Refugees have an equal right to healthcare


June 20 is World Refugee Day. There are about 65.6-million forcibly displaced people, and 22.5-million international refugees, the recent report by the United Nations High Commissioner for Refugees states.

South Africa is host to a refugee population from many parts of the African continent and beyond. They are fleeing persecution, civil conflict and wars that threaten life and limb. Refugees and asylum seekers here face a number of problems and access to healthcare is arguably one of the most pressing.

Under international human rights laws such as the 1951 Refugee Convention and its accompanying protocol, refugees and asylum seekers are entitled to adequate, accessible, timely and efficient healthcare.

This is echoed by another international human rights instrument, the Universal Declaration of Human Rights. The International Covenant on Economic, Social and Cultural Rights establishes the right of everyone to the highest attainable standard of health possible. South Africa is party to all three international instruments.

The principles in these international treaties are embodied in the Constitution. Section 27 says “everyone has the right to access to healthcare”. The provision requires that healthcare services be provided to people on the basis of nondiscrimination and in keeping with equality. This notion was reiterated by the courts in Khosa and Others vs Minister of Social Development and Others and in the matter of Mahlaule and Another vs Minister of Social Development and Others.

According to the Constitutional Court, the word “everyone” in this section “cannot be construed as referring only to citizens”. Had the legislator intended to limit healthcare rights to citizens, it would have worded the section accordingly, as it did with political rights contained in section 19 and citizenship rights in section 20.

This Constitutional obligation is given effect to in section 27(g) of the Refugees Act, which says a refugee is entitled to the same basic health services and basic education that the citizens of the republic receive.

As with many facets of South African society, the realisation of the right of refugees to healthcare lags behind the constitutional provision. The Constitution provides for adequate healthcare for the indigent, mandating the state to actualise this right through publicly funded healthcare for the poor. In spite of this clear directive from the Constitution, many inhabitants of rural areas and residents of urban and peri-urban townships, including refugees and asylum seekers, continue to struggle to access adequate healthcare.

Refugees and asylum seekers face a peculiar disadvantage in accessing healthcare. This is partly owing to their lack of social and cultural capital, including language, familiarity with local bureaucracy and the requisite social cues, manners and behavioural patterns that locals of similar social locations possess. This is compounded by xenophobia and discrimination. Refugees and asylum seekers are often denied access to healthcare because of their nationality.

In cases where they were treated, refugees and asylum seekers were often charged international fees, according to a report by Human Rights Watch. This is despite the fact that the law provides for refugees and asylum seekers to be treated in the same manner as South Africans.

The department of health has tried to correct the structural barriers arising out of the lack of awareness of some healthcare facilities about the rights of refugees and asylum seekers. It issued a directive to public health facilities on September 19 2007 instructing healthcare practitioners of the legal obligation to provide services to refugees and asylum seekers, in keeping with their rights under the Constitution and the Refugees Act.

The directive says that asylum seekers and refugees — with or without permits — are entitled to: basic healthcare; are exempted from paying for antiretroviral treatment services, irrespective of the site or level of institution where these services are rendered; and should be charged medical fees in accordance with their financial means.

Notwithstanding the actions of the department of health, some structural barriers persist. One such barrier is the intersection of poverty, the status of refugees and asylum seekers as displaced persons and gender, which places refugee and asylum-seeking women at a far greater disadvantage in accessing healthcare.

There have been instances when non-national women, despite their immigration status, are denied access to reproductive healthcare. A tragic example is that of a Zimbabwean left to give birth unassisted at Rahima Moosa Mother and Child Hospital two years ago. She lost her baby.

It is the recognition of the peculiarity of the situation of refugees, and the need to fashion an equal and cohesive society, that necessitated the constitutional provision that grants refugees and asylum seekers the right to basic necessities for a decent life, such as the right to adequate healthcare. This right is limited only by resource constraints.

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.

Bongani Majola chairs the South African Human Rights Commission

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Bongani Majola
Advocate Bongani Majola is currently the chairperson of the South African Human Rights Commission, a seven-year term that commenced on 3 January 2017

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