The right to health for refugees in South Africa: Concrete reality or wishful thinking?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

Scope of the study: How the ‘right to health’ is intended in this work

South Africa (SA) is one of the largest economies in Africa. Since December 2010 the country is a member of the informal association of five major emerging world economies (BRICS) and the only African country to be a member of the G20, the major international forum for economic cooperation and policymaking.

At the end of 2016, SA was reported to be hosting 91,043 refugees.

Although SA has ratified a good number of human rights legal instruments since the end of apartheid, in 1994, , the actual implementation of the rights enshrined in some of them still remain problematic. One such right is the  right of refugees to have access to adequate healthcare in the country.

This situation occurs also because access healthcare services in SA, as with many other fundamental rights in the republic, has historically been biased in terms of a number of arbitrary grounds (p. 55).

The Office of the United Nations High Commissioner for Human Rights (OHCHR) asserts that ‘[t]he right to health is an inclusive right. We frequently associate the right to health with access to healthcare and the building of hospitals. This is correct, but the right to health extends further’ (p. 3). On the other hand, the 1946 Constitution of the World Health Organization (WHO) highlights that ‘[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’ (preamble). As the ‘right to health’ is broad and contains freedoms and entitlements, in this post I will refer to the content of two legal instruments. The first one is Chapter Two of the 1996 Constitution of SA (last amended in 2013). The Constitution contains the Bill of Rights whose sections 27(1)(a) and 27(3) (‘Health Care, Food Water and Social Security’) respectively state that ‘everyone’ has the right to have access to healthcare services, including reproductive healthcare services and that ‘no one’ may be denied emergency medical treatment. These two sections will be analysed vis-à-vis the situation of refugees in the country.

In the 2004 case of Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others, the Constitutional Court held that equality in respect of socio-economic rights is implicit in the use of the word ‘everyone’ in section 27(1) of the Constitution in respect of those entitled to the rights set forth there. According to the Court, the word ‘everyone’ in this section ‘cannot be construed as referring only to “citizens”’ (paragraph 47). If the legislator intended to limit healthcare rights to citizens it would have worded the section accordingly, as it did with political rights (section 19) and citizenship rights (section 20).

The second legal instrument to which I will refer to is article 23 (‘Public Relief’) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention: ratified by SA in 1996) that clearly stipulates that‘[t]he Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals’.  for the meaning of ‘public relief’ depends on the domestic law, but the concept, according to the views expressed in the travaux preparatoires to the convention should be interpreted extensively: it certainly includes ‘hospital treatment, emergency relief, […] where social security benefits are not applicable’  (p. 125).

I will thus limit the current investigation to the concept of the ‘right to health’ expressed in the abovementioned provisions.

Adverse practice in the application of the right to health to refugees in South Africa

Unfortunately, refugees in SA still face several barriers in accessing health services in the republic.

As the analysis will later show, this situation does not exist because of the existence of a diverse legal regime (domestic as well as international) applicable to citizens and refugees. In effect, as was stated by the Supreme Court of Appeal in the 2003 case of Minister of Home Affairs and Others v Watchenuka and Others, ‘[a] person who wishes to be given asylum must apply to be recognized as a refugee. If that recognition is granted, the refugee – and his or her dependents – enjoys […] various rights […] which include […] the right to receive […] health services […]’ (paragraph 3).

Furthermore, as E. Klinck affirms, section 27(2) of the South African Constitution (‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights’) ‘means that resource constraints should not be used as an “excuse” for non-delivery of services, but rather that the constitutional duty requires careful consideration of how the state will “progressively” realize health rights, within available resources’ (p. 36). In this regard, the OHCHR is also very clear when it explains that ‘[a] country’s difficult financial situation does not absolve it from having to take action to realize the right to health’ (p. 5). Hence, the present practical situation in SA seems to be dictated by other factors.

In 2009 Human Rights Watch reported that there were four major barriers impeeding refugees’ access to healthcare in the republic: a) discrimination – the denial of access to health services on the basis of national origin or legal status; b) inadequate, inaccurate and misleading information – the failure of the Department of Health to inform refugees and health workers of the rights of refugees to obtain basic healthcare and antiretroviral treatment; c) barriers to emergency care for rape survivors (very common among refugee women); d) extra-legal user fees – charging of exorbitant fees by health workers at facilities. The last barrier is directly related to the plight of corruption in the country, which the South African Government is actively trying to fight through the adoption and implementation of an Anti-Corruption Strategy.

In 2011 the UN Special Rapporteur on the Human Rights of Migrants, while visiting the republic, although appreciating the efforts made by the South African authorities to provide a legal framework to secure the right to health to refugees, nevertheless noted that the different guidelines had led to confusion pertaining to which framework should apply (paragraph 61). In addition, the Special Rapporteur advised the Government to fully implement its National Strategic Health Plan, ensuring equality and non-discrimination towards refugees (paragraph 63). In the meantime, the situation has not changed significantly. In a report released in July 2016, the South African Human Rights Commission (SAHRC)noted several gaps in the access to healthcare by refugees. The report outlines the existence of a ‘medical xenophobia’, that is manifested, among other aspects, through health professionals refusing to communicate with patients in English or allow the use of translators; non-South African patients are required to wait until all South African patients have received medical attention, even if they have been waiting longer for treatment; and through the fact that refugees experience difficulty in accessing anti-retroviral treatment for HIV in public hospitals and many are subsequently forced to rely on NGO treatment programs (p. 14).

Finally, in the 2016 Concluding Observations and Recommendations on the Combined Second Periodic Report under the African Charter on Human and Peoples’ Rights and the Initial Report under the Protocol to the African Charter on the Rights of Women in Africa of the Republic of South Africa, the African Commission on Human and Peoples’ Rights was concerned about the acts of xenophobia and other intolerances directed at foreign nationals (paragraph 41, p. 22). The Commission also urged the South African Government to adopt measures ‘to overcome the challenges faced by the public health sector to deliver services to about 80% of the population and provide adequate medical personnel to deal with the burden of diseases such as HIV and tuberculosis’ (paragraph 47(ii), p. 24).

Regrettably, xenophobia, is still present in the republic as the recent (March 2017) Joint Press Release on the Xenophobic Attacks on Migrants in South Africa, issued by the African Commission on Human and Peoples’ Right’s Country Rapporteur for the Republic of South Africa, and the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, shows. In this circumstance, the two rapporteurs called on ‘the government of the Republic of SA to investigate and prosecute those responsible for these attacks, and to institute measures to ensure the protection of migrants in SA and their properties’ (paragraph 2).

On its side, the South African Government is putting in place some anti-xenophobia initiatives, with the governmental Ad Hoc Joint Committee on Probing Violence against Foreign Nationals established to scrutinize the phenomenon more accurately, although, for instance, the 2012 National Summit on Social Cohesion did not provide the results sought.

Are refugees legally entitled to the ‘right to health’ in South Africa?

The answer to this question is certainly ‘yes’ and this response is supported by clear evidence.

In SA, the right to a good physical and mental health for everyone, including refugees, is legally protected at all levels: universal, regional, sub-regional and domestic.

At a universal level, this right is protected by article 25(1) of the 1948 Universal Declaration of Human Rights (UDHR),  article 5(1)(e)(iv) of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD: ratified by SA in 1998), article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR: ratified by SA in 2015), article 12 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW: ratified by SA in 1995), and article 24 of the 1989 Convention on the Rights of the Child (CRC: ratified by SA in 1995).

Specifically concerning refugees, I have already mentioned article 23 (‘Public Relief’) of the Refugee Convention. In the interpretation of this article, the drafters were interested in the material situation, not the procedure: as long as the refugees receive the same material benefits of nationals and with the same minimum of delay, the means of provision do not matter.

Moreover, paragraph 39 of the UNGA Resolution A/RES/71/1, 19 September 2016 (Declaration for Refugees and Migrants) affirms the UNGA will adopt measures to improve refugees’ integration and inclusion in the host societies, including access to healthcare.

However, what is illustrated by the above until now represents only a partial legal response to the question posed.

SA, as a member of the Organization of African Unity (now African Union: AU) since the 23^rd May of 1994, also ratified the major legal instruments adopted in the framework of this organization and concerning the right to health. At a regional level,  the right to health in SA is mainly protected by article 16 (‘Right to Health’) of the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter: ratified by SA in 1996), article 14 (‘Health and Reproductive Rights’) of the 2003 Protocol to Banjul Charter on the Rights of Women in Africa (Maputo Protocol: ratified by SA in 2004), and article 14 (‘Health and Health Services’) of the 1990 African Charter on the Rights and Welfare of the Child (ACRWC: ratified by SA in 2000).

Specifically, concerning the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention: ratified by SA in 1995), although there is no article therein expressly focusing on the socio-economic rights of refugees in the continent, nonetheless article 7(1)(a) urges that national authorities should regularly report to the AU on the ‘condition of refugees.’

Comprehensive protection of the ‘right to health’ for refugees in South Africa in the framework of SADC

Since August 1994, SA has been one of the sixteen members of the Southern Africa Development Community (SADC) whose 2015 Consolidated Text, in its article 4(c) (‘Principles’), stipulates that ‘SADC and its Member States shall act in accordance with the following principles: […] c) human rights, democracy and  the rule of law […]’, and article 6(2) (‘General Undertakings’) clarifies that ‘Member States should not discriminate against any person also on the ground of his/her health’. SADC recognises that close co-operation in the area of health is essential for the effective control of contagious and non-contagious diseases and for addressing common concerns within the region. To this end, SADC Member States signed and ratified the Protocol on Health on the 18August 1999 (entered into force on the 18^th of August 2004). Article 2(b), (d) and (e) (‘Principles’) is very clear in promoting an ‘acceptable standard’ for ‘all their people’, with better access to health services and a major regional co-operation playing a crucial role in order to attain that goal. Furthermore, article 3(a) (‘Objectives’) of the same document clarifies that co-operation among States Parties is essential in order ‘to identify, promote, co-ordinate and support those activities that have the potential to improve the health of the population within the Region.’

SA also massively contributed to the drafting and the launch of the SADC Health Policy Framework, which aims to raise the regional standard of health for all the people living within the SADC area to an acceptable level by promoting, coordinating, and supporting efforts of Member States to improve access to high-impact health interventions. This framework was developed by the SADC Health Ministers and approved by the SADC Council of Ministers in September 2000. In addition, SA played an important part also in the drafting of the SADC Regional Indicative Strategic Development Plan (RISDP), which integrates health as a priority within the context of social and human development, poverty and food security. The ultimate objective of the RISDP is to deepen integration in the region with a view to accelerate poverty eradication and the attainment of other economic and non-economic development goals (such as the access to the right to health for everyone, including refugees).

Domestic law and jurisprudence concerning the ‘right to health’ for refugees in South Africa: A substantially favourable panorama

At a domestic level, access to healthcare for refugees is well recognized and protected. Apart from the 1996 Constitution, section 6(2)(d) (‘General Principles’) of the 2005 Children Act stipulates that a child should be protected from any discrimination, included about his/her health, while sections 129-134) of the Act refers to ‘protective measures relating to health of children.’

In addition, SA promulgated a series of acts especially dedicated to the safeguarding of the health of persons in the republic.

For instance, section 4 (‘Eligibility for Free Health Services in Public Health Establishments’) of the 2003 National Health Act stipulates that ‘[t]he state, clinics and community health centres funded by the State must provide all persons […] with free primary healthcare services’. Section 2(3)(a) (‘Access to Healthcare’) of the 1999 Patients’ Rights Charter of the South African National Department of Health affirms that ‘everyone has the right to access healthcare services that include receiving timely emergency care at any healthcare facility that is open, regardless of one’s ability to pay’.

One can clearly see that the norms adopted are intended for everyone, without making a distinction between citizens and persons present in the republic under other legal statuses.

Finally, section 27(g) (‘Protection and General Rights of Refugees’) of the South African 1998 Refugees Act provides for refugees the right to the ‘same basic healthcare services […] which the inhabitants of the Republic receive from time to time.’ In this regard, I can see, perhaps as the sole example of this kind in the South African legislation in relation to the right to health, a certain level of arbitrariness contained in the expression ‘from time to time.’ This is because, until now, no regulation have been issued by the competent, national authorities to further clarify the meaning of such words.

Against this backdrop, the 2016 Uniform Patient Fee Schedule exempts certain categories of foreign nationals, including refugees, from paying full fees and entitles them to be means-tested in the same way as South Africans (p. 38). Besides, the White Paper on National Health Insurance (NHI), presented in Parliament in 2016, sought to equate refugees to South African nationals. However, the NHI White Paper, at its paragraph 121, introduces a ‘special contingency fund’ that offers basic healthcare services to refugees and provides them only with emergency medical treatment and treatment for notifiable conditions.

As I have already underlined above, apart from legislation, domestic courts have followed the tendency to equate refugees to South African citizens regarding access to healthcare, confirming what the SAHRC affirmed in 2002, namely that the right to health ‘is fundamental to the physical and mental well-being of all individuals and is a necessary condition for the exercise of other human rights, including the pursuit of an adequate standard of living.’ (p. 95)

Further analyzing the domestic jurisprudence I see, for instance, that, in the aforementioned 2003 case of Minister of Home Affairs and Others v Watchenuka and Others the Supreme Court of Appeal dealt with the granting of socio-economic rights, affirming: ‘Human dignity has no nationality. It is inherent in all people – citizens and non-citizens alike – simply because they are human. And while that person happens to be in this country – for whatever reason – it must be respected, and is protected, by Section 10 of the Bill of Rights’ (paragraph 25).

Judge O’Regan also highlighted the importance of human dignity in the 1995 case of S v Makwanyane and Another: ‘The importance of dignity as a founding value of the […] Constitution cannot be over-emphasised. Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched […]’ (paragraph 328).

The role played by the World Health Organization in South Africa

One could wonder what the role of WHO in SA is, and if the local government could be assisted by such an organization in the protection and implementation of the right to health for refugees in the country.  In this regard, one thing that should be made clear is that SA acts autonomously in many aspects of the protection and implementation of human rights and refugee law in the republic. Therefore, it is not surprising that, for instance, the South African authorities are the ones that exclusively take care of the refugee status determination (RSD) in the country without the help of UNHCR. Similarly, the application of the different norms concerning the right to health as well as its relative policy are entirely carried out under the aegis of the government and no international agency assume a preeminent role in providing healthcare to refugees in SA. The role played by the WHO in the country is not a role of decision-making and/or capacity building. Rather, for example, it is the SA National Institute of Virology in Johannesburg that helps the WHO as a ‘reference laboratory’ for the identification of the polio virus.

Subsequently, the role played by the WHO in SA is mostly one of technical support in the development of key policy documents including, for instance, the support in the implementation of WHO global strategic guidelines on nursing, and also to commission international reviews of country experiences in promoting patient safety initiatives to reduce litigation. Besides, WHO provides technical support to cross-border malaria initiatives with Botswana, Zimbabwe, Swaziland, and Mozambique. In addition to the above, WHO also provides support in founding a national system for HIV drug resistance monitoring to help establish safety of new drugs or identify potentially problematic consequences (pp. 21-23).

As WHO underlines ‘South Africa has many strong domestic institutions which play important roles in global health. These include regional reference laboratories, as well as clinical and academic institutions. Thirteen of these are recognized as WHO Collaborating Centres and will play critical roles that serve national, regional, and global health interests. WHO will utilize the rich technical capacity of these institutions to contribute to health improvement in the Region and globally’ (pp. 33-34). From the above, it seems adamantine that SA does not wish external interferences in dealing with the implementation of the right to health in the republic.

Final reflections and recommendations

As can be inferred from my investigation, there are challenges facing not only the access to healthcare but also the direct provisioning of it for refugees in SA in spite of the increasing effort put by the government to guarantee the right. My suggestion is that the South African Government should abide by the existing national framework, along with policies and national guidelines, regardless of a person’s legal status in the country. The government may do so by starting a more effective, nationwide human rights training initiative to educate persons working in the healthcare sector about xenophobia and the rights of foreigners. Additionally, advocacy campaigns should also be launched by governmental institutions to encourage patients to lodge complaints if they have experienced discrimination in accessing healthcare services. At the same time, healthcare workers with a discriminatory attitude should be discouraged in continuing to do so under threat of facing severe disciplinary actions. In the words of  B. Majola, chairs of the SAHRC: ‘By obliging the state to give the same standard of healthcare to refugees and asylum-seekers as it does to South Africans, the Constitution is envisaging a society free from inequality, discrimination and xenophobia.’

About the Author:
Dr Cristiano d’Orsi is a Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg. He was previously a Research Fellow and Lecturer at the Centre for Human Rights, Faculty of Law, University of Pretoria in South Africa. His expertise mainly deals with the legal protection of the people “on the move” (asylum-seekers, refugees, migrants, IDPs) in Africa. Another field of its interests includes the protection of the socio-economic rights. Cristiano holds a PhD in International Relations (International Law) from the Graduate Institute of International and Development Studies in Geneva (Switzerland).