• In case of an infectious illness, every department of government must take the risks into account.
• Everyone has the right to information about matters affecting them.
Image: JOSEPH KANGOGO
The Constitution says that "The State (meaning the government and public agencies) shall (which means must) take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of …the Right to the Highest Attainable Standard of Health."
Including the setting of standards.
This is novel language for a constitution. What does it mean?
A standard is a measure, something that someone is supposed to live up to.
It may be something not very precise. In all sorts of contexts, in law we are supposed to be behave 'reasonably' (we used to say 'like the reasonable man').
In fact a court, deciding whether someone has behaved reasonably may look at various other guidance.
If the allegedly unreasonable person is a professional, have they behaved according to accepted practices in their profession?
Have they followed guidance from experts or authorities? So the vague standard becomes more precise.
In the discipline of human rights, a lot of effort has in recent years gone into elaborating standards and other ways of making human rights obligations more precise and measurable.
A difficult aspect of the right to health is that phrase "progressive realisation", which the Constitution says is the state duty in connection with rights to health, food, water and sanitation, housing, education and social security. It is connected to that other phrase"highest attainable".
Everyone has the right to health, yes, but exactly what an individual’s highest attainable standard is will depend on factors about the person – their age, for example, perhaps their past experiences, their genetic make-up and other factors, things that the state and the individual themselves can do nothing about now.
And there is another aspect of "progressive realisation" that is not so much about the individual but about the fact that no country can achieve the highest standard of health for all its people, but ought to be constantly working towards better health for all its people.
Our Constitution says that in that endeavour the state must give priority to the “widest possible enjoyment” of rights, and it must take the vulnerability of groups and individuals into account.
The Constitution does not expect miracles, but it requires constant effort, and progressive realisation is always said to mean not 'sometime will do' but 'start now and keep going and don’t go backwards'.
Standards for the right to health would include standards of effort, minimum standards of achievement and standards often called 'benchmarks' on the way to the highest standards.
Court cases are a source of standards. And the 2017 Health Act sets out some rather general and basic standards.
This coronavirus is pushing us to reflect about the nature of the right to health, and United Nations experts on human rights have been analysing the situation from a human rights perspective.
Why standards?
Standards are designed as guidance rather than, usually, rigid rules. The idea is that they should be used by those making decisions, rather than only applied afterwards, by a court, for example, saying, “You are legally liable because you did not do this."
They would be useful for holding authorities accountable through the courts, but also through human rights commissions, and in a political way –holding their elected representatives and public servants to account.
Even if standards are raised in court, judges should not use them in a rigid way.
The Constitution actually makes it clear that courts should not simply substitute their judgment for those of the decision makers.
South African decisions (on rights to housing and health) clarify that “The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation.”
The dilemmas of limiting rights
Rights may be limited if really necessary to achieve some valid purpose (Article 24). But being necessary means that there is no other reasonable way to achieve that purpose.
And the purpose to be achieved must be looked at in the context of the right or rights affected.
Measures to prevent the spread of the common cold could not legitimately limit rights as much as measures to limit the spread of Ebola or Covid-19.
One sometimes hears people throw scorn on the whole idea that human rights are relevant when the battle against Covid-19 is being considered.
But nothing in the Constitution justifies that – human rights must still be the framework for policy making.
And the same exercise of weighing the value of the object to be achieved against the severity of the limitation on rights, and even more of answering the question, “Could you reasonably achieve this purpose by not limiting those rights?” must still be undertaken.
Some tentative standards
These are drawn from some past work of my own, reflections on current events, and work at the international level.
Everyone has the same rights. Government interventions, medically and in other ways, must not discriminate between individual and communities on any basis, except to the extent that is necessary to take into account the needs of the most vulnerable and disadvantaged.
'Everyone' includes all within the country, including refugees and marginalised groups and communities.
If agonising decisions have to be made, in terms of priorities, whether between patients or between patients and others, these must be made on the basis of consideration of the rights of everyone involved, within the framework of Article 24 of the Constitution.
In dealing with a health emergency, however grave, government must not focus only on health in a medical sense.
The rights of victims, potential victims and medical staff must include rights to privacy, dignity, and that healthcare must be acceptable as well as available.
Emergencies may require some adjustment to the way services are delivered, but are no excuse for failing to consider the rights-based approach.
Arrangements, including to prevent infection spreading, must be made in ways that can be effective for all sections of the community, including those in crowded housing conditions, in fragile employment situations, those with no savings.
Government’s carrying out its duties towards the right to health must not ride roughshod over people’s rights in other contexts, including to liberty, security, beliefs, culture, protection of the family and expression.
Decisions on treatment and public health must be based on the best medical advice available, but, especially in relation to measures of prevention must take into account implications for other rights including education, food, property and freedom from violence.
Particular attention must be paid to groups likely to be significantly affected – by the health threat itself or by measures taken to combat it – including homeless persons, the poor, women – including those who are pregnant - children, persons with disabilities and those suffering from other illnesses.
Particular consideration must be given to the dangers for those particularly at risk, including medical staff, police, public transport workers and persons in detention.
In case of an infectious illness, every department of government must take the risks into account, especially those whose work creates, or is linked to, situations where workers, or the public, may be in large groups or in close proximity to each other.
Everyone has the right to information about matters affecting them.
Therefore government policies must be explained on the basis of the medical situation facing the country, and the measures taken, including the reasons for those measures.
And this information must be delivered in language that can be understood by ordinary citizens, rather than in technical or obscure terms, and by methods that will reach the maximum number of people, taking into account the needs of vulnerable, if small, groups in society.
The information should be directed not merely to explaining what government is doing and why, but to the obligations of people towards others and in terms of taking care of themselves, in practical ways.
It’s not just government.
A final point is that, under our Constitution, rights are to be respected not by government alone but by all of us.