Service delivery protests, struggle for rights and the failure of local democracy in South Africa and Uganda: parallels and divergences

Although the two countries are thousands of miles apart, Uganda and South Africa have both experienced service delivery protests in recent years. The protests have been directed mainly at local governments, although in Uganda some are directed at private service providers such as the electricity distributor, Umeme. There are a number of parallels and divergences between the two countries, particularly in relation to the causes and the nature that the protests have taken. Both countries are experiencing challenges in implementing decentralisation, which has mainly been characterised by a failure to effectively involve local communities in decision-making as a way of effecting local democracy. Mismanagement, corruption, and incapacity to deliver at the local levels are common to both countries. The divergences relate mainly to the level of organisation, frequency and magnitude of the protests. The local government legal framework of Uganda does not emphasise service delivery as much as the South African legal framework does. There is an urgent need for both countries to make local democracy work by building civic competence and creating operational and effective structures for civic participation in local affairs.Department of HE and Training approved lis

Grootboom: A paradigm of individual remedies versus reasonable programmes

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

A path to realising economic, social and cultural rights in Africa? A critique of the New Partnership for Africa's Development

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

Regional Symposium on Harmonisation of Laws on Children in Eastern and Southern Africa, 9-10 May 2007

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

Prisoners’ right of access to antiretroviral treatment

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

Enforcing the economic, social and cultural rights in the African Charter on Human and Peoples' Rights : twenty years of redundancy, progression and significant strides

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

Enforcement of economic, social and cultural rights in Uganda

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”

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

Confronting the problem of polycentricity in enforcing the socioeconomic rights in the South African Constitution

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 role of transboundary dialogue : a response to Stephen Ellmann

The novelty of Ellmann's paper derives primarily from the fact that it moves beyond the separation of powers and counter-majoritarian based critiques and analyses that have dominated academic discourse about South African constitutional law. For instance, in the second edition of the Constitutional law of South Africa, Woolman and Botha outline the multi-part structure of the fundamental rights analysis. The authors describe interpretation as characterised by a two-fold process: determining the meaning or the scope of a fundamental right followed by a determination of whether the right has been infringed. In most instances, a finding that the right has been limited leads to a third stage: limitations analysis. Under section 36, courts are, quite 'controversially', given the power to decide whether a democratically conceived law's infringement of a fundamental right indeed violates the Constitution or whether, in fact, the infringement of a right can be justified