(Non)-regulation of the health insurance industry and its potential impact on the rights to health and life : a comparative analysis of Malawi and South Africa

Abstract

Malawi reverted to multiparty politics in 1993.1 A new Republican Constitution,2 (the Constitution) with a Bill of Rights was provisionally adopted on 18 May 1994 and it entered into force on 18 May 1995.3 Chapter 3 thereof deals with fundamental principles upon which the Constitution is founded and Principles of National Policy (PNP). Section 13(c) of the Constitution which falls under the PNP deals with health. It is to the effect that ‘the State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving adequate healthcare, commensurate with the health needs of Malawian society and international standards of healthcare’. According to section 14 of the Constitution, PNP are only directory in nature. Courts are obliged to have regard to them in the interpretation and application of the Constitution or any other law or in the determination of the validity of executive decisions. In the light of the foregoing, arguably, the right to health is not justiciable under the Constitution.