enable it to function independently of the government.<fnref n="56" /> This will enable it to make its own decisions.<fnref n="57" /> Consequently, the founding documents establishing the NPMs must specify the sources of funding and how they should be spent.<fnref n="58" /> In spite of this, there are no legislative documents establishing the NCAT. The former chairman of the NCAT, Sanni Ameh (Senior Advocate of Nigeria), in a technical consultation on implementing the Anti-Torture Act 2017 held in Abuja on an international day supporting victims of torture, in 2022, alleged that the NCAT lacked adequate financial resources to investigate and send periodic reports to the United Nations.<fnref n="59" />

The 2021 US Department of State's Country Reports on human rights alleged that the NCAT also lacked operational independence and legal backing, which had hindered the NCAT from working effectively.<fnref n="60" /> This implied that NCAT, despite having broad mandates, lacked legal, operational and financial independence to perform any of its tasks. Arguably, this has resulted in a low number of visitations to prisons and none to any police cells.

## 2.4 Roles and effectiveness of NCAT

The question of the effectiveness of any human rights institution is closely related to the roles of the institution.<fnref n="61" /> In accordance with OPCAT, the role of an NPM is diverse. NPMs are responsible for

<footnote n="54">54 United Nations 'Principles relating to the status of national institutions (The Paris Principles)' Adopted 20 December 1993 by the General Assembly resolution 48/134. https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-relating-status-national-institutions-paris (accessed 14 August 2022) para 2.</footnote>

<footnote n="55">55 Amnesty International 'Checklist for the effective implementation of the OPCAT establishment of National Preventive Mechanisms (NPMS)' 2 https://www.amnesty.org/en/wp-content/uploads/2021/06/iior500012014en.pdf (accessed 15 December 2022).</footnote>

<footnote n="56">56 Association for the Prevention of Torture (APT) and Intern-American Institute for Human Rights (IIHR) *Optional Protocol to the UN Convention against Torture implementation manual* (revised edition) 2010 100.</footnote>

<footnote n="57">57 As above.</footnote>

<footnote n="58">58 As above.</footnote>

<footnote n="59">59 S Ogunlowo 'We are suffering from lack of funding-FG's anti-torture committee' 21 June 2022 *Premium Times Newspaper* https://www.premiumtimesng.com/news/more-news/538425-we-are-suffering-from-lack-of-funding-fgs-anti-torture-committee.html (accessed 10 July 2022).</footnote>

<footnote n="60">60 United State Department of State '2021 Country reports on human rights practices: Nigeria' https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/nigeria (accessed 10 July 2022).</footnote>

<footnote n="61">61 Murray (n 25) 485-502.</footnote>
conducting regular visits to detention centres<fnref n="62" /> and making recommendations to the relevant authorities in order to improve the conditions of deprived individuals.<fnref n="63" /> In addition, they must submit proposals for and comments on any draft legislation.<fnref n="64" /> Further, it serves as a point of contact for the SPT<fnref n="65" /> and prepares reports for the SPT on the state of affairs and advises the government when necessary.<fnref n="66" />

The mandates of NCAT envisage visitation to any place of detention as defined by OPCAT.<fnref n="67" /> This includes prisons, immigration detention centres, police cells, and places where authorities hold people.<fnref n="68" /> NCAT, in 2014, with the then chairman and other members, visited Minna Old Prison, Minna New Medium Security Prison, Kontagora Medium Security Prison, Bida Prison, New Bussa Prison, Lapai Prison and Kagara Prison.<fnref n="69" /> While the efforts of NCAT are laudable, places of detention do not stop at prisons; they include police station cells where the use of torture is most perpetrated in Nigeria.<fnref n="70" />

The use of torture is said by Human Rights Watch to be a norm in interrogation rooms used by officers of the Nigeria Police Force.<fnref n="71" /> NCAT visited some police cells and interviewed detainees about their living conditions.<fnref n="72" /> According to the detainees, they were treated well.<fnref n="73" /> In spite of this, the NCAT committee members observed that the surroundings were not conducive to the detainees’ well-being.<fnref n="74" />

Moreover, only Niger state is mentioned in the report out of the 36 states in the Federation.<fnref n="75" /> It is commendable that the efforts have been made, but there is still a lot more that needs to be done in order to prevent torture in Nigeria. For NCAT to fulfil its mandate and be effective as required by OPCAT, it must be able to visit other detention centres across the country as prescribed in article 4(2) of OPCAT.<fnref n="76" />

<footnote n="62">62 Art 19(a) of OPCAT.</footnote>

<footnote n="63">63 Art 19(b) of OPCAT.</footnote>

<footnote n="64">64 Art 19(c) of OPCAT.</footnote>

<footnote n="65">65 Art 11(b) of OPCAT.</footnote>

<footnote n="66">66 Art 11(b) of OPCAT.</footnote>

<footnote n="67">67 Federal Ministry of Justice Mandate of the National Committee on Torture http://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeriatermsofreference.pdf (accessed 10 October 2022).</footnote>

<footnote n="68">68 As above.</footnote>

<footnote n="69">69 As above.</footnote>

<footnote n="70">70 Human Rights Watch ‘Rest in pieces: Police torture and deaths in custody in Nigeria’ https://www.hrw.org/report/2005/07/27/rest-pieces/police-torture-and-deaths-custody-nigeria (accessed 14 August 2022).</footnote>

<footnote n="71">71 As above.</footnote>

<footnote n="72">72 Dr Samson Sani Ameh ‘NCAT 4th quarterly report of the National Committee Against Torture for the period ending 31 December 2014 to the United Nations Subcommittee against torture in Geneva, Switzerland’ 2014-2015 https://www.ohchr.org/sites/default/files/Documents/HRBodies/OPCAT/NPM/Nigeria2014.pdf (accessed 12 October 2022).</footnote>

<footnote n="73">73 As above.</footnote>

<footnote n="74">74 As above.</footnote>

<footnote n="75">75 As above.</footnote>

<footnote n="76">76 Art 4(2) of OPCAT.</footnote>
Article 19(c) obligates each NPM the power to submit a proposal about a draft or existing law.<fnref n="77" /> The NCAT is tasked with the responsibility to continuously review interrogation rules, methods, instructions and practice.<fnref n="78" /> This implies that the NCAT must ensure that the interrogation rules comply with international law.<fnref n="79" /> The purpose of reviewing all laws that deal with the practice and treatment of a person arrested is to ensure that torture is always prevented, demonstrating that the government has zero tolerance for the use of torture.<fnref n="80" />

The use of torture is prohibited, and the NCAT is tasked to report quarterly by briefing the Attorney General of the Federation on cases of torture and proposing administrative and judicial ways forward for eradicating torture in Nigeria.<fnref n="81" /> This includes proposing laws prohibiting torture (Anti-Torture Act) and developing anti-torture policies for the Federation.<fnref n="82" /> The NCAT with other civil society organisations and Bristol University, Nigeria Human Rights Commission, the United Nations Subcommittee on Prevention of Torture, Her Majesty's Inspectorate of Prisons, and Redress helped develop the Anti-Torture Act of Nigeria 2017.<fnref n="83" /> The proposed Anti-Torture Bill in 'New Part V' described the establishment of the National Preventive Mechanism in Nigeria as well as the composition, appointment, duties, and funding of the NCAT.<fnref n="84" /> Upon the enactment of the Anti-Torture Act 2017, the NCAT section was removed.<fnref n="85" />

NCAT is designed to ensure that the police and other law enforcement officers, medical personnel, and public officials have adequate knowledge and information on the prohibition of torture in Nigeria.<fnref n="86" /> This includes custody officials in different prisons, interrogation officers in different law enforcement agencies in Nigeria and people in charge of treating any person arrested or detained in a prison or any other detention centre.<fnref n="87" />

<footnote n="77">77 Art 19(b) of OPCAT.</footnote>

<footnote n="78">78 Federal Ministry of Justice Mandate of the National Committee on Torture http://www.bristol.ac.uk/media-library/sites/law/migrated/documents/nigeriatermso preference.pdf (accessed 10 October 2022).</footnote>

<footnote n="79">79 As above.</footnote>

<footnote n="80">80 As above.</footnote>

<footnote n="81">81 As above.</footnote>

<footnote n="82">82 As above.</footnote>

<footnote n="83">83 University of Bristol Law school 'Nigeria OPCAT project' https://www.bristol.ac.uk/law/research/centres/hric/projects/the-implementation-of-the-opcat-in-nigeria/ (accessed 11 October 2022).</footnote>

<footnote n="84">84 Redress, University of Bristol 'Anti-Torture legislative frameworks in Nigeria' Report of round table discussion on the draft-anti-torture Bill. Sheraton Hotel, Abuja 26 February 2017. https://redress.org/wp-content/uploads/2017/12/ANTI-TORTURE-LEGISLATIVE-FRAMEWORKS-IN-NIGERIA.pdf (accessed 11 October 2022).</footnote>

<footnote n="85">85 As above.</footnote>

<footnote n="86">86 As above.</footnote>

<footnote n="87">87 As above.</footnote>
Nevertheless, Murray contends that another component that may contribute to an NPM's effectiveness is its visibility.<fnref n="88" /> NCAT can receive, and in some circumstances, consider communications from those tortured and those with the knowledge of what will happen or when it happened. This communication can come from civil society organisations, individuals and various government institutions.<fnref n="89" /> In spite of this, the NCAT does not have a presence in the entire country as its only secretariat is located at the headquarters of the NHRC. Also, the NCAT does not have a website where the public may report cases of torture.<fnref n="90" />

Furthermore, Murray asserts that, for NPMs to be effective, there must be a political will on the part of the government.<fnref n="91" /> The government must support the work of the NPMs. A state is required to provide NPMs with access to information,<fnref n="92" /> the place of deprived liberties,<fnref n="93" /> access to private interviews with detainees without witnesses,<fnref n="94" /> and the right to choose the location of the visit,<fnref n="95" /> as specified in article 20 of OPCAT. The NCAT reports show it has visited various detention centres and has access to detainee information during interview processes.<fnref n="96" />

From September 8th to 19th, 2024, SPT visited Nigeria to assess the treatment of individuals in detention facilities. During its visit, the SPT noted that conditions in detention centres, including police cells, have been abysmal even after the OPCAT's ratification and the NCAT's establishment.<fnref n="97" />

In conclusion, the NCAT, meant to serve as an NPM, lacks an independent and functional preventive mechanism. It indicates that the 2009 and 2022 NCATs have not been independent, as they were not created through legal documents defining their functions, terms of

<footnote n="88">88 Murray (n 25) 502.</footnote>

<footnote n="89">89 As above.</footnote>

<footnote n="90">90 In contrast, the South African National Preventive Mechanism has a website where members of the public can contact them either by phone or by completing a form on the website. The website contains an NPM fact sheet that is available in all South African languages. https://sahrc.org.za/npm/index.php/about-the-npm (accessed 11 October 2022).</footnote>

<footnote n="91">91 Murray (n 25).</footnote>

<footnote n="92">92 Art 20(a) of OPCAT.</footnote>

<footnote n="93">93 Art 12(c) of OPCAT.</footnote>

<footnote n="94">94 Art 12(e) of OPCAT.</footnote>

<footnote n="95">95 As above. See also, Council of Europe Report to the Bulgarian government on the visit to Bulgaria carried out by the European committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) from 17 to 26 April 2002 Strasbourg, 24 June 2004. CPT/Inf (2004) 21 paras 158 and 25, where it was concluded that the NPMs can visit places of detention centres unannounced and randomly.</footnote>

<footnote n="96">96 Dr Samson Sani Ameh NCAT 4th quarterly report of the National Committee Against Torture for the period ending 31st December 2014 to the United Nations Subcommittee against torture in Geneva, 'Switzerland' (2014) 15 https://www.ohchr.org/sites/default/files/Documents/HRBodies/OPCAT/NPM/Nigeria2014.pdf (accessed 12 October 2022).</footnote>

<footnote n="97">97 Office of the High Commissioner 'Nigeria: urgent measures needed to end torture and ill-treatment, say experts' 23 September 2024.</footnote>
appointment, staff recruitment procedures, operational offices,
visitation rights to detention facilities, and funding mechanisms.
Nevertheless, it is imperative to know whether NCAT communicates
and stays in contact with the SPT as specified in articles 20(f) and 11(b).

2.5 Cooperation between NCAT and SPT

Articles 11(b) and 12(c) of OPCAT set out the relationship between the
two institutions. In article 11(b), the SPTs must be able to 'advise and
assist state parties,' and in doing so, the SPTs must 'maintain direct
contact', which could be confidential.<fnref n="98" /> NCAT, through its then
chairman, Samson Sane Ameh (SAN), submitted a report to the SPT in
2014 showing what the NCAT had done and what detention centres it
had inspected.<fnref n="99" /> According to the report, the NCAT has been mandated
to receive communications from both individuals and civil society
organisations.<fnref n="100" /> It also visits places of detention, ensures that there is
sufficient information regarding the prohibition of torture, and reviews
laws and legislation.<fnref n="101" /> The report indicates that Niger state is the only
state among the 36 in which centres have been visited<fnref n="102" /> and convicted
inmates, unconvinced inmates, and inmates serving life sentences
interviewed.<fnref n="103" />

The SPT first visited Nigeria in 2014 in accordance with its function to visit countries facing claims of torture.<fnref n="104" /> The meeting in Abuja involving government officials, NCAT members and the NHRC, focused on how the SPT could help implement OPCAT in Nigeria.<fnref n="105" /> In 2022, before the new inaugural NCAT, the chairman alleged that the committee could not meet, properly investigate, and send periodic reports to the United Nations due to a lack of funding. It implies that the NCAT lacks operational and functional independence, which does not comply with the OPCAT requirement.<fnref n="106" />

The NCAT, with other members of the Federal Ministry of Justice,
entered into a dialogue with the UN Committee against Torture but
Nigeria as a State, failed to submit its initial report in 2021.<fnref n="107" /> During

<footnote n="98">98 Art 11(b) of OPCAT</footnote>

<footnote n="99">99 Ameh (n 96).</footnote>

<footnote n="100">100 As above.</footnote>

<footnote n="101">101 As above.</footnote>

<footnote n="102">102 As above.</footnote>

<footnote n="103">103 As above.</footnote>

<footnote n="104">104 Nigeria: 'UN torture prevention body concludes its high level advisory visit, as a first step to strengthen the national capacity to prevent torture' https://www.ohchr.org/en/press-releases/2014/04/nigeria-un-torture-prevention-body-concludes-its-high-level-advisory-visit (accessed 14 August 2022).</footnote>

<footnote n="105">105 As above.</footnote>

<footnote n="106">106 Ogunlowo (n 59).</footnote>

<footnote n="107">107 In initial dialogue with Nigeria, experts of committee against torture ask about the fight against terrorism, and conditions of detention https://www.ungeneva.org/ar/news-media/meeting-summary/2021/11/loccasion-de-son-premier-dialogue-avec-le-nigeria-le-comite (accessed 10 July 2022).</footnote>
the dialogue, the UN Committee against Torture experts raised the fact that whilst ‘the Constitution created a right not to be subjected to torture, and the Anti-Torture Law 2017 specifically criminalised acts of torture perpetrated by public officials’,<fnref n="108" /> there were no specific provisions included in the Anti-Torture Act establishing that the crime of torture was not subject to a statute of limitations and that amnesties and pardons were prohibited for acts of torture.<fnref n="109" /> Nigerian authorities were also asked whether they ensured that video recorders were used during the interrogation of suspects to show that the suspects were not tortured.<fnref n="110" /> Nigeria had ratified OPCAT and established that NCAT could visit detention centres. However, the UN Committee against Torture questioned whether NCAT was effectively performing its role as an NPM.<fnref n="111" />

The Nigerian delegation responded by informing the UN Committee on Torture that the Federal Government was restructuring NCAT to make it more independent and responsive.<fnref n="112" /> Most responses of the delegates focused more on prison decongestion in Nigeria rather than on statutory limitations, functions and roles of the NCAT and its effectiveness.<fnref n="113" /> It was further claimed that the Anti-Torture Act 2017 applied all over the Federation.<fnref n="114" /> The UN Committee on Torture and the Rapporteur replied that:

> ...it was good to pass laws, but it was better to act on them. The legal framework of Nigeria was not called into question: rather, the questions raised had been more about the implementations of those laws.<fnref n="115" />

State reporting under an international human rights treaty is important to ensure the accountability of each member country's government.<fnref n="116" /> This enables the UN Committee to point the government's attention to areas that need improvement.<fnref n="117" />

In conclusion, although Nigeria established two NCATs through terms of reference that outline their mandates, these two NCATs were not created by an act of parliament. While they have visited some detention centres, their visitation efforts are limited due to a lack of financial and functional independence. Therefore, it is evident that the government lacks the political will to implement the mandates of the NCAT so that it can perform as prescribed by OPCAT.

<footnote n="108">108 As above. Question from Sebastien Touze, Committee Vice-Chairperson and Co-Rapporteur for Nigeria.</footnote>

<footnote n="109">109 As above.</footnote>

<footnote n="110">110 As above.</footnote>

<footnote n="111">111 As above.</footnote>

<footnote n="112">112 As above.</footnote>

<footnote n="113">113 As above.</footnote>

<footnote n="114">114 As above.</footnote>

<footnote n="115">115 As above.</footnote>

<footnote n="116">116 CD Creamer & BA Simmons 'Ratification, reporting, and rights: quality of participation in the Convention against Torture' (2015) 37(3) *Human Rights Quarterly* 579-580.</footnote>

<footnote n="117">117 Creamer & Simmons (n 116) 584.</footnote>
3 THE NHRC AS AN NPM IN NIGERIA

The OPCAT tasks member states with establishing or designating one or more independent NPMs within one year of the protocol's entry into force. Articles 19 to 22 outline several essential functions that an independent NPM must fulfil to operate effectively. Moreover, adhering to the Paris Principles is important in establishing the NPM.

To create an effective NPM, Nigeria established its NCAT in 2009 and reaffirmed its commitment in 2022. There is no one-size-fits-all model for NPMs, and each country must determine what works best for its circumstances. Although the Nigerian government has attempted to establish an independent NPM separate from the NHRC, these efforts have faced challenges, primarily due to a lack of funding and political will. As a result, it is reasonable to question whether the NHRC, designated as the NPM in Nigeria, will be effective in preventing torture.

The government set up the NHRC in 1995 to protect and promote human rights in Nigeria under Decree 22 of 1995 (1995 Act).<fnref n="118" /> Eight months after its establishment, the government inaugurated the Governing Council with the power to oversee the institution. It acquired a rented office in 1997, established the first set of zonal offices in six geopolitical zones and in 1988, with the first two zonal offices in Lagos and Kano,<fnref n="119" /> later extended to Port Harcourt, Enugu, Jos and Maiduguri.<fnref n="120" />

The 1995 Act establishing the NHRC was amended in 2010 and signed into law in 2011.<fnref n="121" /> The NHRC amended Act 2010 created the general mandate of the NHRC, which is to deal with all matters relating to human rights in Nigeria.<fnref n="122" /> Specifically, it allows the NHRC to visit persons, police cells, and any detention centres to determine the detention centres' condition and make recommendations to the appropriate authorities.<fnref n="123" /> In 2024, an order designated Nigeria's NHRC as the NPM (Order 2024).<fnref n="124" /> The section 1 of the Order 2024 specifies that section 1 of the NHRC Act of 2010 as amended, serves as Nigeria's NPM by articles 3 and 17 of the OPCAT.<fnref n="125" />

<footnote n="118">118 Decree No 22 of October 1995. The military regime that is known for its abuse of human rights established a human rights institution. This is ironic, because it is impossible for such an institution to function independently when under state control or influence. It was later known as National Human Rights Commission Act Cap N46, Laws of the Federation of Nigeria, 2004.</footnote>

<footnote n="119">119 As above. Nigeria is divided into six geopolitical zones, created during General Sani Abacha's rule as an administrative grouping of Nigeria.</footnote>

<footnote n="120">120 As above.</footnote>

<footnote n="121">121 National Human Rights Commission (Amendment) Act, 2010 (NHRC 2010 as amended).</footnote>

<footnote n="122">122 Secs 5(1) NHRC 2010 as amended.</footnote>

<footnote n="123">123 Secs 6(1)(d) NHRC 2010 as amended.</footnote>

<footnote n="124">124 Designation of the National Human Rights Commission as Nigeria Preventive Mechanism Order, 2024. S 1 No 21 of 2024.</footnote>

<footnote n="125">125 As above.</footnote>
This section provides an overview of the NHRC and analyses if it is
capable of serving as an NPM in Nigeria in accordance with OPCAT's
requirements in Part IV.

## 3.1 The roles and the effectiveness of the NHRC as an NPM in Nigeria

Section 2(1) of the 2024 Order establishes a specialised department within the NHRC that possesses the authority and mandate of an NPM. This extends the NHRC's powers to include those of an NPM, as established by an act of Parliament rather than through a letter of reference. The Order 2024 is a significant departure from the 2009 and 2022 NCAT, which were established by a letter of reference.

According to section 3 of the 2024 Order, the NHRC is responsible for regularly inspecting and examining the treatment of individuals deprived of their liberty in places of detention, as outlined in article 4 of the OPCAT. Prior to this, section 6(1)(d) of the NHRC Act 2010, as amended, mandated the NHRC to visit detention facilities. As a result, the NHRC has established an annual prison audit to address human rights issues within the Nigeria Correctional Services.126 It is unclear whether this includes visits to police cells in each police station in Nigeria. However, according to section 3 of the 2024 Order, the specialised department will need to fulfil its mandate of visitation as specified in article 4 of the OPCAT. This mandate includes police cells and other holding facilities where individuals are not free to leave at will under the authority of the law.127

Moreover, section 5(b) of the NHRC Act 2010 directs that the NHRC must be able to monitor and investigate any alleged human rights violation cases in Nigeria and is also obligated to recommend appropriate actions for prosecution to the President.128 This suggests that the NHRC already has access to detention centres and holds

<footnote n="126">126 'NHRC flags off 2022 prison audit exercise, donates drugs to inmates.' 13 May 2022 https://www.nigeriarights.gov.ng/nhrc-media/news-and-events/341-nhrc-flags-off-2022-prison-audit-exercise-donates-drugs-to-inmates.html (accessed 19 May 2022). See also, 'NHRC chairperson commends officers of Kuje correctional service during 2022 facility audit 16 May 2022' https://www.nigeriarights.gov.ng/nhrc-media/news-and-events/343-nhrc-chairperson-commends-officers-of-kuje-correctional-service-during-2022-facility-audit.html (accessed 19 May 2022).</footnote>

<footnote n="127">127 Art 4(2) of OPCAT.</footnote>

<footnote n="128">128 In the 72nd section of the United Nations Committee against Torture, the NHRC submitted an individual report on the implementation of the UNCAT and OPCAT in Nigeria at 9. The NHRC in 2019 received 15 457 complaints of torture and in 2020 recorded 12 400 cases, making 27 858 in two years. The document was submitted to the researcher by Hillary Ogbonna and Halilu Adamu of the NHRC Abuja. However, this thesis concludes that while the provision is laudable, it is arguably not enough to recommend prosecution to the President. Moreover, the violation of human rights extends to the use of torture, which implies that the NHRC has the capacity to investigate cases of alleged torture but not to prevent the use of torture, as investigation may only be carried out after the use of torture has been perpetrated.</footnote>
monitoring and investigation powers. Furthermore, section 3(b) of the 2024 Order grants the NHRC's specialised department the ability to obtain information regarding the treatment of individuals deprived of their liberty, as well as the conditions within the detention centres.

Section 6 of the NHRC Act 2010 includes further details of the mandate of the NHRC by stipulating that it should have the power to investigate and inquire,<fnref n="129" /> introduce civil actions,<fnref n="130" /> appoint interpreters,<fnref n="131" /> decide on compensation or damages to be awarded to victims of human rights abuse,<fnref n="132" /> summon and interrogate,<fnref n="133" /> issue warrants and compel any person or authority to appear before it,<fnref n="134" /> enter any property to obtain evidence of a violation of human rights,<fnref n="135" /> and visit places of detentions or cells.<fnref n="136" /> Though the NHRC has broad mandates, the specialised department, as outlined in section 3(c) of the 2024 Order, allows the NHRC to conduct private interviews with individuals deprived of their liberties, without the presence of witnesses or state authority. When a translator is required, one must be provided, in accordance with article 20(d) of the OPCAT. The purpose of conducting these interviews in private is to enable the detainee to speak freely and openly without fear of reprisals.

The NHRC must also cooperate, liaise, and participate with other local and international organisations.<fnref n="137" /> The NHRC must also collect data, disseminate information,<fnref n="138" /> publish information,<fnref n="139" /> promote public discussion of human rights,<fnref n="140" /> receive and investigate complaints,<fnref n="141" /> examine existing legislation or any proposed Bills,<fnref n="142" /> undertake research or coordinate any education programme to advance the promotion of human rights in Nigeria,<fnref n="143" /> and act as a conciliator when appropriate,<fnref n="144" /> referring human rights violation to the Attorney General.<fnref n="145" /> and, when appropriate, can seek leave of the court to hear matters on human rights violations.<fnref n="146" /> Additionally, in section 3(d)(ii) of the 2024 Order, the specialised department is tasked with

<footnote n="129">129 Sec 6(1)(a) of the NHRC 2010 as amended.</footnote>

<footnote n="130">130 Sec 6(1)(b) of the NHRC 2010 as amended.</footnote>

<footnote n="131">131 Sec 6(1)(c) of the NHRC 2010 as amended.</footnote>

<footnote n="132">132 Sec 6(1)(e). See also, Decision on 2020/IIP-SARS/ABJ/120 where the petitioner was awarded five million naira compensation for the violation of his rights by the police.</footnote>

<footnote n="133">133 Sec 6(2)(b) of the NHRC 2010 as amended.</footnote>

<footnote n="134">134 Sec 6(2)(c), (d) & (e) of the NHRC 2010 as amended.</footnote>

<footnote n="135">135 Sec 6(2)(a) of the NHRC 2010 as amended.</footnote>

<footnote n="136">136 Sec 6(1)(e) of the NHRC 2010 as amended.</footnote>

<footnote n="137">137 Sec 5(g) See also, sec 6(1)(f) of the NHRC 2010 as amended.</footnote>

<footnote n="138">138 Sec 5(h) of the NHRC 2010 as amended.</footnote>

<footnote n="139">139 Sec 5(i) of the NHRC 2010 as amended.</footnote>

<footnote n="140">140 Sec 5(m) of the NHRC 2010 as amended.</footnote>

<footnote n="141">141 Sec 5(j) of the NHRC 2010 as amended.</footnote>

<footnote n="142">142 Sec 5(k) of the NHRC 2010 as amended.</footnote>

<footnote n="143">143 Sec 5(n) of the NHRC 2010 as amended.</footnote>

<footnote n="144">144 Sec 5(q) of the NHRC 2010 as amended.</footnote>

<footnote n="145">145 Sec 5(p) of the NHRC 2010 as amended.</footnote>

<footnote n="146">146 Sec 5(r) of the NHRC 2010 as amended.</footnote>
recommending improvements to the conditions of individuals deprived
of their liberty.

Section 5(c) extends the mandate of the NHRC to assist the victims of human rights violations in seeking redress and remedies. The NHRC in 2020 and 2021 acted as part of the independent investigation panel on human rights violations by the defunct Special Anti-Robbery and other units of the NPF.<fnref n="147" /> The panel hears matters of police brutality and awards compensation to victims. In Decision 2020/IIP-SARS/ABJ/15, the panel awarded the sum of five million naira to the petitioner, who was a victim of police brutality.<fnref n="148" />

In sections 5(d) and (e), the NHRC is mandated to conduct research on human rights, and serves as a policy adviser to the Federal Government, states and local governments, especially when formulating laws for human rights protection and promotion in Nigeria. It further states that the NHRC may publish reports and then submit them to the President, National Assembly, judiciary, and state and local government regarding issues of human rights protection and promotion in Nigeria.

NHRC was assigned the task of preparing Nigeria's National Plan of Action for the Promotion and Protection of Human Rights.<fnref n="149" /> The Action Plan was conceived as a result of a Declaration of the 1993 World Human Rights Conference in Vienna,<fnref n="150" /> by which each state government was tasked with developing an action plan that showed various steps to be taken in order to improve the protection and promotion of human rights.<fnref n="151" /> The Action Plan was initiated in 2000 in consultation with NGOs and the National Assembly.<fnref n="152" /> The NHRC

<footnote n="147">147 O Ajayi ‘NHRC inaugurates an independent investigative panel on allegations of violations by the defunct SARS’ (3 November 2020) *Naira metrics online newspaper* https://nairametrics.com/2020/11/03/nhrc-inaugurates-independent-investigative-panel-on-allegations-of-violations-by-the-defunct-sars/ (accessed 18 May 2022). See also, F Olokor ‘EndSARS panel resumes sitting today as NHRC secures funding’ (1 March 2022) *Punch Newspaper* https://punchng.com/endsars-panel-resumes-sitting-today-as-nhrc-secures-funding/ (accessed 18 May 2022).</footnote>

<footnote n="148">148 The independent investigation panel on human rights violations by the defunct SARS and other units of the Nigeria police force (2020) sitting at the Federal Capital Territory, Abuja. Decision 2020/IIP-SARS/ABJ/15. See also, the Decision on 2020/IIP-SARS/ABJ/120 where the petitioner was awarded five million naira in damages for the violation of his rights by the police. These cases were furnished to me by members of the NHRC.</footnote>

<footnote n="149">149 National Action Plan for the promotion and protection of human rights 2022-2026 https://www.nigeriarights.gov.ng/activities/nap/201-draft-national-action-plan-2021-2025.html (accessed 18 October 2022).</footnote>

<footnote n="150">150 United Nations Vienna Declaration and Programme of Action adopted 25 June 1993 by World Conference on Human Rights in Vienna https://www.ohchr.org/en/instruments-mechanisms/instruments/vienna-declaration-and-programme-action (accessed 18 October 2022).</footnote>

<footnote n="151">151 Article 83 of the Vienna Declaration and Programme of Action.</footnote>

<footnote n="152">152 Federal Republic of Nigeria National action plan for the promotion and protection of human rights in Nigeria 2009-2013 https://www.ohchr.org/sites/default/files/Documents/Issues/Education/Training/actions-plans/Excerpts/Nigeria09_13.pdf (accessed 18 October 2022).</footnote>
presented the final draft document to the government in 2004 for
approval.<fnref n="153" />

The Action Plan is divided into five categories.<fnref n="154" /> These are civil and political rights; the right to development; rights of person with disabilities; women's, children's and youth's rights; peace and a protected environment, and economic, social and cultural rights.<fnref n="155" /> The Plan outlines the government's responsibilities, the strategies it must employ to address human rights issues, and the agencies responsible for implementing and monitoring the programme.<fnref n="156" />

Section 5(f) of the NHRC has the mandate to create public awareness by organising local and international seminars and conferences on human rights issues in Nigeria. This awareness includes meeting with civil society organisations, schools, correctional centres, and social media. In 2021, as part of the awareness mandate, the NHRC issued a press release in 2019 to affirm that freedom from torture was a non-derogable right in Nigeria.<fnref n="157" /> In July 2021, the NHRC with the NCAT trained 190 police officers under the Anti-Torture Act of 2017 and other legislation that prohibits the use of torture in Nigeria.<fnref n="158" />

In conclusion, the mandates of the NHRC include the ability to visit places where liberties are deprived, conduct private interviews, and access information related to individuals who are deprived of their liberties. However, one might question why other factors, such as research and the right to contact the Subcommittee on Prevention of Torture, are not included in the 2024 Order. Nevertheless, a careful reading of the NHRC's broad mandates suggests that it indeed has the authority to conduct research and collaborate with other bodies. Therefore, the question remains whether the NHRC can operate as outlined in articles 18 to 21 of OPCAT.

3.2 NHRC's functional independence

Article 18(1) of OPCAT requires the state to guarantee the NPM's
functional independence. <fnref n="159" /> However, the meaning of functional
independence was not defined in article 18. As outlined in the Practical
Guide of the Office of the High Commissioner, functional independence
implies a legislative mandate, operational independence, and financial

<footnote n="153">153 As above.</footnote>

<footnote n="154">154 As above.</footnote>

<footnote n="155">155 As above.</footnote>

<footnote n="156">156 As above.</footnote>

<footnote n="157">157 Press release issued by the Executive Secretary, National Human Rights Commission, 24 April 2019 https://www.nhrc.gov.ng/nhrc-media/press-release/61-press-release-issued-by-the-executive-secretary-national-human-rights-commission.html (accessed 18 May 2022).</footnote>

<footnote n="158">158 'NHRC trains 190 police officers on Anti-torture legislation' *Vanguard Newspaper* 22 July 2021 https://www.vanguardngr.com/2021/07/a2j-nhrc-trains-190-police-officers-on-anti-torture-act-legislation/ (accessed 18 May 2022).</footnote>

<footnote n="159">159 Art 18(1) of OPCAT.</footnote>
independence.<fnref n="160" /> Legislative mandates include the establishment of an NPM by an act of parliament or in the state constitution.<fnref n="161" /> The statutory document would probably include such information as visiting rights, access to information, communications with the SPT, independent experts, work stations, terms of office, and an election or appointment system for NPM members.<fnref n="162" />

During the military regime of General Sani Abacha, the NHRC was established under Decree 22 of 1995.<fnref n="163" /> This period was characterised by human rights violations, unlawful detentions and the use of force by various security agencies.<fnref n="164" /> It was not the intention of the military regime to create a human rights institution that would address the needs of the people.<fnref n="165" /> Instead, it was a political uproar that led to the establishment of the National Human Rights Commission.<fnref n="166" /> The NHRC did not have legitimacy and credibility under the military regime, even though it was established by a decree making it notionally independent.<fnref n="167" />

The Amended Act 2010 gives the NHRC functional independence. This is because it specifies that it is established as a corporation with perpetual succession and a common seal, and which can sue and be sued.<fnref n="168" /> Section 1 buttresses Newark’s assertion that the NPMs must be independent bodies free from government interference or control.<fnref n="169" /> Additionally, the 2024 Order in section 2(2)(a) and (b) states that the specialised department shall have operational independence to perform its duties. This operational independence also entails the appropriate allocation of resources necessary for it to carry out its functions, projects, and programs.

<footnote n="160">160 United Nations Human Rights, Office of the High Commissioner 'Preventing torture: the role of national preventive mechanisms' A Practical Guide: Professional Training Series No 21 15 https://www.ohchr.org/sites/default/files/ Documents/HRBodies/OPCAT/NPM/NPM_Guide.pdf (accessed 17 October 2022).</footnote>

<footnote n="161">161 As above.</footnote>

<footnote n="162">162 As above.</footnote>

<footnote n="163">163 Decree No 22 of October 1995. The military regime that is known for the abuse of human rights established a human rights institution. This was ironic as it is impossible for such an institution to function independently without state control or influence. It was later known as National Human Rights Commission Act Cap. N46, Laws of the Federation of Nigeria, 2004.</footnote>

<footnote n="164">164 N Mbelle 'The national human rights commission of Nigeria: valuable, but struggling to enhance relevance' (2005) 48(3) *Centre for Conflict Resolution* 33, 37.</footnote>

<footnote n="165">165 As above.</footnote>

<footnote n="166">166 As above.</footnote>

<footnote n="167">167 As above.</footnote>

<footnote n="168">168 Sec 1 of the NHRC 2010 as amended.</footnote>

<footnote n="169">169 M Nowak & E McArthur *The United Nations Convention Against Torture* (2008) 1075.</footnote>
Article 18(3) of OPCAT and the Paris Principle conclude that a state member must provide all the necessary resources for an NPM to function efficiently.¹⁷⁰ These resources include a number of office locations, personnel, financial resources, and most importantly, accessibility to the nation's citizens. The NHRC established one office per state to reach people at the grassroots.¹⁷¹ According to the NHRC, it would have preferred to have had offices in all local government jurisdictions; however, due to resource limitations, state offices had to suffice.¹⁷²

3.3 NHRC's independence of personnel

The NHRC consists of 16 members as a council¹⁷³ made up of a retired judge of the Supreme Court, a representative from the Federal Ministry of Justice, Foreign and Internal Affairs, human rights organisations, media practitioners, legal practitioners and three others with a variety of interests and a secretary.¹⁷⁴

Upon the Attorney General of the Federation's recommendation and confirmation from the Senate, the President of the Republic of Nigeria appoints the members of the Council¹⁷⁵ who serve for a term of four years,¹⁷⁶ which may be renewed.¹⁷⁷ Except for the chairman and secretary-general, each member of the council works part-time and the council meets once a month for three days.¹⁷⁸ NHRC Council members may be removed by consultation with the National Assembly under section 4(1) of the 2010 Amended Act if the President determines that

170 Art 18(3) of OPCAT. See also, United Nations 'Principles relating to the status of national institutions (The Paris Principles)' Adopted 20 December 1993 by General Assembly resolution 48/134. https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-relating-status-national-institutions-paris accessed 14 August 2022. The Paris Principles required that each human rights institution must be competent and responsible and must be guaranteed independence. The Paris Principle 'Composition and guarantees of independence and pluralism principle' 2.

171 National Human Rights Commission https://www.nhrc.gov.ng/map.html (accessed 18 October 2022).

172 Mbelle (n 164) 43.

173 'NHRC governing council members inaugurated' 3 August 2021 https://nhrc.gov.ng/nhrc-media/news-and-events/192-nhrc-governing-council-members-inaugurated.html (accessed 18 October 2022).

174 'NHRC governing council members inaugurated' 3 August 2021 https://nhrc.gov.ng/nhrc-media/news-and-events/192-nhrc-governing-council-members-inaugurated.html (accessed 18 October 2022). The current council members are: Dr Salamatu Husseini Suleiman as the chairperson, Tony Ojukwu (Executive Secretary), Joseph Mmamel, Ahmad Fingilla, Kemi Asiwaju-Okenyodo, Abubakar Muhammed, Femi Okewo, Sunday Etim Daniel, Agabaidu Jideani, Nella Andem-Rabana, Azubuike Nwakewenta, Jamila Isah, Idayat Hassana, Jeddy Agba J, the representative of foreign affairs and Dafe Adesida, representing Ministry of Interior.

175 Sec 2(3)(b) of the NHRC amended 2010.

176 Sec 3(1) of the NHRC amended 2010.

177 As above.

178 Mbelle (n 164) 40.
it is not in the public interest for members to continue in their
positions.<fnref n="179" /> Specifically, the 2010 amended act stipulated that a
member of the council may be removed by the President on
confirmation of a simple majority of the Senate.<fnref n="180" /> Members may only
be removed by the President if they are incompetent, bankrupt,
convicted of a felony, or otherwise behave improperly.<fnref n="181" />

In terms of section 7 of the NHRC amended Act 2010, the President appoints the executive secretary to the Commission with approval from the Senate.<fnref n="182" /> The executive secretary acts as the chief executive officer and the accountant general of the commission – a legal practitioner with over 20 years of post-qualification experience in human rights cases?<fnref n="183" /> The executive secretary is appointed for five years and can be re-appointed for a second term based on the Attorney General's recommendations.<fnref n="184" /> He or she is in charge of the day-to-day running of the Commission.<fnref n="185" />

Prior to the NHRC amended Act 2010, the United Nations Special Representative of the Secretary-General, a human rights defender, visited Nigeria and raised the issue of the independence of the NHRC.<fnref n="186" /> Although it is based on a legal document, it cannot be said to be independent.<fnref n="187" /> This was apparent in various events in 2006. Bukhara Bello, the then executive secretary as a member of the NHRC Council, was removed from office by the then Minister of Justice on the allegation of criticising the national security agencies for the constant harassment and intimidation of journalists in the country.<fnref n="188" /> In 2009, the executive secretary Behind Ajani was removed from office by letter from the then Attorney General of the Federation.<fnref n="189" />

Section 8 gives the NHRC the power to appoint anybody it deems
fits and to transfer members of staff from the public service of the
Federation with the required skills to help and assist the NHRC.<fnref n="190" /> The
NHRC may determine an employee's remuneration, and has the power

<footnote n="179">179 Sec 4(2) of the NHRC as amended 2010.</footnote>

<footnote n="180">180 As above.</footnote>

<footnote n="181">181 As above.</footnote>

<footnote n="182">182 Sec 7(1)(c) NHRC as amended 2010.</footnote>

<footnote n="183">183 Sec 7(1)(a) NHRC as amended 2010.</footnote>

<footnote n="184">184 Sec 7(2) NHRC 2010 as amended.</footnote>

<footnote n="185">185 Sec 7(3) NHRC 2010 as amended.</footnote>

<footnote n="186">186 Frontline Protection of Human Rights Defenders 'Nigeria: defending human rights: Not everywhere not every right' International Fact-Finding Missions Report April 2010 at 18.</footnote>

<footnote n="187">187 Frontline Protection of Human Rights Defenders 'Nigeria: defending human rights: Not everywhere not every right' International Fact-Finding Missions Report April 2010 at 18.</footnote>

<footnote n="188">188 Amnesty International Nigeria: Government interference with the independence of the national human rights commission 26 June 2006 AFR 44/012/2006 https://www.amnesty.org/en/documents/afr44/012/2006/en/ (accessed 20 May 2022).</footnote>

<footnote n="189">189 As above.</footnote>

<footnote n="190">190 Sec 8(1) NHRC 2010 as amended.</footnote>