By Brian Honermann and Mark Heywood
“The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can only be achieved if there is proper communication, especially by government.”
On 5 July 2002, 10 years ago today, the Constitutional Court delivered these words as part of its judgment in Minister of Health and Others v Treatment Action Campaign and Others (the TAC Case). After a bitter political dispute between TAC and the government it upheld the constitutional right of all HIV positive pregnant women to access health care services to prevent mother to child transmission of HIV (PMTCT).
This decision came despite the best efforts of former President Thabo Mbeki and then Health Minister Dr Manto Tshabalala-Msimang. It came despite lackey Health MECs, such as Sibongile Manana and later Peggy Nkonyeni, trying to use their gate control over Provincial hospitals and clinics trying to deny and delay access to such services in the public health system.
Thanks must go to young women with HIV like Sarah Hlahlele and Charlene Wilson, who literally gave up their lives in this struggle. We must also acknowledge brave doctors such as Haroon Saloojee, Ashraf Coovadia and Keith Bolton who formed an organisation called Save Our Babies to take the issue to Court.
The TAC decision ushered in a new era in the response to HIV in South Africa and the world. Before this, the doors to HIV care and treatment had been closed. Immediately after the decision, health care workers able to deliver the ARV drug Nevirapine in the public health care system were freed to do so.
By April 2003, the Department of Health included PMTCT programs in their budgets. In November that year Cabinet resistance to a national ARV programme was broken. By April 2004, the public health system began rolling out treatment to people with AIDS. Now, according to recent estimates by actuary Leigh Johnson and others, in the 10 years since this decision, 327,000 children have not contracted HIV as a result of having access to PMTCT.
HIV care and treatment has come a long way in the past decade. In 2002, an HIV positive mother would pass on HIV to her baby about 30% of the time. With access to Nevirapine the transmission rate was cut in half. Now, with better drug regimens being used, transmission of HIV from mothers to babies happens in only about 4% of cases during or shortly after birth! The latest National Strategic Plan (2012-2016) aims to reduce this rate to below 2% by 2016. At the same time, we’re now treating nearly 2 million people with ARVs.
It’s not often that we are able to quantify the effect of a judgment – even one of this import. It’s not often that a court has the opportunity to order open the barriers to public health interventions and 10 years on, it’s possible to calculate what this judgment has meant for the people who have benefited from its wise ruling.
It is not clear how much government has learned from this decision.
Currently, the Department of Justice and Constitutional Development (DoJCD) is carrying out an assessment of the decisions of the Constitutional Court and the Supreme Court of Appeal in order to – in the words of the DoJCD’s Terms of Reference – “assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity.” Many people have expressed fear about this ‘assessment’, particularly in the context of statements that have attacked the Constitution from senior ANC leaders such as Ngoako Ramathlodi. This is perhaps not surprising: at the time of the judgment Ramathlodi was one of Mbeki’s trusted lieutenants and the Premiere of Limpopo, a province that played its part in denying women access to medicines.
Civil society, on the other hand, has grown wiser. We have learned the limits that any judgment from any court is able to accomplish when that judgment is not backed by a movement dedicated to ensuring their rights and the rights of others are upheld. Despite the fact that the Constitutional Court provided the mechanism by which HIV care and treatment were legally able to gain entry to the public health system in the country, it has been the work of civil society, health care workers, and the dedication to make resources available for HIV treatment that has ensured that the judgment did not remain mere words on paper.
Unfortunately, despite the possibility demonstrated by the TAC case, access to courts for the poor and pro-poor organizations remains restricted by the lack of resources directed to providing public legal services. This results in a jurisprudence that is primarily shaped by the disputes of the wealthy. While such cases are legitimate and may form good constitutional law – the cases are not generally designed to promote the realization of socio-economic rights and equality put forward by the Constitution. Nor are they backed by the movements necessary to give life to the judgments.
The TAC case has shown us that it is not the Constitutional Court that has stood in the way of “eradicating inequality and poverty and enhancing human dignity”. What is really needed to fulfill this noble mission is respect for the rule of law, an active civil society addressing more than just health care, effectively resourced pro-poor legal organizations, and a government willing to put the Constitution at the forefront of all policymaking decisions.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.