Keeping the flame of hope alight: refugees and right to access to healthcare services in South Africa
Githaiga, Catherine Lucy Wambui
During my interaction with various healthcare professionals while pursuing my post graduate degree, it was evident that a number of them were uninformed about refugees‘ rights.1 There was a predominant misconception that refugees are a burden to South Africa‘s already-constrained health care resources. Some of the healthcare professionals that I spoke to pointed out that they would care for all patients regardless of whether they were refugees or not, because they felt that they had a moral obligation to do so and because professional ethics required them to do so. This was the motivation behind my research.2 As observed by Bilchitz (2005: 5), the term „right to health‟ is a shorthand expression for two elements; the right to health care and the right to a healthy environment. This research report focuses on the right to health which includes access to healthcare services as one of the components of the right to health. It is not oblivious of other related and interdependent rights and it is not in any way intended to undermine the importance of other rights to health. For the most part, I centre my research report in the context of South Africa. In line with the above, the research report recognises the fact that the obligation of the states under international law extends to non-state actors. However, this 1 A refugee is defined by the Department of Home Affairs South Africa (2009) as ―Anyone fleeing from individual persecution, human rights violations or armed conflict in the land of their origin‖. 2 In my further studies, I hope to compliment this research report with empirical research. 7 research is limited to the state‘s obligations within the public healthcare sector. The research report takes an entitlement approach because entitlement empowers refugees by: 1. It gives them a base on which to stand up for themselves and for all persons past and present who, in the face of persecution, have become refugees; and 2. It allows refugees to draw attention to and demand the satisfaction of their rights (Liebenberg 2006: 20; Williams 2005: 446);and 3. It uses the legal process in order to obtain the fulfilment of their needs (ibid: 33-34);and 4. It aids in the pursuit of social justice as Pieterse (2006: 447) puts it: ... by demanding the acceleration of structural reforms that would put an end to prevailing hardship and by creating a space for collective mobilisation around such structural reforms. Although in some instances the research report refers to provisions and studies conducted on foreigners,3 this study is mainly focused on refugees and asylum seekers. However some of issues affecting foreigners in general inadvertently affect refugees as well. Overall, my research looks at the general rights of refugees. It acknowledges that there are specific rights that apply to specific classes of refugees.4 Lastly, the use of 3 A ‗foreigner means an individual who is neither a citizen nor a resident.‘ ( see Yacoob J.‘s ruling in Lawyers for Human Rights v Minister of Home Affairs & Another CCT 18/03 4 These include women and children amongst others. See Convention on the Elimination of all forms of Discrimination Against Women (CEDAW 1979); Convention on the Rights of the Child (CRC, 1989), in article 24 and related regional treaties. Also see s 28 of the RSA Constitution. 8 the term refugee in the study is intended for convenience and includes asylum seekers. The main thesis of the study is that states, as promoters and protectors of refugees‘ right to health, have an obligation to put in place all necessary measures that will aid refugees to full realisation of their right to access healthcare services.
MSc (Med), Bioethics and Health Law, Faculty of Health Sciences, University of the Witwatersrand
access, rights, refugees, healthcare