Research Articles - Dullah Omar Institute

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From physical to online spaces in the age of the #FeesMustFall protests: A critical Interpretative synthesis of writing centres in emergency situations
(Sabinet African Journals, 2019) Nanima, Robert Doya; Klasste, Jacque
Writing centres play a vital role in guiding students in their academic writing. Central to this role is their physical location at tertiary institutions, where students usually walk in and schedule appointments with writing tutors. The recent #FeesMustFall protests saw the temporary closure of universities across South Africa. As a result, the functionality of the writing centres as physical locations was disrupted to the detriment of student development. This article evaluates the application of the principles that underscore the operation of physical writing centres as online spaces. First, it evaluates the writing centre as a physical space, and the resulting shift to an online space as a result of the #FeesMustFall protests. Secondly, with the methodological aids of Critical Interpretative Synthesis and my personal reflections as a tutor, I analyse the possible application of the principles that guide physical writing centres to the online environment.
From physical to online spaces in the age of the #FeesMustFall protests: a critical Interpretative Synthesis of writing centres in emergency situations
(Sabinet African Journals, 2019) Nanima, Robert Doya
Writing centres play a vital role in guiding students in their academic writing. Central to this role is their physical location at tertiary institutions, where students usually walk in and schedule appointments with writing tutors. The recent #FeesMustFall protests saw the temporary closure of universities across South Africa. As a result, the functionality of the writing centres as physical locations was disrupted to the detriment of student development. This article evaluates the application of the principles that underscore the operation of physical writing centres as online spaces. First, it evaluates the writing centre as a physical space, and the resulting shift to an online space as a result of the #FeesMustFall protests. Secondly, with the methodological aids of Critical Interpretative Synthesis and my personal reflections as a tutor, I analyse the possible application of the principles that guide physical writing centres to the online environment.
A right to a fair trial in Uganda’s Judicature (Visual Audio Link) Rules: Embracing the challenges in the era of Covid-19
(Taylor and Francis, 2020) Nanima, Robert Doya
The application of the Uganda Judicature (Visual-Audio Link) Rules does not contextualise the complete protection of an accused’s right to a fair trial during emergencies. A contextualisation of the right to a fair trial in inter national law and under Uganda's domestic law is done. An evaluation of the application of the Visual-Audio Rules in the context of its objectives and circumstances follows. The contribution proposes an accused-centred approach in the application of the Visual-Audio Rules. A conclusion and recommendations follow.
Perspectives on local government’s place in federal systems and central–local relations
(Commonwealth Journal of Local Governance, 2022) Powell, D M
To expand on the themes identified by Tomas Hachard’s paper Capacity, voice and opportunity: advancing municipal engagement in Canadian federal relations, the Journal commissioned six personal ‘perspectives’ from a diverse group of other Commonwealth countries – Australia, India, New Zealand, Nigeria, South Africa and the United Kingdom (UK). This replicated the model adopted in Issue 26 for Zack Taylor’s paper on Regionalism from above: intergovernmental relations in Canadian metropolitan governance. Similarly, the purpose was to establish a broader picture of issues and trends across the Commonwealth, rather than ‘review’ Hachard’s work.
From physical to online spaces in the age of the #Feesmustfall protests: A critical interpretative synthesis of writing centres in emergency situations
(Stellenbosch University, 2019) Nanima, Robert Doya
Writing centres play a vital role in guiding students in their academic writing. Central to this role is their physical location at tertiary institutions, where students usually walk in and schedule appointments with writing tutors. The recent #FeesMustFall protests saw the temporary closure of universities across South Africa. As a result, the functionality of the writing centres as physical locations was disrupted to the detriment of student development. This article evaluates the application of the principles that underscore the operation of physical writing centres as online spaces. First, it evaluates the writing centre as a physical space, and the resulting shift to an online space as a result of the #FeesMustFall protests. Secondly, with the methodological aids of Critical Interpretative Synthesis and my personal reflections as a tutor, I analyse the possible application of the principles that guide physical writing centres to the online environment.
A right to a fair trial in Uganda’s Judicature (Visual-Audio Link) Rules: Embracing the challenges in the era of Covid-19
(Routledge, 2020) Nanima, Robert Doya
The application of the Uganda Judicature (Visual-Audio Link) Rules does not contextualise the complete protection of an accused’s right to a fair trial during emergencies. A contextualisation of the right to a fair trial in international law and under Uganda's domestic law is done. An evaluation of the application of the Visual-Audio Rules in the context of its objectives and circumstances follows. The contribution proposes an accused-centred approach in the application of the Visual-Audio Rules. A conclusion and recommendations follow.
The protection of internally displaced children in Africa: A doctrinal analysis of article 23(4) of the African children’s charter
(Cambridge University Press, 2021) Adeola, Romola; Mezmur, Benyam D
This article considers the protection of, and assistance for, internally displaced children (IDCs) in Africa. Internal displacement has become one of Africa’s most pressing human rights challenges. Over the last decade, millions of persons have been internally displaced on the continent by conflict, disaster and other causes. Children are one of the most affected categories of persons, given the implications of displacement for them. Article 23(4) of the African Charter on the Rights and Welfare of the Child incorporates specific protection for IDCs. This article examines the protection of IDCs in the context of this regional framework. It argues that, while article 23(4) requires that both refugee children and IDCs should be accorded the same protection from a rights-based perspective, it also requires that the protection of IDCs should be construed with reference to the Kampala Convention, which is the most recent applicable regional regime governing internal displacement.
Addressing female genital cutting/mutilation (FGC/M) in The Gambia
(Routledge, 2021) Durojaye, Ebenezer; Nabaneh, Satang
The purpose of this chapter is to examine the viability of the use of criminal sanction to address FGC/M in general. It then examines the nexus between FCG/M and human rights and discusses the reasons often adduced to support use of criminal law to address FGC/M. Furthermore, it focuses on the amendment to the Women’s Act in The Gambia, which prohibits FGC/M. The paper evaluates the utility of the approach adopted by the Gambian government vis-a-vis its obligation under the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The paper concludes by noting that while the prohibition of FGC/M through sanction is important, such an approach will fail to achieve its desired aim of reducing the incidence of this practice unless other complementary measures are adopted by states.
The state of civil society participation in Parliament
(Law, Democracy & Development, 2012) Muntingh, Lukas
This paper explores the extent of public participation in the legislative, oversight and accountability mandates of Parliament. The legislative mandate refers to the making, introducing and amending of laws. The Constitution requires that the executive must account to Parliament for its actions, policies, expenditure etc. Corder et al explain it as follows: “Accountability can be said to require a person to explain and justify - against criteria of some kind - their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future.” Oversight has a broader meaning than accountability and includes a wide range of activities and initiatives aimed at monitoring the executive. While accountability and oversight may differ in respect of scope and focus, it is also clear that the two are closely linked and mutually reinforcing. The last concept requiring clarification is “the public” within the sense of public participation. As will be shown below, the concept was used in an expansive manner and few restrictions were placed on the inclusion of individuals or organisations in the review undertaken. Some may argue that, for example, national human rights institutions, such as the South African Human Rights Commission (SAHRC), are state institutions and would thus not be part of “the public”. On the other hand it can be argued that the SAHRC has a particular mandate to prevent and protect the public against excesses of the state and that this places it more closely aligned to the interests of the public than the state. In this paper the latter view was followed.
“Don’t try this at home?”: Reasonable or moderate chastisement, and the rights of the child in South Africa with YG v S in perspective
(SAFLII, 2018) Mezmur, Benyam Dawit
In October 2017, in YG v The State, the High Court in Gauteng handed down a judgment that declared the common-law defence of “reasonable or moderate chastisement” unconstitutional. This article, while not a case comment, focuses on this case, and discusses some of the arguments highlighted by the defendant as well as one of the amici curiae in support of the reasonable chastisement defence. It also assesses the extent to which those arguments carry weight when assessed against the international human rights framework by which South Africa is bound. The recommendations that South Africa received from various human rights treaty bodies in relation to the prohibition of corporal punishment in the home setting takes centre stage. The article also draws on examples from foreign law, and offers an appraisal of a non-exhaustive list of substantive rights, namely, the best interests of the child, the equal protection of the law, as well as the right to freedom of religion or belief, in the context of corporal punishment in the home setting. A conclusion sums up the discussions, by underscoring that a judgment in the Constitutional Court that declares the common-law defence of reasonable chastisement as unconstitutional could serve as the touchstone for the possible expansion of the effective protection of the rights of children against all forms of violence in South Africa.
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.
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.
Reaffirming the social security rights of children in South Africa with particular reference to the child support grant
(ESR Review : Economic and Social Rights in South Africa, 2010) Mirugi-Mukundi, Gladys
While South Africa has one of the most progressive constitutions in the world, the realisation of socio-economic rights remains a mirage for the majority of its population. Widespread poverty and unemployment present significant challenges to the capacity of families to care for their children. Historical inequalities in education, health care and basic infrastructure have contributed to poor service delivery to children and aggravated the vulnerability of children from poor families.
The unresolved ethnic question in Uganda’s district councils
(Law, Democracy & Development, 2015) Singiza, Douglas Karekona; de Visser, Jaap
This article examines the legal and constitutional framework for the election of district councils in Uganda because the design and practice of elections in Uganda has an impact on Uganda’s ability to follow through on the promise of respecting and encouraging diversity through decentralisation. The article concludes that the law and practice surrounding the election of district councils reveal the political exclusion of ethnic minorities. It is argued that this is contrary to the stated policy objectives of decentralisation in Uganda and only serves to further promote the political dominance of the ruling party.
Are ward committees working? Insights from six case studies
(Community Law Centre, University of the Western Cape, 2009) Smith, Terence; de Visser, Jaap
The research presented in this book sets out to offer a deeper and more nuanced understanding of the functioning and value of ward committees. In-depth qualitative studies of six ward committees are described. They provide insights into how ward committees are functioning and the key reasons behind the dysfunctionality that appears to plague the majority of ward committees. They also provide lessons for the future to strengthen the role of ward committees. It is envisaged that this resource book will be useful for local government councillors and practitioners, ward committee members, policy makers and ordinary citizens interested in the structures of participatory local governance.
Institutional subsidiarity in the South African Constitution
(Stellenbosch Law Review, 2010) de Visser, Jaap
This article explores the connection between section 156(4) of the Constitution and the principle of subsidiarity as it is found in legal theory and practice. It explores the historic background of the principle as well as its articulation in various domestic and international instruments. It will be argued that, despite the fact that the connection is tenuous, it may assist in the interpretation of this provision. Equipped with this appreciation of the connection between subsidiarity and section 156(4) of the Constitution, the article provides some suggestions for its application.
Multilevel government, municipalities and food security
(DST-NRF Centre of Excellence in Food Security, South Africa, 2019) de Visser, Jaap
Realising the right to food in South Africa requires more than an increase in food production. Increasing access to food is equally important, so this contribution adopts a 'food systems approach'. It argues that food security is not just a national and/or provincial government concern but that the Constitution demands of municipalities to contribute to realising the right to food. Against the backdrop of a general introduction into the division of responsibilities between national, provincial and local government, it deploys two arguments to make this assertion. The first is located in the jurisprudence of the South African Constitutional Court on socio-economic rights. The second is located in the division of powers between national, provincial and local government. This contribution explores various linkages between a municipality’s constitutional powers and food security. Specific emphasis is placed on the municipality’s responsibility to regulate trade and markets as well as its responsibility to conduct spatial planning and land use management.
Local accountability: Enforcing the Code of Conduct for councillors
(Dullah Omar Institute, 2006) de Visser, Jaap
This paper focuses on the role of the council of a municipality towards ensuring accountable governance. First, it discusses the Code of Conduct for councillors, which is the key instrument at the hands of the municipal council to ensure accountability of the council and councillors. Second, it analyses the way in which the Code of Conduct can be enforced. Third, it presents a case study of an instance in which these instruments to enforce ethical conduct were invoked. Fourth, it provides an analysis of a key area where improvements can be made and proposes a way forward to making those improvements.
Unfunded mandates: Directing subnational governments
(Deutsche Förschungsinstitut fur Öffentlichen Verwaltung, 2012) Steytler, Nico; de Visser, Jaap; Williams, Robert
Unfounded mandates are an extreme manifestation of the phenomenon of governing from the centre; the federal government through various strategies imposes national mandates on state and local governments at the expense of the latter. Unsurprising in federal systems, state and local governments object to unfunded mandates because, first, they shrink their policy space, and, second, limit their expenditure choices, and ultimately subnational governments' accountability to their electorates. They establish a hierarchy of authority that sits uncomfortably with federal notions of self-rule by subnational governments.
The functioning of ward committees: Challenges and prospects
(Dullah Omar Institute, 2007) de Visser, Jaap
Ward committees were formally introduced in 2000, and many municipalities soon commenced the process of establishing them. The establishment rate of ward committees across the country now stands at over 90% and is growing, indicating a firm commitment to this ode of community participation. The Municipal Structures Act (Act 117 of 1998) provides that the objective of a ward committee is to "enhance participatory democracy". Throughout the Municipal Systems Act (Act 32 of 2000), ward committees are mentioned as vehicles for community participation.

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