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Browsing School of Law by Author "Choma, H. J."
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Item Public participation in the drafting of the 2013 Zimbabwean Constitution: The role and significance of the populace(2017-09-18) Musindo, Tariro; Choma, H. J.; Nwafor, A. O.The defining moment of Zimbabwean constitutional reform came in 2008 after the disputed and violence riddled elections of 2008 when the three main political parties entered into a transitional Government of National Unity and were tasked with the establishment of a new constitution which was ultimately adopted in 2013 following a protracted and turbulent process which began in 2009. Some segments of the civil society however argued that the concerned political parties had ‘captured the constitutional project and narrowed it to a short-term struggle motivated by the pursuit of party political interests at the expense of the will of the people and nation’s broad long-term interests’, and thereby subverted and/or negated the aspirations of the people. It is against this background that the study therefore assesses the participation, role and significance of the rural populace in the drafting of the 2013 Zimbabwean Constitution. The study traces the history of constitutional reform efforts in Zimbabwe, beginning with the colonial Lancaster House Constitution of 1979, to the protracted exercise of 2009 to 2013 which gave birth to the current Constitution. It focuses on the 2009-13 constitution making process as a case study. The study employs an interdisciplinary approach by adopting both doctrinal and empirical research approaches. The study employed the doctrinal research approach to provide for a doctrinal analysis of the relevant global, regional and domestic legislation and case law. The empirical research approach, through interviews, was used to collect qualitative data from the general members of the rural populace and key institutions such as political parties and human rights organisations from three selected rural districts, namely Bulilima, Makonde and Mutasa. The study indicated that while a significant number of the rural populace participated in the constitution making process, the legal environment which subsisted during the constitution making process did not allow for the unfettered flow of information and ideas, as a direct result of repressive legislation such as AIPPA, Criminal Law (Codification and Reform) Act, Interception of Communications Act and POSA, among others similar laws, and as well as the deeply polarised political environment owing to the nature of the relationship between the ZANU PF-led government and the opposition political parties. The study further showed that the process was heavily dominated by the political parties to the Global Political Agreement and all the political parties wanted to ensure the adoption of a constitution that best reflected their preferences and partisan views rather than the will of the masses, making the 2013 Constitution an elitist negotiated document, contrary to the provisions of Article VI of the GPA which provided for the right of Zimbabweans to make a constitution for themselves and by themselves.Item Realisation of the right of water of rural communities through affirmative action on water service delivery in South Africa(2017-05-18) Shikwambane, Pumzile; Jegede, A. O.; Choma, H. J.Historically, there were enormous differences and inequalities with regard to service delivery in South Africa. Traceable to the apartheid period, these inequalities included, inter alia, supply of inadequate and safe drinking water for black communities in particular those at rural areas. Yet, water is an essential necessity for human beings, regardless of race, disability and social status. As a legislative measure to redress the injustices of the apartheid regime, the right to have access to sufficient water is entrenched in Section 27(1) (b) of the South African Constitution of 1996. Also, several legal instruments such as the National Water Act of 1998 and the Water Service Act of 1997 were enacted to uphold the human right to water. The Constitution bestowed the responsibility of water supply and management to the national, provincial and the local government. Despite its inadequacy, the South African government is addressing the water needs of the most impoverished communities by guaranteeing each household a free minimum quantity of potable water of 25 litres per person per day or 6 kiloliters per household per month. Any person who needs more will come under privatisation model which key provisions on the existing law favors. About 38.4% of the population of South Africa who reside in rural communities are poor and mostly affected by inadequate water service delivery in that they cannot afford payment for water in excess of the minimum for which no fees is charged. As a concept, affirmative action is generally used in the context of work places to ensure that qualified marginalized groups have equal opportunities to get a job, but it is not yet investigated in the context of water service delivery. This study assessed laws governing water service delivery and explored how affirmative action can be used as an instrument to ensure the delivery of potable water to rural population in South Africa.