HALF a century ago, in a courtroom in Arkansas, a judge uttered some words that changed United States history: “It is hereby ordered and decreed that defendant Orval E Faubus, governor of the State of Arkansas; General Sherman T Clinger, Adjutant General of the State of Arkansas; and Lieutenant Colonel Marion E Johnson of the Arkansas National Guard… are hereby enjoined and restrained…”
What these curious words did in 1957 was hasten the end of racial segregation in Arkansas. That year the courts ordered the schools in Little Rock to admit both white and black children. But Arkansas governor Orval Faubus demurred: instead of respecting the court’s order, he stationed the state’s militia at the gates of white schools. Thwarted, the plaintiffs returned to court and were vindicated when the court ordered Faubus to stop his interference – or face contempt charges and jail. Faubus relented. Black students joined their white peers in class. The US’s most dramatic moment in constitutional law passed into history.
Today South Africa faces a similarly dramatic moment. This week the Constitutional Court heard the government’s appeal that South African women should not have a constitutional right to receive nevirapine therapy for perinatal HIV/Aids. Pretoria was fighting this appeal to the finish, despite having issued a policy change two weeks ago stating for the first time that it supports anti-retroviral therapy, including nevirapine. If the government succeeds, it will reverse the lower court order against it and will be released from the obligation to provide women nevirapine.
I find the government’s position suspiciously incongruous. While Pretoria may legitimately wish to appeal some bookish issue of constitutional law, it is baffling why it continues to fight the nevirapine provision order per se. It could choose to litigate the former, while giving its consent to the latter, and this would be more consistent with its new policy of backing nevirapine therapy. Why the contradiction?
One theory is that the new policy is a sham, and that Pretoria has little or no intention to provide nevirapine. Scepticism is understandable where President Thabo Mbeki and Minister of Health Manto Tshabalala-Msimang have, for years, branded Aids a conspiracy, interfered with the intellectual freedom of South African scientists, promoted nonsense remedies such as Virodene and scandalised almost every eminent South African alive, to say nothing of the international community.
In other words, a reasonable person might suspect that the Mbeki government’s old, bad faith on anti-retrovirals is still there, if camouflaged in a new policy of as yet unproven sincerity. Certainly one must hope this is wrong. But if it is right, the Constitutional Court has a huge problem on its hands: what if it upholds the nevirapine provision order, but the government by malfeasance or nonfeasance avoids implementing it?
This is where US civil rights law is instructive. The common thread (and, surely, the only one) that connects the Mbeki government with a bunch of deceased Arkansas racists is that both sought to deny basic truths – the latter, that all races are equal; and the former, that anti-retroviral drugs save young lives – while labouring extravagantly to defend deep, irrational idiosyncrasies, such as the view that HIV is not the biological cause of Aids. In their folly, both found it necessary to ignore popular protest and to act with a callousness that denied constitutional rights to thousands. Finally, both were slow to shake old habits, even once courts declared them human rights violators and ordered them to stop.
It is therefore important to ask whether Pretoria will provide nevirapine therapy with all possible speed or will drag its feet in the recalcitrant footsteps of governor Faubus. In practice it may be hard to tell: implementing nevirapine is complex and will take years, which gives an insincere government ample cover for delay. To repeat, a two-week old, untested policy is hardly a trustworthy indication of the government’s sincerity and some skepticism is warranted. Accordingly, I suggest that South Africans familiarise themselves with a few ideas from their American counterparts, just in case.
First, US courts are intolerant when their constitutional orders are needlessly delayed. If an order is “nullified openly or directly” by the government, or “nullified indirectly – through evasive schemes”, the courts will defend their jurisdiction to the fullest. In the desegregation era, courts dealt with do-nothing governments by scrutinising their every plan for racial integration. “Delay in any guise to deny – constitutional rights – could not be countenanced,” the courts wrote, and “only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance”. Thus an intensive form of judicial supervision became the norm to cure the government’s foot-dragging.
Second, US courts decided that where the government’s plans were long-term, so too could be their supervision. Courts therefore did not relinquish their cases when giving judgement, but held on to them for years. “During [the] period of transition” to achieving constitutional rights, wrote the Supreme Court, “the courts will retain jurisdiction.” For recalcitrant governments, this period of judicial supervision would be indefinite, until it became “unlikely that the [government] would return to its former ways”. Sometimes, this took decades, with judges holding hearings every few months to check on progress. Only when their orders were absolutely fulfilled did judges close a case.
Third, and in the most stubborn cases, US courts actually managed their own orders. Officials who repeatedly thwarted a desegregation order were, in effect, sacked and their jobs handed over to court-appointed desegregation administrators. School districts that wouldn’t desegregate because it cost too much were forced to raise taxes. And even powerful politicians, such as governor Faubus, were enjoined from interference on pain of contempt and imprisonment.
These are, to be sure, special and unusual judicial remedies. But legislated segregation was a special and unusual evil, as is any situation where governments perpetrate serious human rights violations, while justifying those in bad faith. Nothing could better describe the Mbeki government’s years of obfuscation, tergiversation and manipulation on Aids and anti-retrovirals, the knowing result of which was to deny South African women their constitutional right to nevirapine therapy.
It would be wonderful if all this ended two weeks ago with the new anti-retrovirals policy, but right now, nobody can say. The wisest course for the Constitutional Court is to hope for the best, while preparing for the worst. I propose that the court place the health minister, her successors and her agents under indefinite judicial supervision, with monthly reporting until the goal is reached to provide every South African woman access to nevirapine. If the government acts in good faith, this will cause little inconvenience. But if it acts in bad faith, this can make all the difference in the world.
Dr Amir Attaran is a lawyer, immunologist and lecturer at the Kennedy School of Government, Harvard University