Coronavirus: Oped

The lockdown may be unconstitutional – unless school feeding and social grants are fixed

Shirley Grootboom and Yvonne Ncapay, two of the three cooks at The Crags Primary School, dish up food for the learners. (Photo: Daily Maverick file photo)

As our country writhes in the midst of a food crisis, people fight over food parcels, food trucks are attacked, and shops looted, it’s worth remembering that access to food is a constitutional right.

In South Africa, everyone has a right to have access to sufficient food, and every child has a right to sufficient nutrition. Sections 27(1)(b) and 28(1)(c) of the Constitution guarantee this. What do these rights mean during a national lockdown?

The Bill of Rights has not been suspended. We are living under a state of disaster, not a state of emergency. Government still has to abide by these rights, and not violate them.

If there’s one thing that has become abundantly clear – and indeed was entirely foreseeable – it was that the lockdown has precipitated a food crisis of proportions we have not seen in this country for nearly a century. Access to food has been severely restricted. An estimated 5.5 million people who are self-employed or informally employed have lost their incomes, at least temporarily. While most commercial farming and corporate supply chains are intact, production and distribution chains in the informal food system have been severely disrupted or closed down completely, with small-scale farmers and fishers either unable to continue with production, or unable to access their normal markets. Informal food retail – street traders and spaza shops – was initially forbidden and, after regulations were amended, is now at the mercy of a stuttering bureaucracy and erratic, sometimes corrupt, enforcement. Together, this means that a vast number of people who derive their livelihoods from producing and selling food can no longer do so. The national school feeding scheme that provides a nutritional lifeline to about 9 million children nationally has been halted (and resumed only in the Western Cape). Millions of people’s livelihoods and incomes are cut off and there are estimates that as many as 20 million people are now food insecure. Many people are at the risk of, or already experiencing, starvation.

The rationale for the lockdown is clear: to reduce the rate of new infections, ‘flatten the curve’ and buy time to allow the health system to prepare for the oncoming spike in hospital admissions. Government’s response to contain infection has been hailed as comprehensive. Yet the mainstay of government’s response to the hunger crisis is the distribution of food parcels and for the rest, in the words of Mark Heywood, “relying on the Solidarity Fund and the kindness of strangers”. As he also points out, “The poor vastly outnumber kind people. The state has to step in”. Government remains mum in response to calls to increase social grants, which, by all accounts, would be the most effective way to inject cash into poor households to enable them to stave off hunger. The Children’s Institute at UCT has shown that it would reach 80% of the households that have lost nformal sector incomes (as opposed to only 28% if the old age pension were increased). It’s the most pro-poor and pro-women of all social grants, and is an effective way of reaching unemployed adults, as well as vulnerable children.

A letter endorsed by 35 civil society organisations and research institutions set all this out. It was sent to the Presidency at the start of the lockdown. Since then, there has been a bewildering silence, with the issue being deferred at each Cabinet meeting. The call has been endorsed by the C19 People’s Coalition of 245 civil society organisations and the main civil society platform responding to the crisis and calling for a socially and economically just response to the pandemic.

But what about this right to food that is entrenched in the Bill of Rights? Of all the socio-economic rights in the Bill of Rights, the right to food is perhaps the least clear. Even before the lockdown, millions of people had insufficient access to food. The right to food was not realised in practice. Yet there is no framework law that sets out what this right consists of, and exactly what government is obliged to do about it. The Constitutional Court has not yet delivered a judgment to give content to it; no case has ever been brought arguing that people’s right to food has been violated. The right to food is different from other socio-economic rights, such as the right of access to housing, health care, water and social assistance on which there are judgments that provide some clarity. It is perhaps also more difficult to give content to. From the Constitutional Court’s past jurisprudence, though, shows that the state can be held to account when it fails to take adequate measures to realise one of these socio-economic rights, or in a substantial way impedes people from realising a right.

Social movements and civil society groups have in the past campaigned around the right to food, but have not taken legal steps to challenge government on whether it is doing enough to ensure that everyone in the country has access to sufficient food. (Note that this right is for ‘everyone’ in the country – not only citizens.)

Now, however, we are in a different situation. The state, through its lockdown regulations, and by invoking the Disaster Management Act, is actually preventing people from being able to take steps to earn incomes with which to feed themselves. This means the state is removing people’s ability to self-provision.

We argue, then, that the lockdown, without an increase in social grants, and without any means to compensate for the closure of the school feeding scheme, is unconstitutional.

Evidence has been presented to government as to the number of people who cannot access sufficient food, together with proposals as to how to fix the situation. The first and most effective measure is to top up the Child Support Grant by R500. It is not enough, of course, but it is the single most far-reaching intervention that can be immediately implemented.

As a country, we have lost precious time as government has prevaricated. The President has promised a range of economic and social mitigation measures, but the grants issue has not been decided. Yesterday’s Cabinet meeting was due to lead to a firm decision on social grants, but so far no announcement has been made.

It is important to understand the Court’s approach to socio-economic rights. We think that the following four considerations are important.

First, the rights to housing, health care, water or food (for adults) are not individual entitlements –they are not commodities that anyone claims from government whenever there is a need. Rather, government’s overall programme to realise this right has to be ‘reasonable’ and specifically, the Court would assess whether specific groups or communities are left out of government’s efforts to realise the right. This was precisely the problem in Government of the Republic of South Africa and Others v Grootboom and Others in 2000, widely regarded as the judgment in which the Court first set out its approach to the adjudication of socio-economic rights. The Court held that government’s housing programme was unreasonable despite it being comprehensive, ambitious and notable in its achievements. Why? Because there was a group that fell through its cracks: the programme failed to make provision for people left homeless and destitute, for example as a result of an eviction. In the words of the Court, the programme left “…people in desperate need… without any form of assistance with no end in sight”. The programme was thus incomplete and therefore unreasonable. This has been a yardstick for the Court whenever it is tasked to assess government’s assertions that it is ‘trying its best’ in realising a socio-economic right. So the question with regard to the lockdown regime is: is there a specific group of vulnerable and/or excluded people that is falling through the cracks of government’s approach to realise the right to food during the lockdown? There clearly are two such categories whose right to food has been curtailed without adequate mitigation measures from government: those whose means of earning an income with which to buy food has been cut off and those who previously relied on the school feeding scheme which has now closed.

Second, socio-economic rights like the right to food protect people against government taking decisions that are ‘retrogressive’ – that actively make the situation worse. In past judgments, the Constitutional Court has accepted that not everyone might have immediate full access to housing, health care, water or food, as long as government has a reasonable programme of planning, prioritising and implementing measures towards getting everyone there. But we can also see from past judgements that the Court will not easily accept government introducing measures that reduce, or remove access to the right, ie measures that “take us back” after having made gains. Two public interest law clinics, Section 27 and Equal Education Law Clinic, together with Equal Education, the Centre of Child Law and the Children’s Institute, set out this case in a letter to Parliament’s portfolio committees on social development and basic education. The law clinics urgently approached the Presidency last Friday urging immediate action and explaining that the closure of the school feeding scheme is a retrogressive step, a measure that has reduced some of the most vulnerable cihildren’s access to food.

Third, the right to basic nutrition for children is an unqualified right. It is an absolute right, unlike the rights to housing, health care, water and food (for adults), which are subject to the qualification “within available resources”. When assessing whether government’s programme of implementation is reasonable, of course we recognise that there are many competing demands on the public purse. But the Constitution omits that qualification when it comes to a child’s right to basic nutrition. All children must have access to this right – and feeding schemes in schools and early childhood development (ECD) centres are the main means our society has to make this a reality for children. The Constitution deliberately pre-empts any argument that there is not enough money to ensure every child has basic nutrition. The obligation to see to a child’s basic nutrition is imposed primarily on the parents and the family but alternatively on the state, when parents or family are unable to fulfil this obligation. The school feeding scheme and the Child Support Grant are the two main ways the state has contributed to children’s right to basic nutrition – but now the first has gone, and the latter is even-more patently insufficient. School feeding was already budgeted for, and limited funds cannot be a reason not to substitute for or continue with feeding programmes, despite school closures.

Fourth, Section 10 of the Constitution, which provides that everyone has inherent dignity, and the right to have that dignity respected and protected. The Constitutional Court consistently argues that the protection of dignity is central to rights. If government’s action strips people of their dignity, then this may be unconstitutional, because equal treatment, fairness and access to basic services have everything to do with a person’s inherent dignity. In our view, government’s reliance on food parcels to ensure food security for the most vulnerable during the lockdown must be measured against the right to the protection of dignity. Does a programme focused on the handing out of these food parcels, often after waiting, queues and conflict, or accompanied by triumphant photo and social media coverage, respect the right to dignity of those who depend on it? Particularly when there is the alternative of increasing social grants with which they can make their own choices?

The right to food is a constitutional right. It is justiciable, meaning that the courts can rule on it. And the state is the “duty bearer” responsible for it.

In the current context of the lockdown, unless government increases social grants to compensate for lost incomes, and reinstates the school feeding scheme, the lockdown regulations constitute a violation of the constitutional right of access to food. Government must fix this now: top up the Child Support Grant and reopen the school feeding scheme across the whole country. DM/MC 

Jaap de Visser is professor and director of the Dullah Omar Institute, and Ruth Hall is professor and the SARChI Chair in Poverty, Land and Agrarian Studies – both at the University of the Western Cape. They are associated with the Centre of Excellence in Food Security. Both are members of the C19 People’s Coalition.


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