Realizing a Constitutional Social Right - Cultural Transformation, Deep Institutional Reform, and the Roles of Advocacy and Adjudication

Abstract

The South African case of Minister of Health v. Treatment Action Campaign (2002) may be the world's best known recent social rights decision. Usually studied in terms of doctrine and remedy, the decision has been praised or blamed for its cautious approach to defining and enforcing social rights. But neither the court's approach to doctrine and remedy nor the case's significance for social rights advocacy and constitutional theory can be understood apart from the movement-building, cultural transformations and institutional reform strategies that shaped both the litigation and the Constitutional Court's response. This draft book chapter, drawing on primary research and extensive conversations with Treatment Action Campaign's leaders and lawyers, offers an empirically rich, theoretically informed account of these more complex dimensions of the 2002 case, its setting and its aftermath, to the present.

This richer narrative analyzes the work of social rights advocates and social movement in creating political and institutional contexts that enabled seemingly gingerly judicial review and narrow judicial remedies to promote broad and deep reforms in social provision - bringing a constitutional social right to earth. The narrative draws together realms that constitutional theory usually keeps apart: cultural transformations in constitutional meaning, rights interpretations, and rights-bearing identities wrought by successful social movements; and institutional reforms and innovations produced by successful collaborations among courts, social movements, and other social and political actors. Theorized separately in constitutional scholarship, as practices on behalf of the dispossessed, these different kinds of change depend on one another. We call this a polity-based approach to social rights advocacy and contrast it with other approaches.

At once a NGO and a social movement, Treatment Action Campaign (TAC) led the decade-long struggle to prod the South African government to provide life-saving anti-retroviral treatment to hundreds of thousands of HIV/AIDS sufferers in the nation's public healthcare system. It prevailed despite the obdurate resistance of the nation's President and most of the African National Congress leadership. TAC made the polity and not the courts its chief sphere for rights claims. It raised broad politico-constitutional claims and pursued broad programmatic changes and institutional innovations outside the courts, while pursuing a narrow legal-constitutional strategy.

Melding the nation's new Bill of Rights with a grammar of protest and cultural contention inherited from the Anti-Apartheid movement and grass-roots "empowerment" and "treatment literacy" strategies culled from around the world, TAC built up hundreds of local branches and a poor people's social movement among HIV/AIDS sufferers. Treatment Literacy combined with "rights education" enabled poor South Africans with HIV/AIDS to participate in and make demands on their own treatment and care - and to remake themselves into rights-bearing members of local communities, activist organizations and larger publics. By holding Treatment Literacy workshops not only in hospitals and clinics but in countless schools, churches, union halls and workplaces, TAC also succeeded in providing South Africans with a new public vocabulary for understanding and reckoning with the pandemic in the face of official HIV/AIDS "denialism." At the same time, TAC's attorneys, activists, and its academic, NGO and professional allies pushed forward policy initiatives, programmatic alternatives and institutional experiments at every level of healthcare governance. TAC used litigation in service of these many-sided strategies to open up policy-making processes, to fashion democratic and pro-poor programs and policies, to prod government to implement them and to monitor its progress. While it used litigation sparingly, TAC's court victories provided invaluable political leverage and moral authority - more powerfully so than the scholarly literature of juris-skeptics or even juris-optimists would predict. TAC's polity-centered use of litigation, we'll see, has suited and helped shape the Constitutional Court's own understanding of the judicial role in adjudicating and realizing constitutional social rights via iterative encounters and collaborations with civil society and state actors.

Much that is said about Treatment Action Campaign and South Africa's Constitutional Court emphasizes the distinctiveness of South African experience. But it's a mistake to overlook the more generalizable features of the strategies recounted here. Like many constitutional courts around the globe, South Africa's prefers to husband its political capital, to intervene modestly and in "compelling" cases, and to shun sweeping programmatic decrees. It prefers to help and rely upon civil society organizations and reform-minded political actors to develop the political and institutional contexts that make relatively modest, episodic and iterative judicial interventions yield maximal effects. This vision of judicial collaboration with civil society organizations and reform-minded state actors comports with what constitutional courts elsewhere seem willing to hazard in the name of social rights. Thus, this contexts-creating craft is worth cultivating in many places; and by recounting TAC's and the South African Court's collaboration in some detail, we have tried to convey what we have learned about it.