The Constitution and socio-economic rights: The nevirapine case

Geoff Budlender (Constitutional Litigation Unit, Legal Resources Centre)

Harold Wolpe Memorial Trust forum meeting

Cape Town, 21 August 2001





We have an unusual Constitution in that it is a charter for transformation. While the constitutions of other countries settles changes which have taken place, ours sets goals for where we want to be. One of the ways in which our Constitution does this is by through justiciable socio-economic rights, which are intended to remedy some of the consequences of apartheid.

The fact that human rights include the right to an adequate standard of living was recognised in 1948 in the United Nations Declaration on Human Rights. In 1966 the two key international covenants were adopted simultaneously: the International Covenant on Civil and Political Rights and the International Convenant on Economic, Social and Cultural Rights. The Vienna World Conference on Human Rights recognised again that human rights are universal, indivisible, interdependent and interrelated.

The difficulty for the courts in enforcing socio-economic rights is that they involve questions of how much and when. India has given the lead in this regard. The Indian Constitution does not contain enforceable socio-economic rights in its Constitution but it does have ‘directive principles’ which deal with social and economic matters, and are to guide government action. From the 1960s the Indian Supreme Court went further than any court had previously done, in its rulings on socio-economic rights. The court did this by holding that, because the right to life is enforceable under the Indian Constitution and because socio-economic rights impact on the right to life, the directive principles therefore inform the content of the right to life. It made bold decisions on matters affecting the poor. There has been some backlash in India against the role the court played at that time. Questions have been asked about the appropriateness of some of the orders, and about how effectively the Indian government has implemented the court’s socio-economic orders.

Today two key South African cases – the Grootboom case and the Treatment Action Campaign (TAC) case on the provision of nevirapine to prevent mother-to-child transmission of HIV – are now at the forefront of international jurisprudence on the enforcement of socio-economic rights.

Our Constitution requires the state to take ‘reasonable’ measures to give effect to these rights. The meaning of this principle is illustrated by the Soobramoney case, which was brought by a severely ill man who required regular kidney dialysis. The provincial hospital turned down his request for treatment on the grounds that it had too few machines available to treat every patient, that it had to prioritise the availability of the machines, and that Mr Soobramoney did not qualify on this basis.

He asked the Constitutional Court to order the hospital to provide him with treatment on the grounds that he has a right to life, a right of access to emergency medical treatment, and that without dialysis he would die. The court found that it was reasonable for the hospital to refuse treatment – where resources are limited, it is necessary to ration those resources, and it is therefore reasonable to provide treatment first to those whose lives will be saved. Mr Soobramoney was so ill that the provision of a dialysis machine would do little to prolong his life, and it was therefore reasonable for the hospital to give priority to others, who could receive a long-term benefit. This demonstrates the principle that when resources are limited, it is reasonable to allocate the resources to those who will benefit most.

The Grootboom case dealt with the right to housing. A group of people on the Cape Peninsula had moved from place to place, and been evicted from the last place they had stayed. They had literally nowhere to go. They asked the court to enforce their right to housing, by ordering the government to make provision for them. The government effectively said ‘we have a housing programme, put your name on the list for housing and wait’. The court found that where there will be a substantial delay in provision, it is not reasonable to tell people who have nothing to wait their turn – there must be special provision to provide quicker relief for people who are in intolerable or desperate circumstances. It would be reasonable to tell a person with poor-quality housing to wait until the government housing programme can deliver a better house, but it is not reasonable to tell someone without shelter to live on the street for 15 or 20 years.

The TAC case was more straightforward from a technical legal point of view, but it was also highly politically sensitive. It is very difficult to contend that it is reasonable to refuse to provide a medicine which is effective, safe, and available for free, and which doctors want to administer, to children whose lives will be saved by it. In this matter, government policy adversely affected the poorest people, because the rich can buy access to nevirapine. It is plainly unreasonable for government effectively to say that poor babies can die, when there is a simple and inexpensive way to prevent their deaths.

A difficult question was how far the courts would go in setting out precisely what government had to do. In Grootboom, the court said the housing policy was unreasonable, and explained what the policy would have to do to meet the requirement of reasonableness. It did not make an order directly in favour of the applicants, who had already received temporary land, shelter and services as a result of an undertaking made by the government. In the TAC case we asked the court to make a direct order to government to provide nevirapine, so that the government would be in contempt of court if it did not comply. The court made that order.

Does this mean that the courts now run the country, that the judges now make government policy? In the TAC case, the government said the separation of powers means that matters of policy formulation and implementation are the prerogative of the executive. The judgment discusses this. It points out that while certain matters are in the power of one or another arm of government, the primary duty of the courts is to give effect to the Constitution and the law, and this it must do without fear or favour. Where state policy is inconsistent with the Constitution, the courts must intervene, because the Constitution puts certain obligations on government.

As I have said, there is some anxiety in the courts about socio-economic rights because in some cases they raise questions of how much and when. There are four reasons for this anxiety:

1.      Some decisions are polycentric. There is a kind of spider’s web of interrelationships between issues, and the courts may not be able to see the full impact of what they do on the rest of the web. But virtually all decisions are polycentric to some extent – it is a matter of degree.

2.      Some decisions should be made by people who are elected and politically accountable. If policies such as Gear [the Growth, Employment and Redistribution macroeconomic strategy] were attacked in court, the courts would almost certainly defer to the elected representatives of the people. But one has to recognise that in practice, elected representatives are much less accountable that idealistic theory supposes. Parliamentary democracy is exercised once every five years in elections, and your vote in an election is all or nothing – you can’t vote for a party but against one of its policies. The government’s HIV policy is not an expression of the political will of the people who elected it. In addition, many critical decisions are made not by elected representatives, but by officials. These people are not politically accountable in any real sense – and they don’t have to give reasons for their decisions, as courts must.

3.      A court is limited to the evidence placed before it by the parties which come before it. Some decisions are better made on the basis of a broader information base.

4.      Some decisions are better made by people with specialised knowledge and expertise. In the TAC case, government tried to rely on this by arguing that the court was prescribing nevirapine. But nevirapine is already registered for this use, it is already used in pilot sites in government hospitals, and all that the TAC asked was that medical practitioners be entitled and empowered to decide whether to prescribe it, so that argument really has no substance in that case.

In Grootboom, the Constitutional Court said that reasonableness requires government to look at short, medium and long-term needs, paying particular attention to the poor, the most vulnerable group. Rich people don’t need the Constitution much of the time, because they can use their wealth to obtain what they need.

There is now a new wave of social and economic rights discourse in many countries. South Africa is leading the way. Civil and political rights legitimised the new rising class in the 18th and 19th century. Social; and economic rights legitimise the needs and demands of underclass and working class people. Socio-economic rights seemed odd and exotic when we discussed them only ten or fifteen years ago. We are now in a time in which socio-economic rights have taken on a life of their own, and are becoming accepted in rights discourse and a rights culture. This is the time when the second wave of rights has taken root. We are blessed to be part of the leading wave.

The interesting thing about socio-economic rights is that they are truly social rights – they are best enforced by social movements. The Grootboom case was concluded in October 2000, but it has not had its full effect. There has been special budgetary provision for people in desperate circumstances, and the courts are less willing to grant eviction orders just for the asking, but the case has not had its full potential effect. The City of Cape Town has still not complied with its Grootboom obligations, because there is no social movement insisting that the judgment be implemented. This is a great disappointment. Contrast the lack of implementation on housing rights after Grootboom, with what will happen as a result of the TAC judgment. I put my head on a block that two years on we will have full implementation and more, because there is a social movement to ensure that it happens. TAC has built an extraordinary alliance across classes and with the unions, with churches and with the media. The truth is that the case was just about won outside the courts. The government’s announcement on 17 April 2002 on mother-to-child transmission was a concession of defeat from government on an issue that is driven by a real social movement. Grootboom was a very important case, a powerful judgment, but it has not been backed up by a social movement. Civil and political rights are easily enforced individually by anyone deprived by them. When it comes to programmatic rights, it is much more difficult to bring an individual case.

TAC is a turning point. It reinforces and extends Grootboom and it shows how social activists can use the courts and the Constitution to hold the whole society to our best ideals in a way which strengthens and deepens our democracy.



       What is the extent of compliance on the TAC judgment?

It is uneven. Some provinces are getting on with it, others are dragging their feet. We are talking to government about this. It is possible that we may have to go back to court. The uptake of nevirapine has apparently doubled, but this is still not enough. A month from now we will know the full extent of compliance.

       We in TAC have been criticised for not being ambitious enough because we went for one treatment regimen [nevirapine], would the outcome have been different if we asked for more?

It was the right strategic decision. A drug like AZT is not simple regimen, and it requires some money and training and planning. We might have won an AZT case, but the place to start was with nevirapine, where we could say ‘this costs you nothing, what’s the problem?’ As soon as it comes to requiring government to spend money, you get into the argument about polycentrism, because it is about priorities. With AZT you could certainly argue that spending this money would save the government money in the long run though not having to treat sick children. In the case of nevirapine, the evidence to this effect was not disputed, and in a sense it was not necessary to deal with this, because the drug is so cheap and is in any event available for free.

       The Constitutional Court is becoming more interventionist and expansionist. It seems the government is always the opposing party in actions in the court. Would you comment on this?

Some say that some of the judgments of the Supreme Court of India were ill-advised, they went very far very fast. There was some confrontation with government, and little implementation of some of the court’s orders. It has also been suggested that some of the court’s later findings were an attempt on the part of the court to regain some of the respect it had lost over its poor rulings on civil liberties under the 1975 State of Emergency. The court could have done things differently and had more impact, but it opened the door at a critical moment. Our Constitutional Court is careful. Its judgments insist that the parts of the state must treat each other respectfully. The court is not yet at the edge of how far it can go. The government needs to recognise that socio-economic rights are also there to enable to do what it wants to. For example, on the grounds of privileging socio-economic rights above the intellectual property rights of companies, government could allow parallel importing and compulsory licensing of medicines. When government resettled Alexandra flood victims on a piece of open land, the matter was taken to the Constitutional Court by local landowners who wanted to protect their property values. The court ruled that, while the landowners have a right to protect their property values, the flood victims had a constitutional right to housing, and it was not unreasonable for the government to use its land to provide services and benefits to the poor. Government must learn to use socio-economic rights in support of what it wants to do.

       Is government a lot of bureaucrats who are deaf, dumb and blind to the needs of the poor?

Government is not monolithic. There are 1.1 million public servants in national and provincial government. Parts of government are very responsive, and parts not. Parts of the Department of Health are quietly cheering the outcome of the TAC case (very quietly). Some of the evidence we used in the TAC case came from government officials. We have to take a strategic view when dealing with government – see what is going wrong and see how courts can be part of the process of improving things.

       What is the meaning of this for people with HIV? How much did the government spend in the case?

I am not sure how much government spent. There were three hearings in the High Court, and two hearings in the Constitutional Court, and they had to pay TAC’s costs. It must be much more than r a million rand. This judgment is about the easy part – medicine to avoid mother-to-child transmission is cheap. But what is going to happen about treatment for people living with HIV? It is expensive, we can argue about how expensive, and again it may save money in the long run to provide treatment. We don’t know what the implications of the judgment are for people living with HIV until someone says ‘my life can be saved by antiretrovirals and I need them’ in the court. One can’t be confident about the outcome of such a case. It is much easier to run a case when the drug is free, as it is in the case of nevirapine.

       Our political masters would say we would rather provide antiretrovirals than be ordered to do something by a court again. If I were to pick a team of people to implement a nevirapine programme I would pick people from TAC. However, we now have a team of people who can’t bring themselves to talk to TAC after facing them in court. How effective going through the courts?

It is usually best to resolve issues outside the courts because you want the parties to work together rather than developing adversarial relations. The court should be a last resort – you should only go to court when you have no other option. In this case, it was essential to go court. One of the challenges for TAC is to rebuild relations with government. TAC made conciliatory statements after the case, and government took up the same attitude, until the Minister went overseas and lost her head. There is a level of political engagement in the process which makes it very difficult to have rational debates around this. The challenge to TAC is to see whether it can move out of the mode of litigation into a mode of working with government. It is continuing to meet with government.

       Why should the onus be on TAC to rebuild relations with government?

The question is what is most effective. If the TAC went back to court, it might damage the possibility of good relations. The question is what will work most effectively in ensuring that the government does what it ought to do.

       It is difficult for individuals to take advantage of socio-economic rights, what about concentrating on minimum core rights that you can get without taking on government on progressively realising socio-economic rights? Why are the courts so reluctant to take on minimum core rights?

There are three reasons. 1) The new government inherited a situation in which millions of people do not have any minimum core of the rights. It is difficult to believe that what the Constitutional Assembly had in mind when it adopted the 1996 Constitution was that it was declaring that the government is in massive breach of constitutional rights millions of times every day. 2) The Constitution gives the government a duty to take steps in the realisation of socio-economic rights. It requires government to respect, protect, promote and fulfil these rights. The nature of the duty is spelt out in the Constitution. ‘Fulfil’ means taking reasonable legislative and other measures to achieve the realisation of the rights. 3) It is difficult to determine precisely what the content of the minimum core of rights is. The content changes as you become more prosperous. We argued minimum core in Grootboom, but it is a shifting target. The Constitutional Court has asked: how would we know what the minimum core is? They have left open whether the minimum core is an element of reasonableness in some cases.

       You have spoken about three cases in five years, cases in which the Constitutional Court is pushing the envelope. The broader challenge is to the other courts ensure they also push the envelope. There is a whole series of rights emerging from the equality legislation. The idea was to have specialised courts, because you can’t throw equity decisions open to ordinary magistrates. Even at the High Court level there is a problem – for example, one High Court judgment struck down a maximum interest rate for micro-lenders. What is the broader challenge for the judiciary?

There have been relatively few cases on socio-economic rights in the courts – three big cases in the Constitutional Court, two cases in the High Court on the right to water, and a number of cases on housing and welfare rights, mainly based on the relevant statutes. The right to housing comes up all the time in eviction cases. Rights discourse has not yet fully percolated into the courts at High Court and magistrates’ court level. Everyone in the judiciary is waiting for the Constitutional Court to say what these rights mean. We have all had to learn. The failure has not mainly been on the level of judges and magistrates, it is primarily the failure of lawyers to bring the cases which test the courts. There are still government officials who don’t know what rights mean. A lot of officials still think socio-economic rights are all pie in the sky, not real. We will get perverse judgments in some courts, but we will get good ones too. Because of precedent and authority (a good feature of our legal system), the Constitutional Court will decide and the other courts will fall into line.

       It is useful that nevirapine is free, but Soobramoney said we can offer it to a certain number of people, and the rest have to do without. How does affordability and principle relate?

The challenge on the nevirapine case was to ask whether it is reasonable to say that ‘if we can’t give it to everyone, we will not give it to anybody’. This is clearly unreasonable. The health system will have to make decisions on priority. These decisions are very hard, but doctors make them all the time. The Global Fund application for KwaZulu-Natal wanted to start rolling out treatment by giving antiretrovirals to health workers.

       The Legal Resources Centre can’t be everywhere, and lawyers have to be paid.

We have to encourage lawyers in private practice to take on this kind of case. We at Legal Resources Centre are in the privileged position of not having to ask people if they can pay. We have to make it easier for private lawyers to offer their services. The Legal Aid Board is beginning to support some public interest work. The legal profession is not in trouble, there may be many lawyers who will do pro bono work, particularly if their expenses are covered. There were more lawyers doing human rights work for free before 1994.

       Which other socio-economic issues can be brought to court? Child support, a Basic Income Grant?

All socio-economic issues can potentially be brought before the court. It would be difficult to litigate for a Basic Income Grant – this is a truly political decision with large budgetary consequences, and implementing such a grant would require taking money from some other allocation. Soobramoney is a clear indication that the courts will not become involved in this kind of decision. Litigating for a Basic Income Grant, or on the arms deal, or on Gear will be difficult – the courts will say this is not their business. We don’t want the judges making those decisions. It is different however if government sets a grant system in place and does not implement it, or if it cuts back a grant (because the Constitution provides for progressive realisation), or if a supposedly social programme does not address the needs of the very poor.

       Would such matters have to go to the Constitutional Court? Is there any way of running cases through the lower courts?

A review of an Act of Parliament or an action of the President has to go to the Constitutional Court. Other matters can be dealt with by the High Courts or even the magistrate’s courts., subject of course to appeals.

       Government has the right to make its own decisions, but what about a case like the arms deal where the government’s own papers say it can’t afford to make the decision?

The court would find it difficult to say ‘we know how you should be spending your money’. A judgment by Lord Hoffman on the lack of a role for the courts in deciding on high-level security issues will probably be quoted in the judgment on the arms deal case.

       Some appreciate the activism of TAC, others say there is not enough advocacy and information.

The effectiveness of organisations like TAC is critical to the success of such cases. The thing that made the TAC case succeed was that it is skilled and experienced and it knows the facts. Government could not dispute any of the facts it presented. We need social mobilisation on these issues. Judges are human beings, they are affected by what is going on outside the court. TAC has done research, engaged in advocacy and supplied high quality information. This impacts favourably on the ability of a lawyer to argue a case. You are confident as a lawyer when you can rely on what your client tells you.