ALQ,November 2006 Edition - Socio-Economic Rights

Editorial...

A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational. [Judgement in Khosa v The Department of Social Development, 2003]

It is the very access to ‘the basic necessities of life’ for all that would define an adequate response to, and management of, the HIV and AIDS pandemic. Instead, inequalities, poverty, unemployment and destitution due to, and in the context of, HIV and AIDS seem to be ever-increasing; access to socio-economic rights remains limited due to ‘available resources’, and the constitutional guarantee to enjoy all rights and freedoms seems to remain but a dream. The ones most vulnerable and in need of access to ‘the basic necessities of life’ are the ones who often remain excluded and, thus, the ones who are increasingly impacted and affected by the pandemic.

It is within this context of the correlation of poverty and the HIV and AIDS pandemic that this issue of the ALQ focuses on the access to socio-economic rights due to, and in the context of, HIV and AIDS. The various articles in this issue examine the extent to which various socio-economic rights are accessible and realisable, and, thus, provide access to ‘the basic necessities of life’ for the ones most vulnerable and marginalised, and for people living with, and affected by, HIV and AIDS. The meaning and concept of socio-economic rights, the judicial enforcement of socio-economic rights, and the interrelation of socio-economic rights and civil and political rights, as well as refugee’s exclusion from accessing social assistance, poor people’s access to healthcare, the dilemma of ‘choice’ between ARV and social assistance, and prisoners’ lack of access to treatment are some of the issues explored in this edition.

This issue also includes a discussion of the challenges of home-based care volunteers, as well as an introduction to ‘Khabzela’, and the integral features of the ALQ introduce HIV and AIDS realities and challenges from Malawi, and the experiences of Nkomazi, a rural community east of Nelspruit, Mpumalanga, trying to respond to the realities and challenges of the pandemic.

In this issue, Urvarshi Rajcoomar explores the meaning and concept of socio-economic rights, as provided for in the Constitution, and the role and competency of the judiciary in enforcing socio-economic rights in South Africa. Analysing various examples of judicial enforcement of socio-economic rights and examining the extent to which access to social security can be realised by people living with HIV and AIDS, she argues that more constitutional challenges are needed so as to ensure that people who are poor and in need are no longer excluded from access to, and realisation of, socio-economic rights.

Recognising the inability of the DCS to provide anti-retroviral treatment (ART) to prisoners, Lukas Muntingh raises the question whether or not medical parole could be a means for prisoners to access ART. Analysing legislative provisions in relation to medical parole and prisoners’ right of access to healthcare, he argues that medical parole provisions are not there to address shortcomings in the prison system and, thus, the state has an inescapable duty to provide qualifying prisoners with access to ART, without compromising their health further.

The interrelation of socio-economic rights and civil and political rights is explored by Shawn Hattingh. Exploring the differences between these rights, he raises the question as to whether or not civil and political rights can be enjoyed, if there is limited access to socio-economic rights and argues that true equality cannot be achieved without the full recognition, realisation and enjoyment of civil, political and socio-economic rights.

Acknowledging the fact that refugees living with a disability are excluded from accessing social assistance, Fritz Gaerdes raises the question whether or not the exclusion of the most vulnerable is justifiable. He examines various constitutional provisions, current and new legislative provisions, as well as state obligation in terms of international law, and argues that the continuous exclusion of refugees living with a disability from accessing the Disability Grant is not only morally and ethically unjustifiable, but may also be unconstitutional and, thus, challengeable.

The realisation of the right of access to healthcare is argued to be one of the pre-requisite for an adequate response to, and management of, the HIV and AIDS pandemic. Bryge Wachipa discusses the implications of judicial enforcements of the right to access healthcare and argues, that while litigation is an important tool to realise socio-economic rights, it does not afford adequate access to healthcare for the poor and most vulnerable people living with HIV and AIDS.

The anti-retroviral therapy programme in Lusikisiki is introduced by Hermann Reuter. Sharing experiences of the programme and exploring the arguments of clinic-based ARVs versus ‘down referral’, he argues that it is through the approach of decentralising initiation of ARVs, that the uptake can be increased rapidly and the loss to follow-up be reduced.

In the context of high levels of poverty, unemployment and HIV prevalence, Susie Clark introduces the dichotomy of social assistance and anti-retroviral treatment. Considering that the Disability Grant is often the only household income, she argues that while access to ARVs provides the possibility for a longer life, it presents a dilemma, since people living with HIV might have to choose between accessing social assistance and, thus, provide ‘income’, or accessing treatment and, thus, potentially loosing the only form of income of the household.

Nkomazi, a rural community east of Nelspruit, Mpumalanga, is introduced by Heather McKillan. She examines various realities and challenges of Nkomazi – a community, greatly affected by not only high rates of unemployment, poverty, inequalities and abuse, but also by high HIV infection rates – and argues that despite the harsh and ‘morbid’ realities of Nkomazi, there is hope due to the capacity of the human spirit to overcome this.

Faustace Chirwa introduces HIV and AIDS realities and challenges in Malawi. Providing and overview of the pandemic and analysing the successes and obstacles of treatment initiatives, she argues that there is a ‘light at the end of the tunnel’, despite the lack of innovative interventions aimed at speedy sexual behaviour change, the challenges of ‘fake drugs’, and cultural practices that exacerbate the spread of HIV and AIDS.

Looking at the repercussions of armed conflicts, Kabir Bavikatte is ‘making a point’ about HIV and AIDS amongst conflict affected and displaced populations. He explores the direct and indirect effects of conflict on the spread of HIV and argues that while preventive measures tend to be limited in conflict situations, a lot more could, and should, be done to effectively combat the scale of HIV infection amongst conflict affected populations.

Examining the meaning and concept of socio-economic rights, their judicial enforcement, and the various realities of vulnerable, poor and marginalised people accessing socio-economic rights, it seems that while the continuous lack of adequate access might not be necessarily morally and ethically justifiable, it is, however, to an extent, justifiable within the constitutional realm. The recurring argument seems to be that the constitutional provisions of ‘access to’, as compared to ‘the right to’, socio-economic rights, and of ‘progressive realisation’, which is defined by ‘available resources’, and not by the need to ‘basic necessities of life’, will ultimately continue to define the extent to which the most vulnerable, marginalised and in need are in the position to access, claim and enjoy socio-economic rights – and this even with the role and competency of the judiciary to enforce the access to, and realisation of, socio-economic rights for all. Thus, despite the recognition that a society based on principles of human dignity, freedom and equality needs to ‘seek to ensure that the basic necessities of life are accessible to all’, the most vulnerable, poor and marginalised people of society will continue to be excluded from accessing the very same ‘basic necessities of life’.

If we are to agree that fundamental principles of human dignity, freedom and equality can only be enjoyed to the extent to which access to socio-economic rights are realisable, then we need to agree that it is of paramount importance for people, who are vulnerable, poor, marginalised and/or living with HIV and AIDS, to not only access, but enjoy socio-economic rights, so as to be in the position to equally enjoy the fundamental principles of human dignity, freedom and equality. Thus, it is in the context of poverty, vulnerability, marginalisation and ‘the choices that poor people do not have that the real content and meaning of socio-economic rights must be understood’ [Taylor, 2002].

However, if we are to address the limited access to socio-economic rights for especially the poor, vulnerable and marginalised members of society, we need to bear in mind, that access to socio-economic rights from a resource point of view, does not, and cannot, facilitate access to ‘basic necessities of life’ in an environment free of stigma and discrimination based on one’s sex, gender, sexuality and/or HIV status. As long as ‘access’ is defined by both, available resources and discriminatory attitudes and practices, access will remain limited for the ‘other’, irrespective of adequate resources affording access to ‘the basic necessities of life’. Hence, only as and when both, socio-economic rights and civil and political rights are accessible and enjoyable by everyone, can an enabling environment be created in which access to ‘the basic necessities of life’ is available to all, irrespective of class, race, gender, sex, sexuality and/or HIV status. Until then, the status quo remains and human dignity, freedom and equality will be denied to many...Johanna Kehler