The National Council of Provinces is currently deliberating on the Refugee Amendment Bill, which will be returned to your committee for final consideration before it is presented to the National Assembly. We write to urge you to utilize this opportunity to ensure that the right to access health services is explicitly included in the Bill in line with the South African constitution and international human rights law.

Human Rights Watch has documented in its 2005 report Living on the Margins: Inadequate Protection for Refugees and Asylum Seekers in Johannesburg the challenges that refugees and asylum-seekers face in accessing health care. Its more recent report Neighbors in Need: Zimbabweans Seeking Refuge in South Africa, published in June 2008, refers to the ongoing difficulties faced by asylum seekers and refugees in accessing health care. Amnesty International has also received reports, while undertaking research for its March 2008 report on barriers to access to HIV services in rural areas, of denial of access to anti-retroviral treatment to individuals on the grounds of their citizenship status.

The documented problems faced by refugees and asylum seekers are inconsistent with South Africa’s obligation under human rights law, an obligation shared by other nations, to provide health care for migrants. International human rights law establishes basic principles of non-discrimination and equality, as well as a right of access to health care, which implicates the rights of non-citizens and non-residents to free or low-cost ART. The Universal Declaration of Human Rights includes rights to medical care and to freedom from discrimination. The International Covenant on Civil and Political Rights, which was ratified by South Africa in 1999 and is therefore legally binding on the government, further guarantees the equality of all persons before the law. The International Covenant on Economic, Social and Cultural Rights, signed by South Africa in 1994, establishes the right of everyone to the highest attainable standard of health. It also sets out the duty of State parties to take steps individually and through international cooperation to progressively realize this right, via the prevention, treatment, and control of diseases and the creation of conditions to assure medical service and attention to all. The Economic, Social and Cultural Rights Committee, the Covenant’s corresponding monitoring body, has noted that the right to health includes ensuring non-discriminatory access to health facilities, particularly for vulnerable or marginalized groups.

South Africa is also a state party to the Convention on the Elimination of Racial Discrimination. The Committee on the Elimination of Racial Discrimination, the oversight body under the treaty, in 2004 reminded states, including South Africa, of their obligations towards non-citizens. The Committee noted that no distinctions permitted 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.” They recalled that while some rights “such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights 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.” To this end the Committee called on all states parties to adopt measures including those that would:

  • 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 (Paragraph 29 of General Recommendation 30).
  • Ensure that States parties 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 (Paragraph 36 of General Recommendation 30).

The 1998 Refugee Act provides specifically that refugees are entitled to the same basic health services and basic primary education as South African citizens (section 27(g)), in line with constitutional protections to access emergency and primary health care (section s.27.3). These protections have been endorsed by the Department of Health through the publication of policy circulars emphasizing that refugees and asylum seekers, among others, are entitled to receive medical treatment in public hospitals, and recognizing that the delivery of this care advances South Africa's public health goals.

Denying the right to healthcare to non-citizens also poses serious public health implications to South African citizens. If South Africa denies healthcare to non-citizens with communicable diseases such as tuberculosis and STDs, those individuals remain infectious and pose a health risk to the general population. Standard practice for the management of communicable diseases requires the health system to identify, treat, and counsel all patients with communicable diseases to limit the risk of further infections. In addition, excluding non-citizens from supervised healthcare for conditions such as tuberculosis and AIDS, in which long-term adherence to treatment is of fundamental importance, may lead to increased drug-resistant strains of these diseases, because ill patients will be less likely to fully adhere (or be able to afford) long-term treatments.

It is clear that South Africa has made great strides at the legal and policy level to improve respect for the health rights of refugees and asylum seekers in line with the Constitution, which states that “Everyone has the right to access health care services” and in the spirit of international human rights standards. Human Rights Watch and Amnesty International call on the Portfolio Committee to maintain these standards and ensure that the right to health continues to be protected in the Refugee Amendment Bill.

Sincerely,

Ms. Rikky Minyuku
South Africa Director
Human Rights Watch

Ms. Linda Mafu
South Africa Director
Amnesty International

Cc. Honorable Ms. Baleka Mbete
Speaker: Parliament of South Africa
Honorable Mr Nhleko Mthethwa
ANC Chief Whip