COHRE Railway Evictions Amicus Brief 2005

Amicus Curiae Brief of the Centre on Housing Rights and Evictions (COHRE) in support of: MOTION ON NOTICE FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS – ORDER 67 RULE 2 SUBRULE1 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE ACCRA A.D 2005 EMMANUEL K. ODURO & OTHERS C/O CENTER FOR PULCI INTEREST LAW (CEPIL) NO. F5/12 CANTONMENTS ROAD OSU, ACCRA

APPLICANTS

VERSUS 1.

ATTORNEY- GENERAL ATTORNEY - GENERAL’S OFFICE MINISTRY OF JUSTICE ACCRA

1ST RESPONDENT

2.

GHANA RAILWAY CORPORATION ACCRA

2ND RESPONDENT

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I.

Competency of COHRE

The Centre on Housing Rights and Evictions (COHRE) is an international human rights non-governmental organisation based in Geneva, Switzerland, with offices throughout the world including Accra, Ghana. COHRE has consultative status with the United Nations and Observer Status with the African Commission on Human and Peoples’ Rights. COHRE works to promote and protect the right to adequate housing for everyone, everywhere, including preventing or remedying forced evictions.

COHRE respectfully submits this amicus curiae brief in support of the Applicants in the above-mentioned case.

The COHRE ESC Rights Litigation Programme, the chief author of this amicus curiae brief, is located at: COHRE 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 U.S.A. The COHRE African Programme is located at: COHRE PRIVATE MAIL BAG CT 402 CANTOMENTS ACCRA GHANA II.

Facts

The facts articulated in the main Motion are incorporated by reference in this amicus curiae brief.

III.

Legal Analysis

THE GOVERNMENT OF GHANA IS LEGALLY BOUND TO RESPECT, PROTECT AND FULFIL THE RIGHT TO ADEQUATE HOUSING, INCLUDING THE PROHIBITION ON FORCED EVICTION. AS PLANNED, THE EVICTIONS WOULD VIOLATE THESE LEGAL OBLIGATIONS. As a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR),1 the Government of Ghana and its political subdivisions are legally obligated to respect, protect and fulfil the right to adequate housing, including the prohibition on forced evictions, as guaranteed under Article 11(1) of the ICESCR.2 Indeed, these 1

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976 (ratified by the Government of Ghana on 7 December 2000).

2 All human rights entail three general legal obligations on governments: the obligation to respect the right by refraining from violating that right; the obligation to protect the right by ensuring that non-State actors

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obligations include the duty to not interfere with persons who enjoy some level of housing as well as to protect everyone within its jurisdiction from forced evictions undertaken by third parties including State and Municipal authorities.

Article 11 of the ICESCR states: 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.3 The Committee on Economic, Social and Cultural Rights (Committee), mandated by the international community to monitor compliance with the ICESCR, has elaborated on the right to adequate housing in its General Comment No. 4 and its General Comment No. 7, both of which articulate the prohibition on forced evictions. General Comment No. 7 defines “forced eviction” as: The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.4 General Comment No. 4 states that: [Legal security of] tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owneroccupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. don’t violate the right; and the obligation to fulfil the right by promoting the right and providing the entitlements required by that right. See, e.g., General Comment No. 15 on the right to water, which states under the heading “Specific legal obligations” that “The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil,” and that “The obligation to respect requires that States parties refrain from interfering directly or indirectly with the … right,” that “The obligation to protect requires State parties to prevent third parties from interfering in any way with the enjoyment of the right,” and that “The obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide” and “requires States parties to adopt the necessary measures directed towards the full realization of the right.” Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2003), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 105 (2003).

3 International Covenant on Economic, Social and Cultural Rights, Art. 11, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976 (ratified by the Government of Ghana on 7 December 2000).

4 Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, 1997), para. 4, U.N. Doc. E/1998/22, annex IV at 113 (1998), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003).

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States Parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.5 Furthermore, General Comment No. 4 also states that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.”6 This conclusion has repeatedly been reaffirmed by the international community, and in particular the United Nations Commission on Human Rights which has twice stated that forced evictions are a gross violations of human rights, and in particular the right to adequate housing.7 Additionally, General Comment No. 7 requires that “States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders.”8 Relevant principles of international law expressed in General Comment No. 4 and the appropriate forms of legal or other protection expressed in General Comment No. 7 that apply in those exceptional circumstances where all feasible alternatives have been explored and thus the evictions are deemed lawful include those articulated in General Comment No. 7, which states that : Appropriate procedural protection and due process are essential aspects of all human rights but it is especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognised in both International Human Rights Covenants. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where 5

Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing (Sixth session, 1991), para. 8(a), U.N. Doc. E/1992/23, annex III at 114 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003).

6 Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing (Sixth session, 1991), para. 18, U.N. Doc. E/1992/23, annex III at 114 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003) (emphasis added).

7 See, Commission on Human Rights resolution 1993/77, UN Doc. E/C.4/RES/1993/77 (1993); Commission on Human Rights Resolution 2004/28, UN Doc. E/C.4/RES/2004/28 (2004).

8 Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, 1997), para. 14, U.N. Doc. E/1998/22, annex IV at 113 (1998), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003).

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groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.9 In any event, international human rights law binding upon the Government of Ghana states that: evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.10 Therefore, when read in concert, General Comments No. 4 and 7 provide a three part test which governments must follow with respect to evictions. First, the burden is on the Government to establish that “exceptional circumstances” justify the eviction. Second, “all feasible alternatives” must have been explored. Third, if the first two parts of the test are satisfied and the eviction is otherwise deemed lawful, the procedural protections as outlined in General Comment No. 7 must be followed. Finally, even if the evictions are otherwise deemed lawful under this three-part test, they must not render persons homeless and where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.

THE THREATENED EVICTIONS ARE PLANNED IN A DISCRIMINATORY MANNER IN VIOLATIONS OF THE PROHIBITION OF DISCRIMINATION AS RECOGNISED IN, INTER ALIA, THE INTERNATIONAL COVENANT ON ECONOMIC. SOCIAL AND CULTURAL RIGHTS. By singling out the Applicants for forced eviction and not applying the same standards to similarly situated persons and entities, the Government of Ghana is in violation of the prohibition on discrimination.

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights states that: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion,

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Id. At para. 16.

Id. at para. 17.

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political or other opinion, national or social origin, property, birth or other status.11 This non-discrimination clause has been interpreted broadly. For instance, the latest articulation of the scope of Article 2(2) by the Committee on Economic, Social and Cultural Rights states that: The obligation of States parties to guarantee that the right [at issue] is enjoyed without discrimination (Article. 2(2)), and equally between men and women (Article 3), pervades all of the Covenant obligations. The Covenant thus proscribes any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right [at issue].12 In the case at issue, the evictions discriminate on account of, inter alia, property status as well as other status such as poverty and degree or type of security of tenure.

THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ALSO PROSCRIBES FORCED EVICTIONS

Article 14, 16, and 18(1) of the African Charter on Human and People’s Rights guarantee, by implication, the right to adequate housing.

Article 14 protects the right to property, stating: The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.13 Article 16 states: 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.

2. States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when the are sick.14 11

International Covenant on Economic, Social and Cultural Rights, Art. 2(2), G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976 (ratified by the Government of Ghana on 7 December 2000).

12 Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twentyninth session, 2003), para. 13, U.N. Doc. E/C.12/2002/11 (2002), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 105 (2003).

13 African [Banjul] Charter on Human and Peoples’ Rights, Art. 14, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.

14 Id. at Art. 16.

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Article 18(1) State: The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.15 In Decision 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria (27 May 2002) the African Commission recognized that “the combined effect of Articles 14, 16, and 18(1) reads into the Charter a right to shelter or housing” including the prohibition on forced eviction.16 INTERNATIONAL HUMAN RIGHTS LAW, INCLUDING ART. 11 OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE PROVISIONS OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS, IS LEGALLY BINDING IN THE DOMESTIC LEGAL ORDER OF GHANA, INCLUDING POLITICAL SUB-DIVISIONS SUCH AS THE GA DISTRICT ASSEMBLY. Pursuant to Chapter VI, Article 35(4) of the Constitution of Ghana, “The State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person.”17 Additionally, pursuant to Chapter IV, Article 11(6) of the Constitution of Ghana, national laws must be interpreted or otherwise brought into consistency with the Constitution.18 This constitutional clause is consistent with the requirements of international law.19 For instance, General Comment No. 9 of the Committee on Economic, Social and Cultural Rights points out that the “central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein” and that “Covenant norms must be recognized in appropriate ways within the domestic legal order.”20 General Comment No. 9 goes on to articulate the requirement that “appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.”21 General Comment No. 9 also states that “legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals.”22

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Id. at Art. 18(1).

African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria (27 May 2002) at para. 60.

17 1992 Constitution of the Republic of Ghana, Chapter VI, Article 35(4).

18 See, id. At Chapter IV, Article 11(6).

19 Note also the common law principle that domestic legislation should be interpreted in a manner consistent with and that give effect to treaty obligations.

20 Committee on Economic, Social and Cultural Rights, General Comment 9, The domestic application of the Covenant (Nineteenth session, 1998), para. 2, U.N. Doc. E/C.12/1998/24 (1998), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 54 (2003).

21 Id. 22 Id. at para. 4.

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Additionally, the international legal obligations of the Government of Ghana are binding upon the political sub-divisions of Ghana, including the Ga District Assembly. Under international law, the conduct of an organ of a territorial governmental entity within a State - such as a city - is considered to be an act of that State.23 Hence, the State will be legally accountable if the municipal authorities do not comply with the State’s human rights obligations.

This principle is also reflected in Article 28 of the International Covenant on Economic, Social and Cultural Rights, which states that: The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.24 Furthermore, the Committee on Economic, Social and Cultural Rights, when considering the compliance of the Government of Canada with the ICESCR, stated that: The Committee, as in its previous review of Canada’s report, reiterates that economic and social rights should not be downgraded to “principles and objectives” in the ongoing discussions between the federal government and the provinces and territories regarding social programmes. The Committee consequently urges the Federal Government to take concrete steps to ensure that the provinces and territories are made aware of their legal obligations under the Covenant and that the Covenant rights are enforceable within the provinces and territories through legislation or policy measures and the establishment of independent and appropriate monitoring and adjudication mechanisms.25 IV.

CONCLUSION: THE THREATENED FORCED EVICTION OF PERSONS LIVING ALONG RAILWAY CORRIDORS OR RIGHTS-OF-WAY WOULD VIOLATE INTERNATIONAL AND CONSTITUTIONAL LAW BINDING UPON THE GOVERNMENT OF GHANA

The pending evictions, as planned, would violate the Government of Ghana’s legal obligations under international human rights law, as well as Constitutional law pursuant to, inter alia, Chapter VI, Article 35(4) of the Constitution of Ghana, for a number of reasons, including: (1) the evictions have not been deemed to meet the “exceptional circumstances” threshold by an independent and impartial tribunal; (2) all feasible alternatives to the planned eviction have not been considered; 23

Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Adopted by the International Law Commission in 2001, A/56/10, Article 4. Also, under international law, the conduct of an entity which is not an organ of the State but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the entity is acting in that capacity in the particular instance, Ibid., Article 5.

24 International Covenant on Economic, Social and Cultural Rights, Art. 28, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976 (ratified by the Government of Ghana on 7 December 2000).

25 United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations on the Government of Canada, UN Doc. E/C.12/1/Add.31 (4 December 1998).

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(3) no compensation is begin offered; (4) the affected community has not been genuinely consulted throughout the process; (5) alternative housing or adequate resettlement sites have not been provided; (6) the evictions are planned in a discriminatory manner; and (7) there have been to date inadequate provision of legal remedies.

Consequently, COHRE urges the Court to grant the remedies requested by the Applicants in order to prevent any further violations of their human rights as well as to prevent any further violations of the corresponding legal obligations of the Government of Ghana.

Respectfully submitted,

18 August 2005 ________ Date

______________________ Bret Thiele, Esq. Attorney at Law Senior Legal Officer and Coordinator, ESC Rights Litigation Programme Centre on Housing Rights and Evictions 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 U.S.A. tel/fax: +1-218-733-1370 e-mail: Bret@cohre.org

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