The Constitutional Court faces its most delicate test yet
comment
Richard Calland
It was actually one of this government’s most cogently argued defensive positions. But why it took Minister of Health Manto Tshabalala-Msimang two weeks to prepare her defence of the government’s decision to appeal the high court judgement directing state health authorities to make nevirapine generally available is beyond me.
This case is about power and who controls it, in the context of a government struggling to assert what little power it does have. “It’s not that we are against protecting babies from HIV,” the minister of health pleaded. “It’s just that we think the judge went too far: this judgement amounts to a position that policy should be in the hands of judges,” she argued, before complaining about the extremely “prescriptive” nature of the order handed down.
Instead of appearing hours or, at most, a day after the judgement of the Pretoria High Court in mid-December, a full two weeks had passed during the course of which the government had, yet again, lost the public relations battle. Its apparently fanatical determination to ensure that the worst possible gloss is put on almost everything it does or does not do, remains one of the most curious features of this African National Congress government.
As a result of this “spin delayed is spin denied” lassitude, Tshabalala-Msimang’s article appeared in the national press on Sunday December 30 almost certainly the apex of silly season political apathy and aversion. I never thought I would find myself arguing for more, and certainly better quality, spin doctoring but, in this government’s case at least, that is what is surely needed.
But this observation is of miniscule importance compared with the issues at stake in what may well prove to be a Rubicon case both for the government’s approach to HIV/Aids policy and for the development of South Africa’s socio-economic rights jurisprudence.
Slowly, ANC governments have sought to repair the damage caused by the National Party government’s negligence in preparing for the epidemic, putting in place since 1994 a health-care policy response to HIV/Aids that would be mundanely in line with international practice, were it not constantly engulfed by the incendiary unorthodoxy of the president’s approach to the subject.
Thanks to the courage and growing confidence of the country’s most compelling advocacy group, the Treatment Action Campaign (TAC), it is also now a matter of constitutional law.
If last year was dominated politically by the relationship between the executive and Parliament and, specifically, the latter’s struggle to exercise meaningful oversight over the former’s conduct of the arms deal then executive-judicial relations are likely to predominate this year.
Two words that you are likely to hear more of this year, are “activism” and “deference” jurisprudential labels for the main two distinctive approaches that a court can adopt in the face of a challenge to the executive or legislature.
Traditionally, courts the world over have tended to be deferential to Parliament or its executive, the main reason being that judges tend to recognise that they face a fundamental democratic deficit in such a relationship: they, unlike the politicians, are unelected. A too-activist an approach can be attacked as undemocratic if the courts meddle with law or policy.
In essence, this is what the government is saying in the TAC case. Judge Chris Botha was disdainful of such anxiety: “Where the court, being a part of the judicial arm of government, sits in judgement on the reasonableness of steps taken by the executive in the fulfilment of its constitutional obligations, it is exactly a perfect example of how the separation of powers should work …” The contrary argument “misses the point”.
He would argue, I think, that he didn’t alter the policy, but simply said that the speed of implementation of the nevirapine mother-to-child transmission programme contravened the constitutional right to the “progressive realisation” of adequate health care because the country can afford to roll it out faster and there is no other compelling reason not to do so.
Most human rights lawyers agree with his approach to the law. When you enforce rights, invariably that has the effect of altering policy: this is an inevitable and central consequence of their purpose. The human rights lawyers who disagree are ANC ones in the government. They ask the same question as Tshabalala-Msimang: “What happens to public policy if it begins to be formulated piecemeal fashion through unrelated court actions?”
This is not what they had in mind when, with reticence and two minds, the ANC decided to include the extraordinary panoply of socio-economic rights in the final Constitution. Applying the “progressive realisation” test to the rights to adequate housing, health care, education, water and so on was supposed to be a big-picture task, they say, which is why some in the government are prepared to concede that Terry Crawford-Browne’s court action against the arms deal may represent a more apposite test case.
However bad it looks and it certainly does look bad for however often and however loudly the government says it is not appealing because it is against protecting babies from HIV, the perception is, and will continue to be, the opposite I simply cannot blame them for wanting to appeal.
I refuse to believe that the appeal is a purely tactical manoeuvre designed to delay a full implementation of nevirapine to all the mothers of the 70 000 HIV-positive babies infected by mother-to-child transmission in South Africa each year. I refuse to believe that this government is capable of such cynicism, though I am also prepared to be proved wrong on this.
If the courts are to adopt an activist approach, then the government is entitled to get the activism from the top, so to speak; from a full, 12-person Constitutional Court bench rather than one high court judge. Given the intense politicisation of the issue and the sentiment surrounding it, this appeal will provide the Constitutional Court with its most delicate test yet.
Nonsense, the legal (and conservative) purists will say in response: judges aren’t affected by such unwholesome considerations. Well welcome to the real world: judges, especially in the “hard cases” upon which rights/jurisprudence is built, are human beings with views and values.
Dialogue and dispute, even crisis, between the judicial and executive arms of the government is part and parcel of a rights-based democracy. Thus far, the court has not faced such a direct invitation to disagree with the government. Even in the Grootboom housing rights case, the government and the applicants agreed about the policy question the argument was about the broader, legal issue.
If the Constitutional Court upholds the judgement of the high court in the mother-to-child transmission case the government is likely to be very cross. How it in turn responds will be important. If it chooses its words unwisely, it may appear, unfairly or not, as if it is retreating on its commitment to the Constitution, playing into the hands of the doom-merchants and racist Afro-pessimists.
Having laid a rights-based constitutional bed, the government must now lie on it, however uncomfortable that may be on some days.