Browsing by Author "Chilemba, Enoch MacDonnell"
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Item Accountability and the right to food: A comparative study of India and South Africa(Food Security SA Working Paper Series, 2018) Durojaye, Ebenezer; Chilemba, Enoch MacDonnellIt remains a great source of concern that, as richly endowed as the world is, each day millions of people go to sleep hungry and almost 870 million people, particularly in developing countries, are chronically undernourished. Also, every year, 6 million children die, directly or indirectly, from the consequences of undernourishment and malnutrition – that is, 1 child every 5 seconds. The international community at various forums in the last twenty years or so have committed to ending undernourishment in the world. The right to adequate food is guaranteed in a number of international and regional human rights instruments. Despite these developments, many countries have not lived up to their obligations to realise this right. South Africa and India provide an interesting comparison. On one hand, South Africa has a progressive constitution that explicitly guarantees the right to food, while the Indian Constitution does not recognise the right to food as justiciable right. Yet the Indian courts have developed rich jurisprudence to hold the government accountable for failing to realise the right to food of the people. Indeed the courts have played key roles in ensuring the judicialisation of the right to adequate food in India in the wake of the fact that the Constitution does not expressly set out the right. This report shows that South Africa can learn from the Indian experience by using litigation as a tool for holding the government accountable to its obligation under international and national laws. Besides litigating the right to food to hold the government accountable, it is noted that chapter 9 institutions such as the South African Human Rights Commission (SAHRC), the Gender Equality Commission and the Public Protector all have important roles to play in holding the government accountable to the realisation of the right to food. This is because these institutions are constitutionally empowered to monitor and report on the measures and steps taken by the government towards the realisation of socioeconomic rights, including the right to food under the Constitution. The report concludes by noting that civil society groups in South Africa will need to be more active in monitoring steps and measures adopted by the government to realise the right to food. It also notes that, where necessary, litigation can be employed as a useful strategy to hold the government to account for its obligation to realise the right to food.Item Evictions in South Africa during 2014: An analytical narrative(ESR Review : Economic and Social Rights in South Africa, 2015) Chilemba, Enoch MacDonnellThe South Africa Constitution and pertinent legislative frameworks recognise the right of access to housing. This right extends to people who live in informal settlements, where they erect shacks and other structures. These people also include persons that take occupation of places/settlements 'illegally', although they are not expected to resort to illegal means in exercising their right. Due to a lack of access to housing people often erect shacks or other structures on land for which they do not have legal occupation. Such persons occupy lands belonging to private persons or entities, government and local municipalities. As a result, South Africa continues to witness cases and incidents of forced evictions whereby persons who are in illegal occupation of land are forcefully removed from it. In addition, people are evicted for reasons to do with urban development and planning.Item The Right to Primary Education of Children With Disabilities in Malawi: A Diagnosis of the Conceptual Approach and Implementation(Pretoria University Law Press, 2013) Chilemba, Enoch MacDonnellThe Convention on the Rights of Persons with Disabilities, which Malawi ratified in August 2009, affirms the recognition that disabled children are entitled to enjoy human rights such as primary education, including compulsory and free primary education, on an equal basis with others. However, almost 98 per cent of Malawi’s disabled children do not have access to education. This article observes that the situation could be attributed to the failure by the government of Malawi to conceptualise and implement the right to primary education for disabled children as envisaged by the international conceptual approaches and legal standards of inclusive education. The standards, as provided for in article 24 of the Disability Convention, emphasise the right of disabled children to attain compulsory and free primary education in mainstream schools together with all other children. Accordingly, this article explores the measures that Malawi could take to ensure a domestic implementation framework and conceptual approach that complies with international standards and approaches. This article first highlights the challenges that Malawi faces in the provision of primary education to disabled children before analysing the pertinent concepts such as inclusive education. It further discusses the applicable international legal standards before examining Malawi’s approach to the provision of primary education of disabled children. Ultimately, it evaluates Malawi’s constitutional, legislative and policy framework for the implementation of the right and suggests a number of measures that Malawi can implement in order to ensure compliance with international standards and conceptual approaches.Item They keep saying, ‘My President, my Emperor, and my All’: Exploring the antidote to the perpetual threat on constitutionalism in Malawi(Community Law Centre, University of the Western Cape, 2013) Chilemba, Enoch MacDonnellConstitutionalism is the liberal democratic value that aims at having a constitutional government whose powers are capable of being effectively limited. A country’s constitution plays the major role in ensuring constitutionalism since it creates and allocates powers to the institutions of government and also seeks to control/restrain the exercise of such powers. It is noteworthy that state institutions comprise the Executive; the Judiciary and the Legislature. This paper analyses the role of the constitution in checking the powers of the president (who heads the Executive) in order to achieve constitutionalism in Africa’s democratic states. It singles out the presidency as it yields more powers compared to the other institutions and hence has crucial impact on constitutionalism. The paper focuses on the case study of Malawi to highlight how the unchecked presidential powers continue to stifle constitutionalism. It discusses how the 1966 and 1995 constitution-making processes in Malawi did not result in a constitution capable of adequately constraining the powers of the president. The unchecked presidential powers act as a recipe for the perpetual threat on constitutionalism in Malawi. In view of this, the paper seeks to analyse the constitutional measures that Malawi could explore to ensure a presidency whose powers are capable of being limited in order to promote constitutionalism.