Papers by Fungai Paul MUDAU
Journal of African Elections, 2023
Voter turnout in Lesotho's 2022 National Assembly elections was at an all-time low of 37%. Since ... more Voter turnout in Lesotho's 2022 National Assembly elections was at an all-time low of 37%. Since the country returned to multi-party electoral democracy in 1993, voter turnout has steadily decreased. Studies have been undertaken in Lesotho and globally to investigate the reasons for this phenomenon. While the turnout in the 2022 elections is a continuation of the pattern of declining voter turnout in Lesotho and globally, factors specific to each election may provide further insight into this intractable problem. The purpose of this article is to critically analyse the main reasons for the low turnout in the 2022 elections. The study uses qualitative methodology: it relies on primary and secondary data sources such as reports, targeted interviews, newspapers and literature, and legislation. The paper uses Stockemerian clustering of turnout variables to contend that election-specific factors can help to explain the steep decrease in voter turnout in the 2022 elections in Lesotho. Those factors are poor civic and voter education, political fragmentation, and some institutionalist variables.
Southern African Public Law, 2022
Zimbabwe's 2013 Constitution provides for a multi-level system of government whereby the governme... more Zimbabwe's 2013 Constitution provides for a multi-level system of government whereby the government is constituted at national, provincial and local levels. Despite the new Constitution being relatively comprehensive about the devolution of powers to the subnational levels of government, the country is still trapped within the post-independence highly centralised unitary state design. Although the new Constitution was adopted in 2013, devolution has not yet been fully implemented in Zimbabwe. This non-implementation of the constitutional injunctions on devolution, almost a decade after the promulgation of the Constitution, brings into question the country's commitment to the devolution of powers and constitutionalism. This article critiques this state of affairs, and identifies the politico-legal factors responsible for the country's nonimplementation of the constitutional injunctions on the devolution of powers to subnational levels of government. This article's central thesis is that the full devolution of powers is one of the significant levers of constitutional transformation in Zimbabwe.
African Human Rights Law Journal , 2022
A human rights perspective to this article intertwines the rights to information and political pa... more A human rights perspective to this article intertwines the rights to information and political participation. It deals with the intersections between the provision of civic and voter education (CVE), and the opportunities and threats pertaining to the feasibility of finding digital solutions for enhanced voter participation in democratic electoral processes during the coronavirus disease (COVID-19) pandemic in Africa. Under normal circumstances and while conducted through physical contact sessions, CVE is aimed at providing citizens with communication, general and life skills to constructively participate in democratic electoral processes. The greater the attendance in CVE events, the greater the conviction that a significant number of participants have been enlightened and encouraged to fully participate. As a result, electoral democracy becomes enriched and consolidated. However, the impacts of the COVID-19 pandemic render the physical training and dissemination of this crucial CVE information cumbersome, principally when considering the strictly-restricted number of attendants at events, consequently placing in disarray the enhancement of voter participation. Electoral management bodies, which are inherently charged with the responsibility for promoting CVE, confront the challenges for securing meaningful voter participation. Reliance on technological systems in the promotion of a consolidated electoral democracy during the COVID-19 pandemic emerges as a measure of last resort. Cognisant of the numerous developmental challenges encountered by many African countries, the feasibility of digital solutions in this instance could be far-fetched. More so, the digital divide and its impacts militate the empowerment of poor voters in remote rural areas where access to technological infrastructure and equipment is distantly slim.
Law, Democracy & Development, 2022
This article critically analyses the provisions of the African Charter on Values and Principles o... more This article critically analyses the provisions of the African Charter on Values and Principles of Public Service and Administration from an interdisciplinary standpoint of law and public administration. It assesses the Charter's substance and its potential role in the promotion of good governance in Africa, subject to internationally accepted standards for good governance. Central to this approach is identifying probable legal, institutional and structural shortcomings, thus helping to set out useful guidelines required in facilitating the effective application and implementation of the Charter. Since there is a lack of track records and benchmarks concerning the Charter, the article seeks to give it substance and prominence. It aims to establish that the Charter can play a catalytic role in the promotion of good governance by requiring political commitment to the rule of law, effective implementation of state policy, enforcement of professional ethics, and adherence to sound ethical standards by public service agents. The envisioned public service governance should be an accountable and effective public administration that is based on a functional legal framework, efficient regulatory structures, and transparent systems for financial and legal accountability.
AfricLaw, 2021
'Modern African constitutions' produced by the recent wave of constitutional reforms that swept a... more 'Modern African constitutions' produced by the recent wave of constitutional reforms that swept across Africa generally transpired in the constitutionalisation of public service and administration. Public administration is any institution with operations aimed at applying, enforcing or fulfilling public policies and programmes or undertaking public service duties as well as regulating the conduct of public servants. Public service is any service or public-interest activity provided by government under the authority of the relevant administration. Heightened by national legislation, the quest to promote democracy, good governance, human rights and development in the government structures emerged to be inevitable. By today, most countries have constitutions that sets up their governments' organisations, structures, managements, regulations, duties, disciplines and defines the relationships between public entities, the interactions between these entities and individuals seeking public service, more particularly, making provision for the manner in which different divisions of government interact and function together. More vitally, these constitutions are cognisant of the need to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. Other constitutions further encourage professional ethics, equitable access to services, optimum conditions of equity and efficiency, transparency, accountability, good human-resource management practices and compliance with the laws governing the affairs of public service and administration. In this regard, Bergling et al, argues as follows: Constitutional reform, or restoring constitutionalism as the governing paradigm, may be the most fundamental example of legalisation. Constitutionalism here is understood both as an outline of the offices of the state and their functions, and a stipulation of the normative limits of their power and a guarantee of the rights of individuals. The place of constitutional law in public administration Public administration is an academic discipline and a field of broad scope that is geared toward the understanding of policy and its implementation in regard to the government and public sector.
University of Pretoria, 2017
The African Charter on Values and Principles of Public Service and Administration (the Charter) w... more The African Charter on Values and Principles of Public Service and Administration (the Charter) was adopted ) by the Assembly of Heads of State and Government of the African Union (the AU Assembly) on 31 January 2011 and came into force on 23 July 2016. The Charter is the first binding legal instrument adopted by member states of the AU with the objective of comprehensively confronting all the frailties that have plagued the African public service and administration. A major drawback to the Charter is the lack of track record for its effective application and implementation which could possibly best expedite its vast continental ratification, implementation and effectiveness. Hence the absence of established benchmarks on the Charter’s useful role necessitates pioneering efforts which would demonstrate its significance in the promotion of good governance. This work therefore critically analyses the role of the Charter in promoting good governance in Uganda and South Africa, focusing on the complex but a symbiotic correlation between public service ethics, professionalism and political governance.
AfricLaw, 2020
It is worrisome that with a sheer declaration of a national state of disaster under the Disaster ... more It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the NCCC mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy.
Local Government Bulletin, 2020
Spatial equity involves the provision of equal access to and distribution of basic public service... more Spatial equity involves the provision of equal access to and distribution of basic public service facilities, goods and services. It entails redress in the distribution of facilities over space owing to allocation priorities, in order to elevate the socially disadvantaged groups or highly needed areas, resulting in inequality but equity in access to such facilities. In the same vein, alignment and integration of investments in human settlements, transportation, resilient infrastructure networks and land governance maximises the potential of cities in driving urban development.
While upholding the obligations imposed by the Social Housing Act 16 of 2008 and other relevant legislation, the courts can assess and monitor the design and implementation of a comprehensive, inclusive social housing policy in the context of the use of both state-owned and municipal land. In the Adonisi case, a recent matter adjudicated before the Western Cape High Court, the judiciary encountered a groundbreaking legal dispute. In this matter, the Court granted a landmark judgement that set aside the sale of a Tafelberg property to the Phyllis Jowell Jewish Day School in Sea Point, central Cape Town.
University of the Western Cape, 2020
Since the early 1990s, the move towards decentralisation has been given prominence in African con... more Since the early 1990s, the move towards decentralisation has been given prominence in African constitutions. Countries that embarked on ambitious decentralisation processes had to make the necessary constitutional reforms. The emergence and proliferation of constitutional entrenchment of decentralisation in Africa was long overdue and thus necessitated by the popular widespread discontent expressed against leaders who ‘personalize power and concentrate it within a privileged clique in the capital city’. Similarly, both the 1996 Constitution of South Africa, and the 2013 newly adopted Constitution of Zimbabwe, which are the supreme laws of each country, also provide for decentralised systems of government. These constitutions establish government at three levels – national, provincial and local. South Africa has a multi-sphere system of government operating in accordance with a quasi-federal state structure, whereas Zimbabwe’s multi-tier system of government functions within the parameters of a decentralised unitary state structure. In spite of the fact that both countries have adopted decentralised forms of government in order to seek solutions to the challenges they faced, the ramifications of having different state structures and systems as per their constitutional frameworks inevitably warrant that the implementation of decentralisation in South Africa and Zimbabwe are on separate and distinct planes.
Pretoria Student Law Review, 2020
This article extrapolates the role of transformative constitutionalism in the decolonisation and ... more This article extrapolates the role of transformative constitutionalism in the decolonisation and Africanisation of legal education in South Africa. In a constitutionally mandated transformative context, the systematic approach to the decolonisation and Africanisation of legal education advanced in this article emanates from the four drivers of curriculum transformation set out in the 2017 document entitled 'Reimagining curricula for a just university in a vibrant democracy-Work stream on curriculum transformation at the University of Pretoria'. These four drivers are: responsiveness to social context; epistemological diversity; renewal of pedagogy and classroom practices; and an institutional culture of openness and critical reflection. Presently, South African universities do not have an existing national framework for a decolonised and Africanised legal education. The article therefore argues that the UP Document contains valuable guidelines on curriculumtransformation of legal education as it resonates well with the objectives of both the National LLB Standard and transformative constitutionalism itself. As result, the universities which offer legal education in conjunction with key stakeholders and role-players in the legal fraternity can incorporate its valuable guidelines in National Review of the LLB programme through a proper design of constitutionally transformed framework for a decolonised and Africanised legal education.
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Papers by Fungai Paul MUDAU
While upholding the obligations imposed by the Social Housing Act 16 of 2008 and other relevant legislation, the courts can assess and monitor the design and implementation of a comprehensive, inclusive social housing policy in the context of the use of both state-owned and municipal land. In the Adonisi case, a recent matter adjudicated before the Western Cape High Court, the judiciary encountered a groundbreaking legal dispute. In this matter, the Court granted a landmark judgement that set aside the sale of a Tafelberg property to the Phyllis Jowell Jewish Day School in Sea Point, central Cape Town.
While upholding the obligations imposed by the Social Housing Act 16 of 2008 and other relevant legislation, the courts can assess and monitor the design and implementation of a comprehensive, inclusive social housing policy in the context of the use of both state-owned and municipal land. In the Adonisi case, a recent matter adjudicated before the Western Cape High Court, the judiciary encountered a groundbreaking legal dispute. In this matter, the Court granted a landmark judgement that set aside the sale of a Tafelberg property to the Phyllis Jowell Jewish Day School in Sea Point, central Cape Town.