Strik­ing the bal­ance in pub­lic de­ci­sions

Nairobi Law Monthly - - Analysis - SI­MON NZIOKA

Ar­ti­cle 11(1) of In­ter­na­tional Covenant on Eco­nomic So­cial and Cul­tural Rights (ICESCR) pro­vides for the right to ad­e­quate stan­dard of liv­ing, which in­cludes the right to ad­e­quate hous­ing. This ar­ti­cle pro­vides im­per­a­tive obli­ga­tions upon state par­ties to ICESCR, yet they are barely ob­served in re­la­tion to de­vel­op­ment ini­tia­tives. Of­ten, states, in find­ing land for the in­stal­la­tion of hous­ing fa­cil­i­ties, cause dis­place­ment of vul­ner­a­ble peo­ple in the so­ci­ety – most of the time against their will – re­sult­ing in forced evic­tions to pave way to th­ese in­stal­la­tions. Th­ese dis­place­ments re­sult to mas­sive vi­o­la­tions of the in­di­vid­ual’s rights in par­tic­u­lar the right to hous­ing.

To un­der­take de­vel­op­ment while re­spect­ing right to hous­ing, In­ter­na­tional Hu­man Rights Law (IHRL) pro­vides for par­tic­i­pa­tion by right-hold­ers in de­ci­sion­mak­ing process to main­tain a bal­ance be­tween the two. Prac­tice re­veals a dif­fer­ent view with states pri­ori­tis­ing de­vel­op­ment at the ex­pense of right to hous­ing hence forced evic­tions oc­cur­ring each day due to de­vel­op­ment and mod­erni­sa­tion. This begs the ques­tion on whether par­tic­i­pa­tion as en­vis­aged by IHRL is the right tool to deal with de­vel­op­ment re­lated evic­tions and if so, whether it has been able to achieve the ex­pected re­sults. Fur­ther ques­tion is on whether the stan­dard cre­ated by IHRL frame­work on par­tic­i­pa­tion can of­fer so­lu­tions to de­vel­op­ment-based evic­tions.

Key aspects of par­tic­i­pa­tion

The broad na­ture of par­tic­i­pa­tion ac­com­mo­dates dif­fer­ent in­ter­pre­ta­tions to fit in dif­fer­ent cir­cum­stances, hence the need to un­der­stand the form of par­tic­i­pa­tion be­ing pur­sued. This is pos­si­ble by ex­am­in­ing the pur­pose, ob­jec­tive and level of en­gage­ment. Par­tic­i­pa­tion, when used as a for­mal­ity to seek le­git­i­macy and as a pub­lic re­la­tions ex­er­cise, is known as nom­i­nal par­tic­i­pa­tion. This form of par­tic­i­pa­tion is highly crit­i­cised as it does not an­chor the ob­jec­tive of em­pow­er­ing the most vul­ner­a­ble in the so­ci­ety to han­dle, de­fend and pro­tect their rights in any dis­cus­sion. The se­cond form of par­tic­i­pa­tion is known as in­stru­men­tal par­tic­i­pa­tion, which of­fers lit­tle or no op­tions for mean­ing­ful ne­go­ti­a­tions. This oc­curs through broader in­ter­pre­ta­tion to in­clude ide­o­log­i­cal or political con­cepts which may not nec­es­sar­ily be pro­moted by par­tic­i­pa­tion, thus al­low­ing tyran­ni­cal is­sues to mask it. The third form is rep­re­sen­ta­tive par­tic­i­pa­tion, which of­fers peo­ple the abil­ity to ex­press and vin­di­cate their in­ter­ests through con­cep­tu­al­i­sa­tion of cit­i­zen­ship and the ap­pre­ci­a­tion of peo­ple as stake­hold­ers in de­vel­op­ment rather than con­sumers and re­cip­i­ents of govern­ment’s ser­vices. The fourth and the de­sired form of par­tic­i­pa­tion is known as trans­for­ma­tive par­tic­i­pa­tion, which oc­curs when par­tic­i­pa­tion be­comes a tool for so­cial change in so­ci­ety by em­pow­er­ing peo­ple to over­come chal­lenges of marginal­i­sa­tion, ex­clu­sion and dis­crim­i­na­tion to be­come key play­ers in de­vel­op­ment. This in­volves an un­der­stand­ing and full ap­pre­ci­a­tion of the un­der­ly­ing so­ci­etal prob­lems and chal­lenges with the abil­ity to utilise par­tic­i­pa­tion mean­ing­fully to con­trib­ute to de­vel­op­ment agen­das thus pro­vid­ing work­ing so­lu­tions to peo­ples’ chal­lenges.

In­for­ma­tion is an im­por­tant com­po­nent of par­tic­i­pa­tion as it brings to the at­ten­tion of right-hold­ers is­sues which af­fect their rights, en­ables them to pre­pare for dis­cus­sions, and put them at par with other stake­hold­ers in terms of knowl­edge base. This in­volves ac­qui­si­tion and trans­mis­sion of knowl­edge to rights-hold­ers, and the abil­ity to utilise such knowl­edge to con­test is­sues and ne­go­ti­ate set­tle­ments. This is a com­po­nent of the free­dom of ex­pres­sion which in­cludes the right to seek, re­ceive and im­part in­for­ma­tion. The in­for­ma­tion should be ad­e­quate in terms of hu­man rights law and poli­cies re­lat­ing to the is­sue in ques­tion such as forced evic­tions. This means that it should be “ob­jec­tive, com­plete, rel­e­vant, easy to find and easy to un­der­stand”. It should also be de­liv­ered to the most vul­ner­a­ble and in a cul­tur­ally ap­pro­pri­ate way.

Par­tic­i­pa­tion in pol­icy mak­ing

The ques­tion of who par­tic­i­pates and at what level in the par­tic­i­pa­tion process is im­por­tant be­cause it de­ter­mines whether there is an over­all ob­jec­tive of em­pow­er­ing the most vul­ner­a­ble peo­ple. This is im­por­tant be­cause the cho­sen form of par­tic­i­pa­tion as well as its level can cause more vi­o­la­tions of rights through fur­ther dis­crim­i­na­tion, ex­clu­sion and marginal­i­sa­tion. It is im­per­a­tive to an­a­lyse im­por­tant aspects such as whether par­tic­i­pants are true rep­re­sen­ta­tives of the peo­ple, whether they have space to voice their in­ter­ests or con­cerns and if so, whether such in­ter­ests are borne in mind as op­tions in ar­riv­ing at the over­all de­ci­sion. Par­tic­i­pa­tion as­sumes dis­cus­sion be­tween all stake­hold­ers in an open man­ner, which is pos­si­ble through guar­an­tees to other rights such as ac­ces­si­bil­ity to rel­e­vant in­for­ma­tion to all stake­hold­ers, free­dom of move­ment, free­dom of as­sem­bly, free­dom of ex­pres­sion and so on. The over­ar­ch­ing no­tion is that par­tic­i­pa­tion and rights are in­ter­con­nected with the at­tribute of em­pow­er­ment be­ing es­sen­tial for rights at­tain­ment.

Par­tic­i­pa­tion en­ables cit­i­zens to get in­volved in mat­ters con­cern­ing them which are es­sen­tial for so­cial trans­for­ma­tion.

Right-hold­ers’ ac­tive par­tic­i­pa­tion brings out im­por­tant aspects in pol­icy for­mu­la­tion as they con­sider what is im­por­tant to them as tax­pay­ers, they pri­ori­tise im­por­tant is­sues as rights-hold­ers and they weigh col­lec­tive ben­e­fit of the pub­lic good as mem­bers of the com­mu­nity. Through par­tic­i­pa­tion, “…cit­i­zens are of­ten bet­ter placed than politi­cians or pub­lic ser­vants to iden­tify pol­icy pri­or­i­ties, rec­on­cile con­flict­ing val­ues and work out what choices are more con­sis­tent with their com­mu­nity’s val­ues.” Ac­tive par­tic­i­pa­tion in pol­icy for­mu­la­tion trans­forms the political, so­cial and cul­tural ex­tremes re­spon­si­ble for hu­man rights vi­o­la­tion into valu­able op­por­tu­ni­ties for hu­man rights ful­fil­ment. Par­tic­i­pa­tion thus en­sures that both the process and out­come of de­vel­op­ment are hu­man ori­ented and re­spon­sive to the par­tic­u­lar un­der­ly­ing so­ci­etal chal­lenges.

De­ci­sion-mak­ing in dev’t projects

Some eco­nomic pro­po­nents ar­gue that the in­flu­ence on eco­nomic growth by so­cial and cul­tural fac­tors is vague, based on the fact that cul­tural and so­cial sys­tems re­main “poly­he­dral en­ti­ties, dif­fi­cult to cap­ture in for­mal mod­els”. So­cial cul­tural aspects are thus rel­e­gated to the pe­riph­ery of con­sid­er­a­tions. Many gov­ern­ments adopt neo-clas­si­cal eco­nomic poli­cies in the de­ci­sion-mak­ing process, which em­pha­sise on giv­ing more con­sid­er­a­tion to the eco­nomic di­men­sion of a par­tic­u­lar pro­ject over hu­man rights re­al­i­sa­tion thus lead­ing to ma­jor vi­o­la­tion of fun­da­men­tal rights es­pe­cially for the most vul­ner­a­ble peo­ple. The as­sump­tion is that rapid eco­nomic growth lifts up peo­ple from poverty where win­ners com­pen­sate losers in other mea­sures such as tax­a­tion and pub­lic ex­pen­di­ture. The un­der­ly­ing guide­line in this think­ing is that “the goal of eco­nomic growth can­not be sub­sti­tuted with the goal of re­al­is­ing hu­man rights”. This en­sures that not all stake­hold­ers are in­volved in de­ci­sions hav­ing eco­nomic di­men­sions though heav­ily im­pact­ing on hu­man rights. The place of par­tic­i­pa­tion of rights-hold­ers in such de­ci­sions is thus marginally ex­cluded.

Many eco­nomic poli­cies view cit­i­zens as con­sumers of govern­ment ser­vices rather than ac­tive par­tic­i­pants in eco­nomic growth; as a re­sult, their ideas are of­ten dis­re­garded. Closely re­lated to this anal­ogy is the as­pect of rep­re­sen­ta­tion whereby govern­ment claims le­git­i­macy of be­ing elected to rep­re­sent the peo­ple thus fit­ted to make cru­cial de­ci­sions on be­half of its cit­i­zens. This is, how­ever, en­tan­gled by many hin­drances in that elected lead­ers usurp power in an in­di­ca­tion of true rep­re­sen­ta­tion, which may not be the case as lead­ers’ views may not be a rep­re­sen­ta­tion of the ma­jor­ity peo­ple’s in­ter­ests leave alone the most vul­ner­a­ble peo­ple’s in­ter­ests.

An ad­vanced anal­ogy is that most eco­nomic plans and pro­pos­als are bet­ter han­dled and made in the ex­clu­sion of many in­ter­ests thus mak­ing it easy to move from one stage to the other. Pro­po­nents of this view in­di­cates that al­low­ing par­tic­i­pa­tion is like open­ing a can of worms as peo­ple with diver­gent ideas may pre­vent govern­ment from act­ing timely and de­ci­sively. In this anal­ogy, par­tic­i­pa­tion be­comes nom­i­nal by be­ing rel­e­gated to one sided “con­sul­ta­tion”, where govern­ment dic­tates the terms of the “con­sul­ta­tion”; in other words, it fails to em­power the vul­ner­a­ble but be­comes a tool for co­er­cion and con­trol. With key state’s poli­cies tailored on eco­nomic growth, it is upon the law to en­sure that the re­quired bal­ance is main­tained by en­sur­ing that the role of hu­man rights in pol­icy mak­ing is recog­nised by gov­ern­ments not solely through their obli­ga­tions un­der IHRL but as an im­por­tant com­po­nent for in­clu­sive de­vel­op­ment.

Power re­la­tion fac­tors

Some schol­ars view de­vel­op­ment as a political con­cept em­a­nat­ing from the in­ter­na­tional spec­trum re­quir­ing political en­gage­ment both at the na­tional and in­ter­na­tional lev­els. States give lit­tle or no at­ten­tion to in­di­vid­ual con­cerns when they view de­vel­op­ment in terms of the State’s de­vel­op­ment, rep­re­sented by the in­crease in Gross Do­mes­tic Prod­uct (GDP). This makes it pos­si­ble for de­vel­op­ment to be in­ter­preted ba­si­cally as eco­nomic growth. The is­sue of de­ter­mi­na­tion of what de­vel­op­ment projects to be ini­ti­ated in what area then is said to be a mat­ter of pub­lic in­ter­est whose cus­to­dian is the govern­ment. This in turn af­fects most of the so­cial-eco­nomic rights in that of­ten, eco­nomic growth may be in di­a­met­ric op­po­si­tion.

Par­tic­i­pa­tion in many times is crit­i­cised for fail­ing to en­gage fully with political fac­tors and power dy­nam­ics, thus leav­ing cit­i­zens at the mercy of states. Its abil­ity to ac­com­mo­date broad ide­o­log­i­cal think­ing al­lows it to be used by gov­ern­ments as

a mat­ter of for­mal­ity where agenda are given and driven by govern­ment. Whereas the state will be happy to use this kind of par­tic­i­pa­tion to seek le­git­i­macy of its agen­das while fos­ter­ing its power re­la­tions, the right-hold­ers are ul­ti­mately the losers when the un­der­ly­ing is­sues af­fect­ing them such as poverty, il­lit­er­acy, lack of aware­ness, marginal­i­sa­tion, and ex­clu­sion are not ad­dressed. Many states are not happy to have en­gage­ments lead­ing to em­pow­er­ment of the peo­ple as this turns the power re­la­tion equa­tion in which many of their political and power ide­olo­gies thrive. When par­tic­i­pa­tion leads to abil­ity to un­der­stand the un­der­ly­ing causes of the prob­lems af­fect­ing the com­mu­nity, the abil­ity to ques­tion some of the ide­olo­gies put for­ward by the lead­er­ship, the abil­ity to de­fend rights as well as the abil­ity to dis­agree with cer­tain ide­olo­gies which are against hu­man rights, it causes a ma­jor shift in the political and power equa­tion. It pre­sup­poses a peo­ple-driven think­ing, gov­er­nance and lead­er­ship, and can po­ten­tially end political self-in­ter­est. This means an end to util­i­sa­tion of de­vel­op­ment projects for per­sonal and political ben­e­fits whereby the eco­nomic good of de­vel­op­ment is taken over for political ben­e­fit and ma­nip­u­la­tions.

The abil­ity to lo­cal­ize par­tic­i­pa­tion to a sin­gle end thus serv­ing an in­tended ob­jec­tive as well as the abil­ity of the state to make most con­sid­er­a­tions af­fect­ing par­tic­i­pa­tion such as the level of en­gage­ment, the process, par­tic­i­pants as well as the con­tent of par­tic­i­pa­tion makes par­tic­i­pa­tion more of a con­trol and co­er­cion tool rather than trans­for­ma­tive tool. The lo­cal­ist ap­proach ig­nores broader pat­terns of so­cial in­jus­tices thus fail­ing to en­gage fully with the un­der­ly­ing is­sues in the de­vel­op­ment process. This ap­proach as­sumes par­tic­i­pa­tion to be a tech­ni­cal tool of pro­ject work thus ig­nor­ing the peo­ple who need to ben­e­fit from var­i­ous de­vel­op­ment projects and thus al­lows it­self for political abuse.

The right to hous­ing and the right to de­vel­op­ment pose a real threat to each other if there is a lack of proper rights based poli­cies gov­ern­ing un­der­tak­ing of de­vel­op­ment while ob­serv­ing the pro­hi­bi­tion on evic­tions. The obli­ga­tion to pro­tect in­di­vid­u­als from forced evic­tions through ap­pro­pri­ate poli­cies lies with the state as ob­served in “SERAC v. Nige­ria Case”. The UN Com­mit­tee on Eco­nomic So­cial and Cul­tural Rights (CESCR) in its Gen­eral Com­ment 7 in­di­cates that…“states par­ties shall en­sure, prior to car­ry­ing out any evic­tions, and par­tic­u­larly those in­volv­ing large groups, that all fea­si­ble al­ter­na­tives are ex­plored in con­sul­ta­tion with the af­fected per­sons, with a view to avoid­ing, or at least min­imis­ing, the need to use force.”

The fail­ure by par­tic­i­pa­tion to achieve its ob­jec­tives has been con­trib­uted by gaps in its con­cep­tu­al­i­sa­tion and in the le­gal frame­work such as ca­pac­ity, in­cen­tive and power gaps. It is ex­pected that le­gal frame­work should con­trib­ute to the bridg­ing of the power gap through req­ui­site pro­vi­sions on par­tic­i­pa­tion to en­able dis­cus­sions on equal foot­ing em­pha­sis­ing on the pro­tec­tion of the most vul­ner­a­ble.

Con­cep­tual chal­lenges

One au­thor de­scribes glob­al­i­sa­tion as “…a phe­nom­e­non pro­moted by pow­er­ful forces with po­ten­tially enor­mous con­se­quences for hous­ing law, pol­icy, and rights.” A clear frame­work pro­tect­ing the right to ad­e­quate hous­ing is nec­es­sary based on the fore­go­ing un­der­stand­ing. The stan­dard ex­pected of states is elab­o­rated by the UN Ba­sic Prin­ci­ples and Guide­lines on De­vel­op­ment Based Evic­tions (herein the Ba­sic Prin­ci­ples). This fol­lowed CESCR iden­ti­fi­ca­tion of de­vel­op­ment as a ma­jor cause of forced evic­tions. The Ba­sic Prin­ci­ples pro­vides a two-tier sys­tem of pro­tec­tion on the prin­ci­ple of par­tic­i­pa­tion. It pro­vides that “Ur­ban or ru­ral plan­ning and de­vel­op­ment pro­cesses should in­volve all those likely to be af­fected and should in­clude the fol­low­ing el­e­ments: (a) ap­pro­pri­ate no­tice to all po­ten­tially af­fected per­sons that evic­tion is be­ing con­sid­ered…(b) … (c) a rea­son­able time pe­riod for pub­lic re­view of, com­ment on, and/or ob­jec­tion to the pro­posed plan”

The first tier of the Ba­sic Prin­ci­ples which re­quire that plan­ning and de­vel­op­ment pro­cesses to in­volve all those likely to be af­fected en­gages the political fac­tors in de­ci­sion-mak­ing process on the right to hous­ing. The se­cond tier pro­vides a pro­tec­tion mech­a­nism dur­ing evic­tion. Ef­fects of glob­al­i­sa­tion and de­vel­op­ment are ad­dressed by the right “…to full par­tic­i­pa­tion and con­sul­ta­tion through­out the en­tire process…”. How­ever, the un­pack­ing of what “the right to full par­tic­i­pa­tion and con­sul­ta­tion” means misses the ob­jec­tive of pro­tect­ing and pro­mot­ing the right to hous­ing by pre­sent­ing a weak frame­work which fails to in­ter­ro­gate and en­gage fully with the con­cept, process and cause of forced evic­tions. There is no elab­o­ra­tion on what full par­tic­i­pa­tion means and what it en­tails and hence the frame­work fails in pro­vid­ing sub­stan­tive guid­ance. The in­ter­pre­ta­tion of the “en­tire process” as the time “prior, dur­ing and af­ter” evic­tion clearly misses a cru­cial pe­riod and which is when the de­ci­sion on de­vel­op­ment is be­ing made. It only pro­vides for those likely to be af­fected to re­view, com­ment and/or ob­ject to a pro­posed plan. This ap­proach there­fore does not al­low right-hold­ers to par­tic­i­pate in de­ci­sion-mak­ing pro­cesses lead­ing to de­vel­op­ment plans, but re­duces par­tic­i­pa­tion to mere con­sul­ta­tion by states af­ter de­ci­sions have been made. It al­lows for states to make de­ci­sions af­fect­ing the right to hous­ing with­out in­volv­ing right-hold­ers and there­after con­sult­ing them, which makes such con­sul­ta­tion mean­ing­less as the same is less likely to af­fect the ini­tial de­ci­sion. This, how­ever, is based on the op­er­a­tive key word in CESCR Gen­eral Com­ment 7 which is to “con­sult”, and which does not give the needed weight on par­tic­i­pa­tion of right-hold­ers as a right but places the same on a need ba­sis.

The “re­spect” obli­ga­tion of states in re­la­tion to the right to hous­ing is con­strued as a neg­a­tive obli­ga­tion not to carry out evic­tions with­out af­ford­ing nec­es­sary le­gal and other pro­tec­tion mea­sures to the per­sons af­fected. This en­tails “re­spect” to mea­sures adopted by state to en­sure ac­cess to ad­e­quate hous­ing. IHRL frame­work recog­nises par­tic­i­pa­tion af­ter the de­ci­sion, thus fail­ing to ad­e­quately pro­tect the right. In this way, more forced evic­tions will be wit­nessed be­cause the

frame­work on par­tic­i­pa­tion does not give right-hold­ers the op­por­tu­nity to chal­lenges de­vel­op­ment de­ci­sions from the on­set.

The in­ter­pre­ta­tive words in the Ba­sic Prin­ci­ples of “re­view, com­ment and/or ob­ject” do not make the sit­u­a­tion dif­fer­ent as they do not place right-hold­ers as ac­tive par­tic­i­pants in the plan­ning process. Th­ese in­ter­pre­tive words do not em­power rights hold­ers as they fail to of­fer them more op­tions to utilise in pro­tec­tion of their right to hous­ing at the on­set. At a more prag­matic level, states may op­pose ci­ti­zen par­tic­i­pa­tion be­cause it will be seen as time con­sum­ing, ex­pen­sive, and com­pli­cated, and will have lit­tle or no im­pact on the ear­lier de­ci­sion made. This is be­cause the le­gal frame­work pack­ages par­tic­i­pa­tion on a need ba­sis rather than right-based, which sub­jects the right to hous­ing to state’s wishes rather than be­ing an obli­ga­tion.

An­other con­cern on the par­tic­i­pa­tion is whether rights hold­ers have the abil­ity to veto the de­ci­sion by the state. In “Cen­ter for Mi­nor­ity Rights De­vel­op­ment (Kenya) and Mi­nor­ity Rights Group In­ter­na­tional on be­half of En­dorois Wel­fare Coun­cil v. Kenya”, the African Com­mis­sion up­held the im­por­tance of con­sul­ta­tion, in­di­cat­ing that the thresh­old dif­fered ac­cord­ing to the na­ture of the com­mu­nity and how it re­lated with its ter­ri­tory. This hold­ing fol­lows the pro­vi­sions of the United Na­tions Dec­la­ra­tion on the Rights of In­dige­nous Peo­ples (UNDRIPS) which pro­vides a clear ba­sis for par­tic­i­pa­tion by call­ing for “free, prior, and in­formed con­sent” to be ob­tained by states. The stan­dard set by UNDRIPS of “free, prior, and in­formed con­sent” is com­pa­ra­bly higher than that set CESCR of sim­ply “to con­sult”. In the case of “Res­i­dents of Joe Slovo Com­mu­nity v. Thubel­isha Homes and Oth­ers”, the ap­pli­cant com­mu­nity en­gaged South Africa on its com­pli­ance to min­i­mum es­sen­tial re­quire­ments to en­sure their ad­e­quate stan­dard of liv­ing was main­tained in a planned evic­tion. The fore­go­ing cases demon­strate the im­por­tance of ac­tive par­tic­i­pa­tion which is cru­cial if taken at the time of pol­icy for­mu­la­tion as it en­sures that the state con­forms to its obli­ga­tions while dis­charg­ing pub­lic duty on state’s de­vel­op­ment.

The Ba­sic Prin­ci­ples in­di­cates that right hold­ers can “ob­ject” to the pro­posed plan. It re­mains to be seen in re­al­ity how ob­jec­tion to de­ci­sion which has al­ready been made can be ac­tu­alised. Whereas the prin­ci­ple of good faith is in most times called to aid how far the stretch in the dis­cus­sion can go, the thin line be­tween good faith and pol­i­tics blurs the di­vide es­pe­cially from the state’s view.

Sev­eral states con­test vi­tal rights to some com­mu­ni­ties such as that to cul­tural life, mi­nor­ity and in­dige­nous is­sues, and as such demon­strate that good faith, which is a sub­jec­tive test, may be a bad op­tion to rely on. Fur­ther, th­ese projects carry enor­mous eco­nomic cap­i­tal from dif­fer­ent stake­hold­ers and the ex­pec­ta­tion of boost­ing eco­nomic growth is over­whelm­ing. This makes states and other stake­hold­ers not to give em­pha­sis on par­tic­i­pa­tion bear­ing in mind the soft stand taken by the Ba­sic Prin­ci­ples.

Prac­ti­cally, ob­jec­tion to a de­ci­sion al­ready made can be con­strued as op­po­si­tion to the govern­ment’s poli­cies and can be dealt with through force­ful mea­sures by the state. To ob­ject such a de­ci­sion may seem like a far-fetched so­lu­tion to a vul­ner­a­ble com­mu­nity and may be un­wise to take in many cir­cum­stances. The sit­u­a­tion could be dif­fer­ent if the par­tic­i­pa­tion was ini­ti­ated at the first point of plan­ning as the com­mu­nity would have the con­fi­dence to air their views freely while weigh­ing all is­sues con­cerned. Ob­jec­tion at that stage is pos­si­ble and easy step to take since no de­ci­sion has been made thus peo­ple will not feel in­tim­i­dated or afraid of be­ing seen as op­pos­ing the state. This is the best plat­form for em­pow­er­ment and also pro­vides a more pro­tec­tive mech­a­nism to the righthold­ers. It is im­por­tant for par­tic­i­pa­tion to be framed at such a level with­out leav­ing it to the political lead­ers. The “In­ter­na­tional Move­ment ATD Fourth World v. France” com­plaint pushed the Europe Com­mit­tee of Min­is­ters to adopt a res­o­lu­tion with an obli­ga­tion to state par­ties to in­volve per­sons to be af­fected by evic­tion un­der ar­ti­cle 31 of the Euro­pean So­cial Char­ter in pro­cesses lead­ing to de­ci­sions on de­vel­op­ment. This is a demon­stra­tion of political will by states in­di­vid­u­ally and col­lec­tively but where such lacks, then par­tic­i­pa­tion is doomed to fail as IHLR frame­work is gen­er­ally weak in en­gag­ing with political fac­tors.

“The use of in­di­ca­tors is widely ac­knowl­edged as a means to pro­tect and pro­mote hu­man rights. Sev­eral in­di­ca­tors have been de­vel­oped by dif­fer­ent agen­cies”


The UN Com­mit­tee on Eco­nomic, So­cial and Cul­tural Rights (CESCR) sug­gests a myr­iad so­lu­tions to de­vel­op­ment based dis­place­ments with par­tic­i­pa­tion adopted as a per­ceived bal­ance to en­sure in­clu­sive eco­nomic growth. The over­all ob­jec­tive of par­tic­i­pa­tion as a tool and as a process is to em­power peo­ple in their dif­fer­ent ca­pa­bil­i­ties to be able to re­al­ize their full po­ten­tial by uti­liz­ing their dif­fer­ent ca­pac­i­ties to bet­ter their lives. Par­tic­i­pa­tions ought to be seen as a shield as well as a sword in the hands of the peo­ple.

The use of in­di­ca­tors is widely ac­knowl­edged as a means to pro­tect and pro­mote hu­man rights. Sev­eral in­di­ca­tors have been de­vel­oped by dif­fer­ent agen­cies be­ing a re­sponse ei­ther to an evic­tion that has taken place or an im­pend­ing evic­tion whose de­ci­sion has been made. It is im­por­tant to think of in­di­ca­tors that will as­sist right-hold­ers in en­gag­ing and ques­tion­ing the un­der­ly­ing rea­sons for any evic­tion and to give them a level field aimed at pre­vent­ing any evic­tion as far as pos­si­ble un­less the same is in the ex­cep­tion­ally un­avoid­able as pro­vided by IHRL.^

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