SRAH. Mission to Afghanistan

Conclusions and Recommendations

The Special Rapporteur’s mission to Afghanistan coincided with the preparations of the Constitutional Loya Jirga, increased security tensions in certain rural provinces, and continuing incidents of land occupation and forced evictions countrywide. The Special Rapporteur is encouraged by the fact that his visit and the initiatives of other actors seemingly have contributed to a new resolve amongst United Nations agencies, AIHRC and civil society to focus on housing, land, property and forced eviction issues. He will continue to follow the situation in Afghanistan closely and hope that his dialogue with the Transitional Government, UNAMA, AIHRC, UN-Habitat, UNHCR, UNICEF and other bodies will continue.

The existing obstacles against the implementation of the right to adequate housing and land are of enormous proportions and facing the challenge will necessitate joint efforts by not only the Transitional Government but also national non-governmental actors and the international community alike. In the attempts to ensure and improve the security situation across Afghanistan, the non-implementation of land and housing rights, such as forced evictions and land occupation, as a potential reason for prevailing and future insecurity, must be recognized. The main challenge will be to elaborate a conscious combination of the humanitarian, the human rights and the sustainable development approach. Towards this end, the international community needs to direct financial and technical assistance.

The Special Rapporteur, therefore, strongly argues for the adoption of an indivisibility approach with respect to the right to adequate housing and other related rights to his mandate, including the right to land, the right to health, the right to food, the right to security of the person and the home, and freedom of movement. In addition to his recommendation throughout his report, the Special Rapporteur would like to submit the following recommendations:

(a) Mapping the housing needs of the country and interpreting the data from a human rights perspective would be a first step towards progressive realization of the right to adequate housing;
(b) The Special Rapporteur also recommends the development of a comprehensive national housing and land policy, establishing a clear division of responsibility within the Government and institutions as to decision-making and taking into particular consideration the needs and rights of women and vulnerable groups,
including returnees, IDPs, the poor, persons with disabilities and minorities. A national housing and land policy will also have to establish a participatory consultation process to follow in cases of resettlement, property, housing and land restitution, land distribution and alternative housing and land for those made homeless and landless;
(c) Whether in elaborating housing policies and programmes or adopting specific legislation, particular attention must be given to the need to address – as a matter of priority – the situation of women, including the need of protection of households headed by women and vulnerable women in poor housing and living conditions, IDPs, nomads, minorities and the poorest and most needy segment of the population, and ensure their participation in the development of policies and programmes;
(d) Strengthening the Ministry of Women’s Affairs and enhancing the present limited capacity of UNIFEM is necessary in order to develop a joint comprehensive approach, including the Government and the international community as a whole, to ensure the rights and needs of women with respect to housing and land;
(e) Particularly at the provincial level, comprehensive regional, rural and urban, development plans need to be elaborated, with the involvement of the Ministry of Urban Development and Housing and the Ministry of Rural Rehabilitation and Development, based on a national housing and land policy, taking into particular consideration the need to include special provisions in the above plans to address issues such as land distribution to the homeless and low-cost housing for the poorest segments of society;
(f) It is recommended that the Transitional Government, together with UNAMA, should take the lead in developing appropriate monitoring mechanisms for the implementation of the right to adequate housing, such as through strengthening the capacities of AIHRC and the establishment of an inter?ministerial housing and land rights committee with involvement of relevant ministries, local authorities, United Nations programmes and agencies and civil society. Steps should be taken, including by the international community, to ensure the establishment of the inter-ministerial land commission proposed by the Ministry of Refugees and Repatriation to examine the possibility of distributing land to returnees;
(g) Increased coordination within the international community could be achieved through a joint United Nations housing and land task force, at the national level, as has been established on the provincial level with positive results. Within the framework of the Common Country Assessment to be undertaken United Nations agencies and programmes, which will lead to a United Nations Development Assistance Framework for the next five years, due attention should be given to the right to adequate housing, and related rights addressed in this report;
(h) The Special Rapporteur urges further integration of human rights perspectives into national and sectoral policies, housing programmes and rehabilitation initiatives, including through the National Solidarity Programme, with a particular focus on the development and participation of women’s shuras, and the Provincial Reconstruction Teams;
(i) The Special Rapporteur recommends the development of a national legislation on housing and land rights, incorporating and codifying into one comprehensive source, customary law, civil law, religious law and State law, including women’s right to inheritance of housing and land, and in compliance with international human rights treaties ratified by Afghanistan. This is of particular importance since the recently adopted Constitution, while recognizing the need for compliance with international human rights instruments, does not explicitly guarantee the respect of the right to adequate housing and related rights;
(j) The Special Property Disputes Resolution Court should be given appropriate resources, particularly with regard to its capacity to consider complaints from provincial areas. Especially in the provincial areas, the issue of access to courts, particularly for women, and corruption within the judicial system need to be addressed;
(k) A moratorium on all forced evictions should be made until a national housing and land policy has been adopted and an effective judicial system to address disputes in this regard is in place. The Special Rapporteur also recommends that the potential role of an enhanced ISAF force in the transitional period be explored, to include the protection of those potentially threatened by forced evictions;
(l) In the context of the consistent pattern of forced evictions and land grabbing across the country, the Special Rapporteur recommends the Transitional Government and relevant actors from the international community, to contribute to the removal of the climate of impunity that currently exists for those who are responsible for such acts. The Special Rapporteur urges an intensification of investigations into such human rights violations and, when appropriate, prosecution of those actors, including commanders and other members of the security establishment;
(m) In all matters of housing and land, including in cases of land distribution and prevention of illegal land occupation and forced evictions, adequate legislation needs to be complemented by measures to ensure effective implementation;
(n) The Special Rapporteur recommends that the main ministries taking active responsibility for the improvement of access to adequate housing also adopt an environmental strategy in order to ensure that the right to adequate housing entails the right to live in a safe environment. The Special Rapporteur urges the Government to take into account the contents of general comment No. 15 on the right to water, giving particular attention to the individuals, most often women and children, and communities living in extreme poverty;
(o) There is a need to strengthen human rights education in the country, including of State actors and the judiciary, particularly on economic, social and cultural rights and women’s rights, such as through participation in community forums, other local institutions and through radio broadcasts. All relevant actors, including the Transitional
Government, AIHRC and civil society organizations need to intensify awareness-raising efforts and training programmes, towards this end. A particularly useful model which could be considered for cities and provinces of Afghanistan is the “Human Rights Cities” initiative developed by the People’s Movement for Human Rights Education (PDHRE) and currently being jointly coordinated by PDHRE and UNDP;
(p) Given the decades of conflict, Afghanistan has not been able to fulfil its reporting obligations under ratified human rights treaties. To enhance the country’s integration in the human rights system, the Special Rapporteur recommends that the Transitional Government consider planning for the submission of such reports. From his experiences during a mission in a post-conflict situation, the Special Rapporteur believes that special procedures of the Commission on Human Rights can play an important role in addressing the human rights situation in the country and recommends that Afghanistan issue a standing invitation to such procedures.