Property Clause Discussion Document (Idasa)

Property clause discussion document

LAW SOCIETY OF ZIMBABWE

Law Society of Zimbabwe:

Property clause discussion document

For use in the Constitutional Parliamentary Select Committee (COPAC) discussions on constitutional reform.

Prepared by the Legal Resources Centre following discussions with the Law Society of Zimbabwe and Idasa (Institute for Democracy in Africa).

kalexander

Sticky Note

I know LRC phrased as such but the process was quicker than anyone thought - could we say "For input into the Constitutional Parl Select Committee .....reform AND ongoing work by the Law Society on the constitutional principles related to property"

kalexander

Sticky Note

Should we try to indicate these were in 2011? So actually the doc was better timed, we got it to the process, just publishing now given Idasa funding vagaries :)

Published by Idasa, 357 Visagie Street, Pretoria 0001

© Idasa 2012

First published 2012

1

TABLE OF CONTENTS

I. Introduction II. Preamble III. The Right to Hold Property IV. Protection Against Expropriation Deprivation Expropriation V. Restitution Clause VI. Security of Tenure Clause VII. Conclusion VIII. Proposed Formulation: Preamble IX. Proposed Formulation: Property Clause

Appendix A: Foreign Constitutional Property Clauses 1. South Africa 2. India 3. Namibia 4. Australia 5. America 6. Germany 7. Uganda 8. Brazil 9. Japan 10. France 11. Argentina 12. Sweden 13. Switzerland

2 Law Society of Zimbabwe: Property clause discussion document

14. Ghana 15. Finland 16. Iceland 17. Kenya 18. Italy 19. Nigeria 20. Turkey

Appendix B: Property Clauses Contained in International Instruments 1. Universal Declaration on Human Rights 2. African (Banjul) Charter on Human and Peoples’ Rights 3. European Convention on Human Rights 4. Inter-American Charter on Human Rights 5. Convention on the Elimination of All Forms of Discrimination Against Women6. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 7. United Nations Declaration on the Rights of Indigenous Peoples 8. Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE

Appendix C: The Pinheiro Principles

3

I. INTRODUCTION

1. !is document aims to provide a compact resource for discussion and drafting of possible amendments to the property and land clauses in the draft Zimbabwean Constitution. In it, we discuss the right to hold property and provide an example of an attempt to construct a simple, forward looking property clause before separately discussing security of tenure. We then address further issues relating to land reform, includ-ing providing resources relating to restitution and expropriation. !ree appendices follow providing an overview of property clauses in com-parative jurisdictions, detailing principles relating to property clauses in various international and regional instruments, and indicating the emerging customary international law right to restitution.

2. In this document, we provide support for an approach to the prop-erty and land clauses in the Zimbabwean Constitution that draws from comparative approaches, international law and the Zimbabwean context.

3. We propose a clause containing the following elements:

– Preamble: language to be contained in the preamble of the Constitu-tion addressing property and land;

– A clause entrenching the right to hold property without distinction based on status;

– A clause protecting against arbitrary deprivation of property;

– A clause regulating expropriation in the public interest and for the public purpose, setting out a framework for expropriation that ena-bles it be done where necessary but subject to appropriate safeguards, including requirements of procedural fairness and compensation. !is clause will also provide the framework for land resettlement/redistribution programmes.


– A clause enabling the state to implement a restitution programme;

– A clause requiring legislation to provide for tenure reform to improve security of tenure for vulnerable groups, in particular farm-workers, those holding land under customary law and bene"ciaries of land reform.

4. In each sub-section below, we discuss one of these elements by identifying:

– !e current draft clause(s);

– Our proposal as to the formulation of a new clause;

– A discussion of the issues arising in the context of the particular sub-clause and why we propose its inclusion.

II. PREAMBLE

5. !e Law Society of Zimbabwe (“LSZ”) has produced a draft constitu-tion (“LSZ draft”) aimed at assisting the Constitutional Parliamentary Select Committee (“COPAC”) in its own draft of a new Zimbabwean Constitution. Excerpts from the LSZ draft are quoted below, followed by discussion or proposed amendments. !e preamble to the LSZ draft states:

“Preamble

WE, the people of Zimbabwe,

In exercise of our natural, inalienable and sovereign right to establish a system of governance that is open, just, democratic and accountable to the people;

Desirous of creating a society based on the principles of inherent dignity of human life, equality, peace and social justice, democracy and good

5

governance, freedom, respect for fundamental human rights, rule of law and social and economic progress;

Recalling our historic heroic and continuing struggles against colonial-ism, racism, tribalism, oppression against women, dictatorship and economic and political domination and resolving to cherish and protect the gains of these struggles;

Acknowledging that before and after independence gross human rights violations were committed against the people of Zimbabwe;

In solemn commitment to the future of Zimbabwe as a nation of people with diverse races, ethnicities, languages and cultures and guaranteeing the development of all people of Zimbabwe in national harmony and in a spirit of friendship and peace with all peoples of the world,

ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTI-TUTION AS THE SUPREME AND FUNDAMENTAL LAW OF OUR LAND.”

PROPOSAL:

Preamble (to be located in the Preamble to the Constitution, not as a preamble to the property clause)

To incorporate the tone of the wording contained in section 16A (containing concepts of citizenship, nationhood, land belonging to all who live in Zimbabwe and reference to post-independence land reform e#orts) and to include reference to stabilisation of the process, we propose the following:1

“Recognising that under colonial domination the people of Zimbabwe were unjusti!ably dispossessed of their land, that the Zimbabwean people have taken measures to redress those wrongs, and that land ownership remains one of the key challenges of the Zimbabwean people, this Constitution a"rms that the land of Zimbabwe belongs to all who


live in it. #is Constitution aims to stabilise and regularise the current system of land ownership, redress continuing inequalities in land owner-ship and past unjust deprivations of land, and ensure security of tenure for all Zimbabweans.”

III. THE RIGHT TO HOLD PROPERTY

6. !e right to hold property is contained in section 32 of the LSZ draft:

“32: Property rights

(1) Everyone has the right, in any part of Zimbabwe, to acquire, hold and dispose of all forms of property, either individually or in association with others, irrespective of their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, dis-ability or natural di$erence or condition or political, economic, social or other status.”

PROPOSAL:

Right to hold property without distinction as to status

“(1): Everyone has the right, in any part of Zimbabwe, to acquire, hold and dispose of all forms of property, either individually or in association with others.”

“(2): No one may be deprived of their right to hold property on the basis of their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, disability or natural di$erence or condition or political, economic, social or other status.”

7

DISCUSSION:

7. !e provision of property rights proposed above follows a trend com-mon across the world. Property clauses can be framed either as a posi-tive right to hold property or as a negative right not to be deprived of property. !e proposed clause 32(1) is framed as a positive right, whereas 32(2) below is framed negatively.

8. Examples of the global adoption of property clauses in line with the above proposal are contained in Appendix A to this document. Appen-dix B provides further examples of the formulations adopted in various international and regional legal instruments.

9. !e LSZ draft clause above deals with property rights in general, opting not to distinguish between these rights and speci"c rights relating to land (especially, agricultural land). Land is seen as a subset or special category of property. !is is in line with the approach adopted in the South African Constitution.2 !e current Constitution, the Kariba Draft,3 NCA Draft4 and LSZ draft all deal with land in this way. !e Kariba draft contains a separate section (section 57) discussing agricul-tural land in the context of resettlement but nonetheless treats land as a special category of property in section 56.

IV. PROTECTION AGAINST EXPROPRIATION

10. Section 32(2) of the LSZ draft gives further substance to the positive right to hold property discussed in section 32(1) by setting out the circumstances under which is it lawful to deprive a person of prop-erty. It thus frames the right negatively to draw out further aspects of its content:


32: Property Rights

(2) No one may be compulsorily deprived of their property or of any interest over property, except where the following conditions are satis!ed— (a) the deprivation is necessary or expedient for any of the following reasons— (i) in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement; (ii) in order to secure the development or utilisation of that or other property for a purpose bene!cial to the community; (iii) in order to secure the development or utilisation of the mineral resources of Zimbabwe; and (b) provision is made by law— (i) for the prompt payment of adequate compensation; and (ii) ensuring that anyone a$ected by the deprivation has a right of access to the High Court, either directly or on appeal from another tribunal or authority, for determining—

A. the existence, nature and value of their interest in the property concerned;

B. the legality of the deprivation; and

C. the amount of any compensation to which they are entitled, and for obtaining prompt payment of that compensation.

PROPOSAL:

Deprivation

“(3) No one may be compulsorily deprived of property except in terms of legislation that –

9

(a) Provides a justi!able reason relating to the public interest or public purposes for the deprivation; and (b) Provides for notice of the deprivation to any person with interest in the property and an opportunity to make representations.”

Expropriation

“(4) #e state has the right to expropriate property only if – (a) it acts in terms of legislation; (b) the expropriation is for a public purpose or in the public interest, which includes land reform in terms of the Constitution; (c) it pays compensation which has been agreed by the persons a$ected by the decision. In the absence of agreement on compensation the state must pay just and equitable compensation having considered all relevant factors, including – (i) the purpose of the expropriation; (ii) the historical use and ownership of the property; (iii) market value; and (iv) the current use of the property; and (d) the reason for and the procedure followed in the expropriation, and the amount of compensation, are subject to review by the High Court, which must take place without any unreasonable delay.

DISCUSSION:

11. A conceptual distinction should be maintained between deprivation of property, and the expropriation of property, where expropriation is explicitly aimed at furthering a public purpose or interest and includes the notion of fair compensation. “Deprivation” is generally given a very wide meaning in international and comparative law, including many standard land use restrictions. Requiring compensa-tion for all deprivations might impose an undue burden on the state.


12. In terms of transitional arrangements, the objective should be "nality, aiming to prevent successive governments from being able to abuse the land issue. Transitional arrangements in respect of the following should be considered and provided for:

a. Land audit in terms of GPA b. Land reform generally c. Restitution (addressing both colonial dispossession and post-2000

dispossession)

13. We envisage that the proposed Land Commission (see discussion below) would play a key role in administering the transitional arrangements. !is is in line with the proposed body’s functions, which broadly stated are based on ensuring the equitable distribu-tion of resources and the accountability of Government during the process.

14. !e clauses entitling those a#ected to compensation for expropria-tion (suggested as clause 4(e) above) and relating to restitution and tenure of security should also inform the content of the transitional arrangements.

15. Structurally, the transitional arrangements would best be housed in a schedule to the "nal Constitution. !e transitional arrangements would require extensive political negotiation and empirical research to develop a transitional framework that would be politically accept-able and practically appropriate. We therefore do not make speci"c proposals for textual provisions in this regard.

V. RESTITUTION CLAUSE

16. !e LSZ draft does not directly address restitution and redistribution in the Property Clause. But it does include the following clause on a Land Commission.

11

Section 162:

(1) #ere is a Land Commission consisting of a Chairperson and !ve other members appointed by the President in accordance with section 156.

(2) Members of the Land Commission are appointed for a !ve-year term and may be re-appointed for one further such term, but no one may be appointed to or serve on the Commission after he or she has been a member for one or more periods, whether continuous or not, amounting to ten years.

(3) #e functions of the Land Commission are – a. To supervise and regulate the administration of land in Zimbabwe that is vested in the State; b. To make recommendations on the acquisition of private land for the resettlement of persons requiring land; c. To make recommendations to Parliament and public bodies to ensure the adoption and implementation of sustainable environmental policies in Zimbabwe; d. To monitor the Government’s actions in matters relating to land and report on them to Parliament; e. To ensure the equitable distribution of resources; and f. To exercise any other functions that are conferred or imposed on the Commission by an Act of Parliament.

PROPOSAL:

17. We propose that the property clause also include a sub-section estab-lishing a constitutional basis for restitution. !is provision will be permissive, empowering the state to implement a restitution pro-gramme but not requiring it. We propose the following:


Restitution

“(5) #e state may take measures to provide redress to people who were dispossessed of their land without receiving just and equitable compensation.

(6) #e measures may include one or more of the following: a. restitution of the land; b. compensation; or c. providing alternative land.”

DISCUSSION:

18. We consider it appropriate to distinguish three types of land reform: redistribution, restitution and tenure reform.

a. Redistribution is usually referred to in the Zimbabwean context as ‘resettlement’. It involves attempting to redress historical injus-tices and imbalances by implementing programmes to achieve more equitable patterns of land ownership in society. In the Zimbabwean context, this involves providing greater access to land to indigenous Zimbabweans. However, redistribution is a broad concept which does not necessarily require the restoration of speci"c land to the people who were unjustly removed from it. Redistribution can be achieved using the expropriation clause discussed above.

b. Restitution involves providing relief to people who were deprived of their land. It is compensatory in nature. It may involve restoring land to those who were deprived, the payment by the state of com-pensation or providing alternative land, or some combination of these remedies. !e compensation is not required under international law or in comparative examples to be the full market value of the land that was lost.

c. Tenure reform is discussed in more detail below.

13

19. !ere is an emerging right to restitution being developed in the context of customary international law. An example providing an overview of this development is contained in the Pinheiro Principles (especially Principle 2). We have attached the Pinheiro Principles to this document as “Appendix C” for reference.

20. We believe that the issue of redistribution is su$ciently catered for in the section dealing with expropriation and have thus not revisited it here. !is also minimises the risk of internal inconsistencies in the draft Constitution.

VI. SECURITY OF TENURE CLAUSE

21. !e LSZ draft does not contain a provision on security of tenure.

PROPOSAL:

Security of tenure

“(7) #e state must adopt legislation within two years of the adoption of this Constitution to protect and promote the security of tenure of vulner-able groups, particularly farmworkers and persons holding customary rights in land.”

DISCUSSION:

22. Tenure reform is important in the Zimbabwean context because of the insecure tenure that many categories of Zimbabweans currently experience. !e range of tenure challenges includes the following:

a. Farm workers often lack legally enforceable rights to the land. b. Customary law rights in land are often insecure and require consti-

tutional recognition. !is is important to protect those communities who regulate access to land in accordance with customary norms.


c. !e recent land reform programme has left the bene"ciaries of land reform with insecure tenure in resettled land.

23. Our proposal is to impose a constitutional obligation on the state to pass legislation providing for tenure reform within a short but reasonable period of two years. !e transitional provisions could cater for the possibility of the failure of the state to pass the required legislation.

VII. CONCLUSION

24. We have considered the various draft texts and the current Constitu-tion and developed the proposals set out above.

25. Each proposal is based on relevant comparative approaches, in par-ticular in other African constitutions, relevant international law, including the African (Banjul) Charter and the speci"c demands of the Zimbabwean context.

26. !e formulation of the preamble and the "nal property clause that we propose, consolidating the various sub-sections discussed above, are set out on the pages that follow.

LEGAL RESOURCES CENTRE5

27 FEBRUARY 20126

15

VIII. PROPOSED FORMULATION: PREAMBLE

Preamble

Recognising that under colonial domination the people of Zimbabwe were unjusti!ably dispossessed of their land, that the Zimbabwean people have taken measures to redress those wrongs, and that land ownership remains one of the key challenges of the Zimbabwean people, this Constitution a"rms that the land of Zimbabwe belongs to all who live in it. #is Constitution aims to stabilise and regularise the current system of land ownership, redress continuing inequalities in land owner-ship and past unjust deprivations of land, and ensure security of tenure for all Zimbabweans.

IX. PROPOSED FORMULATION: PROPERTY CLAUSE

SECTION 32: PROPERTY

(1) Everyone has the right, in any part of Zimbabwe, to acquire, hold and dispose of all forms of property, either individually or in association with others.

(2) No one may be deprived of their right to hold property on the basis of their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, disability or natural di#erence or condition or political, economic, social or other status.

(3) No one may be compulsorily deprived of property except in terms of legislation that –

(a) provides a justi"able reason relating to the public interest or public purposes for the deprivation; and


(b) provides for notice of the deprivation to any person with interest in the property and an opportunity to make representations.

(4) !e state has the right to expropriate property only if – (a) it acts in terms of legislation; (b) the expropriation is for a public purpose or in the public interest,

which includes land reform in terms of the Constitution; (c) it pays compensation which has been agreed by the persons

a#ected by the decision. In the absence of agreement on compen-sation the state must pay just and equitable compensation having considered all relevant factors, including –

(i) the purpose of the expropriation; (ii) the historical use and ownership of the property; (iii) market value; and (iv) the current use of the property; and (d) the reason for and the procedure followed in the expropriation,

and the amount of compensation, are subject to review by the High Court, which must take place without any unreasonable delay.

(5) !e state may take measures to provide redress to people who were dispossessed of their land without receiving just and equitable compensation.

(6) !e measures may include one or more of the following: (a) restitution of the land; (b) compensation; or (c) providing alternative land.

(7) !e state must adopt legislation within two years of the adoption of this Constitution to protect and promote the security of tenure of vulnerable groups, particularly farmworkers and persons holding customary rights in land.

17

X. APPENDIX A: FOREIGN CONSTITUTIONAL PROPERTY CLAUSES

1. SOUTH AFRICA

25. PROPERTY

1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

2. Property may be expropriated only in terms of law of general application

(a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and

manner of payment of which have either been agreed to by those a#ected or decided or approved by a court.

3. !e amount of the compensation and the time and manner of payment must be just and equitable, re&ecting an equitable balance between the public interest and the interests of those a#ected, having regard to all relevant circumstances, including

(a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition

and bene"cial capital improvement of the property; and (e) the purpose of the expropriation.

4. For the purposes of this section


(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and

(b) property is not limited to land.

5. !e state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

8. No provision of this section may impede the state from taking legisla-tive and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

9. Parliament must enact the legislation referred to in subsection (6).

2. INDIA

CHAPTER IV. RIGHT TO PROPERTY

300A. Persons not to be deprived of property save by authority of law.

19

3. NAMIBIA

ARTICLE 16

(1) All persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.

(2) !e State or a competent body or organ authorised by law may expropriate property in the public interest subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament.

4. AUSTRALIA

51. !e Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

…

(xxxi.) !e acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

5. AMERICA

FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in


cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same o#ense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

14TH AMENDMENT

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

6. GERMANY

(1) Property and the right of inheritance shall be guaranteed. !eir con-tent and limits shall be de"ned by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those a#ected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.

21

7. UGANDA

XI (iii) In furtherance of social justice, the State may regulate the acquisi-tion, ownership, use and disposition of land and other property, in accord-ance with the Constitution.

26. PROTECTION FROM DEPRIVATION OF PROPERTY.

(1) Every person has a right to own property either individually or in association with others.

(2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the follow-ing conditions are satis"ed—

(a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public moral-ity or public health; and

(b) the compulsory taking of possession or acquisition of property is made under a law which makes provision for—

(i) prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and

(ii) a right of access to a court of law by any person who has an interest or right over the property.

237. LAND OWNERSHIP.

Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this Constitution.

Notwithstanding clause (1) of this article—

the Government or a local government may, subject to article 26 of this Constitution, acquire land in the public interest; and the conditions gov-erning such acquisition shall be as prescribed by Parliament;


8. BRAZIL

Article 5. All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms:

…

XXII – the right of property is guaranteed;XXIII – property shall observe its social function;XXIV – the law shall establish the procedure for expropriation for public necessity or use, or for social interest, with fair and previous pecuniary compensation, except for the cases provided in this Constitution;XXV – in case of imminent public danger, the competent authority may make use of private property, provided that, in case of damage, subsequent compensation is ensured to the owner;

9. JAPAN

ARTICLE 29:

!e right to own or to hold property is inviolable.

2) Property rights shall be de"ned by law, in conformity with the public welfare.

3) Private property may be taken for public use upon just compensation therefor.

23

10. FRANCE

ARTICLE 34.

Statutes shall determine the rules concerning:

…

– systems of ownership, property rights and civil and commercial obligations;

11. ARGENTINA

First Part

CHAPTER I: DECLARATIONS, RIGHTS AND GUARANTEES

Section 14. – All the inhabitants of the Nation are entitled to the fol-lowing rights, in accordance with the laws that regulate their exercise, namely: to work and perform any lawful industry; to navigate and trade; to petition the authorities; to enter, remain in, ...travel through, and leave the Argentine territory; to publish their ideas through the press without previous censorship; to make use and dispose of their property; to associate for useful purposes; to profess freely their religion; to teach and to learn.

Section 17. – Property may not be violated, and no inhabitant of the Nation can be deprived of it except by virtue of a sentence based on law. Expropriation for reasons of public interest must be authorized by law and previously compensated. Only Congress levies the taxes mentioned in Section 4. No personal service can be requested except by virtue of a law or sentence based on law. Every author or inventor is the exclusive owner of his work, invention, or discovery for the term granted by law. !e con"scation of property is hereby abolished forever from the Argen-tine Criminal Code. No armed body may make requisitions nor demand assistance of any kind.


Section 20. – Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profes-sion; own real property, buy and sell it; navigate the rivers and coasts; prac-tice freely their religion; make wills and marry under the laws. !ey are not obliged to accept citizenship nor to pay extraordinary compulsory taxes. !ey may obtain naturalization papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic.

CHAPTER LV: POWERS OF CONGRESS

Section 75.- Congress is empowered:

18. – To provide for the prosperity of the country, for the advance and welfare of all the provinces, and for the progress of education, drawing up general and university educational plans, and promoting industry, immi-gration, the construction of railways and navigable canals, the colonization of government-owned lands, the introduction and establishment of new industries, the imports of foreign capital, and the exploration of inland rivers, through laws protecting these aims and through temporary grants of privileges and stimulating rewards.

12. SWEDEN

PROTECTION OF PROPERTY AND THE RIGHT OF PUBLIC ACCESS

Art. 15. !e property of every individual shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to the public institutions or to a private subject, or tolerate restriction by the public institutions of the use of land or build-ings, other than where necessary to satisfy pressing public interests. ??A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed full compensation for his or her loss. Compensation shall also be guaranteed to a person whose use of

25

land or buildings is restricted by the public institutions in such a manner that ongoing land use in the a#ected part of the property is substantially impaired, or injury results which is signi"cant in relation to the value of that part of the property. Compensation shall be determined according to principles laid down in law. ??In the case of limitations on the use of land or buildings on grounds of protection of human health or the environ-ment, or on grounds of safety, however, the rules laid down in law apply in the matter of entitlement to compensation.??Everyone shall have access to the natural environment in accordance with the right of public access, notwithstanding the above provisions.

13. SWITZERLAND

ART. 26: GUARANTEE OF OWNERSHIP

1. !e right to own property is guaranteed.

2. !e compulsory purchase of property and any restriction on ownership that is equivalent to compulsory purchase shall be compensated in full.

14. GHANA

18. (1) Every person has the right to own property either alone or in association with others.

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and demo-cratic society for public safety or the economic well-being of the country, for the protection of the rights or freedoms of others.

20. (1) No property of any description, or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satis"ed...


15. FINLAND

CHAPTER 2 – BASIC RIGHTS AND LIBERTIES

SECTION 15 – PROTECTION OF PROPERTY

!e property of everyone is protected.

Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.

16. ICELAND

Article 72: !e right of private ownership shall be inviolate. No one may be obliged to surrender his property unless required by public interests. Such a measure shall be provided for by law, and full compensation shall be paid. !e right of foreign parties to own real property interests or shares in business enterprises in Iceland may be limited by law.

17. KENYA

40. (1) Subject to Article 65, every person has the right, either individu-ally or in association with others, to acquire and own property––

(a) of any description; and (b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds speci"ed or contemplated in Article 27 (4).

27

(3) !e State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) !e State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) !e rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

18. ITALY

ART. 42

Property is public or private. Economic assets may belong to the State, to public bodies or to private persons. Private property is recognised and guaranteed by the law, which prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social function and make it acces-sible to all.


In the cases provided for by the law and with provisions for compensation, private property may be expropriated for reasons of general interest. !e law establishes the regulations and limits of legitimate and testamentary inheritance and the rights of the State in matters of inheritance.

ART. 44

For the purpose of ensuring the rational use of land and equitable social relationships, the law imposes obligations and constraints on private ownership of land; it sets limitations to the size of property according to the region and the agricultural area; encourages and imposes land recla-mation, the conversion of latifundia and the reorganisation of farm units; and assists small and medium-sized properties. !e law makes provisions for mountain areas.

19. NIGERIA

43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

44. (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or inter-est in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –

(a) requires the prompt payment of compensation therefore and (b) gives to any person claiming such compensation a right of access

for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdic-tion in that part of Nigeria.

(2) Nothing in subsection (1) of this section shall be construed as a#ecting any general law.

29

(a) for the imposition or enforcement of any tax, rate or duty;

(b) for the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an o#ence;

(c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.

(d) relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporate bodies in the course of being wound-up;

(e) relating to the execution of judgements or orders of court;

(f ) providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;

(g) relating to enemy property;

(h) relating to trusts and trustees;

(i) relating to limitation of actions;

(j) relating to property vested in bodies corporate directly established by any law in force in Nigeria;

(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;

(l) providing for the carrying out of work on land for the purpose of soil-conservation; or

(m) subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on


any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.

(3) Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

20. TURKEY

XII. PROPERTY RIGHTS

Article 35. Everyone has the right to own and inherit property. !ese rights may be limited by law only in view of public interest. !e exercise of the right to own property shall not be in contravention of the public interest.

31

XI. APPENDIX B: PROPERTY CLAUSES CONTAINED IN INTERNATIONAL INSTRUMENTS

1. UNIVERSAL DECLARATION ON HUMAN RIGHTS

Article 17:

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

2. AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES’ RIGHTS

ARTICLE 13:

1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

2. Every citizen shall have the right of equal access to the public service of his country.

3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

ARTICLE 14:

!e 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.


3. EUROPEAN CONVENTION ON HUMAN RIGHTS

Convention for the Protection of Human Rights and Fundamental Freedoms

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms

ARTICLE 1: PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

!e preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

4. INTER-AMERICAN CHARTER ON HUMAN RIGHTS

ARTICLE 21: RIGHT TO PROPERTY

1. Everyone has the right to the use and enjoyment of his property. !e law may subordinate such use and enjoyment to the interest of society.

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.

33

5. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

ARTICLE 16

1. States Parties shall take all appropriate measures to eliminate discrimi-nation against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

…

(h) !e same rights for both spouses in respect of the ownership, acqui-sition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

6. INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES

ARTICLE 15

No migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under the legislation in force in the State of employment, the assets of a migrant worker or a member of his or her family are expro-priated in whole or in part, the person concerned shall have the right to fair and adequate compensation.


7. UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

UNGA RESOLUTION 61/295

Article 8 …

2. States shall provide e#ective mechanisms for prevention of, and redress for:

… (b) Any action which has the aim or e#ect of dispossessing them

of their lands, territories or resources;

8. DOCUMENT OF THE COPENHAGEN MEETING OF THE CONFERENCE ON THE HUMAN DIMENSION OF THE CSCEConference on Security and Co-operation in Europe (CSCE); Organisa-tion for Security and Co-operation in Europe (OSCE)

(9) !e participating States rea$rm that…

(9.6) — everyone has the right peacefully to enjoy his property either on his own or in common with others. No one may be deprived of his property except in the public interest and subject to the conditions provided for by law and consistent with international commitments and obligations.

35

XII. APPENDIX C: THE PINHEIRO PRINCIPLES

UNITED NATIONS PRINCIPLES ON HOUSING AND PROPERTY RESTITUTION FOR REFUGEES AND DISPLACED PERSONS – THE PINHEIRO PRINCIPLES

PREAMBLE

Recognizing that millions of refugees and displaced persons worldwide continue to live in precarious and uncertain situations, and that all refu-gees and displaced persons have a right to voluntary return, in safety and dignity, to their original or former habitual homes and lands,

Underscoring that voluntary return in safety and dignity must be based on a free, informed, individual choice and that refugees and displaced persons should be provided with complete, objective, up-to-date and accurate information, including on physical, material and legal safety issues in countries or places of origin,

Rea$rming the rights of refugee and displaced women and girls, and recognizing the need to undertake positive measures to ensure that their rights to housing, land and property restitution are guaranteed,

Welcoming the many national and international institutions that have been established in recent years to ensure the restitution rights of refugees and displaced persons, as well as the many national and international laws, standards, policy statements, agreements and guidelines that have recog-nized and rea$rmed the right to housing, land and property restitution,

Convinced that the right to housing, land and property restitution is essential to the resolution of con&ict and to post-con&ict peace-building, safe and sustainable return and the establishment of the rule of law, and that careful monitoring of restitution programmes, on the part of interna-


tional organizations and a#ected States, is indispensable to ensuring their e#ective implementation,

Convinced also that the implementation of successful housing, land and property restitution programmes, as a key element of restorative justice, contributes to e#ectively deterring future situations of displacement and building sustainable peace.

SECTION I.

SCOPE AND APPLICATION

Principle 1.

Scope and application

1.1 !e Principles on housing and property restitution for refugees and displaced persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and tech-nical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.

1.2 !e Principles on housing and property restitution for refugees and displaced persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who &ed across national borders but who may not meet the legal de"nition of refugee (hereinafter “refugees and displaced persons”)who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.

37

SECTION II.

THE RIGHT TO HOUSING AND PROPERTY RESTITUTION

Principle 2.

#e right to housing and property restitution

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.

2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restora-tive justice. !e right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refu-gees and displaced persons entitled to housing, land and property restitution.10

SECTION III.

OVERARCHING PRINCIPLES

Principle 3.

#e right to non-discrimination

3.1 Everyone has the right to be protected from discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status.

3.2 States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law.


Principle 4.

#e right to equality between men and women

4.1 States shall ensure the equal right of men and women, and the equal right of boys and girls, to housing, land and property restitution. States shall ensure the equal right of men and women, and the equal right of boys and girls, inter alia, to voluntary return in safety and dignity, legal security of tenure, property ownership, equal access to inheritance, as well as the use, control of and access to housing, land and property.

4.2 States should ensure that housing, land and property restitution pro-grammes, policies and practices recognize the joint ownership rights of both male and female heads of the household as an explicit com-ponent of the restitution process, and that restitution programmes, policies and practices re&ect a gender-sensitive approach.

4.3 States shall ensure that housing, land and property restitution pro-grammes, policies and practices do not disadvantage women and girls. States should adopt positive measures to ensure gender equality in this regard.

Principle 5.

#e right to be protected from displacement

5.1 Everyone has the right to be protected against being arbitrarily dis-placed from his or her home, land or place of habitual residence.

5.2 States should incorporate protections against displacement into domestic legislation, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or e#ective control.

39

5.3 States shall prohibit forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary con"scation or expropriation of land as a punitive measure or as a means or method of war.

5.4 States shall take steps to ensure that no one is subjected to displace-ment by either State or non-State actors. States shall also ensure that individuals, corporations, and other entities within their legal jurisdiction or e#ective control refrain from carrying out or other-wise participating in displacement.

Principle 6.

#e right to privacy and respect for the home

6.1 Everyone has the right to be protected against arbitrary or unlawful interference with his or her privacy and his or her home.

6.2 States shall ensure that everyone is provided with safeguards of due process against arbitrary or unlawful interference with his or her privacy and his or her home.

Principle 7.

#e right to peaceful enjoyment of possessions

7.1 Everyone has the right to the peaceful enjoyment of his or her possessions.

7.2 States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law. Whenever possible, the “interest of society” should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.


Principle 8.

#e right to adequate housing

8.1 Everyone has the right to adequate housing.

8.2 States should adopt positive measures aimed at alleviating the situa-tion of refugees and displaced persons living in inadequate housing.

Principle 9.

#e right to freedom of movement

9.1 Everyone has the right to freedom of movement and the right to choose his or her residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, area or region. Similarly, no one shall be arbitrarily or unlawfully forced to leave a certain territory, area or region.

9.2 States shall ensure that freedom of movement and the right to choose one’s residence are not subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with international human rights, refugee and humanitarian law and related standards.

SECTION IV.

THE RIGHT TO VOLUNTARY RETURN IN SAFETY AND DIGNITY

Principle 10.

#e right to voluntary return in safety and dignity

10.1 All refugees and displaced persons have the right to return voluntar-ily to their former homes, lands or places of habitual residence, in safety and dignity. Voluntary return in safety and dignity must be

41

based on a free, informed, individual choice. Refugees and displaced persons should be provided with complete, objective, up to-date, and accurate information, including on physical, material and legal safety issues in countries or places of origin.

10.2 States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual resi-dence to do so. !is right cannot be abridged under conditions of State succession, nor can it be subject to arbitrary or unlawful time limitations.

10.3 Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. Refugees and displaced persons should be able to e#ectively pursue durable solutions to displace-ment other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property.

10.4 States should, when necessary, request from other States or interna-tional organizations the "nancial and/or technical assistance required to facilitate the e#ective voluntary return, in safety and dignity, of refugees and displaced persons.

SECTION V.

LEGAL, POLICY, PROCEDURAL AND INSTITUTIONAL IMPLEMENTATION MECHANISMS

Principle 11.

Compatibility with international human rights, refugee and humanitarian law and related standards

11.1 States should ensure that all housing, land and property restitution procedures, institutions, mechanisms and legal frameworks are fully


compatible with international human rights, refugee and humanitar-ian law and related standards, and that the right to voluntary return in safety and dignity is recognized therein.

Principle 12.

National procedures, institutions and mechanisms

12.1 States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property resti-tution claims. In cases where existing procedures, institutions and mechanisms can e#ectively address these issues, adequate "nancial, human and other resources should be made available to facilitate restitution in a just and timely manner.

12.2 States should ensure that housing, land and property restitution pro-cedures, institutions and mechanisms are age and gender sensitive, and recognize the equal rights of men and women, as well as the equal rights of boys and girls, and re&ect the overarching principle of the “best interests of the child”.

12.3 States should take all appropriate administrative, legislative and judicial measures to support and facilitate the housing, land and property restitution process. States should provide all relevant agen-cies with adequate "nancial, human and other resources to success-fully complete their work in a just and timely manner.

12.4 States should establish guidelines that ensure the e#ectiveness of all relevant housing, land and property restitution procedures, institu-tions and mechanisms, including guidelines pertaining to institu-tional organization, sta# training and caseloads, investigation and complaints procedures, veri"cation of property ownership or other rights of possession, as well as decision-making, enforcement and appeals mechanisms. States may integrate alternative or informal dispute resolution mechanisms into these processes, insofar as all

43

such mechanisms act in accordance with international human rights, refugee and humanitarian law and related standards, including the right to be protected from discrimination.

12.5 Where there has been a general breakdown in the rule of law, or where States are unable to implement the procedures, institutions and mechanisms necessary to facilitate the housing, land and prop-erty restitution process in a just and timely manner, States should request the technical assistance and cooperation of relevant interna-tional agencies in order to establish provisional regimes for providing refugees and displaced persons with the procedures, institutions and mechanisms necessary to ensure e#ective restitution remedies.

12.6 States should include housing, land and property restitution pro-cedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements. Peace agreements should include speci"c undertakings by the parties to appropriately address any housing, land and property issues that require remedies under international law or threaten to undermine the peace process if left unaddressed, while demonstrably prioritizing the right to restitution as the preferred remedy in this regard.

Principle 13.

Accessibility of restitution claims procedures

13.1 Everyone who has been arbitrarily or unlawfully deprived of hous-ing, land and/or property should be able to submit a claim for resti-tution and/or compensation to an independent and impartial body, to have determination made on their claim and to receive notice of such determination. States should not establish any preconditions for "ling a restitution claim.

13.2 States should ensure that all aspects of the restitution claims pro-cess, including appeals procedures, are just, timely, accessible, free of charge, and are age and gender sensitive. States should adopt


positive measures to ensure that women are able to participate on a fully equal basis in this process.

13.3 States should ensure that separated and unaccompanied children are able to participate and are fully represented in the restitution claims process, and that any decision in relation to the restitution claim of separated and unaccompanied children is in compliance with the overarching principle of the “best interests of the child”.

13.4 States should ensure that the restitution claims process is accessible for refugees and other displaced persons regardless of their place of residence during the period of displacement, including in countries of origin, countries of asylum or countries to which they have &ed. States should ensure that all a#ected persons are made aware of the restitution claims process, and that information about this process is made readily available, including in countries of origin, countries of asylum or countries to which they have &ed.

13.5 States should seek to establish restitution claims-processing centres and o$ces throughout a#ected areas where potential claimants currently reside. In order to facilitate the greatest access to those a#ected, it should be possible to submit restitution claims by post or by proxy, as well as in person. States should also consider estab-lishing mobile units in order to ensure accessibility to all potential claimants.

13.6 States should ensure that users of housing, land and/or property, including tenants, have the right to participate in the restitution claims process, including through the "ling of collective restitution claims.

13.7 States should develop restitution claims forms that are simple and easy to understand and use and make them available in the main language or languages of the groups a#ected. Competent assistance should be made available to help persons complete and "le any

45

necessary restitution claims forms, and such assistance should be provided in a manner that is age and gender sensitive.

13.8 Where restitution claims forms cannot be su$ciently simpli"ed owing to the complexities inherent in the claims process, States should engage quali"ed persons to interview potential claimants in con"dence, and in manner that is age and gender sensitive, in order to solicit the necessary information and complete the restitution claims forms on their behalf.

13.9 States should establish a clear time period for "ling restitution claims. !is information should be widely disseminated and should be su$ciently long to ensure that all those a#ected have an adequate opportunity to "le a restitution claim, bearing in mind the number of potential claimants, potential di$culties of collecting information and access, the extent of displacement, the accessibility of the pro-cess for potentially disadvantaged groups and vulnerable individuals, and the political situation in the country or region of origin.

13.10 States should ensure that persons needing special assistance, includ-ing illiterate and disabled persons, are provided with such assistance in order to ensure that they are not denied access to the restitution claims process.

13.11 States should ensure that adequate legal aid is provided, if possible free of charge, to those seeking to make restitution claim. While legal aid may be provided by either governmental or non-govern-mental sources (whether national or international), such legal aid should meet adequate standards of quality, non-discrimination, fairness and impartiality so as not to prejudice the restitution claims process.

13.12 States should ensure that no one is persecuted or punished for mak-ing a restitution claim.


Principle 14.

Adequate consultation and participation in decision-making

14.1 States and other involved international and national actors should ensure that voluntary repatriation and housing, land and prop-erty restitution programmes are carried out with adequate con-sultation and participation with the a#ected persons, groups and communities.

14.2 States and other involved international and national actors should, in particular, ensure that women, indigenous peoples, racial and eth-nic minorities, the elderly, the disabled and children are adequately represented and included in restitution decision-making processes, and have the appropriate means and information to participate e#ectively. !e needs of vulnerable individuals including the elderly, single female heads of households, separated and unaccompanied children, and the disabled should be given particular attention.

Principle 15.

Housing, land and property records and documentation

15.1 States should establish or re-establish national multipurpose cadas-tral or other appropriate systems forth registration of housing, land and property rights as an integral component of any restitution programme, respecting the rights of refugees and displaced persons when doing so.

15.2 States should ensure that any judicial, quasi-judicial, administrative or customary pronouncement regarding the rightful ownership of, or rights to, housing, land and/or property is accompanied by measures to ensure registration or demarcation of that housing, land and/or property as is necessary to ensure legal security of tenure. !ese determinations shall comply with international human rights,

47

refugee and humanitarian law and related standards, including the right to be protected from discrimination.

15.3 States should ensure, where appropriate, that registration systems record and/or recognize the rights of possession of traditional and indigenous communities to collective lands.

15.4 States and other responsible authorities or institutions should ensure that existing registration systems are not destroyed in times of con&ict or post-con&ict. Measures to prevent the destruction of housing, land and property records could include protection in situ or, if necessary, short-term removal to a safe location or custody. If removed, the records should be returned as soon as possible after the end of hostilities. States and other responsible authorities may also consider establishing procedures for copying records (including in digital format), transferring them securely and recognizing the authenticity of said copies.

15.5 States and other responsible authorities or institutions should pro-vide, at the request of a claimant or his other proxy, copies of any documentary evidence in their possession required making and/or supporting a restitution claim. Such documentary evidence should be provided free of charge, or for a minimal fee.

15.6 States and other responsible authorities or institutions conducting the registration of refugees or displaced persons should endeavour to collect information relevant to facilitating the restitution process, for example by including in the registration form questions regard-ing the location and status of the individual refugee’s or displaced person’s former home, land, property or place of habitual residence. Such information should beseech whenever information is gathered from refugees and displaced persons, including at the time of &ight.

15.7 States may, in situations of mass displacement where little docu-mentary evidence exists as to ownership or rights of possession,


adopt the conclusive presumption that persons &eeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution. In such cases, administra-tive and judicial authorities may independently establish the facts related to undocumented restitution claims.

15.8 States shall not recognize as valid any housing, land and/or property transaction, including any transfer that was made under duress, or which was otherwise coerced or forced, either directly or indirectly, or which was carried out contrary to international human rights standards.

Principle 16.

#e rights of tenants and other non-owners

16.1 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.

Principle 17.

Secondary occupants

17.1 States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justi"able and una-voidable forth purposes of housing, land and property restitution, that evictions are carried out in a manner that is compatible with international human rights law and standards, such that second-ary occupants are a#orded safeguards of due process, including an opportunity for genuine consultation, adequate and reasonable

49

notice, and the provision of legal remedies, including opportunities for legal redress.

17.2 States should ensure that the safeguards of due process extended to secondary occupants do not prejudice the rights of legitimate own-ers, tenants and other rights holders to repossess the housing, land and property in question in a just and timely manner.

17.3 In cases where evictions of secondary occupants are justi"able and unavoidable, States should take positive measures to protect those who do not have the means to access any other adequate housing other than that which they are currently occupying from homeless-ness and other violations of their right to adequate housing. States should undertake to identify and provide alternative housing and/or land for such occupants, including on a temporary basis, as a means of facilitating the timely restitution of refugee and displaced persons’ housing, land and property. Lack of such alternatives, however, should not unnecessarily delay the implementation and enforcement of decisions by relevant bodies regarding housing, land and property restitution.

17.4 In cases where housing, land and property has been sold by second-ary occupants to third parties acting in good faith, States may con-sider establishing mechanisms to provide compensation to injured third parties. !e egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegal-ity of purchasing abandoned property, pre-empting the formation of bona "de property interests in such cases.

Principle 18.

Legislative measures

18.1 States should ensure that the right of refugees and displaced persons to housing, land and property restitutions recognized as an essential component of the rule of law. States should ensure the right to hous-


ing, land and property restitution through all necessary legislative means, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. States should develop a legal framework for protecting the right to housing, land and property restitution which is clear, consistent and, where neces-sary, consolidated in a single law.

18.2 States should ensure that all relevant laws clearly delineate every person and/or a#ected group that is legally entitled to the restitution of their housing, land and property, most notably refugees and dis-placed persons. Subsidiary claimants should similarly be recognized, including resident family members at the time of displacement, spouses, domestic partners, dependents, legal heirs and others who should be entitled to claim on the same basis as primary claimants.

18.3 States should ensure that national legislation related to housing, land and property restitution is internally consistent, as well as compat-ible with pre-existing relevant agreements, such as peace agreements and voluntary repatriation agreements, so long as these agreements are themselves compatible with international human rights, refugee and humanitarian law and related standards.

Principle 19.

Prohibition of arbitrary and discriminatory laws

19.1 States should neither adopt nor apply laws that prejudice the res-titution process, in particular through arbitrary, discriminatory, or otherwise unjust abandonment laws or statutes of limitations.

19.2 States should take immediate steps to repeal unjust or arbitrary laws and laws that otherwise have discriminatory e#ect on the enjoyment of the right to housing, land and property restitution, and should ensure remedies for those wrongfully harmed by the prior applica-tion of such laws.

51

19.3 States should ensure that all national policies related to the right to housing, land and property restitution fully guarantee the rights of women and girls to be protected from discrimination and to equality in both law and practice.

Principle 20.

Enforcement of restitution decisions and judgments

20.1 States should designate speci"c public agencies to be entrusted with enforcing housing, land and property restitution decisions and judgments.

20.2 States should ensure, through law and other appropriate means, that local and national authorities are legally obligated to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution.

20.3 States should adopt speci"c measures to prevent the public obstruc-tion of enforcement of housing, land and property restitution deci-sions and judgments. !reats or attacks against o$cials and agencies carrying out restitution programmes should be fully investigated and prosecuted.

20.4 States should adopt speci"c measures to prevent the destruction or looting of contested or abandoned housing, land and property. In order to minimize destruction and looting, States should develop procedures to inventory the contents of claimed housing, land and property within the context of housing, land and property restitu-tion programmes.

20.5 States should implement public information campaigns aimed at informing secondary occupants and other relevant parties of their rights and of the legal consequences of non-compliance with housing, land and property restitution decisions and judgments, including failing to vacate occupied housing, land and property


voluntarily and damaging and/or looting of occupied housing, land and property.

Principle 21.

Compensation

21.1 All refugees and displaced persons have the right to full and e#ective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.

21.2 States should ensure, as a rule, that restitution is only deemed factu-ally impossible in exceptional circumstances, namely when hous-ing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.

SECTION VI.

THE ROLE OF THE INTERNATIONAL COMMUNITY, INCLUDING INTERNATIONAL ORGANISATIONS

Principle 22.

Responsibility of the international community

53

22.1 !e international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity.

22.2 International "nancial, trade, development and other related insti-tutions and agencies, including member or donor States that have voting rights within such bodies, should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.

22.3 International organizations should work with national Governments and share expertise on the development of national housing, land and property restitution policies and programmes and help ensure their compatibility with international human rights, refugee and humanitarian law and related standards. International organizations should also support the monitoring of their implementation.

22.4 International organizations, including the United Nations, should strive to ensure that peace agreements and voluntary repatriation agreements contain provisions related to housing, land and property restitution, including through the establishment of national proce-dures, institutions, mechanisms and legal frameworks.

22.5 International peace operations, in pursuing their overall mandate, should help to maintain a secure and stable environment wherein appropriate housing, land and property restitution policies and programmes maybe successfully implemented and enforced.

22.6 International peace operations, depending on the mission con-text, should be requested to support the protection of the right to housing, land and property restitution, including through the enforcement of restitution decisions and judgments. Members of the Security Council should consider including this role in the mandate of peace operations.


22.7 International organizations and peace operations should avoid occupying, renting or purchasing housing, land and property over which the rights holder does not currently have access or control, and should require that their sta# do the same. Similarly, interna-tional organizations and peace operations should ensure that bodies or processes under their control or supervision do not obstruct, directly or indirectly, the restitution of housing, land and property.

SECTION VII.

INTERPRETATION

Principle 23.

Interpretation

23.1 !e Principles on housing and property restitution for refugees and displaced persons shall not be interpreted as limiting, altering or otherwise prejudicing the rights recognized under international human rights, refugee and humanitarian law and related standards, or rights consistent with these laws and standards as recognized under national law.

APPLYING THE PINHEIRO PRINCIPLES: SELECTED UNRESOLVED RESTITUTION CASES

Millions of refugees and displaced persons are currently struggling to exercise their rights to housing and property restitution, but are actively prevented from doing so. In some cases, Governments very consciously and explicitly prevent return and restitution by annulling property titles, adopting new laws designed to quash restitution claims and by placing citi-zens (often from other ethnic, religious and other groups favoured by those in power)within the homes and upon the lands from which refugees and displaced persons &ed. In other instances, such as unresolved or still active

55

territorial and other con&icts, the lack of economic options available in areas of potential return or lingering security concerns may be responsible.

!e following cases illustrate just how extensive the problem of unresolved restitution claims is throughout the world, and provide examples of situ-ations where applying the Pinero Principles may provide a constructive means of facilitating their just resolution.

AFGHANISTAN

Ongoing land disputes, illegal land con"scations of returnee lands, unclear ownership rights, dual legal systems (customary and modern), landless-ness, land shortages, discrimination against women, and the prevailing lack of e#ective restitution procedures have left hundreds of thousands of returnees unable to return to their original lands.

AZERBAIJAN

More than 525,000 ethnic Azeri IDPs, forced to &ee their homes and lands during the 1992-1994 con&ict over Nagorno-Karabakh, remain displaced. A further 200,000 ethnic Azeri’s who &ed Armenia have been o#ered natu-ralization within Azerbaijan. Both groups retain as yet unresolved housing and property restitution claims to their original homes.

BHUTAN

Some 105,000 Bhutanese refugees have lived for almost two decades in refugee camps in eastern Nepal. Many were arbitrarily stripped of their nationality prior to their expulsion from Bhutan. !e Government of Bhutan refuses to allow the refugees to return to their original homes, and recent reports indicate that many refugee homes and lands have been allocated by the Government to secondary occupants.


BURUNDI

More than 200,000 IDPs are dispersed throughout Burundi, while 100,000 refugees have returned to the country since 2003, primarily from neighbouring Tanzania. !e large-scale returns, combined with the large number "ds, have led to dramatic increases in the price of land, land disputes and related tensions which have prevented the exercise of housing and property restitution rights.

COLOMBIA

Some 3 million persons have become internally displaced in Colombia due to the ongoing armed con&ict between Government armed forces, left-wing guerrilla groups, and right-wing paramilitary organizations. Another250, 000 have &ed to nearby Ecuador, Venezuela and Panama. Colombia’s displaced often reside in the informal slums and shantytowns which surround many of Colombia’s major cities – most notably Bogotá, Medellin, Cali and Cartagena.

CROATIA

More than 100,000 ethnic Serb refugees are unable to return to their original homes in Croatia due to a combination of unwillingness by the authorities in Croatia to remove secondary occupiers from refugee homes and legislation that e#ectively excludes Serbs from accessing Government housing repair programmes, despite the fact that thousands of Serb homes were damaged or destroyed as a result of the con&ict in the 1990s.

CYPRUS

!e Turkish invasion of Cyprus in 1974 led to the forced displacement of more than 170,000 Greek Cypriots from the northern part of the island to the South, while a smaller number of Turkish Cypriots, some 45,000, &ed northwards. Vocal demands for the restitution of housing and property

57

have ensured that this remains a major political issue in the country. Many analysts view the proposed arrangements within the draft peace accords addressing these restitution claims as a key reason for the massive rejection of the peace plan in the 2004 referendum.

DR CONGO

!ough as many as 700,000 IDPs may have returned to their areas of origin in recent years, DR Congo still has one of the world’s largest inter-nally displaced populations with over 1.5 million IDPs living in extremely poor conditions. Dual land systems, inability to access courts to recover property and the occupation of IDP land by secondary occupants continue to prevent sustained return and restitution.

IRAQ

Some 37,000 housing and property restitution claims from those dis-placed between 1968-2003 have been submitted to the Iraq Property Claims Commission (IPCC). !e vast majority of claimants are Kurds from northern Iraq (75%), with additional claims submitted by Turkmen and Arab minorities. According to various reports, however, the IPCC has been hampered by understa$ng and lack of resources. Of the claims submitted thus far, only 600 cases have been adjudicated and over 150 appeals have been "led.

KOSOVO (UNMIK/SERBIA & MONTENEGRO)

Although the Housing and Property Directorate in Kosovo, which is administered by the UN Mission in Kosovo, has issued decisions on some 28,000 of the 29,000 restitution claims it has received, with 40% of these decisions already implemented, more than 200,000 Kosovar Serbs remain displaced within so-called safe enclaves in Kosovo, or in Serbia & Montenegro. !ousands of Kosovo’s Roma community remain displaced


throughout the region, often forced to live in appalling conditions in slums and municipal waste dumps.

LIBERIA

Up to 500,000 IDPs within Liberia continue to live in poor conditions in camps, squatter settlements and remote areas throughout the coun-try. Despite the 2003 peace agreement, many displaced are prevented from returning home due to land disputes, unequal access by women to inheritance rights, the lack of housing in their areas of origin, continuing insecurity, instability and the lack of economic opportunities.

MYANMAR (BURMA)

Nearly 500,000 refugees from Myanmar (Burma) continue to reside in border camps and in urban areas in !ailand. An additional 1,000,000 IDPs are estimated to remain displaced within the country. Forced relo-cations carried out by Government troops have particularly targeted the various ethnic groups in the East and South of the country. Land con"sca-tions, the intentional destruction of villages and the denial of customary land rights have all contributed to the displacement crisis in the country.

PALESTINE (ISRAEL)

In what is by far the world’s largest unresolved housing, land and property restitution problem, some "ve million Palestinian refugees retain valid res-titution claims over their original homes and lands from which they have been expelled since 1948. !ese rights have been repeatedly re-a$rmed by UN Security Council and General Assembly resolutions. Virtually all Palestinian refugees still possess title deeds, keys, photographs and other documentary evidence proving their rights to their original homes. Similar information is kept on "le at the UN Headquarters in New York. Many experts agree that there can be no prospect of a workable peace agreement

59

between Israel and the Palestinians until all outstanding housing and property restitution issues are properly addressed.

SRI LANKA

More than two decades of civil war in Sri Lanka between Government forces and the Liberation Tigers of TamilEelam have led to large-scale displacement, with some 350,000 con&ict IDPs still unable to return home. Detailed proposals for the establishment of a housing and land commission to resolve outstanding restitution claims of the displaced are currently under consideration by the parties to the con&ict.

SUDAN

!e con&ict ravaging Sudan has generated the world’s largest internally displaced population and has created what the UN has called the worst humanitarian situation in the world. An estimated six million people have &ed their homes to escape "ghting between Government troops, the Sudan People’s Liberation Army and several smaller militia groups aligned with the Government. !e crisis in Darfur alone has resulted in the deaths of at least 50,000 people, and left some 1.6 million left homeless. Despite a peace agreement ending the con&ict in southern Sudan, the lack of restitu-tion mechanisms, emerging land disputes, discrimination against women and non-recognition of customary rights are all preventing many returnees from returning to their original homes and lands.

TIBET (CHINA)

Approximately 100,000 Tibetan refugees reside in towns and settlements throughout India, while a further 25, 000 refugees live in exile in Nepal. !ough the immediate likelihood of return to Tibet by the refugees is remote, the refugees retain housing and property restitution rights to their former homes and lands in areas now under Chinese jurisdiction, which they were forced to &ee since 1959.


TSUNAMI-AFFECTED NATIONS IN SOUTH AND SOUTHEAST ASIA

In Sri Lanka the devastating tsunami of 26 December 2004 destroyed 80,000 homes and displaced one million people. Almost a year later, as many as 500,000 remain displaced. In Indonesia, the tsunami displaced over500, 000 people in Aceh, while in India, 150,000 people were left homeless. !ousands more were similarly a#ected in !ailand, the Mal-dives, Myanmar (Burma) and elsewhere. !e Pinero Principles are appli-cable in this and other post-disaster contexts and may be used to support the rights of the displaced to voluntarily return to the land on which they originally lived.

TURKEY

Two million (or more) Kurds who were forcibly relocated or who other-wise &ed the violent con&icting Kurdish areas of the country during the 1980s and 1990s, remain internally displaced within Turkey. Despite numerous judgments by the European Court on Human Rights seeking to enforce the housing and property rights of the displaced, most have not been able to return to their original homes and lands due to severe restric-tions imposed by local military o$cials, the occupation of IDP lands by ‘village guards’ and general fear of discrimination and insecurity.

UGANDA

More than 1,300,000 IDPs are now sheltering in some 200 camps, vil-lages and cities throughout Uganda, &eeing "ghting between the Ugandan Army and rebels of the Lord’s Resistance Army. Until the con&ict ends, the prospects for sustained return and restitution remain distant.

WESTERN SAHARA

Nearly 100,000 refugees from Western Sahara are con"ned to four camps in Algeria. Displaced for three decades, the refugees continue to retain

61

restitution claims to their former homes, lands and properties which will not likely be resolved until a permanent peace settlement between Western Sahara and Morocco.

Endnotes1 !is proposal is based on the suggested language formulated by Justice Albie Sachs,

retired judge of the South African Constitutional Court, at the workshop held in 2011 at the University of the Witwatersrand.

2 Section 25: Constitution of the Republic of South Africa, 1996

3 Contained in Section 56 of Annexure B to the Power-Sharing Agreement of 15 September 2008

4 Section 32: Final Draft Constitution of the National Constitutional Assembly, 2001

5 !is report was prepared by the Constitutional Litigation Unit of the LRC.

6 !e original draft, substantially in accordance with this document, was furnished on 27 January 2012.

Property Clause Discussion Document (Idasa)

Documents

Transcript of Property Clause Discussion Document (Idasa)