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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

Published online by Cambridge University Press:  13 August 2013

Chuma Himonga
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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.

Information

Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 2 , October 2013, pp. 165 - 195
Copyright
Copyright © School of Oriental and African Studies 2013 

INTRODUCTION

The need to enhance the implementation of human rights in Africa is probably one of the most important reasons for investigating the role African concepts, such as ubuntu, can play in realizing these rights. Studies have shown that one of the challenges to enforcing human rights in Africa is the lack of cultural legitimacy of the rights among the people intended to benefit from them.Footnote 1 This problem, which in turn leads to the people concerned rejecting the rights, arises in part from the conceptual difference between “western” and “African” approaches to rights regarding, in particular, the notions of individualism and communitarianism respectively. Arguably, concepts such as ubuntu, which mitigates against western individualism, have the potential to enhance the cultural legitimacy of human rights and their enforceability in African societies.

This article adopts Lindholm's common-sense approach definition of the cultural legitimacy of human rights: “the kinds and degrees of support for human rights standards and for their implementation in ‘culture(s)’ – be it ‘micro-cultures’ of villages or tribes, or ‘subcultures’ of professions and social classes, or ‘national cultures’, or ‘regional cultures’”.Footnote 2

According to Ibhawoh, this common-sense definition avoids the risk of complicating “what should otherwise be a simple and straightforward discourse”.Footnote 3 The complication arises from the conceptual ambiguities of “culture” and “cultural legitimacy” against “the background of rivalling theories of culture”,Footnote 4 which in turn create the need for precise definitions of the concepts concerned.Footnote 5 Ibhawoh implicitly argues, in the author's view correctly, that, while precision in the definitions of the concepts of culture and cultural legitimacy may “be useful in putting the discourse in perspective”, it is not necessary for the purposes of understanding the acceptance or otherwise of human rights in different cultural contexts.Footnote 6 What is important is that the “western” / “African” conceptual difference to rights has the potential, if not the capacity, to influence the reception and, therefore, the realization of human rights in different societies (in this case, “western” and “African”).

The issues of conceptual differences in approaches to human rights and cultural legitimacy are closely connected to the historical roots of human rights in the theory and political thought of countries of the west and America,Footnote 7 to the consequent exclusion of African and other non-western societies in the formulation of these rights.Footnote 8

The broad motivation for this article is to contribute to the body of scholarship that advocates for the inclusion of non-western ideas and cultural experiences in the concept of universal human rights,Footnote 9 and to re-examine the western knowledge hegemony on human rights with a view to improving the enforceability of human rights in Africa. The major aim of the article is to consider the role ubuntu plays, or ought to play, in informing the right to health, its interpretation and implementation.

First, the article outlines the normative sources of the right to health and the incorporation of ubuntu in the regional sources. It then discusses the concept of ubuntu and its attributes, before exploring the idea of ubuntu as a constitutional value and showing how ubuntu could be used to realize the right to health. The article then reflects on the limitations and dangers of ubuntu.

The jurisprudence referred to covers the period from 1994 to 2007,Footnote 10 and some is drawn from areas other than health, which is justified by the dearth of relevant jurisprudence.Footnote 11

THE LEGAL FRAMEWORK OF THE RIGHT TO HEALTH AND THE INCORPORATION OF UBUNTU

A detailed discussion of the right to health is beyond the scope of this article. In any case, such a discussion is unnecessary. A considerable body of literature on socio-economic rights, of which the right to health is a part, already exists.Footnote 12 Moreover, the right to health itself is well-covered.Footnote 13 Therefore, this section simply discusses legal provisions on the right to health relevant to understanding the role of ubuntu.

However, it is necessary to draw attention to the fact that the “right to health” is not free from controversy.Footnote 14 Among the major areas of concern is the definition of the concept of the “minimum core content” of the right to health.Footnote 15 This concept is supposed to define the essence of the right without which it loses its valueFootnote 16 and which states are obliged to realize notwithstanding their financial resources.Footnote 17 However, this raises other issues about the subjective nature of health and the difficulty of identifying the “minimum” in “health” that states should be obliged to provide to their citizens. In light of the uncertainty about the content of the minimum core concept, this article adopts the meaning attached to it by the Committee on Economic, Social and Cultural Rights (the Committee).Footnote 18 Another motivation for this choice is that the definition includes access to basic shelter and housing. As shown later, these are underlying determinants of health to which ubuntu has been applied. It should be noted, however, that some authors exclude some of the determinants of health, such as adequate housing, food supply and proper nutrition,Footnote 19 from the definition of the “minimum core” content of the right to health.Footnote 20

The “right to health” terminology

The term “right to health” is said to be used in international law as an abbreviated expression of various aspects of health rights.Footnote 21 Furthermore, the term is considered to be broader than other competing terms, such as the “right to health care” which is included in the right to health. It also corresponds most closely with the term “right to the highest attainable standard of health” in article 12 of the International Covenant on Economic, Social and Cultural Rights” (ICESCR),Footnote 22 an article that has had the most influence on the formulation of the right to health in various human rights documents. For these reasons,Footnote 23 this article adopts this term to refer to various formulations of health rights in international and domestic law.

With regard to the meaning of the term “health” in the context of the right to health, Toebes holds the view that, rather than define this term in abstract, it is more helpful “to look for the use or application of the right to health in practice”.Footnote 24 We should, furthermore, “attempt to clarify which elements are contained in the right to health and what specific use it has on the basis of the treaty texts, the existing case law and the human rights discourse”.Footnote 25

Normative sources

This section outlines the right to health at international, regional (African) and national levels.

International level

The most comprehensive provision of the right to health at international level is contained in the ICESCR.Footnote 26 This provision is also said to be the most important in influencing the formulation of health rights provisions in international, regional and domestic laws.Footnote 27

Article 12 of the ICESCR states: “[s]tate parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Committee has interpreted this right to include both timely and appropriate health care and the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition, housing, healthy occupational and environmental conditions, and access to health related education and information. Also included in the right to health is participation by the population in all health-related decision-making at community, national and international levels.Footnote 28 This article adopts the Committee's interpretation of the content of the right to health as the most authoritative. Furthermore, the Committee's inclusion of the underlying determinants of health and the population's participation in decision-making in the right to health enhances the argument on ubuntu's role in the realization of the right to health later in the article.

It is noteworthy that the socio-economic rights introduced by article 12 are not justiciable, but mere goals for state action.Footnote 29 In other words, the rights are reduced to the category of “directive principles” to guide states in designing domestic legislation and other decision-making concerning the specific rights being implemented.Footnote 30 The method of realizing the rights concerned then becomes one of demands for “better application of the directive principles”.Footnote 31

Regional level

The African Charter on Human and Peoples' Rights (the Charter) contains some provisions on the right to health that are doubly important for the purposes of this article, because they are directly linked to the attributes of ubuntu and consequently to the realization of the right to health.

Article 16(1) and (2) of the Charter states that “every individual shall have the right to enjoy the best attainable state of physical and mental health” and that states parties “shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick”. This right must be understood against the backdrop of articles 27–29 of the Charter and its preamble which introduce the concepts of duty and peoples' rights. These concepts in turn directly implicate the concept of ubuntu in that they encompass several of its attributes.

The articles under consideration introduce the following duties of the individual, among others: the duty towards his family and society; the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance; the duty to preserve harmonious development of the family; the duty to respect his parents at all times and maintain them in case of need; the duty to serve his national community; the duty to preserve and strengthen social and national solidarity; and the duty to preserve and strengthen positive cultural values in his association with other members of society in the spirit of tolerance, dialogue and consultation. These duties resonate with communalism.

While the concept of duty is controversial and has not escaped criticism,Footnote 32 Mutua sees it as the flipside of rights or as “facets of the same reality”.Footnote 33 Arguably his concept of duty suggests a framework that links ubuntu to the African concept of human rights as articulated in the Charter. Central to this framework is Mutua's idea that “the concept of duty in pre-colonial African societies provides a basis for conceptualizing a unitary, integrated conception of human rights in which the extreme individualism of current human rights norms is tempered by the individual's obligation to the society”.Footnote 34 Furthermore, Mutua views articles 27 to 29 as representing an attempt to “recreate the bonds of the pre-colonial era among individuals and between individuals and the state”, on the one hand, and a rejection of the idea of an “individual who is utterly free and utterly irresponsible and opposed to society,” on the other.Footnote 35 He also argues that the idea that the individual as a moral being has rights and duties was an articulation of rights in pre-colonial African societies, and that this African world view and the cultural normative values it represents have not been eroded by changes in culture.Footnote 36

Thus, the idea of an individual who is endowed with rights but also bears duties connects the concept of human rights in the Charter to the various attributes of ubuntu, such as the communitarian ethic, interdependence, solidarity and the collective or community, that emphasize the notion of the individual as an integral member of a group, as well as to ubuntu's attribute of responsibility. These attributes are discussed in the next section.

The equally controversialFootnote 37 concept of “peoples' rights”Footnote 38 is arguably linked to ubuntu through the latter's attribute of community. According to Mutua, peoples' rights as a concept in African philosophy sees individual human beings “primarily as social beings embraced in the body of the community”.Footnote 39 The argument which saw the inclusion of the concept of peoples' rights in the Charter was that “individual rights could only be justified in the context of the rights of the community”.Footnote 40 Furthermore, Mutua argues that the dialectic between individual and people's rights “is one of the bases for the Charter's imposition of duties on individuals”.Footnote 41 He continues: “[s]olidarity between the individual and the greater society safeguards collective rights, without which individual rights would be unattainable.”Footnote 42 This relationship between individual and collective rights is, admittedly, rooted in traditional social contexts.Footnote 43 Nevertheless, it is still considered to be applicable to many Africans today.Footnote 44

From this analysis of the Charter emerge the concepts of duty and “people's rights”, which share several attributes of ubuntu. Furthermore, by placing duties on the individual, the Charter underscores the central feature of ubuntu, which some have labelled “group-centred individualism”, that upholds the “importance of the individual interests, but always contextualises these interests by emphasising their effect on the group”.Footnote 45 Thus ubuntu resonates with, and is already poised to support, the realization of the right to health at regional level through the concepts of “duty” and “people's rights” encompassed by the Charter. Put differently, the various aspects of ubuntu are linked to the rights framework constituted by the concepts of “duty” and “peoples' rights” in the Charter.

It may be argued that ubuntu is more easily lived when the group is not so big that people are inevitably strangers to one another. In contrast, the likely difference in the understanding of ubuntu and in group dynamics at national level can cause difficulties in the operation of ubuntu with regard to the relationship of individuals within the group or community. However, this problem is not unique to ubuntu; it is true of all “rights” and “obligations”.

National level

At national level, South Africa provides a precedent for incorporating the right to health in the Bill of Rights and making it justiciable.Footnote 46 Unlike the ICSER, section 27 of the Constitution of the Republic of South Africa (1996) (the Constitution) provides for a justiciable right to health.Footnote 47 It states that everyone has the right to access health care servicesFootnote 48 and that no-one may be refused emergency medical treatment.Footnote 49 It also states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.Footnote 50

The justiciability of the right to health is relevant to the role of ubuntu in the realization of the right to health in that it enables the courts to apply ubuntu in interpreting the rights concerned as part of the evaluation of the “multifaceted dimensions of poverty and the social responses to it”.Footnote 51

It should be noted that the right to health in the Constitution, like its counterpart in international law, is individual in nature. It represents a western liberal conception of human rights with an emphasis on individual as opposed to collective or communal rights. Toebes amplifies this point: “[t]he right to health is private rather than public in character. In other words it provides individuals (or groups of individuals) with a right to a number of health services and freedoms rather than it providing a tool for the State to take certain measures necessary for public health.”Footnote 52 Similarly, Meier and Mori argue that individual rights are pre-eminent in the area of health,Footnote 53 and that these rights seek the empowerment of the individual in contrast to “collective rights that act at a societal level to assure public benefits that cannot be fulfilled through individual rights mechanisms”.Footnote 54 Thus, individual rights focus on individual access to health care while collective rights seek to promote the collective health rights of communities or groups of people.Footnote 55

As already stated, individualism “stresses individual interests and rights” in the sense that it emphasizes the autonomy and freedom of the individual to choose his or her own good as opposed to emphasizing the community's common good. In this context the common good related to individualism is defined simply as “the sum of the interests of the several members who compose the community”.Footnote 56 Thus, while respect by the state of the individual's right to health may result in the protection of the health right of the general public or of the community to which the individual belongs in specific instances, the health right of the community per se is not the main concern of the right to health (as currently conceived).Footnote 57 It is submitted that, in order for the right to health and its realization to transcend the euro-centric individual right to health to the benefit of the community, it must be interpreted and implemented against the backdrop of the attributes of ubuntu that incorporate communitarian values, to which this article now turns.

UBUNTU AND ITS ATTRIBUTES

The concept of ubuntu first appeared in South Africa's Constitution in 1993.Footnote 58 It was concerned with building a new society different from that of the apartheid era. While apartheid engendered racial division, violence and the inhuman treatment of people, the new society was to be characterized by ubuntu, among other things.Footnote 59 However, the concept also exists in the cultural and belief systems of other African traditional societies. Indeed, statements that express the spirit of ubuntu, as well as linguistic traces of this concept or value, can be found in parts of east, west and southern Africa, even though they do not use the term ubuntu.Footnote 60 This section discusses the attributes of ubuntu that are relevant to its role in realizing the right to health.

Ubuntu has not been defined with any precision, but Emeritus Constitutional Court Justice Mokgoro has spoken in favour of this situation. She argues that the concept's lack of specificity is its strength: the more open and flexible the concept, the greater its potential as a tool for aligning customary practices and conduct with human rights.Footnote 61 One may also argue that the lack of ubuntu's precise meaning is consistent with its nature as a value of the Constitution, which will be discussed later. Like other constitutional values, ubuntu can only be conceived in abstract terms. On this basis, it is only necessary to identify ubuntu's key interrelated attributes: the ideas of community, interdependence, dignity, solidarity, responsibility and ideal. These are discussed separately below.

Community

Central to the notion of ubuntu is the idea of community (used interchangeably with communalism and communitarianism) in which a delicate relationship exists between the community and the individual members who compose it.Footnote 62

This article adopts the concept of community that Gyekye refers to as “cultural community”. This means a group of people with shared values and practices and a shared notion of the common good whether or not it has a shared language. He defines the common good simply as a good that is shared by all “individual human beings – at least those embraced within a community” and “a good the possession of which is essential for the ordinary or basic functioning of the individual in a human society”.Footnote 63 This definition of community makes it possible to view different African ethnic groups, even those that speak different languages but have certain shared “habits, outlooks, practices, institutions, and cultural values”,Footnote 64 as communities. Thus, the idea of community as an element of ubuntu can apply to groups beyond the extended family. Louw also argues that:

“[G]enerally speaking, the advocates of ubuntu emphasize inclusiveness … and the fact that ubuntu does not exclusively apply within specific tribes or clans, though they may still create the impression that the ubuntu ‘community’ only refers to indigenous Africans, and therefore not to, as van Binsbergen puts it, beings who somatically and historically clearly stand out as not autochthonous.”'Footnote 65

Moreover, there is also the dimension that ubuntu, like other aspects of living customary law,Footnote 66 is capable of evolving and adapting to changing social conditions. This means that it can adapt and apply to relationships other than those of the traditional society in which it was developed. This may explain why the black Africans observed by van BinsbergenFootnote 67 could straddle the two worlds of the urban and the rural but still comfortably invoke the notion of ubuntu (with its roots in traditional society) in their current social relationships.

In human rights discourse, the concept of community from an African perspective is identified with the debate about the relationship between the individual and the collective or the idea of group rights. Therefore, it is necessary to understand how the individual relates to the group in the African world view.

There are apparently two prominent views on this relationship: the radical and moderate. While both sides agree that “community” is a cardinal concept for the purposes of understanding the African view of man, they disagree on the exact status of the individual in the group. The radical view is summarized as follows:

“Only in terms of other people does the individual become conscious of his being, his own duties, his privileges and responsibilities towards himself and towards other people. When he suffers, he does not suffer alone but with the corporate group; when he rejoices, he rejoices not alone but with his kinsmen, his neighbours and his relatives whether dead or living … What happens to the individual happens to the whole group, and whatever happens to the whole group happens to the individual. The individual can only say ‘I am, because we are; and since we are, therefore I am.’”Footnote 68

The moderate view disagrees with this approach on the ground that it overstates the African notion of communitarianism by conveying the idea that “the traditional African social order was absolutely communal”.Footnote 69 In doing this, the radical view fails to recognize fully the “status and relevance of individual rights”.Footnote 70

In contrast, the moderate notion of community, as championed by Gyekye, acknowledges the intrinsic worth and dignity of the individual human person and recognizes individuality, individual responsibility and effortFootnote 71 as necessary conditions for the self expression and self-actualization of the individual within his or her community.Footnote 72 At the same time he accepts that natural and relational sociality are fundamental features of the human being.Footnote 73

The “natural and relational sociality” of the human being simply means that every individual is born into a human society with its own culture.Footnote 74 This in turn means that community life is not optional for the individual. Furthermore, the individual is in a relationship of interdependence with the members of his or her community. He “cannot – perhaps should not – live in isolation from other persons; he is naturally oriented toward other persons and must have relations with them”.Footnote 75 In this sense, the individual “is constituted, at least partly, by social relationships in which he necessarily finds himself”.Footnote 76 However, this interdependence does not involve a rejection of individualistic values.Footnote 77 Rather, the status of individuality and community are seen in relative terms, in the sense that “no human society is absolutely individualistic, and that it is all a matter of emphasis or priority or basic concern … with one or the other”.Footnote 78 While nobody is an absolute individual morally and in functionality, the being and life of the individual does not “totally depend on the activities, values, projects, practices and ends of the community”.Footnote 79 The individual “retains his freedom and capacity to choose or re-evaluate the shared values of the community”.Footnote 80 Moreover, the individual remains primarily responsible for his or her own well-being and for fulfilling his or her needs in life.Footnote 81 Gyekye sums up moderate communitarianism in the following statement:

“There is some truth in the view that communalism or individualism as applied to a social arrangement is a matter of degree. For this reason we should expect a human society to be either more individualistic than communal or more communal than individualistic. But, in view of the fact that neither can the individual develop outside the framework of the community nor can the welfare of the community as a whole dispense with the talents and initiative of its individual members … the most satisfactory way to recognise the claims of both communality and individuality is to ascribe to them the status of an equal moral standing.”Footnote 82

The view that societies have different concepts of individualism and communalism, and that they place different emphases on these concepts in their social arrangements is, in the author's view, pertinent to an understanding of the conceptual difference between western and African ideas of human rights. Following this point of view, it is submitted that the “western” concept of human rights places greater emphasis on individualism (ie it stresses individual interests and rights) than on communal interests and rights, while the “African” concept places greater emphasis in the opposite direction: on communal interests and rights rather than those of the individual. In other words, there is an important difference between the degree or priority or basic concerns that “western” and African philosophies exhibit with regard to individualism and communalism.

One point must be emphasized in this discussion of the concept of community. While the moderate notion of community (which, in the author's view, is preferable to the radical notion) recognizes the equal worth of the individual and community in a moral sense, it does not reject the important fact that conceptual differences exist between western societies and (at least southern) African societies in terms of the values, priorities or basic concerns they place on individual interests and rights (individualism) and on communal interests and rights (communalism).

Another way of understanding the concept of communalism is through the idea of the interdependence of community members, the second attribute of ubuntu to be considered.

Interdependence

This attribute is evident from a sample of vernacular expressions of ubuntu: “umuntu ngumuntu ngabantu” [IsiZulu: “persons depend on persons to be persons”]; “umuntu ungamuntu ngabanye abantu” [IsiXhosa: “each individual's humanity is ideally expressed in relationship with others, or a person depends on other people to be a person”]; and “motho ke motho ba batho ba bagwe” [SeSotho languages, same translation as that of IsiXhosa above]. All of these expressions emphasize the interdependence of human beings.

This and other tenets of ubuntu are also prominent in the Constitutional Court judgment in S v Makwanyane.Footnote 83 In her judgment on the abolition of the death penalty,Footnote 84 Justice Mkogoro explained ubuntu as follows:

“Generally, ubuntu translates as ‘humanness’. In its most fundamental sense it translates as personhood and ‘morality’. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.”Footnote 85

This statement was echoed by Justice Sachs in Port Elizabeth Municipality v Various Occupiers (Port Elizabeth)Footnote 86 which concerned the socio-economic right to housing. Delivering the court's judgment, Justice Sachs highlighted ubuntu's element of interdependence between the individual and the community in the following words: “The spirit of ubuntu, part of the deep cultural heritage of the majority of the population … combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”Footnote 87

Finally, in a statement associating ubuntu with both interdependence and dignity, the High Court in City of Johannesburg v Rand Properties Ltd, another socio-economic right case, on housing, stated: “[i]n South Africa the culture of ubuntu is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community. Ubuntu speaks to our interconnectedness, our common humanity and the responsibility to each other that flows from our connection.”Footnote 88

In concluding the attributes of community and interdependence, it is necessary to refer back to the moderate view of the nature of the relationship between the individual and community above. Under moderate communitarianism, the ubuntu attribute of interdependence should be understood to recognize the status of the individual as equal in moral terms to that of the community, while placing emphasis on communal interests and rights.

Dignity

Several authorsFootnote 89 attribute the dignity of a person as a human being to ubuntu. In these terms, ubuntu describes the very essence of being human, it recognizes human beings as the end of all things, to be “valued and respected for their own sake” “regardless of their social status, gender or race”, or their intellectual or mental capacities. In this state of being, “all people have dignity”.Footnote 90 There is, therefore, no checklist of attributes or qualities that comprise a human being.

In S v Makwanyane, the Constitutional Court equally considered ubuntu to encompass respect for human dignity.Footnote 91 It stated: “[u]buntu recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community.”Footnote 92

The next main section will re-visit the concept of dignity.

Solidarity

This principle requires people to shun individualism and selfishness and to be in solidarity with each other. People in need should be able to count on the support of those around them. Thus, when some are in need, others must play their part in contributing to their good and to that of society. Individualistic self-centred acts are seen not just as a failure to contribute to the well-being of both the person and the community, but as bringing about harm, misery and pain to others. Ubuntu disapproves of such acts, because they constitute dangerous elements which are disruptive to society and undesirable for its functioning and well-being.Footnote 93

Responsibility

In the communitarian context, the term responsibility means “a caring attitude or conduct that one feels one ought to adopt with respect to the well-being of another person or other persons. Such responsibilities include the responsibility to help others in distress, the responsibility to show concern for the needs and welfare of others, [and] the responsibility not to harm others.”Footnote 94

This notion of responsibility entails that both rights and duties are inalienable to all human beings. According to Gyekye, the community life and the common good of shared relationships are the foundation of moral responsibilities and obligations. He also makes the important point that responsibilities and obligations within the communitarian morality are not based on the idea of a social contract, on one hand, and acknowledgment of the rights of others, on the other.Footnote 95 Thus, people do not carry out their responsibilities and obligations to others because they are bound by a social contract to do so, or on the basis of the corresponding rights of the latter. Instead they bear and carry out their responsibilities and obligations on account of the “communitarian ethic and its imperatives”.Footnote 96 The only exception to this is what he calls “negative moral imperatives”, ie things we should not do to harm others, such as killing and stealing. These negative imperatives do, indeed, have corresponding rights: “[f]or one's right not to be harmed imposes a responsibility on others not to harm one”.Footnote 97

Drucilla Cornell adds another dimension to responsibility when she connects individual responsibility to the notion of freedom. She says that, although responsibility and freedom appear to be contradictory terms, they are in fact the glue between the individual and his or her community, in the sense that “our freedom is almost indistinguishable from our responsibility to the way in which we create life in common with each other”.Footnote 98

Responsibility also resonates with the Charter which, in its inclusion of duties in section 27, was envisioned to exclude the idea of an individual who is “utterly free and utterly irresponsible and opposed to society”,Footnote 99 as already stated.

Ideal

Ubuntu is considered to be an ideal in the sense that it should be understood “as a vision for the good society - a society that never existed before”,Footnote 100 in essence an ideal. Like all ideals or visions, ubuntu might be contradicted by the bad things people do or, in other words, by bad practices (such as killing, rape, xenophobic attacks on foreigners and corruption). Shutte amplifies this idea of ubuntu as an ideal in the following words: “ubuntu is a description of an ideal. Like any moral ideal it is never lived out to the full, except perhaps in certain heroic individuals. But that is part of the very nature of an ethic. An ethic is essentially a vision of perfection and fulfilment. But that is not all it is. It should also provide insight into the task of living and define guidance in the concrete circumstances of life.”Footnote 101

Thus, ubuntu is not only an ethic that defines what humanity is from an African perspective; it is also a vision that provides some guidance on what constitutes good action and conduct, as well as guidance on what should be condemned as bad actions and conduct normatively in relation to the dignity of a human being. The idea of ubuntu as an ideal provides a natural connection to the discussion of ubuntu in more abstract terms as a constitutional value under the Constitution, to which this article now turns.

UBUNTU AS A CONSTITUTIONAL VALUE

The Constitution states the founding values of the republic in the following terms, inter alia: “[t]he Republic of South Africa is one … democratic state founded on the following values: (a) [h]uman dignity, the achievement of equality and the advancement of human rights and freedoms”.Footnote 102 The importance of these values in the interpretation of constitutional rights was underscored by Justice Sachs in delivering the judgment of the Constitutional Court in Port Elizabeth. He stated that, in “all determinations about the reach of constitutionally protected rights, the starting and ending point of the analysis must be to affirm the values of human dignity, equality and freedom”.Footnote 103 Thus, if ubuntu were a part of these values, it would inform the determination of the reach of the right to health and other socio-economic rights from a communitarian perspective.Footnote 104 Put differently, it would be used to inform decision-making in reconciling conflicting rights-based claims in the courts or for both legislative and executive policy formulation regarding the right to health.

This section argues that ubuntu is implicitly included in these values through, especially, but not exclusively, the value of human dignity. This argument is premised on three considerations: jurisprudence, the ubuntu attribute of dignity, and the transformative nature of the Constitution.

Jurisprudence

Some judges of the South African Constitutional Court have made allusions to the status of ubuntu as a core constitutional value, which both informs constitutional rights and provides a basis for their interpretation. For example, in Port Elizabeth, the court, in rejecting an appeal for the eviction of poor people from land they had unlawfully occupied, included the argument that ubuntu suffuses the whole constitutional order.Footnote 105 Similarly, in Dikoko v Mokhatla, a case involving a claim for defamation, the minority judgment of Justice Mkogoro stated that “the basic constitutional value of human dignity relates closely to ubuntu, an idea based on deep respect for the humanity of another”.Footnote 106 In concurring with Mokgoro J, Justice Sachs noted the problem that, as currently conceived, the common law damages for defamation sought to measure “something so intrinsic to human dignity as a person's reputation and honour [in Rand] as if these were market-place commodities”.Footnote 107 He suggested instead that what was required in jurisprudential terms was a reconceptualization of remedies for damages “so as to focus more on the human and less on the patrimonial dimension of the problem”.Footnote 108 He then turned to the role of ubuntu in attaining this objective in a statement that clearly relates ubuntu to constitutional values:

“To achieve this objective requires making greater allowance in defamation proceedings to acknowledging the constitutional values of ubuntu-botho. Ubuntu-botho is more than a phrase to be invoked from time to time to add a gracious and affirmative gloss to a legal finding already arrived at. It is intrinsic and constitutive of our constitutional culture … In present day terms, it has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution”.Footnote 109

From these court judgments, it is arguable that ubuntu is a constitutional value, even though it is not law in the sense of rules.Footnote 110 Furthermore, given the above articulations of reasoning about ubuntu in the context of decision-making by the courts, it is difficult to appreciate the position of critics who maintain that jurisprudence does not shed light on how ubuntu can be used by other decision-makers.Footnote 111

Human dignity

As shown earlier, ubuntu has the attribute of human dignity. Although the constitutional values do not mention it in relation to the value of human dignity, there is no reason to suggest that the constitutional value of human dignity does not contemplate the ubuntu kind of human dignity. As Keep and Midgely have observed, it “requires no stretch of the imagination to interpret [the constitutional values] beyond respect in an individualistic sense by incorporating an attitude of communality and inclusiveness”.Footnote 112

Furthermore, Metz's view of the concept of dignity under ubuntu Footnote 113 is helpful in unravelling the ubuntu-communitarian-based concept of human dignity. Although aspects of the theory in which he expounds the concept of ubuntu dignity are, in the author's view, flawed,Footnote 114 Metz's concept of human dignity, premised as it is on a communitarian ethic, is plausible and, therefore, worthy of note.

In essence, Metz views an act to be wrong if “it degrades the individual's dignity that she has in virtue of her capacity to engage in harmonious relationships.”Footnote 115 Thus, “people's dignity is constituted by their capacity to identify with others and to help them for their sake”.Footnote 116 He relates this principle to human rights by asserting that “violations of human rights may be philosophically conceived in terms of substantially unfriendly behaviour”.Footnote 117

Most importantly, for the purposes of this article, this principle has a direct application and relevance to socio-economic rights, including the right to health, in the sense that it supports a positive right for the poor to claim provision of relevant goods. In this regard, Metz states that the “principle probably entails that the poor have positive human rights against those with the relevant means to provide socio-economic goods such as food, shelter, education, healthcare … and other resources needed to develop their capacity for identity and solidarity”.Footnote 118

Furthermore, it may be argued, to reinforce Metz's point, that it is contrary to humanity dignity, or it is “un-ubuntu” for people to live in extreme poverty,Footnote 119 and that the state and citizens endowed with resources must, therefore, protect vulnerable people from this condition and against material want. In this regard, Schachter makes the following instructive comment:

“We are led more deeply into the analysis of human dignityFootnote 120 when we consider its relation to the material needs of human beings and to the ideal of distributive justice. Few will dispute that a person in abject condition, deprived of adequate means of subsistence, or denied the opportunity to work, suffers a profound affront to his sense of dignity and intrinsic worth. Economic and social arrangements cannot therefore be excluded from a consideration of the demands of dignity. At the least, it requires recognition of a minimal concept of distributive justice that would require satisfaction of the essential needs of everyone.”Footnote 121

Schachter then identifies a list of conduct or ideas that offend the worth and dignity of individuals and those that are implicitly incompatible with the basic ideas of the inherent dignity or worth of human persons. Among these are three that are relevant to this article: degrading living conditions and deprivation of basic needs; medical treatment or hospital care insensitive to individual choice or the requirements of human personality; and denial of educational or employment opportunities to persons on grounds of their membership of groups.

Schachter also adds another perspective to Metz's theory, which is helpful to the understanding of the rights of the individual vis à vis the collective of which he or she is a part. While emphasizing the importance of individual choice that respect for human dignity entails, he does not separate individuals sharply from the collectivities to which they belong. Instead, he believes that “the idea of human dignity involves a complex notion of the individual. It also includes recognition that the individual self is a part of larger collectivities and they too, must be considered in the claiming of the inherent dignity of the person.”Footnote 122 Thus, in this relationship, both the individual and the group of which he or she is a member are recognised as having “capacity to assert claims to protect their essential dignity”.Footnote 123

To return to Metz, the dignity principle of ubuntu that he espouses “promises to account for many other [ie other than claims relating to capital punishment with which his theory is closely related] intuitive claims about human rights”.Footnote 124

Furthermore, Metz's notion of dignity is communitarian in nature. This notion of dignity contrasts with that rooted in the western liberal concept of rights, which is said to be irrevocably linked to the protection of individual freedom and autonomy.Footnote 125 Consequently, the western notion of dignity as a value supports constraints on state interference with individual liberties. Most importantly from the point of view of the realization of socio-economic rights, including the right to health, the western concept's emphasis on individual freedom and autonomy discourages the state's intervention to redistribute social resources.Footnote 126 On this point, Liebenberg has pertinently observed that if “[western] dignity as a value is inextricably aligned with negative liberty and individual personality issues [‘related to subjective feelings of self-respect and self-worth’], it [can] be inimical to the development of a transformative socio-economic rights jurisprudence”.Footnote 127

Transformative nature of the Constitution

Arguably, ubuntu is recognized by the ConstitutionFootnote 128 along with other African values and customary rights. The only ground on which these values and rights can be excluded from the new constitutional order is if they are incompatible with the Constitution.Footnote 129 It is submitted that there is no apparent incompatibility between ubuntu dignity and the dignity in the constitutional values. The fact that the ubuntu concept of dignity is characterized by communitarian ideas is not a basis for disqualifying it from being a constitutional value. On the contrary, the transformative nature of the Constitution demands the inclusion of African legal ideas and values in the legal order. This proposition is reinforced by one of the most quoted pronouncements by Justice Albie Sachs appearing in the Constitutional Court decision in S v Makwanyane:

“The secure and progressive development of our legal system demands that it draw the best from all the streams of justice in our country … Above all, however, it means giving long overdue recognition to African law and legal thinking as a source of legal ideas, values and practice. We cannot, unfortunately, extend the equality principle backwards in time to remove the humiliations and indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalized … In interpreting [the Bill of Rights] … all Courts must promote the values of an open and democratic society based on freedom and equality. One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided.”Footnote 130

To sum up, the argument that ubuntu is a core constitutional value is supported by: court judgments, including those of the Constitutional Court; the fact that dignity is a key attribute of ubuntu; and the transformative nature of the Constitution. As a core constitutional value, ubuntu: informs the right to health; may be used to interpret human rights, including the right to health; may be used by courts to reconcile competing or conflicting individual and collective claims related to the right to health; and may be used by government executives to formulate policy aimed at the equitable allocation and distribution of resources for broadly enhancing the right to health. The next section discusses further the role of ubuntu in these respects, but at a more practical level.

UBUNTU AND THE REALIZATION OF THE RIGHT TO HEALTH

Ubuntu can be applied to realize the right to health in a variety of ways. In considering the role of ubuntu in this regard, it is necessary to remember that, according to the Committee, the realization of the right to health is open to numerous, complementary approaches.Footnote 131 These may include litigation, the formulation of health policies, the adoption of specific legal instruments, or the implementation of health programmes at different levels of society. Furthermore, Schachter argues that in some cases respect for dignity may be “more appropriately and effectively attained through social processes”, such as education and material benefits, than through litigation.Footnote 132 He also suggests that, in the area of health care, among others, actions that impinge on the self-respect of those in need of help may be better dealt with through non-rights approaches or litigation.Footnote 133

This section discusses the practical role of ubuntu at two levels: the resolution of conflicts between individual and collective rights in the context of health issues; and the interpretation of the right to health.

Ubuntu and the resolution of conflicts between individual and collective rights in the context of the right to health

Toebes's typology of conflicts between the right to health and civil and political rightsFootnote 134 is helpful in identifying the kinds of conflicts envisaged under this heading. The first type of conflict may occur in the horizontal sphere between the right of one person to have his or her right to health protected against the civil and political right of another person to have his or her integrity or privacy protected. It is unlikely that ubuntu could play a role in resolving this kind of conflict. This is because the conflicting rights are those of two individuals; there is no communal interest involved. This article therefore does not deal with this type of conflict.

It is the second type of conflict which is of interest. This occurs when “the right to health is interpreted in a more general sense, … as a right to health of the public or a right or obligation to maintain public health versus the right to privacy and integrity of the individual”.Footnote 135 An example is where a person is, as a measure of protecting the (health) right of the public from HIV-infection,Footnote 136 subjected to compulsory AIDS testing, or, being HIV-positive, is excluded from workFootnote 137 or school or is refused entry into a country. This kind of conflict has a communal or collective right element to it.

Arguably, ubuntu may contribute to the solution of this type of conflict by providing a basis for harmonizing individual and collective rights through its attributes of (moderate) communalism, interdependence and solidarity, all of which serve to contextualize the interests of the individual in relation to those of the community.

Ubuntu and the interpretation of the constitutional right to health

As a core value in the Constitution, ubuntu can be used to inform the interpretation of the constitutional right to health at different levels of decision-making: litigation, government executive level and community level. The circumstances in which the core value will be applied will be determined on a case by case basis. The reason for this approach lies in the nature of decision-making involving socio-economic rights in which the decision-maker must, according to Liebenberg, weigh up many factors to make the decision: he or she “must determine how much must be provided, to whom, at what pace and in what order of priority”.Footnote 138 This article will now consider these different levels of operationalization of ubuntu in detail.

Litigation

Litigation is premised on a “rights approach” to the realization of the right to health. This approach entails “using human rights to promote health equity”.Footnote 139 The Treatment Action Campaign caseFootnote 140 in South Africa has shown the importance and potential of this method as a means to enable large groups of people to realize their right to health.Footnote 141 This is an important method in countries like South Africa where socio-economic rights are justiciable. The number of prominent cases that have been brought to the courts in that country involving these rights, including the Treatment Action case(s) and cases on housing and evictions of unlawful occupiers of land, testifies to the significance of this strategy to the realization of the right to health. The role ubuntu could play in litigation aimed at realizing the right to health may be demonstrated by three litigation scenarios.

First, ubuntu may be used by courts to interpret the right to health and as a basis for reasoning. Secondly, it may be used to enhance the enforcement of court decisions. Thirdly, ubuntu may be used to protect one's interests and those of others. These different scenarios are discussed next.

Ubuntu as a basis for court reasoning: This scenario may be illustrated by two cases decided by the Constitutional Court, both of which involved determinants of health.Footnote 142

The first case, Port Elizabeth,Footnote 143 involved the eviction of about 68 unlawful occupiers of land by the Port Elizabeth Municipality. The latter (on behalf of private land owners) obtained an order from the High Court for the eviction of the unlawful occupiers under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE).Footnote 144 On appeal to the Supreme Court of Appeal (SCA), the court set the order aside. The municipality sought permission from the Constitutional Court to appeal against the SCA decision and have the eviction order restored. The court dismissed the appeal. In its reasoning, delivered by Justice Albie Sachs, the court stated, in part:

“PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”Footnote 145

This statement shows that ubuntu was used to mitigate individualism in relation to private land ownership in favour of the enforcement of a claim for land for accommodation on the part of those being evicted. In so doing, the court in effect indirectly enforced a determinant of health claim and a component of the right to health.Footnote 146

The second case, Hoffman v South African Airways,Footnote 147 was about employment and HIV/AIDS. The ability to work and earn a decent living wage is one of the determinants of health which constitute the right to health. The case illustrates a court's reasoning based on the ubuntu attribute of compassion.

The circumstances were that South African Airways (SAA) refused to employ Hoffman as a cabin attendant because he was HIV positive, although he was otherwise a suitable candidate for appointment, subject to undergoing pre-employment medical examinations, which included blood tests for HIV/AIDS. This examination found him to be clinically fit and thus suitable for employment. However, his medical report was altered to read “HIV positive” and thus “unsuitable”. When SAA informed him that he could not be employed as a cabin attendant because of his HIV positive status, he took the company to court. The Constitutional Court held that the company's refusal to employ him violated his right to equality. In reasoning its judgment, it stated, in part, that “[p]eople who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them.”Footnote 148

Thus, by analogy, the ubuntu attribute of compassion could be used to prevent discriminatory treatment of people living with HIV/AIDS and other ailments in different settings of health practice.

Enforcement of court decisions: The Treatment Action caseFootnote 149 exemplifies how ubuntu's attribute of solidarity may play a role in the enforcement of court decisions on health rights.

Briefly, this case was one of a series of cases brought against the government to enforce the constitutional right to health.Footnote 150 The claim before the Constitutional Court was that the government had violated the right to health under section 27 by not making the anti-retroviral drug, Nevirapine, available to mothers and their babies in public hospitals. The administration of the drug to mothers and new-born babies would reduce the risk of mother-to-child transmission of HIV. At the time of the claim, only mothers and babies in centres where they formed part of a research study supported by the government received the drug.

The court held, inter alia, that section 27(1) did not create an individual right to a core government service irrespective of resources, and that the section only required the government to take progressive action to realize the right within its resources. However, it held that the government's policy which resulted in the inaccessibility of the drug to mothers and newborn children outside the government-supported research study was unreasonable, and ordered the government to develop a comprehensive and co-ordinated programme for the provision of the drug in all public hospitals. The interesting aspect of this case for the present purposes is the critical role the principle of solidarity played in the enforcement of the right to health in terms of ensuring the success of the claim in court and preventing contempt of the court's decision by the government.Footnote 151 Concerning the latter, it has been observed that the court decision itself produced “remarkably little direct action” on the part of the government regarding the provision of Nevirapine to the needy section of the populationFootnote 152 in comparison with the Treatment Action Campaign (TAC) (a social movement), which assumed responsibility for ensuring the effectiveness of the court's decision in two respects. First, the TAC brought contempt of court proceedings in 2002 against a provincial Executive Council member for health, for failing to implement a Constitutional Court order.Footnote 153 Secondly, it took the national Ministry of Health to court for failing to release the timetable or details of the operational plan created in response to the Constitutional Court's order.Footnote 154

Chan sums up the role of solidarity in this case as follows: “[l]etter-writing, public demonstrations and other pressure tactics have become the norm as civil society and actors struggle to transform the judicial recognition of a right to health into a reality for South Africans living with, or under the threat of, HIV/AIDS.”Footnote 155 The same observation has been made about the role of solidarity in the implementation of aspects of the right to health in other parts of Africa.Footnote 156

Litigating in the interests of others: This scenario also illustrates the ubuntu attribute of solidarity. It concerns the case of a woman who could have pursued an individualistic course in respect of the settlement of her claim relating to a social security right. Instead, she chose to take the harder route of litigation, in order to advance the interests of others.

The background is that South Africans have a constitutional right of access to “social security, including, if they are unable to support themselves and their dependants, appropriate social assistance”.Footnote 157 This right entitles people who are unable to work due to a medical or psychological condition to claim a disability grant from the state. These grants play an important role in enabling millions of impoverished South Africans to live their lives with a measure of dignity. The Eastern Cape provincial government stopped all disability grants in 1998 and required the beneficiaries to re-apply for their grants. However, no notice was given to them about the termination or need to re-apply.

“Mrs Meltafa was one of many people who were affected by this action. Without this grant, she was effectively destitute, and despite her efforts to re-apply for the grant, she was not helped by the authorities. She then turned to litigation with the help of the Legal Resources Centre (LRC),Footnote 158 which represented her case in court against the Eastern Cape government. It was argued on her behalf that the Government's action was illegal.

At some stage, in the course of the proceedings, the Eastern Cape Department of Welfare offered Mrs Meltafa a payment to settle the matter out of court, and gave her a cheque for R 14,000 supposedly to cover the time since the grant was stopped. The Department even used the local African National Congress Party (the political party in power) to go to her home and encourage her to settle. Though tempted to accept the cheque as she had no reliable income and was desperate for money, she rejected it for two main reasons, one of which was that the outcome of the litigation (as she understood from the explanation of her lawyers about the implications of the court case) would help thousands of other people who were in the same situation.

She finally won her case in the High Court and, on appeal, the Supreme Court of Appeal.”Footnote 159

On one hand, this case and its outcome in the court illustrate the effectiveness of litigation as a human rights approach strategy for claiming socio-economic rights, including the right to health. On the other hand, it shows the principle of solidarity in action in relation to rights claims, including claims brought to enforce state obligations with respect to the determinants of health.

Furthermore, based on the example of this case, the solidarity principle could be used by an individual (for example, a rich person) to take a case to court for the purposes of enabling the court to create a precedent on an aspect of the right to health for the benefit of other people experiencing a situation similar to that forming the subject of litigation.

From these three scenarios, it seems reasonable to assert that the various tenets of ubuntu have played, and can play, a critical role in the realization of the right to health through litigation.

Government executive level

At this level, the constitutional core value attribute of ubuntu may be used to inform the executive in the formulation of both legislative and executive policies for the implementation of the right to health. Other attributes of ubuntu may also be used to guide the executive in all sorts of rights actions. Five examples will suffice. First, the interdependence or interconnectedness tenet of ubuntu could be used to guide the government in the equitable allocation of resources between conflicting rights-based individual and collective-rights programmes. Secondly, the dignity and compassion attributes of ubuntu may be used to guide the government in balancing the allocation of resources between health care provision and other state needs or demands. This could include restricting government expenditure on expensive cars for individual officials and using the funds saved to pay a living wage to health care providers, in order to avert strikes that result in the suffering, death and consequent indignity of sick people in health care facilities. Thirdly, the dignity tenet of ubuntu can be used to guide the government in designing regulations and disciplinary procedures that secure the right of people of all backgrounds to be treated with dignity in health care settings by eliminating rudeness and other forms of humiliating conduct by health care providers that erode the dignity or ubuntu of health care users and vice versa. Fourthly, the dignity attribute could also be used to ensure equal treatment by health care providers (doctors, nurses and other medical professionals) of all patients, regardless of their background, and notwithstanding the cause or perceived cause of their illness. Lastly, the attribute of responsibility could be used to ensure that individual government officials in the area of health and other health care providers are accountable to society as a whole in designing, providing and operating an equitable and efficient health care system, as well as in implementing health care interventions.

Community level

The minority decision of the Constitutional Court in Bhe v Magistrate Khayelitsha (Bhe)Footnote 160 seems to provide a good point of departure for the discussion of the role of ubuntu in the realization of the right to health at community level. The case concerned the customary principle of male primogeniture that permitted males to inherit intestate estates to the exclusion of women. The Constitutional Court ruled that this principle was discriminatory, and therefore unconstitutional, and invalidated it. In his minority decision, Justice Ncgobo disagreed with some aspects of the majority judgment. While he agreed that the customary law in dispute discriminated against women, he preferred to develop the offending principle in accordance with the appropriate provisions of the Constitution,Footnote 161 in order to bring it in line with the Constitution, rather than invalidating it. He justified this decision partly by reasoning based on ubuntu. After explaining the nature of ubuntu and its importance in African traditional culture, he highlighted the reciprocal duties and obligations of family members that guarantee the provision of the necessities of life to other family members in the following statement:

“A sense of community prevailed from which developed an elaborate system of reciprocal duties and obligations among the family members. This is manifest in the concept of ubuntu …, a dominant value in African traditional culture. This concept encapsulates communality and the inter-dependence of the members of a community … It is a culture which regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights … It is this system of reciprocal duties and obligations that ensured that every family member had access to basic necessities of life such as food, clothing, shelter and healthcare.”Footnote 162

Prominent in this statement are the ubuntu tenets of communality, interdependence and solidarity. These tenets may be used to operationalize the right to health and access to healthcare through the participation of families and communities in realizing their own health rights in a variety of ways. First, the tenets in question may be used to oblige and enforce the duty of family members to provide for the necessities of life of needy relatives, including women and children, to ensure their well-being. Secondly, they could be used to promote home-based care for sick members of the family and community, in addition to treatment or care received from the hospital. Thirdly, the principle of solidarity, for instance, requires the entire community to share responsibility for the care and well-being of its members in terms of providing support to the sick and their families, as well as to vulnerable members of the community, such as orphans and the homeless.Footnote 163 Fourthly, the principle of solidarity would oblige community members to share traditional knowledge on diseases and their prevention, and traditional medicines needed for the treatment of disease with or without cost to the sick. Fifthly, solidarity would enable a sick individual to rely on family, friends and community members for his or her care. Lastly, with regard to the prevention of disease, the solidarity principle may be used to bolster or support community regulations for dealing with an outbreak of disease, as well as enabling community assignments to be made in the local leadership to take charge of community health.

This section has shown how ubuntu can play a role in realizing the right to health. The litigation scenarios and cases involving the determinants of health are of particular interest in so far as they show how ubuntu has in actual fact, not only hypothetically, played a role in deciding issues that are within the area of the right to health. The hypothetical scenarios are also not without value; they have shown how various attributes of ubuntu could be deployed at government executive and community levels.

REFLECTION ON THE DANGERS OF UBUNTU

The scope of this article does not allow for a detailed critique of the concept of ubuntu. However, it is necessary to refer to examples of the dangers of this concept, which are capable of undermining its role in realizing the right to health. The least anyone should be tempted to do is to romanticize ubuntu.

The point of departure are the dangers catalogued by van Binsbergen. While this author's thesis has been criticized in several respects,Footnote 164 the dangers he identifies are worthy of serious note. These dangers can easily become a reality, thereby rendering ubuntu of little value to realizing the right to health.

In essence, van Binsbergen has argued, using South Africa as an example, that ubuntu can be, and has been, misused for political reasons. It has also been manipulated in relation to power resources and in economic and class conflicts between the emerging black elites and their powerless brothers. The latter are persuaded to yield to the former as soon as the former “wave the flag of ubuntu”.Footnote 165 Moreover, ubuntu has not escaped the danger of distortion to which the rest of customary law has been victim over the centuries.Footnote 166 There is also the danger that ubuntu can easily “serve as a lubricant or a pacifier (in the child-care sense) in situations where conflict is real and should not be obscured by smothering it under a blanket of mutually recognised [ubuntu] humanity of the parties involved [as in the example of struggles and conflicts over resources between rich and poor black people]”.Footnote 167

Equally important is the danger that, because ubuntu underscores consensus and reconciliation,Footnote 168 serious social ills and crimes, such as corruption and theft of public funds, all of which undermine the interests of the community, will be excused in the name of ubuntu. Van Binsbergen appears correct in stating that, in dealing with these vices, Africa needs more than the sociability of ubuntu.Footnote 169 It needs in addition to create socially and legally essential boundaries to protect the value of ubuntu from abuse by politically and economically powerful members of communities. Furthermore, the ubuntu element of responsibility should be used to enforce measures, including the imposition and enforcement of civil and penal sanctions, aimed at stopping an individual from plundering public resources (through, for example, theft and corruption). More specifically, serious retributive measures should be taken against corrupt individuals in health structures, coupled with the requirement that they should restore to the community what they have stolen or their gains from corruption.

Further research is needed to explore the limitations and dangers of ubuntu, as well as the measures for eliminating them in the specific context of realizing the right to health. However, conceding the dangers of ubuntu should not detract from the argument of this article that the concept of ubuntu (if identified dangers are properly guarded against) can be put to good use in enhancing the right to health.

CONCLUSION

This article set out to examine non-Eurocentric African knowledge and ways of realizing human rights, particularly the right to health. It has demonstrated that ubuntu occupies an important position in the African world view, as well as in human rights discourse, from which vantage points it plays, and could continue to play, a significant role in informing the right to health and its interpretation, as well as its implementation. It reached this conclusion through: an examination of the right to health normative framework; the linkage of ubuntu to human rights sources, especially to the concepts of “duty” and “peoples' rights” in the Charter; a discussion of the attributes of ubuntu; and a discussion of both actual and hypothetical scenarios in which ubuntu has been, or can be, used to advance the right to health and the determinants of health. In advancing its arguments, the article has drawn from both the South African Constitution and jurisprudence on ubuntu both within and outside the area of health.

The article has also attempted to give examples of the dangers that may compromise ubuntu's contribution to the realization of rights, and has identified the need for further research into the dangers of ubuntu in the specific context of the right to health.

Footnotes

1 For example, Ibhawoh, B “Between culture and constitution” (2000) 22 Human Rights Quarterly 838; Chan, K “From 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 36–37.

3 Ibhawoh, ibid.

4 Footnote Ibid.

5 Footnote Ibid.

6 Footnote Ibid.

7 See, for example, An-Na'im, A “Cultural transformation and normative consensus on the best interests of the child” (1994) 8 International Journal of Law and the Family 62 at 64–71; wa Mutua, M “The 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 11–12.

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, R “The 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, A “Economic 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, LM “The 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, D “The 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, D “Giving 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 Footnote 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 Footnote 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, WMJ “Ubuntu and the globalisation of southern African thought and society” (2001) XV 1–2Quest 53) are fiercely contested; see Bewaji, JAL and Ramose, MB “The 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, DJ “The 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, C “The 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, M “Ubuntu 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 Footnote 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 Footnote Ibid.

76 Footnote Ibid.

77 Id at 40 and 41.

78 Footnote Ibid.

79 Id at 37.

80 Footnote Ibid.

81 Id at 41.

82 Footnote 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 Footnote Ibid.

98 Cornell, D “Exploring 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, T “Challenging 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, A “Ubuntu 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, R “Ubuntu: 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, T “Human 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 Footnote 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 Footnote 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, O “Human 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, S “The 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, L “What is a human-rights based approach to health and does it matter” (2008) 10/1Health and Human Rights 1 at 70; London, L “Issues 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.

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