Socio-Economic Rights Project (SERP)
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The Socio-Economic Rights Project, which focuses on the realization of the socio-economic rights of groups and communities living in poverty.
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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 Addressing Human Rights concerns raised by mandatory HIV testing of pregnant women through the Protocol to the African Charter on the Rights of Women(Journal of African Law, 2008) Ebenezer, DurojayeThis article considers the importance of preventing mother to child transmission of HIV in Africa. It argues, however, that any approach to achieving this aim must be consistent with respect for human rights. In particular, it argues that mandatory HIV testing of pregnant women violates their rights to autonomy, health and reproductive care, and non-discrimination, all guaranteed in the Protocol to the African Charter on the Rights of Women and other international and regional human rights instruments. It concludes by arguing that respect for women's human rights should form the fulcrum for any call for mandatory or routine HIV testing of pregnant women in Africa.Item Advancing the Right to Adequate Housing of Desperately Poor People: City of Johannesburg v. Rand Properties(Human Rights Brief, 2006) Chenwi, LilianInadequate housing, the growth and overcrowding of informal settlements, and the occupation of private land and abandoned buildings are prevalent in South Africa. The result is that many of the country’s most vulnerable — women, children, the elderly, and those living with disabilities — are evicted and left homeless. In the inner city of Johannesburg, thousands of desperately poor people are forced to illegally occupy unsafe buildings (so-called “bad buildings”) because they cannot afford accommodation on the private residential housing market nor access the urban social housing units.Item The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights(African Human Rights Law Journal, 2011) Victoria, Balogun; Ebenezer, DurojayeThe article examines the activities of the African Commission with regard to the advancement of sexual and reproductive health and rights in Africa. The article reviews the importance of applying human rights to sexual and reproductive health issues. It further discusses the promotional and protective mandates of the African Commission with a view to ascertaining whether the Commission has given attention to addressing the sexual and reproductive health challenges facing the region. In this regard, the paper focuses on two important issues - maternal mortality and same-sex relationships. Based on careful analyses of the promotional and protective mandates of the Commission, it is argued that some efforts have been made towards advancing reproductive health and rights in Africa. However, much more effort is needed with regard to sexual health and rights, especially with regard to issues such as same-sex relationships, sex work and violence against women. In conclusion, some suggestions are provided on the role of the African Commission in advancing sexual and reproductive health and rights in the region.Item African Commission reaffirms protection of socio-economic rights in the African Charter(ESR Review : Economic and Social Rights in South Africa, 2010) Chenwi, LilianIn July 2010, the ruling of the African Commission on Human and Peoples' Rights (African Commission) in relation to communications 279/03 and 296/05 was made public, the decision having been adopted in May 2009. The communications were submitted by the Sudan Human Rights Organisation (SHRO) and the Centre on Housing Rights and Evictions (COHRE), respectively, against the Sudan government. However, because the applicants in the SHRO case did not appear before the African Commission on the merits, the Commission considered and decided only the COHRE case on the merits.Item The African Women's Protocol and sexual rights(The International Journal of Human Rights, 2014-11) Ebenezer, Durojaye; Lucyline Nkatha, Murungi‘Sexual rights’ are defined to include the rights of all persons free of coercion, violence and discrimination to the highest attainable standards of sexual health, including access to sexual and reproductive health care services. The entry point for the notion of sexual rights in the international community was the World Conference on Human Rights in Vienna. The conference affirmed for the first time that acts of violence against women impair and nullify the enjoyment of their rights and freedoms. Subsequent global and regional forums have since contributed to the understanding of ‘sexual rights’ as human rights issues. Article 14 of the African Women’s Protocol builds upon these gains and enhances the sexual rights discourse in several ways; the article pioneered the inclusion of ‘sexual rights’ in a human rights instrument, and recognises the link between women’s sexuality, their dignity, and other rights. A purposive and holistic interpretation of the article is crucial to the advancement of the sexual rights of girls and women in Africa.Item The application of socio-economic rights to private law(Journal of South African Law, 2008) Sandra, LiebenbergThe constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality, land reform and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties.Item An appraisal of international law mechanisms for litigating socio-economic rights, with a particular focus on the optional protocol to the international covenant on economic, social and cultural rights and the African Commission and Court(Stellenbosch Law Review, 2011) Chenwi, LilianLitigation of socio-economic rights at international level is a viable option where access to justice at the national level is unattainable. International law mechanisms for litigating these rights are therefore useful for marginalised groups and people living in poverty. This is also based on the important role of these mechanisms in ensuring that States meet the obligations they have committed to in human rights treaties, and provide effective remedies in cases of violations. This article assesses, taking into consideration some broad principles, the international law mechanisms for litigating socio-economic rights at the UN and African regional levels, particularly the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ("OP-ICESCR") and the African Court on Human and Peoples' Rights and the African Commission on Human and Peoples' Rights complaints mechanisms. The article illustrates that while these mechanisms have the potential to advance the rights of the poor and marginalised, and in some case have been successful in doing so, they are not without drawbacks that impact on their effectiveness.Item 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, ChristopherThis 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.Item Basic rights claims How responsive is ‘reasonableness review’?(ESR Review, 2004) Sandra, LiebenbergSouth Africa’s 1996 Constitution (the Constitution) is widely renowned for its holistic, inclusive Bill of Rights. A particular innovation is its inclusion of a wide range of fully justiciable socio-economic rights. There is now a burgeoning body of jurisprudence from the Constitutional Court interpreting these rights. There can be little doubt that South African jurisprudence has given a significant boost to international endeavors to protect socio-economic rights. Through its jurisprudence, the Court has to achieve a critical balance between effectively protecting the socio-economic rights of the poor, while also respecting the roles of the legislature and executive as the primary branches of government responsible for realising socio-economic rights.Item Bolstering the protection of economic, social and cultural rights under the Malawian Constitution(Malawi Law Journal, 2007) Mbazira, ChristopherThe 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.Item Breaking new ground : the need for a protocol to the African Charter on the abolition of the death penalty in Africa(African Human Rights Law Journal, 2005) Chenwi, LilianThe 1980s saw the drafting and adoption of international treaties on the abolition of the death penalty. In the European and Inter-American human rights systems, steps have been taken to abolish the death penalty by means of the adoption of protocols to their respective human rights treaties. Therefore, the African continent is the only region with a human rights treaty that does not have a protocol on the abolition of the death penalty. Human rights systems need to be constantly adapted to match changing conditions. Accordingly, in view of the international human rights developments and trends towards the abolition of the death penalty, this article addresses the need for a protocol to the African Charter on Human and Peoples' Rights on the question of the abolition of the death penalty in Africa.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 Celebrating ten years of translating socio-economic rights into reality : The Socio-Economic Rights Project of the Community Law Centre(ESR Review : Economic and Social Rights in South Africa, 2007) Chenwi, LilianSouth Africa’s democracy has all the building blocks in place to facilitate democratic development and the realisation of socio-economic rights. The 1996 Constitution provides a strong institutional framework within which socioeconomic rights can be realised. However, although South Africa has a Constitution hailed as the most progressive in the world and a broad range of institutions, actors, legislation and promising jurisprudence designed to promote human rights, translating these rights into tangible realities for poor and marginalised groups still remains a major challenge.Item Child poverty and children’s rights of access to food and basic nutrition in South Africa : A contextual, jurisprudential and policy analysis(Community Law Centre, University of the Western Cape, 2009) Chirwa, Danwood MzikengeThe rights to food and basic nutrition have been implemented rather unsystematically in South Africa through a hodgepodge of policies and indirectly by legislation. In view of the dearth of jurisprudence, this paper sought to tease out the meaning of children’s right of access to food as well as their right to basic nutrition, to analyse the significance of, and correlation between, these two rights, and to consider their implications for South African law and policy.Item The child's right to basic education in Nigeria: a commentary on the decision in SERAP v Nigeria(African Journal of International and Comparative Law, 2018) Aisosa Jennifer, Isokpan; Ebenezer, DurojayeThe right to education is not justiciable in Nigeria by virtue of it being included in Chapter II of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN 1999) as a directive principle of state policy. This is evidenced in the case of Badejo v. Federal Ministry of Education, where the applicant claimed that as a result of the discriminatory conduct of the respondents she was denied her right and the chance to be considered for admission into one of the Federal government colleges in Nigeria. Her application as well as her appeal was dismissed by the High Court and the Court of Appeal.Item 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, TeddyThe 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.Item Compulsory licensing and access to medicines in post Doha era: What hope for Africa?(Netherlands International Law Review, 2008) Ebenezer, DurojayeThe Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994, an outcome of the Uruguay Round negotiations, radically altered the role of international trade law in promoting and enforcing intellectual property protection around the globe. This important, yet controversial, international agreement requires members of the World Trade Organization (WTO) to implement strong intellectual property protections in their domestic law. Indeed the emergence of the TRIPS Agreement at the end of deliberations in Marrakesh has been described as a major tactical victory for rich countries and pharmaceutical companies. Prior to 1994, countries of the world were not obligated to grant patent rights for pharmaceutical products, but with the signing of the TRIPS Agreement this changed. Along with this change, patent protection for pharmaceuticals, and the impact such patent protection is likely to have on access to medicines for the world’s poor, have become a major source of conflict between rich and poor nations.Item Conference “Seeking security: Towards a new vision for tenure relations in farming areas”(ESR Review : Economic and Social Rights in South Africa, 2005) Chenwi, LilianNkuzi Development Association (NDA) in partnership with Social Surveys Africa (SSA) organised a conference on the tenure security of farm dwellers, which was held in Johannesburg from 25–27 October 2005.Item Confronting the problem of polycentricity in enforcing the socioeconomic rights in the South African Constitution(SA Publiekreg = SA Public Law, 2008) Mbazira, ChristopherThe 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.