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 47