Mail and Guardian, 12 July 2002, 
Opinion: A Paper Dog With Real Teeth,
Geoff Budlender 
The TAC case has proved that the Constitution is a
powerful people's tool

The government is now legally obliged, "without delay", to implement a
comprehensive nationwide programme for the prevention of mother-to-child
transmission of HIV. This must include the provision of nevirapine,
which is an anti-retroviral drug.

But there are five other conse-quences of the Constitutional Court's
judgement that are even more far-reaching.

First, the court has now put it beyond any dispute that the social and
economic rights in the Con-stitution are enforceable. We still hear
some people arguing that these rights are simply aspirations, and not
really legal rights at all. The Treatment Action Campaign (TAC) case
lays that argument firmly to rest. The judgement makes it abundantly
clear that these are legal rights. And they are justiciable -- that is,
they are capable of being adjudicated and enforced by the courts.

The case also illustrates just why social and economic rights are
essential in a country such as ours. Rich people do not require these
rights. They can afford what they need. What they want is the protection
of their vested rights. The Constitution provides this in a variety
of ways.

Social and economic rights are poor people's rights. They balance the
constitutional protection of existing rights with the obligation on
the state to transform our country so that the basic needs of all its
people are met. They compel the government to keep its focus on the most
vulnerable and the most disadvantaged.

A second consequence is that the case demonstrates conclusively that
in a constitutional democracy the exercise of all public power is
accountable. The government's reliance on the doctrine of "separation of
powers" to keep the matter beyond the courts was shown to be fundamentally
misconceived. The exercise of all public power must conform with the
Constitution. The role of the courts is to decide whether it does so
conform. If not, the courts will declare this, and order an effective
remedy. That is the task that the Constitution instructs them to perform.

This does not mean that we now have a judge-run society. The courts will
show appropriate deference to the choices made by elected representatives
of the people. They will readily accept that on questions of high
policy -- for example, macroeconomic policy -- the government is best
placed to decide what will most effectively promote the good of the
country. Similarly, in matters of detailed execution of policy -- how
government should be organised, and how it should carry out its duties --
the government is best placed to make choices.

But none of these decisions are beyond questioning in the courts. There
are no "no-go" areas for the courts, because the fundamental job of the
courts is to decide whether public power is exercised within the framework
permitted by the Constitution -- not whether the best decisions are made,
but whether the decisions meet the requirements of the Constitution.

In the TAC case, the government had refused to permit doctors in the
public health service to provide their patients with a life-saving drug,
which was available for free, and which had been found by the Medicines
Control Council to be safe and effective. The court held that this was
inconsistent with the right of pregnant women and their infants to have
access to health care services. The court did not "prescribe the drug",
as the government had argued. The court ordered that doctors should be
permitted and enabled to prescribe the drug, which the government is
already providing at pilot sites to many thousands of women and babies
every year.

A third consequence of the judgement is to strengthen the meaning of
children's rights in the Constitution. The Constitution says children
have the right to shelter, to basic health services, to basic nutrition
and to social services. Because of a perhaps unfortunate way in which
the court articulated its judgement in the Grootboom case, that case was
understood by many to mean that these rights create obligations for the
state only when a child is removed from the family environment. The TAC
judgement makes it clear that the state bears these obligations whenever
the family, who have the primary obligation, are unable to fulfil them.

A fourth consequence is non-legal: it is that this may be a turning
point in relations between government and civil society. The early days
of democratic government showed some quiescence on the part of civil
society. We finally had a government we had chosen, and of which we
could be proud. Many leaders took up government posts and adopted many
policies for which civil society organisations had campaigned.

But not surprisingly, in some ways the new government came to behave
like all governments. It made compromises, created programmes it did not
implement effectively and made mistakes. And gradually, as the government
became more confident, it became less open and less responsive to the
views of those outside it.

The dispute over the prevention of mother-to-child transmission of HIV
is the first occasion since 1994 when civil society has succeeded in a
direct challenge to the government on a major policy question. This was
not just any policy that was being challenged -- it was a policy adopted
under the direct and active leader-ship of the president.

The TAC built a strong alliance with key pillars of civil society --
trade unions, churches and media. It built a genuine social movement
and showed how the Constitution, which represents the best ideals and
values of our country, can be a powerful tool for holding government to
those ideals and values.

In some ways, the final judgement of the Constitutional Court was simply
the conclusion of a battle that the TAC had already won outside the
courts, but with the skilful use of the courts as part of a broader
struggle.

The judgement represents a new depth and maturity in our new
democracy. Democracy is not only about voting once every five years. It is
also about the ability of ordinary people to influence their govern-ment,
to ensure that it is responsive to their needs. The TAC case shows how
this can be achieved.

Finally, the case demonstrates that social and economic rights are only
as strong as the willingness of civil society to enforce them. There is
a sharp and illuminating contrast between the consequences of the TAC
case and the earlier Grootboom case. In Grootboom, the Constitutional
Court dealt with the right to housing. It explained the obligation of
the government to people who are in a desperate situation and are truly
homeless. The government's compliance with the judgement only started
a year later, after the high-profile Bredell land invasion. And there
are still major cities that continue to act in breach of the Constitution.

A major reason for this is that civil society organisations have failed
to take up the opportunity created by Grootboom, to compel the government
to deal effectively with the needs of the truly homeless.

The TAC case shows that the Constitution creates a powerful tool in
the hands of civil society, to ensure that the government gives proper
attention to the fundamental needs of the poor, the vulnerable and the
marginalised.

That is the promise of real transformation the Constitution makes. The
TAC case shows how civil society can help the government to make that
promise real.

Geoff Budlender is an attorney in the Legal Resources Centre and was an
attorney for the TAC