Emory International Law Review


In many African countries, the rights of women and girls to adequate housing are under threat and remain vulnerable to violation by state- and non-state actors. This is so even though these rights are guaranteed by international human rights instruments and national constitutions. Of particular note is the existence of customary laws that discriminate against women and frustrate their ability to realize the right to adequate housing. To enhance the ability of women to realize their right to adequate housing, each African State must domesticate the various international and regional human rights instruments that guarantee this right in order to create rights that are justiciable in domestic courts. In the meantime, however, progressive judiciaries are using their power to interpret the constitution to eliminate or modify customary and other laws that are not in conformity with the provisions of international human rights instruments and the country’s Bill of Rights. For example, in several African countries, courts have been adjudicating cases involving the right to adequate housing (e.g., discrimination against women by customary laws and forced evictions of women and other vulnerable individuals by state- and non-state actors). These courts have issued directives that can help the political branches develop and implement policies to ameliorate the deplorable living conditions that many women and their children face on a daily basis. Unfortunately, in many countries, the political branches have not been amenable to implementing court orders. However, recent socio-economic rights jurisprudence by the South African Constitutional Court offers a possible solution to this quagmire. That solution is found in the engagement approach, which emphasizes robust dialogue between the political branches, the affected individuals and groups, and civil society and its organizations. While such a holistic approach can proffer solutions that reflect the values and norms that are enforced by the socio-economic rights guaranteed by the constitution, it can also encourage democratic engagement and make the courts an important force in the protection of human rights, particularly those of women and girls. Of greater importance is that this approach places women at the center of public efforts to confront the problems that afflict them.