Speech for debate on I.P.U. Topic: Access to Health Care as a basic right: The role of Parliaments in addressing key challenges to securing the Health of Women and Children

14 September 2011

Human Rights are universal legal guarantee protecting individuals and groups against actions that interfere with fundamental freedoms and human dignity. Some of the most important characteristics of human rights are that they are: guaranteed by international standards; legally protected; focus on the dignity of the human being; oblige states and state actors; cannot be waived or taken away; are interdependent and it interrelated; and are universal1.

The right to the highest attainable standard of health (referred to as "the right to health") was first reflected in the World Health Organisation (WHO) Constitution (1946) and then reiterated in the 1978 Declaration of Alma Ata and in the World Health Declaration adopted by the World Health Assembly in 1998. It has been firmly endorsed in a wide range of international and regional human rights instruments.

The right to the highest attainable standard of health in international human rights law is an entitlement to a set of social arrangements-norms, institutions, laws, an enabling environment that can best secure the enjoyment of this right. The most authoritative interpretation of the right to health is outlined in Article 12 of the International Covenant on Civil and Political Rights (ICESCR), which has been ratified by 145 countries (as of May 2002)2. The General Comment recognised that the right to health is closely related to and dependent upon the realisation of other human rights, including the right to food, housing, work, education, participation, the enjoyment of the benefits of scientific progress and its applications, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement.

In South Africa, access to health care is a constitutionally recognised right, under section 27 of the South African Constitution. Seventeen years post the first democratic elections in South Africa the realisation of this right is the focus area. In 1997 the South African Human Rights Commission (SAHRC), a statutory body assigned to evaluate the realisation of access to health care, held a public inquiry into the matter. The report was finally released in early 2009. This report found that public health care system was (and continues to be) in a "lamentable state". It further alluded that South Africa faces a number of challenges that complicate the progressive realisation of access to health care. For example, the Human Immune Virus and Acquired Immune Deficiency Syndrome (HIV and AIDS) statistics are among the highest in the world, placing a burden on public health; South Africa has the highest income inequality globally and the gap between public and private health care, with specific reference to affordability and quality of services remain a major concern3.

The South African Government has obligations under the international and regional legal standards to ensure that all human rights are fulfilled, including the right to health, to life, to a remedy, to be free from cruel and inhuman and degrading treatment, and to non-discrimination. The South African Constitution requires that international law must be taken into account when interpreting domestic legislation.

South Africa is party to many international and regional human rights treaties relevant to health care and access to remedies. At the international level, South Africa has ratified the following international instruments:

  • International Covenant on Civil and Political Rights (ICCPR)
  • The Convention on Elimination of all Forms of Discrimination against Women (CEDAW)
  • The Convention on the Rights of the Child
  • The Convention protects children`s rights by setting standards in health care; education; and legal, civil and social services.

Honorable Members, four of the MDGs relate to health care, thus underlying the importance of the status of the health of a nation on the path to development. A number of laudable development targets for health have been agreed to at the Millennium Summit and in other UN conferences and international fora. These include, for example, reducing mortality rate for children under five by two-thirds, and the measles, mumps and rubella (MMR) by three-quarters by 2015: by 2010, reducing HIV prevalence in all young people (aged 15-24 years) by 25%, and the proportion of infants infected with HIV by 50%; as well as reducing TB related deaths and prevalence, and the burden of disease associated with malaria by 50%, also by 2010. South Africa has pledged to meet the eight MDG goals by 20154.

Regional Instruments

At the regional level, South Africa has ratified the African Charter on Human and Peoples` Rights (African Charter) and the African Charter on the Rights and Welfare of the Child. South Africa is also guided by the Southern African Model Law on HIV and AIDS.

  • African Charter on Human and People`s Rights
  • The African Charter on the Rights and Welfare of the Child

South African Health Care System

The South African Health Care system is characterised as a fragmented and inequitable health care system, due to huge disparities that exist between the public and private health sector with reference to the accessibility, funding and delivery of health care services. As a result, access to health care is unequal, with the majority of the population relying heavily on public health care system that has a disproportionately lower amount of financial and human resources at its disposal, comparative to the private sector.

The mismatch of resources in the public and private health sectors, relative to the size of the population each sector serves, and the inefficiencies in the use of available resources, have significantly contributed to the very poor health status of South Africans, particularly in the lowest income population.

The current health care system is facing many challenges, which include:

  • Uneven access to health care services;
  • Many South Africans claim that they cannot afford health care services;
  • Shortage of healthcare professionals;
  • Deterioration of public health system due to underfunding;
  • Exodus of skilled personnel;
  • Double burden of HIV and AIDS and TB; and
  • Private health system has become less affordable.5

The above-mentioned problems of the current health system have become even more acute in recent years, which compound the need to reach some agreement on the implementation of the proposed National Health Insurance and to pursue its implementation even more urgent.

National Health Act

The National Health Act (No. 61 of 2003) (NHA) is arguably the most important Act passed by Parliament to give effect to the right of everyone to have access to health care services. This right is guaranteed by section 27 of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), which places express obligations on the state to progressively realise socio-economic rights, including access to health care.

The South African Constitution

The South African Constitution Act (No 108 of 1996) specifically recognises the right of access to health care in section 27: health care, food, water and social security 6.

i. "Everyone has the right to have access to -

a. health care services, including reproductive health care;

b. sufficient food and water; and

c. social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

ii. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

iii. No one may be refused emergency medical treatment."

National Health Insurance

In ensuring universal access to healthcare, South Africa proposed a National Health Insurance (NHI). Plans are already advanced to start with a phased-in implementation of the NHI by 2012. Therefore, South Africa is forced to strengthen delivery of quality healthcare services to its people as a fundamental right which is entrenched in the Constitution of the Republic and which South African citizens` should enjoy. The South African National Health Insurance is founded on the following three key principles7:

  • Firstly, the public has a constitutional right to access to affordable and acceptable quality health services.
  • Secondly, the State has a responsibility to ensure the progressive realisation of the right to health for all South Africans that is premised on the objective of universal coverage.
  • Thirdly, it is important for health services to be funded in an equitable manner that promotes social solidarity.8

The crunch issues around the NHI are: will the NHI deliver accessible, quality health services for all? And there are questions as to why South Africa needs a new single institution to achieve universal health system?

Clearly, a national health insurance system would enable South Africa to ensure that the constitutional right of access to health care is attained; help contain the cost of health care (in both the public and private health sectors). It will further reduce disparities and inequities in access to health care and improve quality of life of many South Africans.


In conclusion, South Africa has come a long way in providing greater access to health care. The country has one of the world renowned Constitution that provides for the realisation of the right to health care. Since 1994, South Africa has made progress in term of realisation of access to basic health care through legislation and policy developments.

South Africa is a member to international and regional instruments. Therefore it is essential that human rights are taken into account when delivering services to ensure quality care. Putting human rights at the heart of the way healthcare services are designed and delivered can make for better services for everyone, with patient and staff experiences reflecting the core values of fairness, respect, equality, dignity and autonomy.

Thank You Honorable Chairperson


1. United Nations System and Human Rights (2004)

2. World Health Organisation (2002)

3. SAHRC (2009)

4. MDG Country report (2010)

5. Dr. S Ngozwana. Providing Affordable Healthcare in an NHI environment. 2009

6. South African Construction (1996)

7. Green Paper (2011)

8. Government Gazette, 11 September 2009.