Legal Rights

 

South Africa's failure to ensure access to health care for non-citizens, including asylum seekers and refugees, violates its duties under international as well as domestic law.  As earlier noted, the South African Constitution requires that, whenever reasonable, the Bill of Rights and domestic legislation should be interpreted in consistency with both binding and non-binding international law.

 

Domestic Law

Section 27 of the South African Constitution provides that,

 

I.         Everyone has the right to have access to:

a.     health care services, including reproductive health care;

b.     sufficient food and water; and

c.     social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

II.       The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

III.      No one may be refused emergency medical treatment.

 

The South African Constitutional Court considered the government’s obligation to fulfill the right to health espoused in section 27 in the seminal case Minister of Health and others v. Treatment Action Campaign and others (hereinafter TAC). The Court in TAC ordered the government

 

1)      to make an approved drug for the prevention of mother-to-child transmission of HIV

2)      (PMTCT) available in the public health sector, and

3)      to set out a timetable for the roll-out of a national program for PMTCT.

 

The Court in TAC followed the line of reasoning in its earlier judgment, Government of the Republic of South Africa and others v. Grootboom and others (hereinafter Grootboom), finding that the State had failed to comply with its constitutional obligations to fulfill petitioners’ housing rights.

 

However, the right to health, like other constitutional rights, is sometimes subject to limitation. The first subsection of section 36, “Limitation of Rights,” in the Constitution reads:

 

(1) The rights in the Bill of Rights may be limited only in terms of law of general

application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

 

a. the nature of the right;

b. the importance of the purpose of the limitation;

c. the nature and extent of the limitation;

d. the relation between the limitation and its purpose; and

e. less restrictive means to achieve the purpose. 

 

Resource constraints, in some circumstances, have been accepted as part of a calculus used to ration health care. At least one Constitutional Court case, Soobramoney v. Minister of Health (hereinafter, Soobramoney) determined that a South African plaintiff was not constitutionally guaranteed access to dialysis treatment where he did not fit the eligibility requirements established by his local clinic.[226] The Court found that for non-emergency care, obligations imposed on the state regarding access to health care are dependent upon the resources available, as stated in sections 27(1) and (2). Because of limited resources the hospital had adopted a policy of admitting only those patients who could be cured within a short period and those with chronic renal failure who were eligible for a kidney transplant.[227] Though the Court found the clinic’s rules to be reasonable and non-discriminatory, it implied that there might be grounds for the challenge of executive policies if such policies were unreasonable or if they were not applied fairly and reasonably.

 

Whether non-citizens’ right to health may be limited on the basis of their nationality has not been directly considered by the Constitutional Court; however it has upheld certain social and economic rights of non-citizens. In two 2004 cases,[228] of the Court found it unconstitutional to deny permanent residents access to social grants for which they otherwise qualified. However, the Court did not consider whether other non-citizens other than permanent residents should be entitled to access social security nor did it consider whether access to public health care services should be treated in the same way as access to social security. Recently, South African human rights organization Lawyers for Human Rights (LHR) challenged the constitutionality of the exclusion of refugees from government-provided social assistance grants. An interim settlement agreement was reached in March 2006 in which the Government agreed to allow disabled refugees to receive disability grants to the same value as social grants received by South African citizens.[229] However, in practice refugees often find it impossible to actually access the assistance they are guaranteed.[230]  There is little if any legal guidance from South African courts indicating circumstances in which the health rights of undocumented migrants may be limited, but any such limitation would have to be justified as consistent with “human dignity, equality and freedom,” and consistent with South Africa’s obligations under international law.

 

The National Department of Health has taken steps to specifically include asylum seekers and refugees in its strategic planning and regulation. The HIV, AIDS and STI National Strategic Plan for South Africa (2007—2011) (NSP) identifies refugees, asylum seekers and foreign migrants as marginalized groups requiring special policy interventions for HIV prevention, treatment and support. The NSP states in relevant portion:

 

The disruption of services and support systems caused by conflict or unrest in their home countries means that many refugees have limited information about HIV and AIDS, and they are often not familiar with local services or systems in South Africa. In addition, while their legal status guarantees the right to access HIV-related information and services on the same level as South Africans, barriers such as language, cultural traditions and xenophobia often preclude their ability to access these services. Therefore targeted programmes are necessary to ensure that refugees and asylum seekers have access to information and services- including prevention, care, support and treatment- as an integrated component of the national response to HIV and AIDS.[231]

International Law

South Africa is also party to a number of international and regional treaties that guarantee the right to the highest attainable standard of health and to principles of equality and non-discrimination in the enforcement of rights more generally. These include the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the African Charter on Human and People's Rights, the African Charter on the Rights and Welfare of the Child.[232] 

 

The Right to Health

The United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, has stated that asylum seekers and even illegal immigrants should enjoy the right to health: “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”[233] 

 

South Africa has signed, but not ratified, the International Covenant on Economic, Social and Cultural Rights (ICESCR). As a signatory South Africa undertakes not to undermine the object and purpose of the treaty.[234] Furthermore, the South African Constitutional Court has explicitly considered the ICESCR in interpreting the scope of social and economic rights guaranteed by South African Constitution.[235] The ICESCR guarantees the right of everyone to the highest attainable standard of health.[236] The UN Committee on Economic, Social and Cultural Rights (which oversees implementation of the ICESCR) has identified certain core obligations under the right to health which should be implemented immediately.[237] These include: ensuring nondiscriminatory access to health facilities, particularly for vulnerable or marginalized groups; providing essential drugs; ensuring equitable distribution of all health facilities, goods and services; adopting and implementing a national public health strategy and plan of action with clear benchmarks and deadlines; and taking measures to prevent, treat and control epidemic and endemic diseases.[238] The core obligation to prove access to health services on a nondiscriminatory basis, includes four overlapping dimensions of access: non-discrimination, physical accessibility, economic accessibility, and information accessibility.[239] It also states that parties “respect the right to health by…refraining from denying or limiting equal access for all persons, including…asylum seekers and illegal immigrants.”[240]

 

Articles 23 and 24 of the Convention on the Rights of the Child (CRC), to which South Africa is a party, also recognize the right to health for all children and set out several steps for its realization. Similarly, CEDAW obliges signatory states to adopt adequate measures to guarantee nondiscriminatory access for women to health and medical care, including access to family planning services. It also guarantees adequate maternal and child health care.[241] 

 

The African Charter on Human and Peoples' Rights further guarantees a right to "Enjoy the best attainable state of physical and mental health." It provides that "States Parties to the present charter shall take the necessary measures to protect the health of their people and ensure that they receive medical attention when they are sick.”[242] 

 

By not ensuring nondiscriminatory access to basic health services, South Africa is failing to protect migrants’ right to health.

 

Non-Discrimination           

The Universal Declaration of Human Rights proclaims that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Additionally, under that Declaration, “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law.” 

 

The International Covenant on Civil and Political Rights (ICCPR) echoes the UDHR’s proclamations against discrimination. It binds states parties to recognize the rights it guarantees without distinction of any kind, including race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The International Covenant on Economic, Social and Cultural Rights (ICESCR) includes the same anti-discrimination provision, and as the noted, the ESCR Committee has identified non-discrimination as a core obligation, subject to immediate implementation, not progressive realization.

 

The UN High Commissioner for Human Rights (OHCHR) has noted that laws that treat citizens and non-citizens differently must serve a legitimate state objective and be proportional to the achievement of that objective.[243] Specifically, the ICCPR permits States to draw distinctions between citizens and non-citizens with respect to two categories of rights: political rights explicitly guaranteed to citizens, and freedom of movement. With regard to political rights, article 25 establishes that “every citizen” shall have the right to participate in public affairs, to vote and hold office, and to have access to public service. Regarding freedom of movement, article 12 (1) grants “the right to liberty of movement and freedom to choose [one’s] residence” only to persons who are  “lawfully within the territory of a State”—that is, permitting restrictions on undocumented migrants.[244]

 

Besides the political rights permitted to be reserved for citizens, almost all the rights in the ICCPR apply to both nationals and non-nationals. The Human Rights Committee which oversees the implementation of the ICCPR has noted that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike.”[245] 

 

The general principle of non-discrimination against alien nationals has been affirmed by international documents including the Convention on the Rights of the Child, and the Convention on the Elimination of Racial Discrimination (CERD), and the African Charter.  Though CERD does not apply generally to non-citizens, the Committee on the Elimination of Racial Discrimination, the oversight body for CERD, reaffirmed to states-party that no distinctions on grounds of citizenship should "detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights."[246] Like the Human Rights Committee, the CERD Committee distinguishes between rights that may be confined to citizens, "such as the right to participate in elections, to vote and to stand for elections" and "human rights" which "are, in principle, to be enjoyed by all persons." States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law.”[247] 

 

The CERD Committee called on party states to adopt measures that would address both negative and positive rights in health, including to "Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health”[248] and by "Ensur[ing] that states respect the right of non-citizens to an adequate standard of physical and mental health, by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services."[249] It also calls on parties to “take into consideration that in some cases denial of citizenship for long-term or permanent residents could result in creating disadvantage for them in access to employment and social benefits, in violation of the Convention's anti-discrimination principles.”[250]

 

The 1951 Convention and its 1967 Protocol Relating to the Status of Refugees (hereinafter, Refugee Convention),[251] to which South Africa is party, states that: "refugees shall be accorded the same treatment" as nationals in relation to maternity, sickness, disability and old age.” Article 20 states that: “Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.” This provision covers essential medicines and services, and maintains that discrimination on the basis of national origin is not an acceptable basis for denying basic needs. Article 23 requires contracting states to “accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”

 

The United Nations High Commissioner for Human Rights has opined that “[s]tates must avoid different standards of treatment with regard to citizens and non-citizens that might lead to the unequal enjoyment of economic, social and cultural rights. Governments shall take progressive measures to the extent of their available resources to protect the rights of everyone—regardless of citizenship—to: social security; an adequate standard of living including adequate food, clothing, housing, and the continuous improvement of living conditions; the enjoyment of the highest attainable standard of physical and mental health; and education.”[252]

 

South Africa is obliged to ensure non-discriminatory access to health care for non-citizens under both the right to health and the principle of non-discrimination in its international treaty obligations, as well as its specific duties under domestic law.