Madlala-Routledge at the launch of Health and Democracy, held at the
Constitutional Hill
27 February 2007
Friends,
Colleagues and comrades,
"Everyone has the right to have access to healthcare services including
reproductive healthcare, sufficient food and water and social security
including if they are unable to support themselves and their dependants,
appropriate social assistance. The State must take reasonable legislative and
other measures within its available resources to achieve the progressive
realisation of each of these rights. No one may be refused emergency medical
treatment. "Section 27 of the Constitution of the Republic of South Africa,
1996."
It gives me great pleasure tonight to be the keynote speaker at the launch
of this important new publication on South Africa's legal and policy framework
for health and how it connects with human rights. However, it also gives me an
opportunity to speak about the link between 'better health for all' and the law
and human rights. Understanding this link is very important to our communities'
progress in their battles against diseases such as HIV and tuberculosis (TB),
but also in relation to the progress that we make against non-communicable
diseases such as cancer and hypertension.
Just over 10 years ago the final Constitution of our new democracy bestowed
upon our people and made reality of an idea that we had always argued for
during the years of apartheid that is, that access to healthcare services as
well as to the conditions that favour health is a human right.
We included it in our Constitution as a message to the people of South
Africa that, from now on, any government of our country must pay attention to
progressively meeting the health needs of the population, that this is a duty
and not a choice for government. Implicit in this decision was also our
recognition that even in a free society, our people may need to hold government
to account for the delivery of essential services.
Whilst we do not need to justify making health a human right in terms of
South Africa's Constitution, there are of course other very important reasons
why we must do all we can to improve health. These reasons are set out
particularly clearly in the 2001 report of the World Health Organisation's
(WHO's) Commission of Macro-Economics and Health, which showed that governments
that invest in health will derive benefits in development and equality. Put
another way this means that ensuring that people can live in dignity, free from
disease, is good for development.
The opening pages of this book quotes from the judgment of the previous
Chief Justice, Arthur Chaskalson in the Soobramoney case. There he said:
"We live in a society in which there are great disparities in wealth.
Millions of people are living in deplorable conditions and in great poverty.
There is a high level of unemployment, inadequate social security and many do
not have access to clean water or to adequate healthcare services."
"These conditions already existed when the Constitution was adopted and a
commitment to address them and to transform our society into one in which there
will be human dignity, freedom and equality lies at the heart of our new
constitutional order. For as long as these conditions continue to exist that
aspiration will have a hollow ring." [Soobramoney v Minister of Health,
KwaZulu-Natal 1998 (1) SA 765 (CC) at para 8.
We are proud of the strength and independence of our judiciary which allows
for judgments such as this. But well considered and groundbreaking judgments
are not enough. If judgments such as this are not accompanied by a concomitant
change in the living conditions of the poorest among us then we have failed in
our respective duties as leaders, human rights lawyers, activists and
citizens.
As we consider the Soobramoney case, let us be reminded that while those who
have the means can buy lifesaving healthcare and medicines, the poor often die
prematurely of treatable or curable diseases. While our decision to focus our
limited resources on prevention and primary healthcare was the correct one, the
disease burden in our country requires that we begin to reallocate resources to
secondary and tertiary healthcare. Some of the diseases that were considered to
afflict only the rich, like heart disease, hypertension and diabetes have
reached epidemic proportions affecting even the poorest communities.
The values expressed in the Soobramoney judgment are encapsulated in the
Freedom Charter and were held passionately even as we struggled for freedom,
prior to the advent of democracy in 1994. They are views that have influenced
us in the development of a raft of policies and laws that have been introduced
since 1994.
Incidentally, one of the exciting things about this book is that it is to
the best of my knowledge, the first time that all of our health law and policy
have been described in one place. But the important thing for me tonight is to
say that the recognition of human rights in our law begs another important set
of questions. These are:
1. Are we doing enough to educate our communities about their rights to
health?
2. Are we doing enough to educate healthcare workers and managers about their
duties under these laws?
3. Are we doing enough to allocate our limited resources correctly to respond
to the growing disease burden?
4. How can we assist poor communities so that they have access to legal
services when they are forced to resort to the law to either protect rights or
to demand them when we fail to meet our obligations as a government (at
whatever level)?
In this respect, we see how the question of access to healthcare services
overlaps greatly with the question of access to legal services and indeed there
are many parallels between the challenges facing these two systems. Both the
health and legal services are characterised by inequalities between the public
and private sectors where people who can afford to pay can generally get good
services. In both the legal and health sectors we suffer from a drain of our
promising young graduates away from providing public care to providing private
care.
My wish is that this book might help to inspire some of the young people who
are now studying law in our universities to see the opportunities that our
legal and policy framework has created for ensuring that we meet our
obligations.
I hope that it might open the doors to a new generation of lawyers to see in
the struggle for health, an opportunity to follow in the footsteps of lawyers
such as Nelson Mandela, Braam Fischer, Victoria Mxenge (who started off as a
nurse), George Bizos, Chief Justice Pius Langa, Kate O'Regan, Judge Yvonne
Mokgoro, Felicity Kentridge and many others. All of these people represent the
values of courage, compassion and selflessness which continue to inspire others
who are choosing public interest law instead of going into the private sector
where they can make lots of money. Similarly in the health sector, we have
committed people who have chosen to remain in the public sector at great
personal sacrifice. I hope that holding this launch here in the Constitutional
Court tonight will highlight some of these connections.
Finally, I would like to say that, as the government puts the finishing
touches to our country's National Strategic Plan on HIV prevention and
treatment, it is very important that the pillar of human rights and law points
a way forward to ensure that we take advantage of the framework described in
this book but also fill the gaps in policy and law that may continue to have an
effect in denying people access to basic healthcare services.
Thank you!
Issued by: Department of Health
27 February 2007
