Taking ‘Health’ as a Socio-Economic Right Seriously: Is the South African Constitutional Dialogue a Remedy for the American Healthcare System?

Abstract

The year 1996 marked the beginning of a new era for South Africa. After a long struggle to free itself from the apartheid regime, it had successfully drafted ‘the most admirable constitution in the history of the world’. Nonetheless, everything still had to be done to reconcile the social and economic fracture that was tearing apart the country. This document had to provide continual reinvention to make sense of a changing world and the new South Africa. The answers provided by the Constitution had to be more than ‘admirable’, they had to be ‘transformative’. Indeed, unlike most liberal constitutions, the primary concern was not to restrain State power, but to accelerate fundamental changes in a legacy of injustice resulting from over three centuries of colonial and apartheid rule. It soon became obvious to the drafters that without access to basic levels of social and economic services, no effective civil or political changes could take place in the deeply divided country. Hence, the final document incorporates a detailed list of socio-economic rights tailored to the peculiar needs and context of South Africa. Nonetheless, concerns were then raised with regard to a blurry separation of powers that would stem from the interpretation of these rights. The nuance these ∗ JSD candidate (Cornell Law School), LLM (Cornell), DESS (Sciences Po Paris), Esq. I am indebted to Adedokun Ogunfolu, Shanelle van der Berg, and Professors Muna Ndulo and Sandra Liebenberg for useful suggestions on earlier drafts of this paper. I thank Professors Pierre de Vos and Danwood Chirwa at the University of Cape Town in particular for their insightful remarks and providing thorough feedback. The remaining errors are solely mine. 1 C. R. Sunstein, Designing Democracy: What Constitutions Do, Oxford University Press (2001). 2 K. E. Klare, ‘Legal Culture and Transformative Constitutionalism’, 14 South African Journal on Human Rights (1998): 146–55, at 155. 3 S. Liebenberg, ‘Protecting Economic, Social & Cultural Rights under Bill of Rights: The South African Experience’, 16(3) Human Rights Defender (2007): 2–6, at 2. 4 Ibid., at 2. 5 S. Seedorf and S. Sibanda, ‘Separation of Powers’, in S. Woolman and M. Bishop (eds), Constitutional Law of South Africa Vol. 2, Juta (2002), p. 12.