Where can judges’ noses go?

IT IS unlikely that South Africa’s Constitutional Court judges have been sleeping well this autumn. Next week’s hearing on the provision of nevirapine to HIV-positive pregnant women puts them in an invidious position. It is probably safe to assume that most of the court’s 11 judges believe the government should have rolled out the nevirapine programme long ago. Yet it is equally safe to assume that none feels comfortable ordering the government to do so.

Beyond the volcanic, mania-inducing issue of HIV, the nevirapine case tests in the most acute fashion the principle of separation of powers, of how far judges can stick their noses into matters of executive policy. The court knows that what is good for the children of HIV-positive mothers is not necessarily good for democracy.

It is unsurprising that the issue of the separation of powers should emerge so acutely in the adjudication of a socio-economic right ? in this instance, the right to access to health-care services. Indeed, there are many respected jurists around the world who view socio-economic rights as a crazy concoction designed to get judges into serious trouble.

Say, for instance, that a court was to issue an order whereby anyone who proves they do not have shelter could demand land and building materials. Say the government had to slash its health and education budgets to comply with the order. Clearly, the court would have messed up. Stampeding blindly into the policy arena, it would have damaged thoughtful legislative and executive attempts to balance competing priorities.

Say the court was alive to this problem and decided to judge for itself whether the government could afford to provide shelter for all. Does a court have any right to do this? Does it have a right to scrutinise every programme in every government department and then tell the government that its priorities are wrong? The answer, for anyone remotely invested in the idea of democracy, is surely no. For the court would have pre-empted democratic deliberation on fundamental issues. Why elect a Parliament and a government if they are robbed of making decisions?

Some have argued that the problem is intractable, that any attempt by judges to adjudicate social and economic rights takes them into an arena where they do not belong.

In 2000, in State v Grootboom, when a group of homeless people in the Western Cape went to the judiciary to demand relief, the Constitutional Court was forced to play some of its cards on this difficult issue. It came up with an admirably elegant solution. Instead of arguing that socio-economic rights place a duty on the government to provide specific services on demand, it said that such rights place a duty on the government to show that it has allocated its resources reasonably. So, in the case of Grootboom, it ruled that the government’s housing policy, which consisted only of a long-term brick-and-mortar programme, was unreasonable in the face of mass homelessness in the here and now. It ordered the government to set aside a ”reasonable proportion” of its housing budget for short-term relief.

Elegant indeed. Not only did the court avoid the temptation of pre-empting democratic deliberation on the balancing of competing priorities; it could justifiably claim to have enhanced the democratic process. You are free to make whatever policy you like, the court said, as long as you heed the interests of those of your constituents too marginal to be heard in the ordinary course of politics.

What does any of this mean for the nevirapine case? At first glance it might appear that the Treatment Action Campaign (TAC) does not stand a chance. For it is asking the court to intervene in the minutiae of policy; not just that the government respond to the Aids epidemic, but that it develop a specific programme ? the reduction of mother-to-child transmission; and not just that it develop a specific programme, but that it does so with a specific drug, nevirapine. Surely this goes well beyond the benchmark of ”reasonableness”. Surely there are a thousand reasonable ways of tackling Aids. Why on earth should a court order this one in particular?

Ironically, if the government had behaved with consistent belligerence throughout the high court episode of this case, it would probably have found itself on safe ground. It might have said that Aids is not South Africa’s most pressing health concern. Or that Aids is a catastrophe but that mother-to-child transmission programmes are just one of a hundred reasonable ways to combat it.

It could have said, in short, that the specificity and detail of the TAC’s demands are not appropriate subject matter for a court case. Having read Grootboom carefully, the government would have known that the court would be hard-pressed to reply.

But the government demurred, wobbled, then capitulated. At the beginning of the high court case, its affidavits admitted nothing. By the end, it had committed itself to making nevirapine available to all HIV-positive women at some point in the future.

In doing so, the government has made it much easier for the court to rule against it. For the court now need not embroil itself in debates over specific policies and specific drugs. You have already devised a reasonable policy, the court may well say to the government. What is unreasonable is that you are not implementing it.

Which brings us to the subtext of the case, an issue that will not be aired openly at next week’s hearing, but which is ultimately what the case is about. The government has fought a clumsy fight over the provision of anti-retrovirals. Faced with an increasingly powerful campaign from the outside, and growing dissent within its own ranks, it has conceded piecemeal where it has had to, reneged where it could. The result is an unsightly hybrid of half-concessions, half-denials and unimplemented programmes, the whole heap permeated with the fragrance of bad faith.

Should the court rule against the government, it will essentially be saying that the games end now, that it is time the government commits to its promises. Reining in the folly of politics is, after all, one of the reasons we have a Constitution in the first place.

Steinberg is a freelance writer

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