Human rights & access to justice in the NSP
The Constitution of the Republic of South Africa says that everyone has the right of access to health care services. This includes access to life-saving medicines and related services such as reproductive health care. This is the basis of the state’s obligation to provide sustainable public health programmes.
The importance of including human rights in the NSP
HIV/AIDS and TB are diseases of poverty and inequality. They disproportionately affect people who lack adequate access to education, health care, food and water, sanitation, housing and social security. Through their inability to realise these basic human rights, many living in poverty are made even more vulnerable to HIV and TB infection. The cycle of poverty and disease thus perpetuates itself and restricts people’s ability to realise their human rights.
South Africa’s commitment to human rights in relation to HIV stems from a number of national and international legal instruments. The Constitution of the Republic of South Africa says that everyone has the right of access to health care services. This includes access to life-saving medicines and related services such as reproductive health care. This is the basis of the state’s obligation to provide sustainable public health programmes.
In addition to our own constitution, as a member state of the United Nations South Africa is committed to the Millennium Development Goals (MDGs). Access to health lies at the centre of these goals, which include reducing child mortality, improving maternal health and combating HIV. The MDGs recognise that realising the right to health care and addressing the HIV epidemic are necessary to significantly reduce poverty.
South Africa is also a member of the International Labour Organisation (ILO). As such our country is bound by the ILO legal instruments that prohibit discrimination in the workplace on the basis of HIV status. This is consistent with South Africa’s own constitutional protections against all forms of discrimination, including discrimination linked to HIV status. It also aligns with our constitutional rights to human dignity and privacy.
Our legal framework for the protection of human rights is based on laws such as the National Health Act, Labour Relations Act, Employment Equity Act, Medical Schemes Act, the Promotion of Equality and Prevention of Unfair Discrimination Act, the Domestic Violence Act, the Promotion of Administrative Justice Act and the Promotion of Access to Information Act. The rights that lie at the heart of this framework include equality, human dignity, freedom and security of the person, privacy and many other fundamental socio-economic rights.
Furthermore, South Africa has certain international obligations, among them a requirement to review and reform laws, provide support services, and promote a supportive and enabling environment for the groups most vulnerable to HIV and TB infection.
In fact many laws exist that give effect to these national and international obligations to protect human rights. Yet people living with HIV and TB continue to experience severe prejudice and discrimination in many areas of their lives.
For this reason Strategic Objective 4 (“Ensure protection of human rights and improve access to justice”) of the National Strategic Plan for HIV, STIs and TB 2012-2016 (NSP) tries to address shortcomings in the implementation of laws, policies, and public health interventions.
What the NSP says about human rights and access to justice
During the wide-ranging consultations to develop the NSP, everyone involved—civil society, government departments and technical advisors—accepted that human rights should be central to the NSP and embedded in all aspects of the plan. That consensus will go a long way towards securing safety, dignity and equality for people living with or vulnerable to HIV and TB infection.
As part of this all-encompassing emphasis on human rights, the NSP includes as its fourth strategic objective “Ensure protection of human rights and improve access to justice”. The plan divides this goal into distinct sub-objectives, three of which are:
- Ensure that rights are not violated during the implementation of any NSP intervention. If there are violations, there should be a way to monitor such abuses and deal with them in the appropriate forum.
- Reduce HIV and TB discrimination in the workplace.
- Reduce unfair discrimination in access to services, including health care.
Parties implementing the NSP, including government departments and civil society organisations, must guard against rights violations when they develop interventions to meet the NSP goals. Interventions should aim to protect the dignity of the members of communities that rely on these public services.
Preventing the violation of people’s rights when implementing NSP interventions
- Health workers who carry out HIV testing without obtaining proper informed consent, or insist on HIV testing before providing other health services, violate the rights of patients.
- If patients with drug-resistant TB are detained under ‘prison-like’ conditions, their rights, including the right to human dignity, are violated.
- When HIV-positive women are denied access to sexual and reproductive health services, their rights are violated. If they are subjected to medical procedures (such as sterilisation) without their consent, their rights are violated.
- When young men seeking voluntary male medical circumcision services are harmed by untested medical devices or untrained health professionals, this violates their rights.
Using existing bodies to monitor human rights abuses
Practices such as those described above should be addressed by the relevant government department, private sector or civil society group through policies and programmes. The NSP requires that such rights violations are addressed adequately and appropriately. This can be done using existing complaints mechanisms. These mechanisms should be accessible to ordinary people.
The parties involved in coordinating interventions must review laws and policies and identify potential violations that could form barriers to health care access.
In particular, South Africa must monitor human rights abuses involving people living with HIV. We can do this through existing bodies that have a constitutional mandate to protect and promote human rights. Such institutions already have systems in place to deal with violations. Furthermore, they have well-established relationships with the relevant communities and government departments.
These institutions include the South African National AIDS Council (SANAC), the South African Human Rights Commission, the Judicial Inspectorate of Prisons, the Independent Police Investigative Directorate, the Commission for Gender Equality and the Public Protector.
Where abuses occur, existing legal services organisations should be part of the response. For example, Legal Aid South Africa has a critical role to play in helping people to vindicate their rights. Public interest law centres and pro bono departments of private law firms also have a duty to provide these kinds of legal services. This is especially important where there are violations of human rights in relation to individuals or groups of people living with HIV and TB.
Reducing HIV and TB discrimination in the workplace and in access to services
Despite numerous laws and policies—including the Code of Good Practice on Key Aspects of HIV/AIDS and Employment—discrimination on the basis of HIV and TB status persists in many workplaces. This problem is especially evident in smaller, informal places of employment. The NSP calls for interventions in response:
- Stakeholders such as organised labour, business and government should embark on national campaigns to address HIV- and TB-based discrimination in the workplace.
- Campaigns in small, informal workplaces should include HIV and TB literacy. These programmes should educate employees about the science of HIV and TB, about how the diseases are transmitted and what prevention and treatment services are available. Workplace campaigns should focus on treatment and prevention in the work environment.
Discrimination in access to health services
During the consultations around the NSP, civil society reported on the barriers that communities confront when they try to access health and other social services. These obstacles range from poor attitudes amongst health workers to insensitivity towards visually impaired patients. By providing health care without sensitivity to a patient’s specific needs health workers can discourage people from seeking services such as reproductive health care.
In other words, services must be provided in a manner that is consistent with human dignity. Some interventions suggested by the NSP are:
- Discrimination in access to health services should be addressed by oversight bodies, such as the Health Professions Council and the South African Nursing Council in response to complaints by members of the public.
- Health care providers should be trained to equip them with the skills to respect, protect and promote equality and dignity in their daily role. This would reduce instances of prejudice in service provision.
What is missing from the NSP?
Many responsible parties, little accountability
Due to the nature of Strategic Objective 4, no single government department is responsible for implementing the human rights and access to justice aspects of the NSP. This is both a positive and a negative feature.
On one hand, the interdisciplinary approach that involves all departments in conceptualising and carrying out NSP interventions is necessary to keep human rights at the centre of the plan’s implementation. In theory, all parties involved in implementing the NSP should carry out their roles with respect for human rights and use available mechanisms to address any violations, should they occur.
On the other hand, no specific organisation or government department is expected to play an oversight role to ensure that interventions, policies and laws are sensitive and responsive to human rights abuses. This may be problematic. Without monitoring there is no direct accountability for carrying out these obligations.
The recognition of human rights and access to justice as central threads of the NSP is a victory in itself. The debate about the human rights concerns facing those affected by or vulnerable to HIV and TB was also an important outcome of the NSP drafting process.
However, in order to make the commitments to human rights real for everyone, institutional partners—SANAC in particular—must be effective at coordinating our HIV and TB response. The South African Human Rights Commission (SAHRC) and other institutions supporting democracy also have a duty to consider the legal and policy framework and take steps to prevent related rights violations. SAHRC has already made a commitment to convene stakeholders in the NSP in order to deal with human rights issues that may arise.
Costing of the NSP
A key criticism of the previous NSP was the failure to properly cost and budget proposed interventions supporting human rights, access to justice and stigma. It has been argued that the state has a legal duty to devise a transparent budget for the NSP that is approved and implemented by government. Adila Hassim, Head of Litigation and Legal Services at SECTION27 notes that “not having a proper budget is unlawful and unconstitutional”.
Interventions for human rights and access to justice are costed in the new NSP. Human rights interventions have been costed at one of the lowest rates of all the interventions. The costing was done at a broad level because there was insufficient information to accurately detail the cost of such interventions. Also, costing is carried out on the basis that certain interventions and programmes will become institutionalised. However it is not certain that this will in fact happen. Consequently it is possible that in future such interventions may be underfunded.
Since Cabinet’s approval of the NSP document in December 2011 there has been further work towards costing human rights measures in provincial operational plans. However, some provinces have simply failed to cost such interventions. Others have not planned human rights measures tailored to the needs of their provinces beyond the broader national initiatives. This remains a hugely deficient aspect of the NSP.
During the consultation process for the new NSP, civil society called for more concrete steps that would lead to the decriminalisation of sex work. This is an important issue because sex workers are particularly vulnerable to HIV. However, despite the strong views expressed by sections of civil society the final NSP document did not go far enough. The plan acknowledges that sex workers are a vulnerable group in need of services and protection but it provides no guidance on how South Africa might progress towards the decriminalisation of sex work. The NSP only states that debate should continue until the issue is finally resolved.
Sources: Sections 10, 12, 14 and 27 of the Constitution of the Republic of South Africa; Hassim, A. ‘The Cost of Rights: is there a legal right to transparent and efficient budgeting?’ SECTION27 Review (2010 – 2011).
By Umunyana Rugege