Covid-19 is rightly called a public health emergency – it affects everyone, even in a deeply unequal society such as ours – yet not everyone is at the same risk of infection.

Roughly 20% of South Africans have access to private health care. The rest of the country shares the over-pressured and under-equipped public health care system. Apart from an imbalance between the two systems, living conditions for poor people are simply not conducive to preventing the spread of Covid-19 through physical distancing or hygiene measures such as rigorous handwashing.

It’s important not to forget that South Africa has domestic and international obligations to respect, protect, promote and fulfil socio-economic rights.

The importance of international standards and the role of the UN Committee on Economic, Social and Cultural Rights

The South African Constitution is often lauded as one of the most progressive in the world. One string in the bow of those making the claim is always the Constitution’s protection for a wide range of social and economic rights that legally bind the government to ensure the provision of basic necessities including healthcare, education, housing, sanitation, water and food.

But the Constitution is not the only source of legally binding commitments for the provision of basic necessities.

South Africa is party to regional and international treaties such as the African Charter on Human and People’s Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which also legally bind the government to a range of socio-economic obligations, some of which are more extensive than South Africa’s own significant constitutional commitments.

For example, ICESCR, unlike the Constitution, includes a legally binding and broad right for everyone to “an adequate standard of living” for themselves and their families that amounts to a right to the “continuous improvement of living conditions”.

It also includes the right to work, in addition to the rights at work as protected by the Constitution.

As a recent International Commission of Jurists briefing paper details, this right to work, which is enforceable against the South African government, explicitly applies to everyone: citizen or non-citizen; documented or undocumented worker; formal or informal; unionised or non-unionised.

Both international human rights standards and constitutional standards are “justiciable” in the sense that they can, must and will, at least to some extent, be enforced by South African courts.

But the international human rights law regime provides further means by which governments’ progress in fulfilling the rights in ICESCR are respected, protected, promoted and fulfilled. It does so through the monitoring and norm development functions performed by different United Nations treaty body mechanisms including, most relevantly, the United Nations Committee on Economic, Social and Cultural Rights.

Governments, including South Africa’s, report to the ICESCR regularly on the fulfilment of their obligations in terms of ICESCR and issue “concluding observations” with indications of required action to make the country compliant with their legal obligations and to make ICESCR rights real.

From time to time, the ICESCR also issues comments or statements to give clarity to the human rights obligations of states in specific contexts.

Covid-19 and the IESCR

On 6 April the committee published its “Statement on the coronavirus disease (Covid-19) pandemic and economic, social and cultural rights”.

In the statement the IESCR noted that Covid-19 is:

“Threatening to overwhelm public health care systems, and is having devastating impacts across the world on all spheres of life – the economy, social security, education and food production.”

The committee expressed concern not only that governments may fail in realising paper rights, but also that this may “increase the suffering of the most marginalised groups”.

The committee’s statement makes some important recommendations to all states on “urgent measures” they must take to ensure responses to Covid-19 are human rights compliant. A few examples are helpful in illustrating the statement’s importance to South Africa’s Covid-19 response.

First, when it comes to health, the committee notes that it is “essential” for states to:

“Adopt appropriate regulatory measures to ensure that healthcare resources in both the public and the private sectors are mobilised and shared among the whole population.”

In the South African context this will mean the government doing more to leverage the substantial resources of the private health sector to prop up and support the already strained public health system.

Second, the committee has explicitly recommended the “provision of water, soap and sanitiser to communities who lack them” as well as a range of targeted economic policy measures including notably the provision of:

“Social relief and income-support programmes to ensure food and income security to all those in need.”

It has also recommended a “lifting” of VAT on “foodstuffs, hygiene products and essential medicines and supplies” during the course of the pandemic.

In the South African context, the government has been rightly criticised for taking inadequate measures to ensure that poor people, the unemployed, and the informally employed have adequate social safety nets to live with dignity during lockdown.

Third, the committee reminds states of their obligation “to devote their maximum available resources” towards giving effect to all social and economic rights. In its statement, the committee doubles down on this obligation, recommending that states ensure “extraordinary mobilisation of resources to deal with the Covid-19 pandemic” in the most equitable manner possible.

The South African lockdown regulations make clear that lockdown measures must be implemented “as far as possible without affecting service delivery in relation to the realisation of the rights” including the rights to housing and basic services, healthcare, social security and education.

In addition, the government set up a Solidarity Fund that has received sizable contributions from the private sector. Government ministers have also laudably committed one-third of their salaries to the fund.  However, the committee’s call suggests that these measures might not be enough.

The South African state is obliged to fund effective Covid-19 responses even if it requires extraordinary resource mobilisation to expand its existing resources. Such mobilisation could be through: increasing taxes on the ultra-rich; seeking the support of private donors and other governments; or reallocating funds from other government budgets that can be deprioritised.

What more should the Government do?

This is not the first time the Committee has given input particularly relevant to the South African government.”

In October 2018 it issued Concluding Observations to South Africa directly on its implementation of ICESCR. The Government has been criticised by civil society for its slow to non-existent responses in devising a plan to implement these Concluding Observations.

The committee’s recommendations, made after receiving input from a wide range of South African civil society and the South African Human Rights Commission, are not abstractions that can be deprioritised. For example, the committee recommended the following measures that would be of direct and immediate assistance to poor South Africans in the context of Covid-19:

• Raising the national minimum wage and regularly adjusting it to the cost of living so as to ensure an adequate standard of living for workers and their families;
• Raising the levels of non-contributory social assistance benefits to a level that ensures an adequate standard of living for recipients and their families; and
• Ensuring that those between the ages of 18 and 59 with little or no income have access to social assistance.

The South African government would do well to heed the calls of the UN Committee on Economic, Social and Cultural Rights at this crucial time.

As S’bu Zikode, former president of the shack dwellers’ movement Abahlali baseMjondolo, has previously said, “Poor people do not eat ideology, nor do they live in houses that are made out of ideology.” It is not enough just to have a progressive legal system and a responsive – even caring – government.

If social assistance is not provided to poor people in South Africa, the lockdown will continue to take its toll and the risk of serious social unrest is an increasingly real possibility.

Failure to follow the committee’s recommendation is taking a gamble on this possibility. It also risks seeing an increase of human suffering in South Africa that cannot and should not be tolerated. DM/MC

Tim Fish Hodgson is a Legal Adviser on Economic, Social and Cultural Rights at the International Commissioner of Jurists. Twitter @TimFish42.