The Treatment Action Campaign (TAC) case as a model for the protection of the right to health in Africa, with particular reference to South Africa and Cameroon

Abstract

"The Treatment Action Campaign (TAC) case, as a model for Africa, marks a positive step in protecting the right to health, particularly pregnant women and their infants. It provides a rich jurisprudence on protection of the right to health in Africa, and particularly in the context of the HIV/AIDS pandemic. The TAC case definitely portrays the strength and role of an independent judiciary in the enforcment of constitutional rights such as socio-economic rights. The competence, legitimacy and power of the courts to pronounce on the constitutional validity of socio-economic rights justifies that it is indeed a model for the enforcemnt of the right to health in Africa. However, the right to health is not justiciable in many African constitutions. It is submitted that failure to address human rights violations, particularly the right to health, fuels the HIV/AIDS pandemic. This calls for government to take measures to protect the rights of persons living with HIV/AIDS, particularly women. The African Charter on Human and Peoples' Rights (ACHPR), of which most African countries are state parties to, obligates states parties to take necessary measures to give effect to the rights enshrined therein, including socio-economic rights. Socio-economic rights, in most African countries, including particularly Cameroon, are not constitutionally protected as justiciable rights. Thus, the jurisprudence of the TAC case could inspire African countries whose legislation and case law on socio-economic rights are underdeveloped, to make use of the jurisprudence issued by the Court in this field. The TAC case could also be used to persuade national courts to enforce socio-economic rights, given the prevalence of socio-economic rights violations in Africa. Thus, in this regard, it will be argued that governments have a fundamental obligation to ensure that the right to health is respected, protected, promoted and fulfilled as provided in regional and international human rights instruments. ... Chapter 1 of this study highlights the structure of the whole study. Chapter 2 provides an in-depth analysis of the TAC case, the basis of the ratio decidendi of the TAC case. The analysis includes the implications of the TAC case on the SA government. Chapter 3 reviews the application of international and regional human rights instruments protecting the right to health, and how these instruments are interpreted by human rights treaty monitoring bodies and municipal courts to impose on the state the duty to protect the right to health. Section 27 of the Constitution is also lightly considered. The discussion concentrates on the relevance of these norms and jurisprudence to the protection of the right to health in the context of HIV/AIDS in South Africa. The thrust of the theory of separation of powers is extensively discussed on the basis that the right to health encompasses seeking redress whenever it is violated. Thus, the study explores the judicial role in the HIV/AIDS era, to ensure that the right to health is enforced. However, it is noted that judicial independence and the theory of separation of powers, amongst others, may impede the enforcement of the right to health when it is challenged. Chapter 4 evaluates the Cameroon approach to the right to health in the Constitution, and seeks to find answers as to whether the judiciary has capacity and expertise to impose on the government the obligation to respect, protect and fulfill the right to health. Furthermore, the reasons are provided as to why the TAC case serves as a model for Africa. Chapter 5 is a summary of the conclusions drawn from the whole study and makes some recommendations." -- Introduction.