ARTICLES

The right to health care in the specific context of access to HIV/ AIDS medicines: What can South Africa and Uganda learn from each other?

John C Mubangizi^I; Ben K Twinomugisha^II

^IProfessor of Law; Deputy Vice-Chancellor and Head: College of Law and Management Studies, University of KwaZulu-Natal, South Africa
^IIAssociate Professor of Law and Dean, Faculty of Law, Makerere University, Kampala, Uganda

SUMMARY

Unlike many other African countries, which either exclude socio-economic rights from their constitutions or include them in the Preamble or the section on Directive Principles of State Policy, the South African Constitution is well known for its inclusion of this category of rights in its Bill of Rights. For example, while the right to health care services is specifically provided for in the South African Constitution, the Ugandan Constitution merely requires the state to 'take all practical measures to ensure the provision of basic medical services to the population'. In the specific context of access to HIV/AIDS medicines, it is interesting to note that, in spite of the disparity in the measure to which the right to health care is constitutionally protected, Uganda is renowned for having taken the lead in the roll-out of anti-retroviral treatment. South Africa has been widely criticised for its initial disastrous approach towards HIV/AIDS treatment, an approach that led to the loss of millions of lives that could have been saved with the early roll-out of anti-retroviral treatment. The article looks at the different approaches adopted by the two countries in terms of access to HIV/AIDS medicines and the implications for the right to health care. Apart from identifying the lessons Uganda and South Africa can learn from each other, the article explores the important question of accountability for the violation of the right to health care occasioned by inadequate access to HIV/AIDS medicines.

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* LLB (Hons) (Makerere), DipLP (LDC) LLM (Cape Town), LLD (Durban-Westville); mubangizj@ukzn.ac.za
** LLB (Hons) (Makerere), DipLP (LDC) LLM (Makerere), PhD (Makerere); btwinomugisha@law.mak.ac.ug
1 See 'HIV and AIDS in Uganda' http://www.avert.org/aidsuganda.htm (accessed 14 July 2009).
2 See 'HIV and AIDS in South Africa' http://www.avert.org/aidssouthafrica.htm (accessed 14 July 2009).
3 As above.
4 See UNAIDS 2008 Report on the Global Aids Epidemic http://www.unaids.org/en/KnowledgeCentre/HIVData/GlobalReport/2008/2008_ Global_report.asp (accessed 14 July 2009).
5 As above.
6 As above.
7 See 'Uganda reverses the tide of HIV/AIDS' http://www.who.int/inf-new/aids2.htm (accessed 14 July 2009).
8 The latter argument is the thrust of a recent Harvard study in P Chigwedere et al 'Estimating the cost benefits of anti-retroviral drug use in South Africa' (2008) 49 Journal of Acquired Immune Deficiency Syndrome 410, while the former argument is contained in AIDS in South Africa: Treatment, transmission and the government http://avert.org/aids-south-africa.htm (accessed 15 July 2009).
9 See Kaiser Network 'Remarks by Stephen Lewis, UN Special Envoy for HIV/AIDS in Africa, to the closing session of the XVI International AIDS Conference, Toronto, Canada' quoted in AIDS in South Africa: Treatment, transmission and the government http://.avert.org/aids-south-africa.htm (accessed 15 July 2009).
10 'HIV and AIDS in Uganda' (n 1 above). See also Uganda: Summary Country Profile for HIV/AIDS Treatment Scale-Up http://www.who.int/3by5/june2005_uga.pdf (accessed 21 November 2009).
11 See L Garbus & E Marseille 'HIV/AIDS in Uganda' http://hivinsite.ucsf.edu/doc/ariug.doc (accessed 21 November 2009).
12 See A Hassim et al Health and democracy: A guide to human rights, health law and policy in post-apartheid South Africa (2007) 438.
13 As above.
14 AE Yamin 'Not just a tragedy: Access to medications as a right under international law' (2003) 21 Boston University International Law Journal 325 327.
15 See para 12 of General Comment 14 The Right to the highest attainable standard of health (UN DocE/C 12/2000/4) http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En (accessed 18 July 2009).
16 See the Constitution of the World Health Organisation Basic documents (2007) 1.
17 General Comment 14 (n 15 above) para 11.
18 See 'Definition of health care' http://www.answers.com/topic/health-care (accessed 18 July 2009).
19 See C Ngwena & R Cook 'Rights concerning health' in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 107.
20 See JC Mubangizi The protection of human rights in South Africa: A legal and practical guide (2004) 118.
21 See n 16 above.
22 Art 11 Universal Declaration.
23 Art 24.
24 Art 12.
25 Art 5(e)(iv).
26 See art 15 of the United Nations General Assembly Declaration of Commitment on HIV/AIDS (2001).
27 Art 55.
28 As above.
29 UN Commission on Human Rights Resolutions 1997/33, 1999/49 & 2001/51.
30 UN Commission on Human Rights Resolution 2002/32.
31 Art 4.
32 Art 23 of the UN Political Declaration on HIV/AIDS (2006).
33 Art 24.
34 Art 3(n).
35 See art 14(2)(a) of the African Women's Protocol and art 14(2)(b) of the African Children's Charter.
36 See the Maputo Declaration on HIV/AIDS, Tuberculosis, Malaria and Other Related Infectious Diseases (2003).
37 Resolution on the HIV/AIDS Pandemic - Threat Against Human Rights and Humanity (2001).
38 Art 2(g) of the Maseru Declaration on the Fight Against HIV/AIDS in the SADC Region (2003).
39 D Mushayavanhu 'The realization of access to HIV and AIDS-related medicines in Southern African countries: Possibilities and actual realisation of international law obligations' in F Viljoen & S Precious (eds) Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa (2007) 134.
40 n 39 above, 135.
41 General Comment 14 (n 15 above) paras 33-35.
42 As above.
43 Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001) paras 43-47.
44 See eg General Comment 3: 'HIV/AIDS and the rights of the child' http://www.uniteforchildren.org/files/UNHCHR_HIV_and_childrens_rights_2003.pdf (accessed 1 December 2009).
45 The Constitution of South Africa, 1996. Sec 232 provides that '[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament'. Sec 231(4) provides that '[a]ny international agreement becomes law in the Republic when it is enacted into law by national legislation' and sec 39(1) (b) obliges any court, tribunal or forum to consider international law when interpreting the Bill of Rights.
46 See J de Waal et al A Bill of Rights handbook (2001) 448.
47 Art 24(1) CRC.
48 Ngwena & Cook (n 19 above) 131.
49 See S Khoza (ed) Socio-economic rights in South Africa (2007) 280.
50 2002 10 BCLR 1030 (CC). Other cases in which the constitutional right of access to health care was given content include Republic of South Africa v Grootboom 2001 1 SA 46(CC); Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC) and EN & Others v Government of the Republic of South Africa & Others 2007 1 BCLR 84 (D).
51 See Chigwedere et al (n 8 above) 410.
52 Chigwedere et al (n 8 above) 414.
53 Act 101 of 1965.
54 Act 90 of 1997.
55 Act 59 of 2002.
56 Sec 35 of the Act.
57 Act 61 of 2003.
58 See 'National Health Act proclaimed by the President' http://www.info.gov.za/speeches/2005/05042013451004.htm (accessed 7 December 2009).
59 See 'HIV/AIDS in South Africa' http://www.aids.org.za/hiv.htm (accessed 10 August 2009).
60 As above.
61 See 'IAS applauds SA commitment to treatment scale up' http://www.ias2009.org/ (accessed 10 August 2009).
62 HIV/AIDS in South Africa (n 59 above).
63 See eg Grootboom & Soobramoney (n 50 above); Minister of Health & Others v Treatment Action Campaign & Others 2002 5 SA 721(CC).
64 1997 4 SA 441 (C).
65 2002 5 SA 721 (CC).
66 Para 38.
67 The Constitution of the Republic of Uganda (1995).
68 Art 30.
69 Art 33.
70 Art 34.
71 Art 39.
72 Art 40.
73 NODPSP
74 Art 45.
75 On the enforcement of rights and freedoms by the courts in Uganda, see art 50 of the Constitution. It should be noted that there has been a debate as to whether the Constitutional Court of Uganda is a 'competent court' for the purpose of handling the enforcement of human rights. In James Rwanyarare & Another v Attorney-General (Constitutional Petition 11/1997), the Constitutional Court held that it lacked jurisdiction to entertain a petition alleging a violation of human rights under art 50. However, in Attorney-General v Tinyefuza (Constitutional Appeal 1/1997), the Supreme Court held that arts 50 and 137 (on the interpretation powers of the Constitutional Court) must be read together since the Constitutional Court is bound to hear cases involving the enforcement of human rights and freedoms in the course of interpreting the Constitution. In Serugo v Kampala City Council & Another (Constitutional Appeal 2/1998), it was held that the jurisdiction of the Constitutional Court is exclusively derived from art 137, but the court can, if it deems it appropriate, deal with matters of redress and compensation, which are matters of enforcement of human rights under art 50 of the Constitution. In Alenyo George William v Attorney-General & Others (Constitutional Petition 5/2000), the Constitutional Court also held that it can handle cases of enforcement of human rights in the course of interpretation of the Constitution. It is therefore now settled that if a matter does not involve the interpretation of the Constitution as stipulated under art 137, any other court is a 'competent court' for the purpose of redressing violations of human rights.
76 Art 22(1). In Susan Kigula & 416 Others v Attorney-General (Constitutional Petition 2/1997), the petitioners challenged the constitutionality of the death penalty on the grounds that it violated the right to life and subjected them to cruel, inhuman and degrading punishment. The Court held that the death penalty is an exception to the right to life under the Constitution and therefore constitutional. However, it was held that a prolonged stay on death row subjected the prisoners to cruel, inhuman and degrading punishment
77 Constitutional Petition 2/1997.
78 See, eg, the Indian case of Paschim Banga Khet Mazdoor Sanity & Others v State of West Bengal & Another (1996) 4 SCC 37 and the Venuezelean case of Cruz Bermudez & Others v Minsterio de Sanida y Asistencia Social (1999) Case 15789.
79 See eg art 2(2) of ICESCR.
80 General Comment 14 (n 15 above) para 53.
81 However, there are proposed laws on HIV/AIDS, which are retrogressive; they promote dangerous and discredited approaches to the epidemic and, if passed in their present form, there would be a total violation of the rights of people living with HIV/ AIDS. The HIV/AIDS Prevention and Control Bill requires mandatory testing for HIV and forced disclosure of HIV status and criminalises the wilful transmission of HIV. The Anti-Homosexuality Bill, which prohibits any form of sexual relations between persons of the same sex, provides for the death penalty for a homosexual who is HIV positive and has sex with a person below 18 years. The Bill also nullifies international treaties whose provisions (eg those prohibiting discrimination based on sexual orientation) are contrary to the spirit and provisions of the Bill. The laws are likely to roll back the success of Uganda in the area of HIV prevention and treatment. Their enforcement will increase stigma and discrimination against HIV-positive gays, lesbians and transgender people, who are among the marginalised and vulnerable people in the field of health care.
82 Ministry of Finance, Planning and Economic Development Poverty Eradication Action Plan (2004).
83 As above.
84 Ministry of Health Health Sector Strategic Plan (2006).
85 As above.
86 As above.
87 Uganda AIDS Commission Moving towards universal access: National HIV/AIDS Strategic Plan (2007).
88 As above.
89 As above.
90 Art 2(2) ICESCR.
91 Uganda AIDS Commission Report on Implementation of National HIV and AIDS Strategic Plan (2008) 23. On the progress made, see also Ministry of Health Ministerial Statement (2008) 56.
92 n 91 above, ix.
93 As above.
94 The Abuja Declaration on HIV/AIDS, Tuberclosis and Other Related Infectious Diseases http://wwww.info/popups/articleswindow.php?id=38 (accessed 17 November 2009) para 26.
95 Uganda AIDS Commission (n 91 above).
96 As above.
97 As above.
98 BK Twinomugisha 'Taking human rights seriously: Protection of the right of access to malaria treatment in Uganda' (2009) 2 Journal of African and International Law 161-200 170.
99 Z Gariyo Participatory poverty reduction strategy papers: The PRSP process in Uganda (2002).
100 As above.
101 See L Trillo Diaz 'Protection of access to essential treatment for people living with HIV/AIDS in Uganda from a human rights perspective' unpublished LLM dissertation, University of Pretoria, 2005 33. On this argument, also see BK Twinomugisha 'Barriers to the protection of rural women's rights to maternal health care in Uganda' (2005) 11 East African Journal of Peace and Human Rights 1 67-92.
102 A CD4 count is a diagnostic system used primarily to test for HIV. It analyses blood by counting residual white blood cells and testing immunity. The CD4 count enables health workers to know those in need of ARVs by determining exact immunity levels.
103 BK Twinomugisha 'Protection of the right to health care of women living with HIV/ AIDS (WLA) in Uganda: The case of Mbarara Hospital' HURIPEC Working Paper 5 (2007).
104 n 85 above, 7. See also UAC The Uganda HIV/AIDS Status Report (2006).
105 Twinomugisha (n 98 above).
106 As above.
107 n 91 above, 23.
108 The right to food is guaranteed under art 25 of the Universal Declaration, which couches the right within the broader context of an adequate standard of living that includes health, food, medical care, social services and economic security. See also art 11 of ICESCR; General Comment 12, The Right to Adequate Food, UN Doc E/C 12/199/5 (1999). For a discussion of the right to food, see BK Twinomugisha 'Challenges to the progressive realisation of the right to food in Uganda' (2005) 11 East African Journal of Peace and Human Rights 2 241-264.
109 National ART Guidelines.
110 On the role of civil society in HIV/AIDS interventions, see, eg, AJ Horvoka & EE Kiley 'Civil society organisations and the national HIV/AIDS response in Botswana' (2006) 5 African Journal of AIDS Research 2 167-178.
111 P Mutabwire 'Participatory health service delivery: The fight against HIV/AIDS in Uganda' http://unpan1.un.org/intradoc/groups/public/documents/un/unpan023881.pdf (accessed 18 November 2009).
112 AGHA Strategic Plan 2009/10.
113 On the many meanings of accountability, see eg H Potts Accountability and the highest attainable standard of health (2008). Meanings include social accountability, professional accountability, political accountability and legal accountability. See also A Schedler et al The self-restraining state: Power and accountability in new democracies (1999).
114 HC Black Black's law dictionary (1990) 19.
115 RJ Cook 'State accountability under the Convention on the Elimination of All Forms of Discrimination Against Women' in RJ Cook (ed) Human rights of women: National and international perspectives (1994) 222 228.
116 As above.
117 AE Yamin 'Beyond compassion: The central role of accountability in applying a human rights framework to health' (2008) 10 Health and Human Rights 1-20.
118 n 117 above, 1-2.
119 M Langford Claiming the Millennium Development Coals: A human rights approach (2008) 15.
120 AR Chapman 'A violations approach to monitoring economic, social and cultural rights' (1996) 18 Human Rights Quarterly 23-66.
121 General Comment 14 (n 15 above) para 48.
122 Para 49.
123 Para 51.
124 There is a need for South Africa to ratify ICESCR. It may also be necessary for both countries to domesticate ICECR, since domestic legal systems may guarantee more protection and promotion of human rights than international law, which may experience enforcement problems. On the need for domestication of international treaties, see C Heyns & F Viljoen 'The impact of the United Nations treaties on the domestic level' (2001) 23 Human Rights Quarterly 483; MA Torres 'The human right to health, national courts and access to HIV/AIDS treatment: A case study from Venezuela' (2002) 3 Chicago journal of International Law 107-108.
125 General Comment 14 (n 15 above) para 53.
126 This method has been successfully utilised by the National Environment Act, a framework legislation which lays down major principles and concepts on the protection of the environment, but leaves details to lead agencies and the sector ministry.
127 Trillo Diaz (n 101 above).
128 There have been calls for Uganda to domesticate the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement flexibilities, such as parallel importation and compulsory licensing, which may enhance access to generic medicines in the country. On the problems and prospects of utilising such flexibilities, see BK Twinomugisha 'Implications of the TRIPS Agreement for the protection of the right of access to medicines in Uganda' (2008) 2 Malawi Law journal 253-278.
129 Courts in Uganda have increasingly referred to the jurisprudence of treaty bodies and case law from other jurisdictions. See eg Charles Onyango Obbo & Another v Attorney-General (Constitutional Appeal 2/2002); Col (Rtd) Dr Besigye Kiiza v Museveni Yoweri Kaguta and the Electoral Commission (Electoral Petititon 1/2001).
130 On this view, see eg BO Okere 'Fundamental Objectives and Directive Principles of State Policy under the Nigerian Constitution' (1983) 32 International and Comparative Law Quarterly 214-215. Experiences from other jurisdictions, especially India, also show that a creative court can effectively apply Directive Principles to issues of human rights. Eg, in Keshanavanda Bharati v State of Kerala (1963) 4 SCC 225, the Supreme Court stated that, although the Indian Constitution expressly provides that the Directive Principles are not enforceable by any court, they should enjoy the same status as traditional fundamental rights.
131 On cases concerning human rights of people living with HIV/AIDS, see eg UNAIDS Courting rights: Case studies in litigating the human rights of people living with HIV (2006).
132 On litigation as a mechanism to enhance protection of the right to health, see S Gloppen 'Litigation as a strategy to hold governments accountable for implementing the right to health' (2008) 10 Health and Human Rights 23 24; S Gloppen 'Social rights litigation as transformation: South African perspectives' in P Jones & K Stokke (eds) Democratising development: The politics of socio-economic rights in South Africa (2005) 153-180; HV Hogerzeil et al 'Is access to essential medicines as part of the fulfilment of the right to health enforceable through the courts?' (2006) 368 Lancet 305-311.
133 On how courts in Uganda can use the approach taken by the Constitutional Court in South Africa to protect socio-economic human rights, see BK Twinomugisha 'Exploring judicial strategies to protect the right of access to emergency obstetric care in Uganda' (2007) 7 African Human Rights Law Journal 283 300-301.
134 See eg Crootboom & Others v Government of the Republic of South Africa & Others (2000) ICHRL 72.
135 1 99 8 1 SA 765.
136 Para 29.
137 Trillo Diaz (n 101 above) 45. Art 50(2) of the Constitution permits PIL, which has been utilised by public-spirited individuals and organisations to challenge violations of human rights or the constitutionality of certain laws or other acts or omissions by government officials or agencies. Eg, in Environmental Action Network (TEAN) v Attorney-General and the National Environment Management Authority (Misc Appl 39/2001), the court relaxed the rules of standing and permitted the applicants, who did not have a direct interest in the infringing act, to bring an action on behalf of the non-smoking public. For a discussion of this and other cases, see BK Twinomugisha 'Some reflections on judicial protection of the right to a clean and healthy environment in Uganda' (2007) 3 Law, Environment and Development Journal 3.
138 Objective XXVI (ii) of the 1995 Constitution.
139 WHO/UNAIDS Ensuring equitable access to anti-retroviral treatment for women (2004).
140 BK Twinomugisha ‘A critique of Uganda’s poverty eradication action plan’ in K Matlosa et al (eds) The state, democracy and poverty eradication in Africa (2008) 298-312.