CHAPTER 3: ROLES AND RESPONSIBILITIES OF NHRIS
CASE STUDY: THE GROOTBOOM DECISION
The Grootboom decision of the South African Constitutional Court involved about 900 people living in inadequate
housing in Oostenberg in South Africa. Most had applied for low-cost housing, but were becoming increasingly
frustrated after many years of waiting with no response from authorities.
Desperate, they decided to occupy a vacant piece of private property across the road from the site that had been
earmarked for low-cost housing.
The owner of the property applied for and received a court magistrate’s order to evict the squatters and their
homes were destroyed. Now homeless, the community petitioned the High Court for an order for temporary
shelter until they could be permanently accommodated under a provincial housing plan. The government offered
access to a piece of land and some building materials, as well as access to basic services while they waited for
housing to become available. Subsequently, however, the government failed to honour its promise. The
community then took their case to the High Court, basing their arguments on Section 26 of the South African
Constitution, which states that:
Everyone has the right to have access to adequate housing; and the state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive realization of this right.
The court ruled [...] “that the community’s right to have access to adequate housing had indeed been violated...
[and] that a legislative or policy framework aimed at the progressive realization of social rights...and that it must be
comprehensive, coherent, balanced and flexible...Section 26 imposed a negative duty on states not to prevent or
impair the access to housing, as well as a positive obligation to create an enabling environment for the fulfilment
of this right. The state’s housing plan must respond to the needs of crisis situations, and may not exclude any
significant sector of society, especially vulnerable populations. The housing plan in this case did not meet these
standards, and therefore the government had a duty to rectify the situation.”
The implications for NHRIs are clear: addressing human
development from a rights-based perspective is not only
a matter of meeting development goals, or supporting
more equitable public sector budgeting: it is also about
enforceable rights that may be the subject of public
inquiries or of claims before the judiciary or other decision-makers, depending on the jurisdiction and powers
of the NHRIs in a given country. At a minimum, NHRIs
with these powers should be accepting complaints and
should have, or should be developing, the capacity to
deal with them.
3.10 Transitional Justice
Transitional justice refers to
“a range of processes and mechanisms associated
with society’s attempt to come to terms with a legacy
of large-scale past abuses in order to ensure accountability, serve justice and achieve reconciliation. These
may include both judicial and non-judicial mechanisms,
with varying levels of international involvement, or
none at all. Individual prosecutions, reparations, truthseeking, institutional reform, or a combination of these
functions, may form part of the processes.”33
Transitional justice efforts involving historical and long
term human rights violations pose particular difficulties for NHRIs, in part because of the historical aspects of
looking into matters for which the evidentiary record may
be weak or non-existent. Transitional justice also engages
a number of difficult political issues, including amnesty,
impunity and implications for current political stability.
Whether a NHRI has responsibility for transitional justice
will depend on its enabling statute or on other legislation
that may confer additional powers. Some NHRIs only have
the power to deal with matters that arise from the time
that the institution is created, while others have a broader
mandate to address past abuses. A number of NHRIs
have themselves been established as part of institutional
reform in the transitional justice process.
Report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, S/2004/616[0], paragraph 8.
33
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