UWCScholar :: Browsing by Author "Mbazira, Christopher"

Browsing by Author "Mbazira, Christopher"

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Appropriate, just and equitable relief' in socio-economic rights litigation : the tension between corrective and distributive forms of justice
(South African Law Journal, 2008) Mbazira, Christopher
This article makes the point that one cannot understand fully the nature of the remedies granted by the Constitutional Court in socio-economic rights litigation unless their theoretical basis as defined by the notions of corrective and distributive forms of justice is appreciated. The author uses the notion of distributive justice to argue that the social and economic context dictates that even seemingly individual socio-economic rights are to be enforced as collective rights in order to achieve a fair distribution of resources. What the Constitutional Court has therefore done is to focus its remedies beyond the individual litigant and to grant remedies that advance constitutional rights so as to extend collective / group benefits. Though vindication and compensation of the victim have been acknowledged as fundamental objectives of constitutional litigation, they do not represent the only objectives that are to be achieved. The interest that society has in the protection of the rights embodied in the Constitution, and the protection of the values of an open and democratic society based on equality, freedom and human dignity, too, are precepts that the Court has sought to advance.
Bolstering the protection of economic, social and cultural rights under the Malawian Constitution
(Malawi Law Journal, 2007) Mbazira, Christopher
The Malawian Constitution protects a handful of socio-economic rights in the Bill of Rights and enshrines the rest as part of directive principles of national policy. The only socio-economic rights expressly protected in the Bill of Rights are the right to education; the right to participate in cultural life of one's choice; the right to engage freely in economic activity, to work and pursue a livelihood; and the right to development. Socio-economic rights are thus not given the same level of protection as civil and political rights. Yet the Malawi Law Commission (Commission) in its current review of the Constitution has not identified these rights as a point of focus. The attitude of the Commission reflects the ideological position that regards socio-economic rights as incapable of judicial enforcement and as being inferior to civil and political rights. This article outlines the theoretical basis for including socio-economic rights as justiciable protections within the Malawian Constitution.
Civic space and human rights advocacy in the extractive industry in Uganda: Implications of the 2016 Non-Governmental Organisations Act for oil and gas civil society organisations
(African Human Rights Law Journal, 2018) Mbazira, Christopher; Namatovu, Teddy
The discovery of oil and gas in Uganda has been identified as having the potential to transform Uganda’s economy, moving Uganda away from a predominantly low-income to a competitive upper-middle-income country by 2040. However, this discovery has precipitated human rights violations and abuses, especially in the Albertine Graben, where the oil exploration activities are concentrated. For example, the acquisition of land for oilrelated infrastructure has changed the patterns of use of land and water, and people are already experiencing negative effects, such as a loss of livelihood and resources. Civil society organisations aimed at addressing these human rights issues in the sector face a number of hurdles despite constitutional protection and ratification of international instruments that guarantee fundamental rights for CSO operations in the country. Currently, CSOs are governed by the recently-enacted Non-Governmental Organisations Act of 2016. This Act is accompanied by other laws, such as the Public Order Management Act. These laws have created several stumbling blocks that have frustrated CSO efforts in the fulfilment of their mandate. The weight of these laws is especially felt by NGOs working on sensitive issues such as natural resource governance. The article analyses the impact of the legislative framework governing CSOs, specifically the NGO Act, on organisations addressing or working on oil and gas issues in Uganda. In addition to the NGO Act, other pieces of legislation that have a direct bearing on the activities of these organisations are also analysed.
Confronting the problem of polycentricity in enforcing the socioeconomic rights in the South African Constitution
(SA Publiekreg = SA Public Law, 2008) Mbazira, Christopher
The judicial enforcement of the socio-economic rights contained in the South African Constitution (Constitution) has not been without controversy when compared to the judicial enforcement of civil and political rights. While socio-economic rights have been accorded justiciability by their express incorporation in the Bill of Rights, the courts are yet to enforce these rights in a manner that translates them into individual goods and services. The Constitutional Court approach to the enforcement of these rights has come into question particularly as the Court has rejected the concept of minimum core obligations and has failed to give the rights normative content.
The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(ESR Review : Economic and Social Rights in South Africa, 2006) Chenwi, Lilian; Mbazira, Christopher
Historically, economic, social and cultural rights (ESC rights) have received less protection through enforcement mechanisms than civil and political rights. Victims of ESC rights violations do not have the opportunity of submitting formal complaints to the Committee on Economic, Social and Cultural Rights (CESCR), the supervisory body of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Conversely, the 1976 Optional Protocol to the International Covenant on Civil and Political Rights allows victims to lodge complaints with the Human Rights Committee (HRC), the supervisory body of the International Covenant on Civil and Political Rights (ICCPR).
Enforcement of economic, social and cultural rights in Uganda
(ESR Review : Economic and Social Rights in South Africa, 2009) Mbazira, Christopher
Uganda has ratified almost all the major regional and international instruments that protect economic, social and cultural rights (ESCRs). However, a reading of the Constitution of Uganda, 1995, and other laws shows that the rights have not been domesticated fully.
Enforcing socio-economic rights as individual rights: The role of corrective and distributive forms of justice in determining “appropriate relief”
(ESR Review : Economic and Social Rights in South Africa, 2008) Mbazira, Christopher
Different notions of justice influence the remedies that courts grant in socio-economic rights litigation. The two theories of justice discussed here derive from the philosophies of corrective and distributive forms of justice. © Publisher
Enforcing the economic, social and cultural rights in the African Charter on Human and Peoples' Rights : twenty years of redundancy, progression and significant strides
(African Human Rights Law Journal, 2006) Mbazira, Christopher
The fight against poverty and underdevelopment in Africa is amongst others dependent on how successfully the socio-economic rights protected in both the regional and universal instruments are concretised. The last 20 years since the adoption of the African Charter show a slow but steady move towards such concretisation. The African Commission has moved from a stage of redundancy, when not much was done to give normative content to the rights, to a stage of progression, in which the African Commission has started giving content to the rights. In spite of this, the recommendations of the African Commission are yet to be taken seriously not only by state parties, but by the African Union. There is no reliable mechanism to enforce the recommendations of the African Commission and, as the African Court on Human and People’s Rights begins operation, its success is likely to be hampered by the same problem. This is in spite of the fact that the African Court has a wide remedial mandate in comparison to the African Commission. As the African Court propels the African human rights system into a stage of significant strides, this is the biggest obstacle in its way. The African Union is central in sanctioning states that fail to implement the judgments of the African Court. However, history shows that the Assembly of Heads of State and Government has always been reluctant to sanction its members. Unless there is a change of heart and more commitment to human rights, this practice is likely to persist and thereby negatively impact on the rights protected by the African Charter.
Enforcing the economic, social and cultural rights in the South African Constitution as justicable individual rights: the role of judicial remedies
(University of the Western Cape, 2007) Mbazira, Christopher; De Vos, Pierre F.; Faculty of Law
Judicial remedies are, amongst others, a vehicle through which respect, protection, promotion and fulfilment of human rights can be delivered to those who need them. A remedy is the perspective from which litigants judge either the success or failure of judicial decisions. Judicial remedies make the rights whole, they complete the justiciability of human rights because without them human rights remain statements of legal rhetoric. The nature of the remedies that the courts grant is not only based on the normative nature of the rights they seek to enforce. They are also influenced by factors such as the goals and objectives of judicial remedies as defined, amongst others, by the ethos of either corrective or distributive forms of justice. This thesis explored these factors and their impact on judicial remedies. Stress is put on the impact of the separation of powers doctrine, institutional competence concerns and on the forms of justice pursued by courts. The study is based on the judicial enforcement of the socio-economic rights protected in the South African 1996 Constitution. The research undertaken here was intended to guide scholars, legal practitioners and judicial officers who confront socio-economic rights issues as part of their daily work.
From ambivalence to certainty : norms and principles for the structural interdict in socio-economic rights litigation in South Africa
(South African Journal on Human Rights, 2008) Mbazira, Christopher
The parsimonious approach of the Constitutional Court in using the structural interdict in socio-economic rights cases has both been critiqued and also contrasts with that of the High Courts. Moreover, the Court has neither given a principled basis for its rejection and use of the remedy nor laid down any norms and principles for determining when the remedy is appropriate. Starting from these bases, this article highlights norms and principles which could guide the courts in determining when the structural interdict is appropriate, and its modalities. Drawing upon Amersican jurisprudence, the article proposes norms and principles including utilisation of the structural interdict in a graduated manner as a remedy of last resort; participation of all stakeholders; judicial impartiality and independence; reasoned decision making; remediation which enforces the substantive norms; and flexibility.
Grootboom: A paradigm of individual remedies versus reasonable programmes
(Southern African Public Law, 2011) Mbazira, Christopher
The decision of the Constitutional Court (the Court) in the case of Government of the Republic of South Africa versus Grootboom was received as ground breaking by human rights practitioners, scholars and advocates the world over. If it were possible to assess the case in terms of new music releases, one would say that the 'Grootboom album' became an instant hit on the top of all music charts. The case instantly established itself as a landmark, signifying the undeniable justiciability of economic and social rights (socio-economic rights). Thus, the case became a promise that the lives of South Africans living in crisis-like situations would be changed for the better. The Court's reasonable programme review approach instantly became the litmus test with which to determine whether government has discharged its obligations to realise the various constitutionally protected economic, socio-economic rights.
Incy wincy spider went climbing up again – prospects for constitutional (re)interpretation of section 28(1)(c) of the South African Constitution in the next decade of democracy
(Nelson R Mandela School of Law, University of Fort Hare, 2007) Sloth-Nielsen, Julia; Mbazira, Christopher
INTRODUCTION: This article reviews the first decade of jurisprudence concerning interpretation of the rights enumerated in s 28(1)(c) of the Constitution of South Africa (the Constitution), commonly referred to as the children’s socio-economic rights clause. Three broad trends are identified, which in the main have resulted in a far more limited scope of application of these rights than was originally anticipated. In addition, affirming existing jurisprudence in relation to socio-economic rights generally, dicta of the Constitutional Court signal clearly that the Court is not going to be persuaded to accept or define a minimum core content to elaborate the scope of individual socio-economic rights a d the concomitant extent of the State obligations in respect thereof .
Litigating socio-economic rights in South Africa: A choice between corrective and distributive justice
(Pretoria University Law Press, 2009) Mbazira, Christopher
Christopher Mbazira's book, adapted from doctoral thesis and published by Pretoria University Law Press, is welcome addition to the growing scholarship on socio-economic rights litigation in South Africa. The book is very readable, while being well-researched and academically rigorous, and is likely to appeal to law students and practitioners alike.
The New Partnership for Africa's Development : implications for the realisation of socio-economic rights in Africa
(ESR Review : Economic and Social Rights in South Africa, 2004) Mbazira, Christopher
The New Partnership for Africa's Development : Implications for the realisation of socio-economic rights in Africa Christopher Mbazira The realisation of socio-economic rights in Africa remains a distant goal. The majority of Africans live in poverty. Chronic hunger, malnutrition, HIV/Aids, ignorance and illiteracy continue to plague the continent. Military dictatorships, poor leadership, corruption, political conflicts, globalisation and structural adjustment programmes (SAPs) have all contributed to this situation. The debt burden exceeds manageable levels. States have increasingly withdrawn from providing such essential services as education, electricity and health. Welfare programmes have been reduced while retrenchment has increased ..
Non-implementation of court orders in socioeconomic rights litigation in South Africa Is the cancer here to stay?
(2008) Mbazira, Christopher
Over 12 years have elapsed since the South African Constitution was adopted, and the jurisprudence on socio-economic rights has increased considerably. Yet a majority of the population remain entrapped in poverty.
An overview of the Constitutional Court hearing of the inner-city evictions case
(ESR Review : Economic and Social Rights in South Africa, 2007) Mbazira, Christopher
On 28 August 2007, the Constitutional Court heard an appeal against the decision of the Supreme Court of Appeal (SCA) in the Rand Properties case. This case concerns the eviction of poor people from dilapidated buildings in the inner city of Johannesburg. Acting in terms of section 12 of the National Building Regulations and Building Standards Act of 1977 (NBRA), the City of Johannesburg (the City) had issued eviction notices on the basis that these buildings were hazardous and not suitable for human habitation. It therefore brought an application to the High Court to enforce these notices.
A path to realising economic, social and cultural rights in Africa? A critique of the New Partnership for Africa's Development
(African Human Rights Law Journal, 2004) Mbazira, Christopher
he article first sets out the legal framework for the protection of socio-economic and cultural rights in Africa. Some of the reasons that have been advanced for the non-realisation of socio-economic rights as compared to civil and political rights are discussed. Thereafter the article highlights the background of New Partnership for Africa's Development (NEPAD) and gives a brief description of its objectives and framework. It proceeds to look at the institutional set-up of NEPAD, including the operation of the African Peer Review Mechanism as an implementation strategy of NEPAD's objectives. The article examines how NEPAD intends to address the issue of socioeconomic rights through, for instance, ensuring an end to conflicts, democracy and good governance, and improvement of infrastructure and education. The article looks at NEPAD's commitment to ensure improved health and protection of the environment. It discusses NEPAD's approach to the advancement of culture and makes a critique of NEPAD's human rights component. NEPAD is Africa's hope for sustainable development and is a programme that commits African leaders to a number of positive undertakings, but NEPAD needs to be integrated with the African human rights system.
Prisoners’ right of access to antiretroviral treatment
(ESR Review : Economic and Social Rights in South Africa, 2006) Mbazira, Christopher
Prisoners are susceptible to a number of illness and diseases due, in part, to poor living conditions in prisons (e.g. overcrowding and poor nutrition), substance abuse and sexual violence (e.g. male rape). From a health care perspective, prisons present a particular challenge. From 1996 to 2005, the number of prisoners dying from natural causes per year increased from 211 to 1 507. HIV/Aids has contributed to this increase. The rate of HIV infection among prisoners is unknown and the Department of Correctional Services (the Department) has commissioned a research project to establish this. In the absence of accurate and publicly accessible data, it is difficult to establish the size and scope of HIV infection and the actual number of persons living with AIDS in our prisons. What we do know is that prisoners’ access to anti-retroviral treatment (ARV) is extremely limited. To date, only one accredited ARV treatment centre has been established by the Department, at Grootvlei Correctional Centre in the Free State.
Reading the right to food into the African Charter on Human and Peoples' Rights : Africa's regional developments
(ESR Review : Economic and Social Rights in South Africa, 2004) Mbazira, Christopher
The African Charter on Human and Peoples’ Rights (the Charter) of 1981 is the principal regional instrument protecting human and peoples’ rights in Africa. It incorporates a wide range of socio-economic rights, including the rights to property, to work under favourable conditions and equal pay for equal work, to health, to education, family rights and the right to self-determination.
Regional Symposium on Harmonisation of Laws on Children in Eastern and Southern Africa, 9-10 May 2007
(African Human Rights Law Journal, 2007) Mbazira, Christopher
From 9 to 10 May 2007, the African Child Policy Forum (AFCPF), supported by UNICEF, Eastern and Southern Africa Office (UNICEF-ESARO), organised a Regional Symposium on Harmonisation of Laws on Children in Eastern and Southern Africa (Symposium). This Symposium was preceded by a project that studied the extent to which 18 countries in the Eastern and Southern African region had harmonised their laws on children with the United Nations (UN) Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). The Symposium brought together about 70 children’s rights experts, academics and advocates from over 15 countries.

Browsing by Author "Mbazira, Christopher"

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