Comparative Analysis of the Right to Housing in Ghana and South Africa

Abstract

The right to housing is an indispensable human right enshrined in some domestic and international legal instruments. Some jurisdictions' constitutions explicitly confer the right to housing as a legal entitlement on all persons.¹ Also, the right to housing is recognised as a fundamental right in international instruments such as the Universal Declaration of Human Rights (UDHR) of 1948² and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. ³ Underlying the right to housing is the idea that shelter and housing must be guaranteed, especially for those individuals in vulnerable groups of society. ⁴ However, as the United Nations Human Rights Office (OHCR) has noted, “too often violations of the right to housing occur with impunity. This is partly because, at the domestic level, housing is rarely treated as a human right, leaving individuals with little legal recourse to address such violations”.⁵ In addition to the recurring breach of the right to housing in many jurisdictions, housing and shelter in contemporary times have been largely commodified. ⁶ The commodification of housing is increasingly impeding accessibility, affordability and the general practical realisation of the right in many countries, especially African countries.⁷ The antidote, which many believe is key to ensuring adequate housing, is implementing this human right through appropriate government policy and programmes, including national housing strategies that actualise the legal entitlements enshrined in the ICESCR and other international instruments. ⁸ Essentially, giving effect to the right to housing requires a carefully mapped-out policy framework through which the very tenets of the right (affordability and accessibility) can be achieved.

Notwithstanding that in some countries, the right to housing is a clear constitutional duty imposed on the government, practically realising the right to housing requires governments in Africa to have the financial wherewithal to establish a policy or regulatory framework that meets the herculean task of providing affordable, adequate and accessible housing to the marginalised and persons in vulnerable groups. ⁹ Aside from the financial strength a country a government must possess to actualise the right to housing, the efficacy of the right to housing seems to be hinged on the governmental and political commitment. ¹⁰ The situation is dire in countries where the right to housing is not positively expressed as a constitutional right or aspiration that ought to be achieved by governments. This is because, without an explicit constitutional mandate or provision, the practical realisation of the right to housing is hinged on political expediency or preference and the availability of funds. A typical case is the Fourth Republican Constitution of the Republic of Ghana of 1992 (hereafter the “1992 Constitution of Ghana”).

The 1992 Constitution ushered Ghana into its Fourth Republic and has been a bedrock of enhancing the respect for fundamental rights and freedom, the rule of law and democracy. ¹¹ Through the 1992 Constitution, the respect for the fundamental rights and freedoms has been entrenched. ¹² The 1992 Constitution mandates that all persons (natural and artificial persons), government institutions, and the arms of government put in place mechanisms that give effect to the realisation of the fundamental human rights and freedoms of all persons in Ghana.¹³ The 1992 Constitution contains a host of fundamental rights and freedoms, such as the right to personal liberty, the right to human dignity, prohibition against discrimination, among others. It also contains several social, cultural, and economic rights, which the Constitution describes as embodying the aspirational goals of successive governments in Ghana. ¹⁴ Although there is an express constitutional commitment to uphold various rights and freedoms of all Ghanaians, the right to housing has been one of the rights often relegated to the background and not fully emphasised in statutes and case law.