Socio-Economic Rights Project (SERP)http://hdl.handle.net/10566/13752024-03-29T13:33:12Z2024-03-29T13:33:12ZThey keep saying, ‘My President, my Emperor, and my All’: Exploring the antidote to the perpetual threat on constitutionalism in MalawiChilemba, Enoch MacDonnellhttp://hdl.handle.net/10566/50332019-10-15T00:00:37Z2013-01-01T00:00:00ZThey keep saying, ‘My President, my Emperor, and my All’: Exploring the antidote to the perpetual threat on constitutionalism in Malawi
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.
2013-01-01T00:00:00ZAccountability and the right to food: A comparative study of India and South AfricaDurojaye, EbenezerChilemba, Enoch MacDonnellhttp://hdl.handle.net/10566/50322019-10-15T00:00:42Z2018-01-01T00:00:00ZAccountability and the right to food: A comparative study of India and South Africa
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.
2018-01-01T00:00:00ZThe Right to Primary Education of Children With Disabilities in Malawi: A Diagnosis of the Conceptual Approach and ImplementationChilemba, Enoch MacDonnellhttp://hdl.handle.net/10566/50312019-10-15T00:00:44Z2013-01-01T00:00:00ZThe Right to Primary Education of Children With Disabilities in Malawi: A Diagnosis of the Conceptual Approach and Implementation
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.
2013-01-01T00:00:00ZContribution of the health Ombud to accountability: The life Esidimeni tragedy in South AfricaDurojaye, EbenezerAgaba, Daphine Kabagambehttp://hdl.handle.net/10566/50302023-06-13T09:14:01Z2018-01-01T00:00:00ZContribution of the health Ombud to accountability: The life Esidimeni tragedy in South Africa
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.
2018-01-01T00:00:00Z