Global Report on Human Settlements 2007 - PoA-ISS

Security of tenure: Conditions and trends
127
Box 5.10 Expropriation and compulsory acquisition: Examples of constitutional provisions
The 1957 Constitution of Malaysia states that ‘No person shall be
deprived of property save in accordance with law’ and that ‘No law
shall provide for the compulsory acquisition or use of property
without adequate compensation’ (Articles 13(1) and 13)2)).
Similarly, the 1960 Constitution of Nigeria asserts that:
No property, movable or immovable, shall be taken
possession of compulsorily and no right over or interest
in any such property shall be acquired compulsorily in
any part of Nigeria except by or under the provisions of
a law that (a) requires the payment of adequate
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 the High Court having
jurisdiction in that part of Nigeria. (Article 31(1))
A different, more nuanced, approach is taken in the 1996
Constitution of South Africa, which is formulated as follows
(Article 25):
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
affected or decided or approved by a court.
3 The amount of the compensation and the time
and manner of payment must be just and
equitable, reflecting an equitable balance between
the public interest and the interests of those
affected, 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 beneficial
capital improvement of the property; and
(e) the purpose of the expropriation …
5 The 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.
This very carefully worded constitutional provision is indicative of
how human rights principles in South Africa have taken on added
significance within the context of the recognition of property
rights. The provisions attempt to ensure that those holding
customary rights will enjoy protection, while reference to the
‘history of its acquisition’ was enshrined to ensure that land restitution
rights emerging from apartheid-era racist land confiscations
would not be ignored.
by using the force of ‘eminent domain’). Typically, these
rights of state are phrased in terms of limitations on the use
of property. Box 5.10 provides some examples of how
national constitutions allow for the expropriation of private
property, provided that such expropriation is undertaken ‘in
accordance with the law’. Similar provisions are found in all
jurisdictions, and even the Universal Declaration of Human
Rights includes similar perspectives.
This essential conflict between the right of the state
to expropriate and to control the use of property and
housing, on the one hand, and land and property rights
(including security of tenure), on the other, remains a vitally
important issue. 40 For it is in determining the scope of both
the rights of individuals and those of the state that it is possible
to determine which measures resulting in eviction are
truly justifiable and which are not. It is important to note
that while expropriation is not in and of itself a prohibited
act, under human rights law it is subject to increasingly strict
criteria against which all such measures must be judged to
determine whether or not they are lawful. The power of
states to expropriate carries with it several fundamental
preconditions. When housing, land or property rights are to
be limited, this can only be done:
• subject to law and due process;
• subject to the general principles of international law;
• in the interest of society and not for the benefit of
another private party;
• if it is proportionate, reasonable and subject to a fair
balance test between the cost and the aim sought; and
• subject to the provision of just and satisfactory compensation.
Once again, if any of these criteria are not met, those
displaced by such expropriation proceedings have a full right
to the restitution of their original homes and lands. Recent
examples from China exemplify how expropriations ‘for the
common good’ may be misused (see Box 5.11). A fictional
case from Australia (see Box 5.12) exemplifies how such
expropriations may be successfully challenged in court.
Major causes of large-scale evictions
While the previous sections have discussed the main
categories of evictions, this section now takes a closer look
at three of the most common causes of large-scale evictions
– namely, infrastructure projects, international mega events
and urban beautification initiatives.
Expropriation … is
subject to increasingly
strict criteria
… to determine
whether or not they
are lawful