(2017) 1 African Human Rights Yearbook
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women’s property rights lies inequality. The bodies of the African
human rights system can contribute to the realisation of women’s rights
through development of progressive norms on the right to property for
women. The development of these norms at the regional level has the
potential to enhance the protection of similar rights at the domestic
level.
Taking into account the indivisibility, interdependency and
interrelatedness of all rights, the rights to equality and nondiscrimination have a critical role to play towards the realisation and
protection of women’s land and property rights. As Bulto highlights,
‘equality dictates the distribution of public resources for the protection
and promotion of, several rights and ‘other prized social goods and
services to everyone at equal measure.’3 Further, the African
Commission on Human and Peoples’ Rights (African Commission) has
detailed the importance of equality as the basis of the enjoyment of all
other rights.4 For the interpretation of equality and its application to
contribute to the realisation of women’s right to property, the bodies
tasked with the implementation of the various provisions must be
accepting of the interdependence of rights.
The article begins with a brief overview of the development of
property rights including on the African continent. The concept of
indivisibility, interdependence and interrelatedness of rights and its
recognition on the African system follows. Thereafter the right to
equality, its development and content as applied in the international
human rights system is discussed with the purpose of establishing a
lens with which to view and compare the development of the right to
equality in the African human rights system. The article concludes by
unpacking the application of equality and non-discrimination by the
African Commission.
2
THE DEVELOPMENT OF THE RIGHT TO
PROPERTY
Over the years, human rights law has accumulated a number of
instruments guaranteeing the right to property as a human right. The
earliest formulations of this right in international human rights laws is
captured under article 1(1) of the Universal Declaration of Human
Rights (Universal Declaration) which provides that ‘everyone has the
right to own property alone as well as in association with others.’5 The
recognition of this right was without controversy and due to the
controversies on the nature of the right that prevailed at the time
regarding its role, functions and restrictions, the right to property was
not included in the two key foundational human rights treaties of the
3
TS Bulto ‘The utility of cross-cutting rights in enhancing justiciability of socioeconomic rights in the African Charter on Human and Peoples’ Rights’ (2010) 29
University of Tasmania Law Review 142.
4
Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006).
5
Universal Declaration of Human Rights.