Braamfontein is home to many social justice, public interest law and advocacy organizations.
These organizations nestled between the university and many government and private sector organizations compete for space in the recognizable skyline that spills over into the main city, buffered by the railway tracks that carry cargo and people. We arrive in the building on De Korte Street that houses one of the most recognizable advocacy and public interest organizations in South Africa – Section27.
Umunyana Rugege, a human rights lawyer, is the Executive Director of the organization. She has been with the organization since 2010. ‘We have a team of lawyers, activists, researchers, field workers and communications people’, Rugege says, ‘and they are all so passionate … a team that is so passionate about making social change every day.’
The organization, named after the clause in the South African Constitution that enshrines the right to healthcare, food, water and social security. The organization has found itself in the throes of many a fight to give meaning, shape and form to the injunction set out in Section 27 (2) of the Constitution. Which states, that in a context of competing demands for resources places the responsibility, on the state to take reasonable legislative and other measures within its available resources to achieve the progressive realization of each of these rights.
The notion of ‘progressive realization’ is something that is intimately wound up with the inequality and capacity imbalance found across and within the state in different spaces and time.
The responsibility to provide sufficient food and water in section 27 of the Constitution might seem moot in a food secure (albeit water scarce country), yet the contests for these rights in Malamulele are different from those of the affluent and well-heeled in Franschhoek or Constantia.
For those who cannot afford – the poor, vulnerable, unemployed and discouraged; the state is the primary site of ‘delivery’ of these rights, as Rugege emphatically suggests.
‘For us it is really important that we build up state institutions, that we strengthen state institutions so that there is accountability for those people who are directly affected and civil society has that role to play.’
One area that has been critical to the work of Section 27 from its early days has been advocacy and struggle for equal access to quality healthcare. Strengthening state institutions in the healthcare space for Section 27 is undoubtedly about realizing the potential of the Constitution in undoing the imbalances of the past, and as Rugege says, ‘(increasing) access to good quality healthcare that is affordable’.
This is important during the current moment with the onset of COVID-19, which once again exposed the faultlines of inequity and injustice in how and who receives the right to heal and ultimately survive the devastation wrought by the pandemic. This scenario is not new for Section 27, as Rugege says, they have seen it before with the HIV/Aids pandemic:
‘… in the current COVID moment we are thinking about, whether we will have the same situation as we did with HIV, where people could not access medicines and vaccines, (if they cannot pay), because at the point of access you have to pay …’
In such a context it is about ensuring that healthcare is recognized and respected as a right, and not subject to the price mechanism where access is determined by one’s ability to pay.
Rugege, an admitted attorney, with qualifications in environmental studies as well, has had stints as a clerk at the International Criminal Court in the Hague and worked in public interest law prior to joining Section27 a decade ago. She has been directly involved in many of the issues the organization has taken up in the last decade.
One of the great victories for Section27 in pursuit of equal access to healthcare, was in the arena of mental healthcare and included acting on behalf of many families in the arbitration into what happened at Life Esidimeni. Life Esidimeni, as Rugege carefully observes, was an example of how the progressive realization of the rights enshrined in the Constitution was subverted at the altar of cost recovery, outsourcing and narrow political interests. The outcomes were fatal.
The ramshackle political economy of ‘community-based’ service providers, is what incensed Rugege and her colleagues at Section27:
‘… many of those people ended up in unlicensed facilities and those facilities were sometimes a garage, sometimes somebody’s spare bedroom and those people were being paid because the Department later contracted them, and they had no business looking after people with serious mental issues.’
Over 94 people died, and Rugege reflectively suggests that the deceased be remember as a reminder of what the ‘negligence of state officials’ can amount to.
Yet one cannot go without acknowledging that the arbitration process was also about restoring the dignity of the departed and those who were left behind seeking answers. In this sense, the ethos of ‘restorative justice’ was about getting the officials empowered to make decisions over the lives of mental healthcare users to account to the families for their actions and omissions.
‘They did not account to anybody else, but those families’, Rugege says. ‘That was very critical.’
In many ways Life Esidimeni was a turning point for South Africa. As with many other turning points we have had in a country that often seems like it is on a knife edge, it reminded us of the worst in our system. The process also gave Rugege much hope. Hope that the over a decade long work being done to hold both the state and corporations to account is bearing some fruit. That attitudes are changing, that the negligent and those found in dereliction of duty see justice:
‘… we starting to see progress, and that is an important moment for us as a society, to see that we can advance and to have faith in the institutions that we have and to ensure that we continually invest in those institutions, and investing in civil society is part of that.’
The Constitutional promise is expensive. In time. In lives. In money. It takes struggle and effort to make commitments on paper, a part of the lived reality of those who need to claim those rights. It is the work of Rugege and her team at Section27 that serves as a lingering conscience in our exercise of power. May we listen to that persistent voice.