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Prof. Nico Horn
5/18/2011 _________________________________

Contents
Introduction ................................ ................................ ................................ ................................ ...... 4 Legal issues................................ ................................ ................................ ................................ ........ 4 Civil and Political Rights vs. Economic, Social and Cultural Rights ................................ ....................... 4 The right to health ................................ ................................ ................................ ............................. 6 Lack of constitutional entrenchment: The need to adopt innovate approaches in order to solve Mrs XYZ s problem................................ ................................ ................................ ................................ .... 8 a) b) Expensive Interpretation ................................ ................................ ................................ ........ 8 International law................................ ................................ ................................ .................... 9

Advice to Mrs. XYZ ................................ ................................ ................................ ............................. 9 Referencing: ................................ ................................ ................................ ................................ .... 11 Books................................ ................................ ................................ ................................ ........... 11 Cases ................................ ................................ ................................ ................................ ........... 11

Introduction
The International Commission of Jurists (ICJ) has consistently recognized and advocated that economic, social and cultural rights (ESC rights)1 should be taken as seriously as civil and political rights. ESC rights have been part of the language of international human rights since at least the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Yet, compared to civil and political rights, there has been considerably less attention placed on the need to develop the content of ESC rights and protection mechanisms to enforce them , like in Namibia. The Constitution of the Republic of Namibia has an entren ched Bill of Rights. However, with a few exceptions, second-generation or social and economic rights are not included in the Bill of Rights. 2 One needs to page through government policies to find economic and social rights. Even in Article 95 of the constitution, important social and economic rights like the right to health are given to us and then later taken away by Art 101.

Legal issues
Before any attempt is made to advice Ms XYZ, it is of extreme importance to identify legal issues in relation to the problems she is encountering. The first issue that is encountered is whether Mrs. XYZ has any legal right that is or might be violated by the State, and if she does the bases these rights stand on. The second issue, and in my opinion the most important, is whether Mrs. XYZ has any recourse in the law to remedy the alleged violation of her rights. As can be inferred in the bigoted words of the previous legal practitioner, the right to health is not guaranteed by our constitution in terms of Art 101. This specific clause in our constitution makes it very difficult for the above issues to be legally addressed.

Civil and Political Rights vs. Economic, Social and Cultural Rights
Civil and political rights have been characterized as imposing negative obligations on states (e.g. the prohibition on torture) while economic, social and cultural rights impose positive obligations (e.g. the duty to provide housing). Whether the distinction between the groups of rights is appropriate has been vigorously debated. 3 But during the modern human rights era, civil and political rights have been broadly enforced while economic and social rights have often been given little more than aspirational lip service. The right to health, quintessential among the economic and social rights, was recognized shortly after World War II. Since that point, human rights systems have struggled, as they have with

We use the term economic, social and cultural rights ( ESC rights ) as this is how such rights are called in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other universal human rights instruments, and because this is the term generally accepted in the field of international human rights law. In some constitutional traditions, other terms are more frequently used, such as social rights , socio-economic rights , fundamental social rights , welfare rights or welfare benefits . Wh ile there is some reluctance by common law countries to recognize the existence of ESC rights as fundamental or constitutional , the fact is that some of these rights are already enshrined in statutes and sometimes in national constitutions. 2 As opposed to South Africa which has a Bill of Rights that encompasses both these kinds of rights
3

Henry J. Steiner et al., International Human Rights in Context 263 (3d ed. 2008)

other rights imposing positive obligations, to find a workable standard for enforcing the right to health. Definitional ambiguity and the problem of limited governmental resources have led to murky treaty provisions often considered merely aspirational. Countries around the world have signed on to conventions protecting economic and social rights in addition to conventions protecting civil and political rights. Today, every country in the world is party to at least one treaty that explicitly protects the right to health , but with inadequate enforcement mechanisms (namely the lack of individual complaint procedures) the right to health remains the prototypical example of the failure of economic and social human rights to achieve their purpose.

There are myriapods of reasons why such Economic, Social and Cultural rights have failed to be properly implemented by different governments. The doctrine of Separation of Powers and the excuse of there are not enough resources are the main reasons i feel alot of governments use to escape responsibility. 4 Courts from have been confronted with arguments regarding the separation of powers, challenging their ability to adjudicate on ESC rights. The Constitutional Court of South Africa confronted a challenge to the inclusion of ESC rights in the South African constitution, allegedly breaching the principle of the separation of powers. The Cour t said:

The second objection was that the inclusion of these rights in the [Constitution] is inconsistent with the separation of powers [] because the judiciary would have to encroach upon the proper terrain of the legislature and executive. In particular the objectors argued it would result in the courts dictating to the government how the budget should be allocated. It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers.5
There are other objections to the involvement of the judiciary in the implementation of ESC rights. Judicial interference with decision-making and budgetary allocations in the field of social policies could be seen as raising issues of concern from a democratic standpoint. Such objections are sometimes taken as proof that ESC rights are distinct in nature, in contrast to civil and political rights. According to this line of reasoning, while civil and political rights are
Former State Advocate Sandra Miller agrees in this regard (personal interview) Constitutional Court of South Africa, Case CCT 23/96, Certification of the Constitution of the Republic of South Africa, September 6, 1996, para. 77
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cheap or costless rights, adjudication on the basis of ESC rights would result in wholesale policy-making and significant expenditure, essentially substituting the judiciary for democratically elected authorities. A number of points in this argument need clarification. First, civil and political rights are neither particularly cheap nor costless. Decisions regarding civil and political rights also have costs (sometimes hefty costs). Political rights are translated into costly entitlements: the recognition and inscription of political parties and candidates, the granting of media space, the organisation of elections and voting scrutiny are all examples of expensive measures that need to be taken to ensure compliance with civil and political rights. Breaches of civil and political rights lead to financial compensation, which by definition involves budgetary resources. A whole area of delict and administrative law focuses on State liability, which is regularly assessed and adjudicated by courts and tribunals all over the world. Civil and political rights may also require the adoption of legislation or regulations, which is not free of charge (it involves legal advice, time consuming consultations, working time by advisors, legislators, regulators, etcetera). Such legislation and regulations need further implementation, which again requires budgetary allocations. All decisions with budgetary outcomes imply, in a world of scarce resources, prioritization so this argument not only applies to ESC rights, but to any right. Thus, the fact that adjudication has budgetary impacts has never been seen as a reason to deny the enforceability of civil and political rights, and the same argument sh ould be made about ESC rights.

The right to health

Since Chile provided the first constitutional recognition of the right to health in 1925, nearly 70% of countries have some form of explicit guarantee regarding health, although this may take a variety of forms. Namibia does not explicitly guarantee the right to health, but it can be inferred from the State policies that it indirectly aims at addressing the issue of health. Arguably the most widely known case to be decided by the South African Constitutional Court to date, due not just to the issues involved, but also because of the successful campaign surrounding it (a frequently critical factor in ensuring enforcement), is Minister of Health v. Treatment Action Campaign 6, or the TAC case, where it was held that the state s failure to provide comprehensive anti-retroviral drugs to prevent mother-child HIV transmission breached their right to health. An important factor for the court was the fact that the drug was costless to the government and therefore arguments centred on lack of resources did not carry any weight. However, by requiring that the programme should include reasonable measures for counselling and testing, the court did make orders, with some (albeit limited) financial implications.

(TAC) (2002) 5 SA 721 (CC)

In Soobramoney v. Minister of Health KwaZulu Natal 7, (the facts were similar to the current scenario) the Constitutional Court set out its approach to examining right to health claims within the context of limited resources. The court, in considering a terminally ill patient s claim to access medical services to obtain costly dialysis treatment, which had been refused by the local health authority on the grounds of lack of resources, held that the health authority had acted reasonably and applied its guidelines rationally and fairly. In so doing the court (as it has done in subsequent cases) asked the crucial question: Has the state done all it could reasonably do in the circumstances?8 By adopting this approach, similar to judicial review, although extending beyond the decision - making process to consider all the actions taken, the court has recognized that it is not in a position to assume the role of the state in making decisions about resource allocation, but is, instead, there to act as an impartial arbiter. Indeed in Soobramoney the court was very explicit about the large margin of discretion it would give to the state to set budgetary priorities stating that the court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities. 9 Justice Sachs went further, stating that: In open and democratic societies based upon dignity, freedom and equality, the rationing of access to life prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care. A region where the courts have been extremely proactive in addressing systemic violations, even where there are significant resource implications for their decisions, has been Latin America. In a number of decisions from different jurisdictions e.g. Peru 10, Venezuela11, Argentina 12, Brazil13 and Ecuador14 courts, frequently responding to actions, have handed down landmark decisions guaranteeing access to medicines and/or treatment, affecting thousands of victims, and requiring states to take concrete and immediate action, rather than a progressive realization approach. One of the leading decisions is Mariela Viceconte v. Ministry of Health and Social Welfare 15 from Argentina in 1998. The claim was brought by a number of community groups to ensure that the state would manufacture a vaccine against Argentine hemorrhagic fever, then threatening the lives of 3.5 million people, most of whom did not have adequate access to preventive medical services in certain affected areas. Whilst the state had been able to obtain 200 000 doses of a vaccine from the United States, and had been able to vaccinate 140 000 people between 1991 -1995, it was unable to carry out a massive immunization campaign due to the lack of an adequate quantity of vaccine. A judicial writ of amparo was filed requiring the health ministry to manufacture and
7

1997 (12) BCLR 1696 See the landmark decision of Government of RSA v. Grootboom 2000 (11) BCLR 1169 (CC). 9 Soobramoney, para. 29. 10 Azanca Alhel Meza Garca, Expediente No. 2945- 2003-AA/TC: 11 Cruz del Valle Bermdez y otros v. MSAS s/amparo, Expediente No. 15.789, Sentencia N 196: 12 Menores Comunidad Paynemil s/accin de amparo (2/03/1999): 13 Estado do Rio de Janeiro AgR No. 486.816-11 14 Mendoza & Ors v. Ministry of Public Health Resolution No. 0749-2003-RA (28 Jan 2004) 15 Case No 31.777/96 (1998)
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distribute further supplies of the vaccine to persons living in the affected areas. Following initial rejection, the Court of Appeals ruled favourably, establishing the state s obligation to manufacture the vaccine. Significantly (and unlike in South Africa) the court also set a legally binding deadline for the obligation to be met. However, as in the South African TAC case, it required further action by the groups, including litigation, to secure enforcement. However, with regard to the above case, this does not mean that these unremunerated rights cannot be granted. In S v Acheson 16 it was held that, the Namibian Constitution is not simply a statute mechanically defining structures of the Government and relations between government and the governed. It is a mirror reflecting the national soul, identifying ideals and aspirations of the n ations. The spirit and tenor of the constitution must preside over and permeate process of judicial interpretation and discretion. Further on in the case of Minister of Defence v Mwandingi 17 Constitution should not be interpreted so as to ascribe to a narrow and pedantic meaning to words used therein in interpreting it , the courts must also take into account the norms and aspirations of the Namibian people 18.

Lack of constitutional entrenchment: The need to adopt innovate approaches in order to solve Mrs XYZ s problem
The lack of express constitutional protection for health rights presents courts with significant but not insurmountable challenges for enforcement. Techniques include: a) Finding a link between the right to health which is not guaranteed with domestic national laws that are entrenched in our constitution. (expensive interpretation) b) Taking advantage of Namibia s approach to international law

a) Expensive Interpretation
The right to health can be linked with the right to life, human dignity a nd all that goes with it as it was correctly pointed out in the Indian Francis Corallie Mullin case19. In the public interest litigation case of Paschim Banag Khet Samity v. State of West Bengal 20 (India) the Supreme Court used the right to life to secure the right to emergency medical care, concluding that such an essential obligation could not be avoided by pleading financial constraints.23In Namibia, the same can be said with regards to the right to health. This involves the indirect protection of ESC rights through Civil and Political rights. This approach has however been treated differently in these two countries. The Indian judiciary has,
1991 NR 1 HC. 1993 NR 63 (SC). 18 Ex parte Attorney General In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1998 NR 35 (SC). 19 Both Namibian and Indian Constitutions have differentiated between ESC rights and Civil and Political Rights. 20 (1996) 4 SCC 37
17 16

through creative interpretation pioneered a process of interpreting Civil and Political rights a way that will encompass ESC rights. Namibia on the other hand refuses to accept and implement this way of interpretation and we can thus conclude that it will be very hard in bringing a claim against the government using this approach.

b) International law
The Universal Declaration of Human Rights, together with the International Covenant on Civil and Political Rights and the International Covent on Economic, Social and Cultural Right, is often referred to as the International Bill of Rights. In other words, the Declaration and the two covenants contains the basic human rights in all the various areas in which human apply i.e., civil and political, as well as economic, social and cultural rights. The international covenants on economic, social and cultural rights protects fo r example, the right to work, to reasonable condition of employment, to organize trade unions, to protection of family and children, to health, education and etc. The Economic, Social and Cultural Rights are sine qua non for improving people s lives and standard of living human rights, specifically ESC rights, can be one of the strategies to employ in order to achieve social justices in Namibia. After Namibia has ratified the ICESCR, it is regarded as the principal legal source of ESC rights. In Namibia th e ICESCR can be either directly or indirectly enforced by virtue of A rticle 144 of the Constitution. A pplying Article 144 to the ICESCR therefore means that the Covenant as ratified by parliament became part of the corpus of law in Namibia on date it entered into force for Namibia on the 28 th of February 1995. Article 144 thus potentially opens the doors for Namibian citizens to appreciate the importance of the world beyond their own country in the definition and enforcement of human rights 21. For example, in Kauesa v Minister of Home Affairs and Other22, the court held that the African Charter on Human and Peoples Rights had become binding on Namibia and formed party of the law of Namibia and therefore, had to be given affect in Namibia.

Advice to Mrs. XYZ

It is a common fact among all national constitutions of the common wealth countries, that anyone or any person who is aggrieved by a violation of human rights guaranteed by the constitution may seek redress from a competent court. Hence the reason why, Article 25 (2) is an enforcement provision of the Namibian Constitution. A person whose right is violated, like in the position of Ms XYZ must have locus standi 23. This will be interpreted to mean, a person has locus standi, if he or she has a direct and substantial interest in the right which is the subject matter of litigation and in the outcome of litigation, has was held in the
21

As John Nakuta points out (2009:97) 1995 NR 175 (SC). 23 Parker, 2000: 208
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case of National Union of Mineworkers v Free State Consolidated GM (OPS) Ltd ,24Ms XYZ is herself personally affected by the legislative and administrative acts of those who were suppose to ensure her well being and proper health and thus qualifies for the redress she wants to seek. Her human rights can thus be enforced to create the legal, economic and social conditions in which p ersons all over the world can live a life worthy of a human being 25. Seeing as the social and economic rights are implemented subject to the availability of resources, there is a great need for the government to prioritize and allocate money to issues that are of vital importance and at the forefront of the nations need, to every person human rights in particular. Our government should put the money where the need is. Fundamental needs should not be at the mercy of governmental policies and programmes but should be defined as entitlements. Treating ESC entitlements as mere political programmes undermines the fundamental principles that human rights are inalienable 26. Human rights reveal an integral concept of human life: all are important, undividable and for all human beings, without any distinctions whatsoever. Ms XYZ clearly qualifies to be treated as such. In corporation with the United Nations, UN member States of which Namibia is a part have pledged themselves to achieve the promotion of universal respect for and observance of human rights. This universal rights, according to Perez 27, this universal rights proclaims that everyone has the right to liberty, equality, a decent life, freedom of association, participation, work, education, health, housin g, food, land and a safe environment. Ms XYZ too, is entitled to all these rights mentioned above. In the Namunjepo case, it was held that; in determining what the contemporary norms, sensitivities, ideals and aspirations of the people at a given time wer e, the court was not free from certain constraints. Firstly, the words used in the constitution had the usual and grammatical meanings which could not be totally ignored; a court interpreting a Constitution will give such words especially those expressing fundamental rights and freedoms, the widest possible meaning so as to protect the greatest number of rights.

1989 1 SA 409. This approach can be expressed in inter alia Article 25 of the 1948 UDHR that states everyone has a right to a standard of living adequate for health and wellbeing of himself and his family, including food, clothing, housing, medical care and his necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond control. 26 John Nakuta, 2009: 91 27 (2001: 66)
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Referencing:
Books
1. Goldewijk, B.K, Baspineiro, A.C, Carbonari, P.C. (2002) Dignity and Human Rights: Implementation of Economic, Social and Cul tural Rights. 2. Horn, N.(2009). International human rights norms and standards: The development of Namibian case and statutory law , in N. Horn and A. Bosl (eds .) Human Rights and the Rule of Law in Namibia. Windhoek: Macmillan Namibia. 3. Legal Assistance Centre,(2000). Namibian Police Human Rights Manual . Windhoek. 4. Nakuta, J. (2009) The justiciability of social , economic , and cultural rights in Namibia and the role of the non -governmental organizations in N. Horn and A. Bosl (eds.) Human Rights and the Rule of Law in Namibia. Windhoek: Macmillan Namibia. 5. Naldi, G. (1995) Constitutional Rights in Namibia . Kenwyn: Juta and Co Ltd. 6. Parker, C. (2002) Human Rights Law. Leicestershire: Upfront Publishing. 7. Perez-Bustillo, C. and Genugten, W. (2001) The Poverty of Rights: Human Rights and Eradication of Poverty. London: Zed Books. 8. Ruppel, O.C. (2009) Human Rights Compendium for Law students . Windhoek: University of Namibia 9. Tjiramba, S. (2009) Water, fundamental human right or a commodity ?. The Namibian, Monday 07 August.

Cases
a) Brugdacy v Secretary of the State 1987 (1) ALL E.R.940 b) Ex parte Attorney General In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1998 NR 35 (SC) c) Kauesa v Minister of Home Affairs and Others 1995 NR 175 (SC) d) Minister of Defence v Mwandingi 1993 NR 63 (SC) e) Namunjepo and Others v Commanding Officer, Windhoek Prison and Another 1999 NR 271 (SC) f) National Union of Mineworkers v Free State Consolidated GM (OPS) Ltd 1989 (1) SA 409 g) S v Acheson 1991 NR 1 (HC) h) Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC )