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The Right to Health in an African Cultural Context: The Role of Ubuntu in the Realization of the Right to Health with Special Reference to South Africa

  • Chuma Himonga
Abstract

The article examines the realization of the right to health through the African concept of ubuntu. It attempts to show that ubuntu plays or ought to play a significant role in the realization of the right to health. This argument is advanced by identifying the attributes of ubuntu relevant to the implementation of the right to health and then applying these attributes to practical scenarios to operationalize the right to health. South Africa is used as a special point of reference because of the jurisprudence on ubuntu that has emerged there since 1994.

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1 For example, Ibhawoh, BBetween culture and constitution” (2000) 22 Human Rights Quarterly 838; Chan, KFrom legal universalism to legal pluralism: Expanding and enhancing the human rights approach to HIV/AIDS” (2005) 21 South African Journal of Human Rights 191 at 192.

2 T Lindholm The Cross-Cultural Legitimacy of Human Rights: Prospects for Research (1994, Norwegian Institute of Human Rights), cited by Ibhawoh, id at 840. See also Kaime, TThe African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective (2009, Pretoria University Law Press) at 3637.

3 Ibhawoh, ibid.

4 Ibid.

5 Ibid.

6 Ibid.

7 See, for example, An-Na'im, ACultural transformation and normative consensus on the best interests of the child” (1994) 8 International Journal of Law and the Family 62 at 6471; wa Mutua, MThe Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties” (1994–95) 35 Virginia Journal of International Law 339; Ibhawoh “Between culture and constitution”, above at note 1.

8 Shivji, IThe Concept of Human Rights (1989 Codesaria book series) at 1112.

9 See references above at note 7.

10 From the literature review, this period covers much of the writing on the legal aspects of ubuntu.

11 For one of the most comprehensive analyses of cases involving ubuntu, see Keep, H and Midgley, RThe emerging role of ubuntu-botho in developing a consensual South African legal culture” in Bruinsma, F and Nelken, D (eds) Explorations in Legal Cultures (2007, Reed Business) 29.

12 For example, Eide, AEconomic and social rights” in Symonides, J (ed) Human Rights: Concept and Standards (2000, UNESCO Publishing/Ashgate) 109; Liebenberg, SSocio-Economic Rights Adjudication Under a Transformative Constitution (2010, Juta); Meier, BM and Mori, LMThe highest attainable standard advancing a collective human right to public health” (2005–06) 37 Columbia Human Rights Law Review 101.

13 For example, Toebes, BThe Right to Health as a Human Right in International Law (1999, Intersentia Antwerp); Chirwa, DThe right to health in international law: Its implications for the obligations of state and non-state actors in ensuring access to essential medicine” (2003) 19 South African Journal of Human Rights 541; Committee on the Economic, Social and Cultural Rights, General Comment 14: “The right to the highest attainable standard of health”: 11/08/2000, E/C.12/2000/4 (Comment 14).

14 See generally, Toebes, id at 15–26; Bilchitz, DGiving socio-economic rights teeth: The minimum core and its importance” (2002) 119 South African Law Journal 484.

15 See generally Toebes, id at 275–78.

16 Id at 276.

17 Id at 244.

18 Comment 14, above at note 13, paras 43–45.

19 Toebes The Right to Health, above at note 13 at 276.

20 Id at 284.

21 Id at 15–26 and 17–18; Chirwa “The right to health in international law”, above at note 13 at 544.

22 Toebes, id at 18.

23 For a discussion of other reasons why the term “right to health” is preferable, see Toebes, id at 17–19.

24 Id at 24–25.

25 Id at 25.

26 Comment 14, above at note 13 at note 2.

27 Id, at note 11.

28 Ibid. See also Toebes The Right to Health, above at note 13 at 245–46.

29 Meier and Mori “The highest attainable standard”, above at note 12 at 114.

30 Eide “Economic and social rights”, above at note 12.

31 Id at 123.

32 Mutua “The Banjul Charter”, above at note 7 at 359.

33 Id at 360.

34 Id at 359.

35 Id at 368.

36 Id at 363.

37 See Mutua's allusion to the controversy, id at 376.

38 For example, the preamble requires that state parties take “into consideration the virtues of their historical traditions and values of African civilisation which should inspire and characterise their reflection on the concept of human and peoples' rights”. Various other provisions of the Charter confer rights on “people”.

39 Mutua “The Banjul Charter”, above at note 7 at 376.

40 Ibid.

41 Id at 377.

42 Id at 377–78.

43 Id at 376 at note 144.

44 Id at 376.

45 N Bohler-Muller “The story of an African value” (paper presented at the Conference on Retrospective – Ten Years After Makwanyane, Pretoria, University of South Africa, 14–15 February 2005).

46 Chan “From legal universalism to legal pluralism”, above at note 1.

47 The Constitution, sec 38.

48 Id, sec 27(1). For obiter dictum on this section, see Soobramoney v The Minister of Health, Kwazulu-Natal 1997 (12) BCLR 1696 (CC) at paras 25–36.

49 Id, sec 27(3), which was interpreted in Soobramoney ibid.

50 Id, sec 27(2).

51 Liebenberg Socio-Economic Rights Adjudication, above at note 12 at 37.

52 Toebes The Right to Health, above at note 13 at 275.

53 Meier and Mori “The highest attainable standard”, above at note 12.

54 Id at 135.

55 Id at 117.

56 Gyekye, KTraditional and Modernity: Philosophical Reflections on the African Experience (1997, Oxford University Press) at 45 (emphasis added).

57 It would however be interesting to establish empirically the extent to which the individualistic normative impulse and the communitarian ethic hold out in practice in health rights contexts. For example, are there instances in practice that clearly indicate the prioritization of the individual or absence of considerations of community in the implementation of the right to health?

58 Act 200 of 1993, postamble.

59 See postamble to the 1993 Interim Constitution of the Republic of South Africa.

60 Examples are cited by Mutua “The Banjul Charter”, above at note 7 at 359–64. However, further research is needed to identify concepts similar to ubuntu among African tribes other than the Bantu or “tribes” with “Untu” origin that could be applicable to the whole of Africa. At the same time it should be noted that arguments that deny ubuntu's African origin (see van Binsbergen, WMJUbuntu and the globalisation of southern African thought and society” (2001) XV 12Quest 53) are fiercely contested; see Bewaji, JAL and Ramose, MBThe Bewaji, van Binsbergen and Ramose debate on ubuntu” (2003) 22(4) South African Journal of Philosophy 378.

61 For example in the speech she delivered at the Future of the Ubuntu Project Workshop, Pretoria, University of Pretoria, 19 August 2010.

62 See S v Makwanyane 1995 (3) SA 391 CC, para 224.

63 Gyekye Traditional and Modernity, above at note 56 at 45.

64 Id at 44.

65 Louw, DJThe African concept of ubuntu and restorative justice” in Sullivan, D and Tifft, L (eds) Handbook of Restorative Justice (2008, Routledge) 161 at 165.

66 For a discussion of this concept in relation to South African law, see Himonga, CThe future of living customary law in African legal systems in the twenty-first century and beyond, with special reference to South Africa” in Fenrich, J et al. (eds) The Future of African Customary Law (2011, Cambridge University Press) 31.

67 Binsbergen “Ubuntu and the globalisation”, above at note 60.

68 Mbiti, JSAfrican Religions and Philosophy (1969, Heinmann) at 108–10, cited by Munyaku, M and Motlhabi, MUbuntu and its socio-moral significance” in Murove, MF (ed) African Ethics: An Anthology of Comparative and Applied Ethics (2009, University of KwaZulu-Natal Press) 63 at 68.

69 Gyekye Traditional and Modernity, above at note 56 at 38.

70 Ibid.

71 Id at 40.

72 See also S v Makwanyane, above at note 62.

73 Gyekye Traditional and Modernity, above at note 56 at 33–39.

74 This is expressed by the Akan proverb: “When a human being descends from heaven, he descends into a human society”: id at 38.

75 Ibid.

76 Ibid.

77 Id at 40 and 41.

78 Ibid.

79 Id at 37.

80 Ibid.

81 Id at 41.

82 Ibid (emphasis added).

83 Above at note 62, para 224.

84 Other examples are Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); City of Johannesburg v Rand Properties (Pty) Ltd 2007 (1) SA 78 (W); and Dikoko v Mokhatla 2006 (6) SA 235 (CC).

85 S v Makwanyane, above at note 62, para 308.

86 Above at note 84.

87 Id, para 37.

88 Above at note 84, para 63, also para 62.

89 See Chirongoma, S et al. “Ubuntu and women's health agency in contemporary South Africa” in de Gruchy, S, Koopman, N and Strijbos, S (eds) From Our Side: Emerging Perspectives Development and Ethics (2008, Rozenberg) 189 at 194; Munyaka and Mothlhabi “Ubuntu and its socio-moral significance”, above at note 68 at 64.

90 Munyaka and Mothlhabi, id at 66.

91 Above at note 62, paras 225 and 308.

92 Id, para 224.

93 Munyaka and Mothlhabi “Ubuntu and its socio-moral significance”, above at note 68 at 71.

94 Gyekye Traditional and Modernity, above at note 56 at 67.

95 Id at 44.

96 Id at 69.

97 Ibid.

98 Cornell, DExploring ubuntu: Tentative reflections” (2005) 5 African Human Rights Law Journal 195 at 206.

99 Mutua “The Banjul Charter”, above at note 7 at 368.

100 See M Pillay in conversation with Vergnani, TChallenging stigma in the context of HIV/AIDS: Towards integrating individual and societal interventions strategies” in de Gruchy et al. From Our Side, above at note 89, 209 at 219.

101 Shutte, AUbuntu as the African ethical vision” in Murove, M (ed) African Ethics, above at note 68, 63 at 98.

102 See the Constitution, sec 1.

103 Above at note 84, para 15.

104 This argument also seems to be implied by Keep and Midgley “The emerging role of ubuntu-botho”, above at note 11 at 34–35.

105 Id at 19.

106 Above at note 84, para 68.

107 Id, para 109.

108 Id, para 112.

109 Id, paras 112–13. See also S v Joyce Maluleki, Pretoria High Court 83/04, 13 June 2006 for a creative use of ubuntu in combining “a suspended custodial sentence with an apology from a senior representative of the family of the accused, as requested and acknowledged by the mother of the deceased” (cited in Dikoko v Mokhatla, above at note 84, para 115).

110 Keep and Midgely “The emerging role of ubuntu-botho”, above at note 11 at 48–49.

111 For example, English, RUbuntu: The quest for an indigenous jurisprudence cases and comments” (1996) 12 South African Journal of Human Rights 641 at 648. Interestingly, Bohler-Muller “The story of an African value”, above at note 45 at 14, disagrees with this criticism and describes it as the “type of western hegemonic thinking which renders anything ‘other’ as threatening, useless or inferior”. The author agrees with this assessment.

112 Keep and Midgely “The emerging role of ubuntu-botho”, above at note 11 at 35.

113 Metz, THuman dignity, capital punishment and an African moral theory: Toward a new philosophy of human rights” (2010) 9 Journal of Human Rights 81.

114 See C Himonga “Ubuntu in the South African legal system” (paper presented at 33rd Conference of Comparative Law, Trier, 15–17 September 2011).

115 Metz “Human dignity, capital punishment”, above at note 113 at 93.

116 Id at 94.

117 Ibid (emphasis original). It should be noted that Metz uses friendship not in the ordinary meaning of this word, but in normative terms, ie he attributes normativity to the words “friend” and “friendship”.

118 Ibid.

119 It has been noted, for example, that 50% of the South African population lives in rural areas and that the poverty rate in these areas is as high as 71%. See Singh, JA et al. “South Africa a decade after apartheid: Realising health through human rights” (2005) 3 Georgetown Journal on Poverty Law and Policy 355 at 357.

120 Schachter defines human dignity as a person's “inherent dignity” or “intrinsic worth”, and respect for “intrinsic worth” or “inherent dignity” of a person as having “both a subjective aspect (how one feels or thinks about another) and an objective aspect (how one treats another). It requires recognition that the person is entitled to have his or her beliefs, attitudes, ideas and feelings”; see Schachter, OHuman dignity as a normative concept” (1983) 77 American Journal of International Law 848 at 849 and 850.

121 Id at 851.

122 Id at 850–51.

123 Id at 850.

124 Metz “Human dignity, capital punishment”, above at note 113 at 95–96.

125 Liebenberg, SThe value of human dignity in interpreting socio-economic rights” (2005) 21/1South African Journal of Human Rights 1 at 9.

126 Id at 5.

127 Id at 6 (the quotes within the passage are from the same page).

128 Sec 39(3).

129 For example, secs 30, 31 and 211.

130 S v Makwanyane, above at note 62, para 366.

131 Comment 14, above at note 13 at 1.

132 Schachter “Human dignity”, above at note 120 at 853.

133 Id at 854.

134 Toebes The Right to Health, above at note 13 at 273–75.

135 Id at 274.

136 The right to health in all these cases would most likely be invoked by the state against the individuals seen to pose a threat to the general public's right to health. Toebes, ibid, cites cases in which some of these claims have been made successfully by some countries in Europe.

137 A case in point in South Africa is Hoffman v South African Airways [2000] 12 BLLR 1365 (CC).

138 Liebenberg “The value of human dignity”, above at note 125 at 3.

139 London, LWhat is a human-rights based approach to health and does it matter” (2008) 10/1Health and Human Rights 1 at 70; London, LIssues of equity are also issues of rights: Lessons from experiences in southern Africa” (2007) 7 BMC Public Health 14 at 14.

140 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).

141 London “Issues of equity”, above at note 139; Chan “From legal universalism to legal pluralism”, above at note 1.

142 Comment 14, above at note 13.

143 Above at note 84, para 63.

144 Act 19 of 1998.

145 Port Elizabeth, above at note 84, para 37.

146 See also City of Johannesburg, above at note 84, in which the High Court, basing its reasoning on ubuntu, stated at 63: “The accumulation of wealth and material possessions should not rob us of our warmth, hospitality and genuine interests in each other as human beings” (emphasis added). This reasoning underscores the ubuntu communitarian ethic and attributes of interdependence and solidarity.

147 Above at note 137.

148 Id, para 38.

149 Above at note 140.

150 The others were Minister of Health and Others v Treatment Action Campaign (No 1) 2002 (5) 721 and Treatment Action Campaign v Minister of Health 2005 (6) SA 363 (T).

151 For example, London “What is a human-rights based approach”, above at note 139; London “Issues of equity”, above at note 139; Chan “From legal universalism to legal pluralism”, above at note 1 at 201.

152 Chan, ibid.

153 Treatment Action Campaign, above at note 140; Chan, ibid.

154 Treatment Action Campaign, ibid; Chan, ibid.

155 Chan, ibid.

156 London “What is a human-rights based approach”, above at note 139; London “Issues of equity”, above at note 139.

157 The Constitution, sec 27.

158 In this case, the LRC defended Mrs Meltafa along with two other plaintiffs.

159 The Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government, Member of the Executive Council for Welfare, Eastern Cape Provisional Government v MN Ngxuza, NM Meltafa, S Mboyiya case no 493/2000 (Supreme Court of Appeal, unreported). Confirmed by the director of the LRC, Grahams town, Eastern Cape, who represented the matter in court (email on file with the author). The matter in court turned on the question of legal standing in a class action; see Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and Another 2001 (2) SA 607 (E) 609.

160 2005 (1) SA 580 (CC).

161 The Constitution, sec 39(2).

162 Bhe, above at note 160, para 163.

163 Chirongoma et al “Ubuntu and women's health agency”, above at note 89 at 195, where he states: “The health and well-being of the individuals and the whole community is everyone's concern. The sickness of one community member affects the well-being of the entire community and everyone will try to assist the individual who has fallen ill. [Thus] the sick individual is never alone; he/she remains connected to the people through their concern with restoring his/her health.”

164 Binsbergen “Ubuntu and the globalisation”, above at note 60; and Bewaji and Ramose “The Bewaji, van Binsbergen and Ramose debate”, above at note 60.

165 Binsbergen, id at 77.

166 Id at 69–72.

167 Id at 75–76.

168 Louw “The African concept of ubuntu”, above at note 65 at 162.

169 Binsbergen “Ubuntu and the globalisation”, above at note 60 at 78.

* Professor of law, and holder of the Chair in Customary Law, University of Cape Town. The author would like to acknowledge his colleagues, especially Profs Leslie London and Anne Pope, for their insightful comments on earlier drafts of this article. Research for this article was conducted under, and funded by, the Programme for Enhancement of Research at the University of Cape Town. The author thanks the university for the funding.

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