President Zuma’s commitments set a new ideological standard in South Africa that breaks from previous conceptions of the disease. Former President Thabo Mbeki received widespread criticism for his ideas about the nature and treatment of the epidemic. He is often noted as a denialist of the viral cause of AIDS and the effectiveness of antiretroviral treatment. A Harvard University study reported in The New York Times found that more than 330,000 premature deaths could have been prevented if Mbeki’s administration had backed the provision of antiretroviral drugs to AIDS patients.

Despite Mbeki’s misguided stance, that Jacob Zuma reversed his predecessor’s rhetoric on HIV/AIDS came as somewhat of a surprise. A husband to three wives – an acceptable facet of his Zulu heritage but a risk factor for contracting HIV – and the defendant in a 2006 criminal case for the rape of an HIV-positive friend, he is an improbable leader in the AIDS movement.

But the public announcement of his policy overhaul stands to salvage his reputation and, of course, countless lives. South Africa has the highest prevalence of HIV in the world: UNAIDS/WHO estimate that 5.7 million are infected with HIV, including 3.2 million women and 280,000 children aged 0–14. Zuma’s particular focus on women and children heralds a concrete and strategic approach to curbing the spread of HIV/AIDS. He said that the policy changes to take effect next April would include treatment for all children under one year old who test positive for HIV, with no regard for their CD4 count. Treatment is expanding for other high-risk groups, such as people with tuberculosis and HIV, as well as pregnant women who are HIV positive. Counseling, testing, and treatment would all be part of the care package.

UNAIDS executive director Michel Sidibé spoke at the event before President Zuma took the stage. In his speech he correlated health and human rights, emphasizing in particular the position of women and children. He remarked, “AIDS reveals many fundamental injustices. While mother-to-child transmission is now part of the history books in the North, 390,000 African babies were born infected in 2008. Only half of pregnant women living with HIV in South Africa received treatment to prevent transmission of the virus to their child, even though evidence shows that with full access, we can virtually eliminate HIV infection in newborn babies.”

President Zuma hopes to cut infections in half and provide treatment to at least 80% of HIV/AIDS patients by 2011. It’s a tall order but not insurmountable, especially with aid from countries like the United States, which will give South Africa an additional $120 million over the next two years for AIDS treatments. Zuma’s policy reforms are a milestone in South Africa’s battle with HIV/AIDS, but his ultimate success lies in their translation into practice and implementation. Only then can a more ambitious goal be sought: universal access to treatment.

Photo © Gemma Longman

Many prisoners living with HIV are denied access to adequate antiretroviral drugs, leaving them susceptible to opportunistic infections. Recently, prisoners have increasingly demanded HIV treatment. In 2006, South African inmates launched a hunger strike, demanding that the government provide antiretroviral (ARV) treatment for infected prisoners. In response, Judge Thumba Pillay of the High Court ordered the Department of Correctional Services to adopt a comprehensive HIV/AIDS plan for prisons throughout South Africa. The ruling mandated that prisoners be provided access not only to ARVs but also to health facilities, regular counseling, and adequate nutrition. Unfortunately, this integrated ideal has yet to be translated into practical implementation.

Three years later, inmates at the Westville Correctional Centre, where the hunger strike occurred, and lobbyists from the South Africa-based Treatment Action Campaign (TAC) continue to push for full compliance with the judicial decree. In a recent Plus News article, prisoners remarked on the uneven results of the court order, stating that while ARVs are now more available, the prison support services remain inadequate. Successful ARV treatment therapies depend upon consistent drug regimens and good nutrition, but unsanitary conditions, food shortages, and overcrowding make it difficult for prisoners to benefit fully from the drugs.

According to the United Nations Human Rights Committee, prisoners should have access to medical care equivalent to that available in the community without discrimination on the grounds of their legal status. As the World Health Organization points out in its report Effectiveness of Interventions to Address HIV in Prisons, institutions like the Westville Correctional Centre represent key points of contact with millions of individuals living with or at high risk of HIV infection. This population, normally largely out of the reach of community medical systems, can greatly benefit from care, support, and education. Most inmates will eventually be released, and a comprehensive HIV protocol in prisons can help spread awareness to the larger community.

The 1976 US Supreme Court case Estelle v. Gamble guaranteed inmates’ right to care and held that deliberate indifference to serious medical needs constituted cruel and unusual punishment. Estelle v. Gamble set a precedent for international law, and in 1982 the UN General Assembly adopted a code of Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The code works toward ensuring ARV provision in prisons, where the rate of HIV infection is often higher than that of the general population. In their 2006 guidelines HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings, the WHO and UNAIDS state that “the relationship between prison health and overall public health is fundamental. Reducing the transmission of HIV in prisons is an important element in reducing the spread of infection in the broader society, and should not be left to prison authorities alone to address.”

Although the Treatment Action Campaign is continuing to lobby for better prison treatment plans, a recent IRIN article described the program as poorly budgeted and financially mismanaged, reporting that 40% of HIV-positive people in need of sustained treatment are unable to access ARVs. Activists are calling for a reevaluation of South Africa’s health expenditures and better oversight from the national departments of health and finance.

The level of care provided to HIV-positive patients should not be dictated by their criminal status. Rather, prison policies and national public health policies need to coalesce in order to treat the general epidemic. Government authorities and medical professionals have an ethical responsibility to heed international law, looking beyond the two-fold stigma that comes with being an HIV-positive convict to deliver the best health care possible. The plight of inmates at the Westville Correctional Centre is representative of a larger global dilemma, one that needs to be addressed as both a public health and ethical issue.

Photo by The Humanitarian and Development Partnership Team

Access to an adequate amount of clean water is an integral part of maintaining good health. Unfortunately for the residents of Phiri, Soweto — a low-income community in Johannesburg developed and relegated to black Africans during Apartheid — a ruling made by the South Africa Constitutional Court in a high-profile right-to-water case may limit access to this valuable resource.

The case pitted five impoverished residents of Phiri (the “applicants”) against the City of Johannesburg, Johannesburg Water, and the national Minister for Water Affairs and Forestry (the “respondents”) in a dispute about water provision policies and the installation of a pre-payment water meter system in Phiri. Before consideration by the Constitutional Court, this case had been decided in favor of the Phiri residents by two lower courts. Then on October 8, 2009, the Constitutional Court overturned these earlier decisions and ruled in favor of the respondents — the City, Johannesburg Water, and the Minister. If the poor want water, they will have to pay.

The applicants, all of whom are poor residents of Phiri, brought this case against the City, Johannesburg Water, and the Minister to challenge the adequacy of Johannesburg’s Free Basic Water policy, which allows only 6000 free liters of water per household monthly, or 25 liters per person per day for a household of 8. Households vary in size, but informal settlements sometimes adjoin these houses and share the household’s water stand. (This was the experience of the first applicant, Mrs Lindiwe Mazibuko, who shared a water stand with 19 other “household” members, thus limiting severely each person’s monthly water supply.) They also disputed the legality of installing a pre-paid water meter system in Phiri as part of a water sustainability program known as Operation Gcina’manzi (“to save water”).

Operation Gcina’manzi was implemented as a means to regulate water distribution more closely, decrease non-payment for water in Soweto, and raise money to repair corroded pipelines. After residents use up the monthly allowance of free water, they are required to purchase water from meters that automatically shut off if the consumer cannot afford to pay. The applicants contended that the provision of only 6 free kiloliters of water per month under this system violates section 27 of the Constitution, which provides that “everyone has the right to have access to sufficient water” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

The first ruling in favor of the Phiri residents came from the South Gauteng High Court in April 2008. The High Court deemed the meters to be “unlawful” and “unfair,” given that the City’s water services by-laws did not provide for the installation of pre-payment meters and that the Free Basic Water policy did not meet reasonable standards. It ruled that the City should provide at least 50 liters of free water daily to residents of Phiri. The World Health Organization recommends a minimum of 20 liters of water per person per day for basic survival, and 50 to 100 liters per day per person to meet most health needs.

Upon the respondents’ appeal, the case went to the Supreme Court of Appeal, which also ruled in favor of the applicants but which varied the terms of the ruling. The Supreme Court deemed the pre-paid meters unlawful because they automatically shut off the water supply when the free limit has been reached. However, the Supreme Court suspended that ruling for two years to give the City time to amend its by-laws, denying the residents immediate relief. The Court declared that 25 liters per person per day, or 6 kiloliters monthly per household, was not adequate but then named a necessary amount lower than what the High Court ruled sufficient. The Supreme Court found that “42 litres water per Phiri resident per day would constitute sufficient water in terms of s 27(1) of the Constitution.”

Upset by these terms, the Phiri residents asked for an appeal of the Supreme Court ruling in order to reinstate the High Court order. Although the applicants agreed with the Supreme Court that the pre-paid meters were unlawful, they disagreed that the Court should suspend the order for two years to allow the City to rectify its by-laws. The applicants also disagreed with the Supreme Court’s minimum water quota per person per day. Instead of 42 liters, the applicants deemed 50 liters per Phiri resident per day to be the minimum need, as the High Court had ruled. The respondents sought permission to cross appeal, and the case went to the Constitutional Court.

In a highly controversial shift of legal opinion, the Constitutional Court found the actions of the City and its water service programs to be constitutionally sound. The Court recognized that the City is, in fact, working toward the “progressive realisation” of the achievement of access to sufficient water, but that it will take time for everyone to have adequate access. Also, the Court found that quantifying a sufficient amount of water is not an appropriate matter for a court to handle. The exact quantity should be decided on by the government, the Court argued, which has already developed a protocol accounting for 6 kiloliters per month. The Court also deemed that the City was authorized to install pre-paid meters based on the City’s by-laws and national legislation.

The case is the first instance in which the court has had to make a judgment on access to and sufficiency of water. It creates a deep rift between impoverished residents of South Africa and the state that governs them. It also undermines the ability of poor residents to advocate effectively for a basic human need in a country whose young Constitution is a model for the developing world. Human rights advocates say as much, while others express careful acceptance of the final terms. The damaging outcome of the case, as well as its twists and turns along the way, indicate that South Africa’s two post-Apartheid priorities — the rights of its people and the rule of law — cannot be reconciled just yet.

To read the press release from the Centre for Applied Legal Studies:

CALS Press Release on Judgment

To read the entire judgment:

Constitutional Court Judgment

Further reading:

Timeline of Events

The late Dr. Mann was well out in front of most other human rights “professionals” when it came to his analysis and dissection of basic human rights — and in particular as they relate to the intersection of health and society. (Mann does such an elegant job of expressing this in the program that I will refrain from further comment). You can view the entire episode at the end of this post. The difficulties we faced in producing the show at all is a long story. But we think it’s worth sharing with HHR readers who might think that health and human rights issues are taken for granted at the global level.

In 1991, my then-fledgling media company Globalvision announced plans to create and distribute the world’s first television series dedicated exclusively to coverage of human rights issues around the world. We had just wrapped up production of our first weekly international newsmagazine South Africa Now, which focused on the many untold stories and unsung heroes of that country’s inspiring and under-reported liberation struggle, and we were anxious for a new challenge.

Producing South Africa Now, which aired weekly between 1988 and 1991 on 150 public television stations in the United States and on leading broadcast systems in sixteen other countries, had never been easy — in part because America’s Public Broadcasting Service (PBS) and its parent CPB, the Corporation for Public Broadcasting, refused to have anything to do with the program, deeming it too “controversial” for the public airwaves. The decision meant that we had to raise all the money necessary to produce and promote the program. It also meant we had to distribute it ourselves, station by station, instead of PBS delivering it centrally to the entire three hundred and thirty station system.

In addition, the white minority government then in power in South Africa refused even to let us into the country, which meant we had to produce a show every week about a country thousands of miles away to which we had little access, and which had imposed stringent restrictions on all media coverage of its activities. Finally, we were attacked by conservative elements in our own country as well as in South Africa, and charged with being “advocates not journalists” and even “hard-core Marxist propagandists.” Despite the many roadblocks placed in our path, however, we persevered and eventually succeeded in producing an award-winning, critically acclaimed program about important human rights-related topics that was regularly seen by millions of people — and which, to our surprise and joy, many South Africans credited with playing a positive role in bringing about the (mostly) peaceful and democratic transformation of their country.

Having produced against all odds a successful weekly program about apartheid, we thought it would be a relatively easy matter to create a new program, which would expand our human rights coverage beyond southern Africa to encompass the rest of the world. Little did we know…

Our first problem was with the public broadcasting system itself. PBS executives steadfastly refused to consider backing a weekly program about human rights, despite the global acclaim that had accompanied our previous effort. Pressed for an explanation, they eventually provided one: human rights, PBS programmers told us, was “an insufficient organizing principle for a television series.” Unlike cooking, stock tips, or purple dinosaurs, apparently!

Once again, however, we were undeterred, and again we resolved to produce, promote and distribute the series ourselves. We raised hundreds of thousands of dollars from leading foundations who saw the need PBS was blind to. We went back to all the individual public television stations that had carried South Africa Now and told them we had a new and better weekly program to offer. Most agreed to air the new program, based on our strong track record of delivering weekly credible news about important topics unavailable elsewhere. It was clear to them that, despite the ludicrous stance of PBS, there was plenty of interest in human rights programming among American viewers. Nor was that interest limited to the United States — soon broadcasters in more than sixty other countries around the world were airing our new weekly series about international human rights issues, which we dubbed Rights & Wrongs: Human Rights Television. That’s when the next set of problems began…

This time, to our astonishment, the naysayers were led by executives at prominent human rights organizations, who expressed concern that a program about human rights would be produced by a team of journalists with no formal standing or training in human rights issues or policy formulation. They were concerned on many counts: that we might misreport human rights news, thus sullying their own well-deserved reputations and enviable record of impeccable reportage; that we would be insufficiently attuned to the many nuances of human rights work; that we might inadvertently use the wrong vocabulary in describing human rights abuses. But most of all, it turned out, they were afraid that we would employ a more expansive definition of what human rights actually are than they did — and they were right!

Soon I was regularly banging heads with the leaders of powerful international human rights groups. They wanted to keep the focus of Rights & Wrongs exclusively on civil and political rights; we were equally interested in looking at the social and cultural side of the human rights equation. We wanted to explore issues like workers’ rights and women’s rights; they were appalled and thought this was evidence that their initial fears had been well-founded, that we were simply laymen and certainly not sophisticated enough or professional enough to be covering “their issues.” The matter eventually came to a head over one particular program we wanted to create, which would explore the revolutionary ideas then being formulated by a visionary at Harvard named Jonathan Mann.

Despite the opposition of the human rights groups, we went ahead in 1995 and produced our “Health and Human Rights” edition of Rights & Wrongs.

As you can see, even relatively enlightened and forward-looking human rights executives, such as Kenneth Roth of Human Rights Watch, who was interviewed at length, expressed reservations about the links that Mann was making to societal status and ill health, and to his overall claims regarding health and human rights. Roth’s reservations are echoed to this day in many human rights circles.

Well, go ahead and call me unprofessional. Say I’m a layman who doesn’t understand the nuances. Denounce me as an advocate and not a journalist. Hell, you can even call me a hard-core Marxist propagandist if you like. Just don’t try to tell me that equal access to quality health care isn’t a basic human right! And of course, don’t take my word for it—listen and see for yourself, as the late, great Jonathan Mann lays it all out brilliantly in an interview that, I hope you will agree, is still relevant — perhaps more than ever — even a decade after it was recorded.

— Rory O’Connor was the co-creator and Executive Producer of Rights & Wrongs: Human Rights Television. His popular Media Is A Plural blog is accessible at: http://www.roryoconnor.org.