The Right to Health and a new Zimbabwean Constitution

The Constitution and The Right to Health

The constitution is the supreme law of Zimbabwe. It is the highest law of the land because it is superior to all other laws passed by parliament. It defines the structure, procedures, powers (extent and limitation) and duties of government. The constitution also sets out the rights of citizens in the country which the government is obligated to respect, protect and fulfill. The principles and rules for the relationship between government and citizens, including how government is elected, are also contained in the constitution.


A New Constitution

Zimbabwe’s current constitution - the Lancaster House constitution - is flawed and best price for generic cialis advice inadequate and the country is in need of a new constitution based on a popular, participatory process. A previous attempt at reforming the constitution led to the referendum of February 2000 which rejected the draft constitution produced by the Constitutional Commission.
The current constitution making process under Article 6 of the Inter-party Political Agreement commenced in April 2009 with the appointment of a Select Committee of Parliament that shall oversee public consultation and the writing of a new constitution.

The constitutional reform process as set out in Article 6 of the Inter-party Political Agreement is not independently driven. However, it still provides an opportunity for reform of the Zimbabwean Constitution. It is a process through which the current shortcomings such as the lack of protections for economic, social and cultural rights, including the right to health can be addressed.

The Right to Health

The right to health is “the right to enjoyment of the highest attainable standard of physical and mental health.”  Key components of the right to health include timely and appropriate health care; adequate supply of safe water, basic sanitation, nutrition and housing; maternal, child and propecia online usa reproductive health; participation in health-related decision making and access to health related information.

Why guarantee the Right to Health in a new Zimbabwean Constitution?

The following are some of the reasons why the right to health should be included in the Constitution:
A legal framework for protecting and promoting health is important. This is why there are laws such as the Public Health Act and Medical Services Act which regulate health services in the country. Similarly a legal framework for health as a human right is necessary. As the constitution is the supreme law of the country, this is where the guarantee for the right to health should begin.
Government has committed itself to fulfilling the right to health by being party to various regional and international treaties which guarantee the right to health. Including the right to health in a new constitution will bring Zimbabwe into compliance with the regional and international treaties that it is party to and affirm government’s commitment to the health of its citizens.
Having the  right to health guaranteed by the highest law in the land will empower Zimbabweans to demand protection of the right to health and to ask political leaders to justify policy decisions that they make that negatively impact vulnerable groups and online order viagra are contrary to the constitution. It will also be possible to challenge such policies and laws that violate the right to health in court.
Economic, social and cultural rights are just as important as civil and political rights. The right to health must be guaranteed just as the right to freedom of expression, association and assembly are protected.

Possibilities for Protection

More than 115 constitutions recognise the right to health or the right to health care including Ghana, South Africa, India, Brazil and Venezuela. It is usually included in the constitution in one of the following ways:
As part of a Preamble/ National Objectives
The right to health can be stated as a guiding principle of state policy at the beginning of a constitution. This is better than the right to health being left out completely, but it does not place any enforceable obligation upon government to take any legal or administrative measures to realise this right or to ensure that there are no infringements on this right. Both the Constitutional Commission draft of 2000 and the Kariba draft include the right to health in the national objectives.
In the Bill of Rights
Protecting the right to health within a justiciable bill of rights means it is enforceable and can actually be claimed unlike rights stated as part of ‘National Objectives’. Justiciable rights means the rights are protected in a way that a court of law can enforce them and compel the government to meet its obligations.
This is a preferable option for inclusion of the right to health in a new Zimbabwean constitution.

South Africa’s Constitution: A Constitutional Model for the Right to Health

South Africa’s constitution contains a Bill of Rights which “applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.” Within the Bill of Rights, Article 27 states that:
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 dependants, appropriate social assistance.

The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. No one may be refused emergency medical treatment.

South Africa’s constitution obliges the State to act positively to provide access to health care, sufficient food and water, and  social security to  those unable to support themselves and their dependents. It makes it clear that the State is not obliged to go beyond its available resources. The constitution obliges the State to give effect to these rights and South African courts can and have enforced them.
In 2001, the Treatment Action Campaign (TAC), a coalition of South African AIDS-related organisations took the South African government to court challenging a government policy to allow only two hospitals per province to provide the drug nevirapine to patients. Nevirapine is used to prevent mother to child transmission of HIV.

TAC alleged that the South African government was in violation of the right to access health care and demanded that the government make nevirapine available at more facilities throughout the country. In July 2002 the South African Constitutional Court affirmed that the government’s policy violated the country’s constitutional provision of the right to health care for women and their children, and that the delay in expanding distribution could not be justified by the argument of progressive realisation and available resources. The South African Government was required to make the drug available to infected mothers and outline plans to achieve this.

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