Socio-Economic Rights Project (SERP)

Permanent URI for this collection

https://hdl.handle.net/10566/1375

The Socio-Economic Rights Project, which focuses on the realization of the socio-economic rights of groups and communities living in poverty.

Browse

Now showing 1 - 20 of 130

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 MacDonnell
Constitutionalism 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.
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 MacDonnell
It 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.
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 MacDonnell
The 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.
Contribution of the health Ombud to accountability: The life Esidimeni tragedy in South Africa
(Health and Human Rights Journal, 2018) Durojaye, Ebenezer; Agaba, Daphine Kabagambe
Between 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.
Implementing legal accountability to reduce maternal mortality and morbidity in Uganda
(African Human Rights Law Journal, 2018) Agaba, Daphine Kabagambe
Accountability 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.
'Jumping the queue', waiting lists and other myths : perceptions and practice around housing demand and allocation in South Africa
(ESR Review : Economic and Social Rights in South Africa, 2014) Assim, Usang Maria; Agaba, Daphine Kabagambe
On 13 and 18 June 2014, the Socio-Economic Rights Project of the Community Law Centre, University of the Western Cape, held roundtable discussions in Cape Town and Johannesburg on housing demand and allocation in South Africa.
The Constitutional Protection of Those Facing Eviction from “Bad Buildings”
(ESR Review : Economic and Social Rights in South Africa, 2008) Chenwi, Lilian; Liebenberg, Sandra
The Constitutional Court’s judgment in the Olivia case, handed down on 19 February 2008, represents a victory for the occupiers of “bad-buildings” in the inner city of Johannesburg as well as other poor people facing eviction for health and safety reasons.
Giving effect to the right to adequate housing : the need for a coherent (national) policy on special needs housing : legislationtion and policy review
(ESR Review : Economic and Social Rights in South Africa, 2006) Chenwi, Lilian
According to the Centre for Housing Rights and Evictions (2006), the right to housing is one of the most widely violated human rights. Over a billion people worldwide have inadequate housing
Evictions in South Africa during 2014: An analytical narrative
(ESR Review : Economic and Social Rights in South Africa, 2015) Chilemba, Enoch MacDonnell
The 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.
Revisiting the Trips Regime: Rwanda-Canadian ARV Drug Deal Tests the WTO General Council Decision
(African Journal of International and Comparative Law, 2009) Rebecca, Amollo
On 17 July 2007, the world was awakened to Rwanda's notification of the World Trade Organisation's (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) that it plans to import the HIV-drug TriAvir from Canada's giant pharmaceuticals company, Apotex. Two months later, Canada issued a compulsory licence allowing Apotex to use nine patented inventions for manufacturing and exporting TriAvir to Rwanda. On 4 October 2007, Canada notified the Council for TRIPS of the compulsory licence. In September 2008, Apotex said it will ship seven million antiretroviral pills to Rwanda to treat 21,000 patients. Against this backdrop, this article uses the Rwandan-Canadian drug deal to examine the utility of the WTO General Council Decision in making ARV drugs more accessible to Low and Middle Income Countries so far. In doing so, the article's analyses rely on the regime of the Canadian Access to Medicines Regime which was enacted after the WTO Decision. The author discusses some of the issues arising from the deal in light of the effectiveness of the General Council Decision in solving the problem of access to antiretroviral drugs within the right to health and HIV/AIDS context. The article also raises questions relating to the willingness of developing countries to take benefit of the TRIPS flexibilities and the obligation of developed countries to ensure that the flexibilities become a reality.
Limitation of socio-economic rights in the 2010 Kenyan Constitution: a proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights disputes
(Potchefstroom Electronic Law Journal, 2013) Nicholas, Orago
On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.
Old age pension decision : out of sync with legal developments
(ESR Review : Economic and Social Rights in South Africa, 2010) Chenwi, Lilian; Heleba, Siyambonga
On 17 March 2010, the North Gauteng High Court finally handed down judgment in the Christian Roberts case, which the Court had heard on 11 and 12 September 2007. It concerns a constitutional challenge to section 10 of the Social Assistance Act 13 of 2004 and the relevant regulations, which set the age for accessing the old age grant at 60 for women and 65 for men.
The Place of the "Minimum Core Approach" in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution
(Journal of African Law, 2015) Nicholas, Orago
The high levels of poverty, inequality and socio-economic marginalisation that bedevilled Kenya for generations led to a struggle for a new constitutional dispensation, which culminated in the promulgation of a new, egalitarian and transformative constitution in August 2010. This constitution entrenched justiciable socio-economic rights within an elaborate Bill of Rights. Though an important step in the process of the egalitarian transformation of the country, the challenge remains to transform these precepts into practice with their scrupulous implementation through legislative, policy and programmatic frameworks, as well as judicial decision-making. This article argues that, in order to achieve the intended egalitarian transformation, Kenya must adopt a strong interpretive approach, with sufficient foundational standards for the translation of these rights into tangible realities for Kenyans. Kenya must therefore explicitly adopt a minimum core approach for the realisation of these rights to transform them into practical realities for the poor, vulnerable and marginalised Kenyans.
Poverty, women and the human right to water to grow food
(ESR Review, 2014) Ngcimezile, Mbano
The global community is united in its commitment to remove the scourge of world poverty. One core factor to achieve this is access to water from which poor people, especially women, draw multiple benefits. Such benefits include enhanced livelihood security, generation of wealth, reduced health risks and vulnerability (Poverty Environment Partnership 2006). On another front lack of access to water is both a cause and consequence of poverty and inequality. It undermines productivity and economic growth, reinforcing the deep inequalities that characterise current patterns of globalisation and trapping vulnerable households in cycles of poverty (Human Development Report 2006). In order to reduce poverty, therefore, serious consideration needs to be given to guaranteeing access to water that goes beyond domestic uses. Productive uses of water at the household level that comprise mainly small-scale activities, including growing food and earning an income, would significantly impact the living standards of many people. Such uses of water include fruit and vegetable gardening, keeping livestock and brewing beer.
Using international human rights law to promote constitutional rights: The (potential) role of the South African parliament
(Law, Democracy & Development, 2011) Chenwi, Lilian
Parliaments are guardians of human rights due to their role of representing the people in the management of public affairs. The activities of parliaments cover the entire spectrum of human rights and have an immediate impact on the enjoyment, protection and promotion of rights. n South Africa, the Constitution requires parliament to scrutinise and oversee government actions, thus providing it with the opportunity to promote human rights. In addition, a number of principles guide the South African parliament in carrying out its mandate. These include advancement of human rights, human dignity, equality, social justice, accountability, responsiveness and openness. This article considers the (potential) role of the South African parliament in promoting constitutional rights through ensuring compliance with IHRL. A key obligation in various IHRL treaties is the obligation to adopt laws and other measures to give effect to the rights in the treaties. As the legislative arm of government, parliament has a significant role to play in ensuring compliance with this obligation.
The interrelationship between equality and socio-economic rights under South Africa's transformative constitution
(South African Journal on Human Rights, 2007) Sandra, Liebenberg; Beth, Goldblatt
This article develops the interrelationship between the equality and socio-economic rights in the Bill of Rights to enhance the responsiveness of our jurisprudence to the mutually reinforcing patterns of poverty and inequality in South Africa. We proceed from the principle that rights are interdependent and interconnected, and examine the implications of this for our evolving socio-economic rights and equality jurisprudence. We argue that such a reading accords with the mandate of the courts to promote the foundational constitutional values of human dignity, equality and freedom in their interpretation of the Bill of Rights, and advances the transformative goals of the Constitution. The article examines how equality jurisprudence should be developed so as to be more responsive to material disadvantage and the values protected by socio-economic rights. Thereafter, it examines how an equality perspective can enrich South Africa’s evolving jurisprudence on socio-economic rights. We demonstrate how the value of equality can be integrated within the model of reasonableness review developed by the Constitutional Court for evaluating positive socio-economic rights claims. Finally, some of the strategic implications of this interdependent reading of equality and socio-economic rights for developing a jurisprudence that facilitates the attainment of social and economic transformation in South Africa are considered.
Implementation of Housing Rights in South Africa: Approaches and strategies
(Journal of Law and Social Policy, 2015) Chenwi, Lilian
Ensuring access to adequate housing, especially for the poor and disadvantaged in society, including those faced with evictions and displacement, continues to be a global challenge. The situation remains critical in South Africa, with many poor households living in difficult conditions, facing the risk of eviction and unable to access adequate housing. This is despite the myriad of progressive housing laws, jurisprudence, policies and programs that exist in South Africa. Notwithstanding the challenges that the country faces in ensuring the effective realization of the right to adequate housing, as illustrated in this article, lessons can be learnt from its approaches and strategies to implement this right.
Muddying the waters: the Supreme Court of Appeal’s judgment in the Mazibuko case
(ESR Review, 2009) Sandra, Liebenberg; Jackie, Dugard
On 25 March 2009, the Supreme Court of Appeal handed down judgment in the Mazibuko case. The case was an appeal against the judgment of the Johannesburg High Court (now the South Gauteng High Court) of 30 April 2008, concerning the sufficiency of the City of Johannesburg’s free basic water (FBW) policy and the lawfulness of prepayment water meters (PPMs). This article analyses the judgment.
Socio-economic gains and losses: The South African Constitutional Court and social change
(Social Change, 2011) Chenwi, Lilian
The inclusion of socio-economic rights in South Africa’s transformative Constitution, it was felt, would make the Constitution relevant to the majority of South Africans, in particular the previously oppressed. Accordingly, the courts, the Constitutional Court in particular, have sought to translate these rights into concrete benefits that make a real difference for those for whom poverty is a lived reality, demonstrating that they are willing to enforce not just the negative prohibitions but also the positive duties imposed by socio-economic rights. Notwithstanding this, the extent to which the decisions of the Constitutional Court contribute to social change has been limited by a number of factors including inadequate implementation of court orders. This article illustrates that, though significant progress has been made, much still needs to be done to promote socio-economic transformation in the interests of the poor and disadvantaged.
The constitutional protection of those facing eviction from “bad buildings”
(ESR Review, 2008) Sandra, Liebenberg; Lilian, Chenwi
The Constitutional Court’s judgment in the Olivia case, handed down on 19 February 2008, represents a victory for the occupiers of “bad buildings” in the inner city of Johannesburg as well as other poor people facing eviction for health and safety reasons. The judgment gives effect to South Africa’s constitutional commitment to housing rights. It also affirms the obligation on local authorities, in all evictions, to seek reasonable ways to avoid homelessness by engaging meaningfully with the affected communities. Central to this case are the provisions of the National Building Regulations and Building Standards Act 103 of 1977 (NBRA), which empower local authority official to issue a notice to occupiers to vacate premises when they deem it necessary for the safety of any person (section 12(4)(b)). Failure to comply with such a notice constitutes a criminal offence for which the offender can be fined up to R100 for each day of noncompliance (section 12(6)).

Browse

collection.page.browse.recent.head