Dullah Omar Institute for Constitutional Law, Governance and Human Rights
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The Dullah Omar Institute, formerly the Community Law Centre, at the University of the Western Cape (‘the Centre’), established in 1990, works to realise the democratic values and human rights enshrined in South Africa’s Constitution. It is founded on the belief that our constitutional order must promote good governance, socio-economic development and the protection of the rights of vulnerable and disadvantaged groups. Given the need for regional integration to encourage development in Africa, the Centre also seeks to advance human rights and democracy in this broader context. Based on high quality research, the Centre engages in policy development, advocacy and educational initiatives, focusing on areas critical to the realisation of human rights and democracy in South Africa and Africa in general (ESCR-Net).
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Browsing by Subject "Accountability"
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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 An Assessment of the National Prosecuting Authority: A Controversial Past and Recommendations for the Future(Dullah Omar Institute, 2017) Muntingh, Lukas; Redpath, Jean; Petersen, KristenThe Constitution of South Africa provides for a single, independent national prosecution authority. The office of the National Prosecuting Authority (NPA) was formally established through the National Prosecuting Authority Act on 1 August 1998, replacing the former provincial Attorneys-General. The Constitution provides that the NPA has the power to institute and conduct criminal proceedings on behalf of the state; carry out any necessary functions incidental to instituting and conducting such criminal proceedings, and discontinue criminal proceedings. Twenty years into democracy, the independence of the NPA, in particular the National Director of Public Prosecutions (NDPP), has become a highly contested and politicised issue. The Constitutional Court has noted that ‘[t]he constitutional obligation upon the State to prosecute those offences which threaten or infringe the rights of citizens is of central importance in our constitutional framework’. This report focuses on the substantive problems and dilemmas facing the NPA. In the discussion that follows the major challenges that the NPA is facing and have faced are set out. The report unpacks these and presents possible solutions and recommendations. The first issue dealt with is the independence of the NPA and NDPP as it relates to the dismissal and appointment of the NDPP and it is argues that the process lacks transparency. Moreover, the lack of a transparent selection and appointment process has raised concerns about the ‘fit and proper’ requirement for the position of NDPP and other senior positions in the NPA. Interference by the executive in the work of the NPA has also emerged as a concern. The second issue dealt with is the accountability of the NPA and NDPP with reference to general proceedings and decisions to prosecute or not. Accountability is also examined in the light of the Prosecution Policy and Prosecution Directives. Thirdly, the question is raised whether the NPA is effective in holding offenders accountable. Data is presented that the institution’s performance is on a steady decline in pursuit of a high conviction rate, raising question about efficiency and effectiveness.Item Case review - fundamental constitutional value of accountability requires municipal officials to obey court orders : feature(ESR Review : Economic and Social Rights in South Africa, 2015) Mirugi-Mukundi, GladysThis is a summary of a recent Supreme Court of Appeal (SCA) decision that elaborated on the fundamental Constitutional value of accountability of public officials.Item Contribution of the health Ombud to accountability: The life Esidimeni tragedy in South Africa(Health and Human Rights Journal, 2018) Durojaye, Ebenezer; Agaba, Daphine KabagambeBetween October 2015 and June 2016, 1,711 people were relocated from mental health facilities operated by long-term provider Life Esidimeni in the South African province of Gauteng to alternative facilities managed by multiple nongovernmental organizations (NGOs). The result of the change in providers, and the manner in which the transfers were managed, became a tragedy that culminated in the death of 144 mental health care patients and the exposure of 1,418 others to torture, trauma, and poor health outcomes. The state was unable to ascertain the whereabouts of a further 44 patients. The tragedy began in October 2015, when the then member of the Executive Council for health in the populous Gauteng province, which includes Johannesburg and Pretoria, announced the termination of a 40-year contract between the Department of Health and Life Esidimeni for the provision of mental health services. The NGO facilities to which the patients were transferred were ill prepared and ill equipped for the influx of patients. The tragedy drew further public attention in September 2016, when, responding to a question raised in Parliament, the member of the Executive Council for health said that about 36 former residents of Life Esidimeni had died under mysterious circumstances following their transfers. South Africa’s minister of health then requested that the newly established Office of the Health Ombud investigate the circumstances surrounding the deaths of mentally ill patients and advise on the way forward.Item Formulating the pillars of a turnaround strategy About Previous issues(Community Law Centre, University of the Western Cape, 2009) Steytler, Nico; de Visser, Jaap; May, AnnetteThe turnaround strategy (TAS) for local government is gaining momentum. Initiated by the Department of Cooperative Governance and Traditional Affairs (CGTA), the TAS is aimed at identifying the drivers of the distress in local government and the mechanisms needed to effectively and efficiently address them. The urgency with which the distress in local government is viewed is evident in the express commitment of both Minister Shiceka and President Zuma to the TAS. The political will to see this process through, therefore, seems to exist. However, to yield different and more substantial results from that of similar prior processes, it must contain certain key elements.Item Implementing legal accountability to reduce maternal mortality and morbidity in Uganda(African Human Rights Law Journal, 2018) Agaba, Daphine KabagambeAccountability is a vital human rights principle to address preventable maternal morbidity and mortality in Uganda. The continuous use of ‘accountability’ as a term without elaborating on it gets in the way of using its underlying principles to improve laws and policies. The implementation of legal accountability requires creating avenues through which women whose maternal health rights have been violated may access legal remedies. The existence of adequate legal remedies is vital not only for redressing violations of rights but also for identifying and proposing strategies towards addressing the bottlenecks in health systems. Courts of law are principal judicial mechanisms and, therefore, it is incumbent upon courts to expand rather than limit maternal healthrelated rights. The Uganda Human Rights Commission is another body which is empowered with a protective and promotional mandate that should be used to promote and protect reproductive health rights. It is further emphasised that accountability is not a tool to be understood and interpreted only by legal practitioners. Rather, various forms of accountability, including social and administrative forms, are vital for complementing legal accountability in reducing preventable maternal mortality and morbidity.Item NPA Accountability, trust and public interest(Dullah Omar Institute, 2019) Africa Criminal Justice Reform, LukasThis discussion document deals with three key concepts associated with the National Prosecuting Authority (NPA) and its relation to the public, namely accountability, public interest and trust. It is presented that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.Item The powers of local government in decentralized systems of government: Managing the 'curse of common competencies'(Institute of Foreign and Comparative Law, 2005) Steytler, NicoThe issues and problems flowing from common competencies are shared by many, if not all, decentralised and federal systems; they are a feature arising from the division of powers between two levels of government. The problem is particularly pronounced when a third level of government is added - local government. Common competencies are mainly a function of the way local government powers are defined in constitutions. Because of the position of local government in the hierarchy of governments, local government is seldom given clearly demarcated exclusive powers. Moreover, the supervisory role of the 'senior' levels of government over local government, inevitably means that concurrency of powers occurs. Common competencies create a number of problems for the effective and efficient functioning of government. They include the following: duplication of services; ineffective service delivery; unfunded mandates for the lowest level of government; the domination of local government by 'senior' levels of government; and the lack of transparency and accountability. There are basically two approaches in dealing with these problems: first, seek greater division and certainty in the division of powers; and second, develop constructive ways of managing the tension through cooperation between levels of government.