South Africa has a progressive Constitution based on the values of equality and dignity and, in many cases, a powerful framework of laws and policies detailing rights and obligations. And yet we continue to see devastating poverty and extreme wealth, hunger and opulence, collapsing health and education systems, and corruption in the private and public sectors. Are we doomed? By NIKKI STEIN & SASHA STEVENSON.
Discussion of the role of law in South Africa (and in particular the role of law in effecting social change) often starts with the lament, “South Africa has the best Constitution in the world, it has many good laws and policies, but because there is no proper implementation, our laws are worthless”. And of course there is an element of truth in this statement. Law is ineffective in achieving social justice without implementation, without monitoring and enforcement, without watchdogs keeping an eye on those in power and calling them out when they fail to comply with their obligations.
Cynicism in the power of the law is understandable. South Africa does have a progressive Constitution based on the values of equality and dignity and, in many cases, a powerful framework of laws and policies detailing rights and obligations. And yet we continue to see devastating poverty and extreme wealth, hunger and opulence, collapsing health and education systems, and corruption in the private and public sectors.
These contradictions are at odds with the values and principles of the Constitution and contrary to the laws and policies of the land. They widen the inequality gap every day, perpetuating the very circumstances our Constitution seeks to reverse.
It is a harsh truth that it is the wealthy who have the means to access to legal services that can work towards narrowing the gap between devastating poverty and hunger on the one hand, and extreme wealth and opulence on the other, towards strengthening our health and education systems and addressing corruption. And because accessing the tools to achieve social justice does not always directly benefit those who can afford it, there is a disconnect between the most vulnerable groups of our society and the ability to use the law to vindicate rights.
The contradictions between law and reality point not to the weakness of law as a tool for social change per se, but instead to the need for ordinary people-turned-activists who are committed to using the law as such a tool effectively. For social change and the values of the Constitution to become more than abstract ideals, to translate to concrete services, we require activists to monitor social services, to watch over the those that hold power, in both the public and private sectors, and to hold to account those who fail to comply with the letter and the spirit of the law.
Enter the Treatment Action Campaign (TAC), an organisation of 8000 ordinary people in 192 communities located in seven of South Africa’s provinces. TAC has been operating since 1998 and has become expert in the effective use of the law in combination with mobilisation and research to effect social change.
TAC is founded on the principle that the constitutional right to health care services must be realised for all. Its entire approach to advocacy, not just litigation, is based on legal rights and obligations. And through its use of the law, among other tools, TAC has become one of the most effective organisations in the country.
Most discussion of TAC’s use of the law centers on the 2002 case in which the government was ordered to develop and implement a comprehensive programme for the prevention of mother to child transmission of HIV. The case is a story about the power of legislated rights in offering protection against unreasonable government policies through the use of diverse tools including mobilisation, research-based evidence, lobbying and eventually litigation. It was also an important milestone in moving away from AIDS denialism, and using science to inform government policies in giving effect to fundamental rights.
The 2002 case is far from the only example of TAC’s effective use of the law. Some other examples include the following:
TAC has, on a number of occasions, successfully used advocacy and litigation to challenge pharmaceutical companies on the unaffordable and inaccessible price of anti-retroviral treatment.
TAC successfully litigated against the Department of Correctional Services and was granted an order requiring that detainees be provided with anti-retroviral treatment.
TAC has used legal principles and rights to advocate for change to the health care system in the Eastern Cape through marches, rights-based engagement with the Department of Health and the launching of litigation to challenge the closure of a clinic in Lusikisiki. An interim structure has been erected pending the construction of a new facility in Lusikisiki and TAC continues to work with other individuals and organisations on monitoring and strengthening the health system in the province.
TAC intervened as amicus curiae in the Dudley Lee case in the Constitutional Court, which was a landmark case in defining the obligations of the Department of Correctional Services in screening for and treating tuberculosis. The judgment has been cited by Global Fund when making a significant investment in tuberculosis screening in prisons and as demonstrating the need for a new Department of Correctional Services policy on the issue.
TAC is currently engaged in vigorous advocacy on intellectual property laws in South Africa, which keep drug prices high through the indiscriminate granting of patents.
TAC has shown, more than anyone, the power of the law when it is used well. It has inspired generations of law students with the promise of an opportunity, presented by their training, to catalyse social change.
Its work has directly benefited people living with HIV, tuberculosis and other health challenges. But its work has done so much more. TAC gives a voice to the most marginalised members of our communities. It opens the doors for them to exercise their right of access to justice and, through that, to enforce their other constitutionally-entrenched rights. TAC’s efforts have started to chip away at the major inequalities that plague South Africans, and in doing so they give meaning to what would otherwise be an aspirational and inaccessible Constitution.
As South Africans, we have all benefited through vigilant monitoring of social services and accountability. We have all benefited from the use by TAC of the law to give meaning to the Constitution that defines our nation.
And yet, TAC currently faces a funding crisis that threatens its continued existence. With donor money leaving South Africa, and with the erroneous belief that the HIV crisis in South Africa is nearing its end, TAC has seen significant cuts to its funding by institutional donors.
TAC has launched a campaign to fundraise from ordinary people in South Africa and beyond who value TAC, what it stands for, and the way it uses the tools at its disposal in the pursuit of social justice. It is calling out to students and business people; to on-the-ground activists and companies; to academics and NGOs; and now to lawyers.
TAC has shown us as lawyers how we can use our skills to bring about social change. It has shown us that the power of the law extends far beyond the idealism we held in our student days, inspiring us to do what we can to achieve social justice. DM
TAC has shown what the law can do. Now is the time for lawyers to do what they can for TAC, and for our fellow bearers of rights under our Constitution. Donate at www.tac.org.za/donate.
Sasha Stevenson and Nikki Stein are attorneys at SECTION27.
Photo: A file photograph dated 08 November 2007 fo South Africans protesting in support of the Treatment Action Campaign (TAC) global call to action on tuberculosis and HIV/Aids in Cape Town, South Africa. EPA/NIC BOTHMA.