Every day hundreds of children are at risk of being infected with HIV.
his risk can be substantially reduced if pregnant women with HIV are given the choice to use nevirapine. But bureaucratic and political obstinacy — fuelled by an HIV denialist agenda — denies them this choice. In contrast, a government-commissioned report states unequivocally that “[nevirapine] can and should be provided immediately to all pregnant women who are already known to be HIV-positive, with appropriate counselling and information”. In such circumstances, can the courts intervene to reverse an irrational and arbitrary government policy?
Democratic legal systems recognise the rule of law and judicial independence as integral to good governance and individual freedom. Central to this recognition is the power of the courts to review the exercise of public power. While the nature of and the basis for judicial review may vary, common to all democracies is the recognition that courts play a central role in enforcing accountability and protecting the vulnerable against executive autocracy.
South Africa is no exception. Even under apartheid, the courts had powers to review executive and administrative action. With the arrival of democracy and the subsequent adoption of the Constitution, however, our courts have been granted even greater powers of review. Not only are all laws and policies now subjected to judicial scrutiny, but the basis of judicial review has been expanded to include socio-economic rights and to impose positive duties on the state to achieve their progressive realisation. Such a deliberate and express expansion of judicial review makes it plain that courts are not only invited but also mandated to pass judgement on social and economic policy.
Set against the twilight zone of national-health policy, the official response to Justice Chris Botha’s judgement on the constitutionality of the state’s programme to prevent mother-to-child transmission of HIV (PMTCT) is no surprise.
Indeed, the state’s response has been to engage every available legal processes and technicality to delay the inevitable provision of health-care services. In denying the state leave to appeal against the order to implement part of this judgement pending the full appeal, the Constitutional Court on Thursday put a welcome end to these unnecessary and avoidable delays.
Abuse of court process, however, does not tell the full story. Best characterised as a web of conscious misrepresentations, half-truths and distortions, the state has also vigorously sought to undermine judicial independence and integrity. By asserting that the high court decision orders it to provide universal access to the drug, and by branding the interim order to execute as defying logic, the state seeks to legitimise its assault on the Constitution. But dirty tricks are a poor substitute for the truth and cannot hide a failure to engage uncontroverted scientific evidence and careful legal reasoning.
Despite a regular dose of toxic spin doctoring, we know that Botha did not order the state to provide nevirapine on demand, but rather restricted its immediate use to public-health facilities where capacity for its prescription and administration exists. Current national health policy prohibits the prescription of nevirapine in the public sector outside of 18 pilot sites, regardless of the availability of appropriate testing, counselling and feeding options. This forces doctors to act unethically, placing the choices of women and the life-chances of children at stake, without serving any legitimate government purpose. It is this inability to justify the blanket restriction of the PMTCT programme to the research sites that forms the basis of the order to provide nevirapine.
Also conveniently ignored is the order that the state has a constitutional duty to produce a comprehensive and reasonable plan to prevent “or substantially reduce” the transmission of HIV from mother to child. Botha was unable to find the state’s policy on PMTCT as satisfying the constitutional requirement of reasonableness. A wait-and-see approach was held to be unreasonable, for “only if there is a coherent plan will it be possible to obtain the further resources that are required for a nationwide [PMTCT] programme”.
While the state may argue that the evidence does not support such a finding, it has no basis for asserting that by exercising his constitutional obligation to review a policy choice already made, Botha impermissibly encroached on the executive’s terrain.
In Lend a caring hand of hope, a press statement that takes the practice of dirty tricks to an art form, the African National Congress’s national executive committee (NEC) seeks to discredit all those who dare to disagree with official doublespeak.
Alleging that these pseudo-science-pushing enemies of the people have no interest in fighting the epidemic, the statement claims that they are motivated by populism, opportunism and material benefit. Such baseless assertions are simply the manifestations of a morally bankrupt position that values control at the expense of human life.
In its analysis of Botha’s decision, the NEC goes beyond its predictable and futile attempts to discredit civil society, engaging in judicial decision-making of its own. Thus the judgement is described as ordering “universal access”, despite the qualified nature of the bifurcated order being incompatible with any such notion; and the efficacy of nevirapine is said to be “still under investigation”, despite the limitation of research at the pilot sites to operational issues. Most recently, administrative and technical problems with the application for registration of nevirapine for PMTCT in the United States were invoked by the minister to question the drug’s safety and efficacy, despite assurances from the relevant authorities to the contrary.
But without its dirty tricks, the government and the ANC are forced to confront two unpalatable truths. First, the state is constitutionally obliged to respect, protect, promote and fulfil the rights to life, dignity, freedom, equality and access to health-care services. Second, the judiciary is both permitted and required to ensure that the government complies with such obligations. Nothing short of a full-frontal attack on constitutional democracy can make this bitter reality taste any sweeter.
Jonathan Berger is a researcher for the Aids Law Project
Related:
State to lodge another appeal against court ruling March 22, 2002
Background:
Nevirapine: Court rules for the people April 4, 2002
Govt to fight latest Aids ruling March 28, 2002
Justice Minister eats humble pie March 27, 2002
Justice minister rubbishes court?s Aids ruling March 26, 2002