Sunday, May 28, 2023

The Rule of Law and Access to Justice in Promoting enabling legal and policy environments

It is always a pleasure and a rare privilege to share an intellectual moment with a dedicated army of committed human rights crusaders who desire to use law as a tool to advance human rights and social justice. It is not quite often that lawyers talk of human rights and social justice in the same breadth, yet the two concepts, although meaning different things, to different people, are interrelated; and I would argue, inseparable.

As that iconic Statesman and lawyer from Mveso/Qunu, Nelson Rolihlahla Mandela once said, to deny people their rights is to challenge their very humanity. 

The Universal Declaration of Human Rights makes reference to the concept of the rule of law and states that:

“ Whereas it is essential if man (read and woman) is not to be compelled to have recourse, as a last resort, to rebellion, against tyranny and oppression, that human rights should be  protected by the Rule of Law.”

The rule of law is a contested concept. It is also vague. It means different things to different people, including lawyers and judges. Lawyers often trace the concept to the English Jurist by the name of AV Dicey. By the rule of law Dicey had in mind essentially three principles: (a) the supremacy of the law; as opposed to arbitrary power; (b) the notion of equality before the law in the sense of equal subjection of all before the law and, (c) the rights of the courts to define and enforce what the law is.

Over time the lawyers have tried to unpack this vague concept by literally listing its constituent parts. The list keeps growing.

Traditionally the rule of law was understood to mean rule according to law. It didn’t matter much the content of those laws. The content of those laws was hardly interrogated. History would testify that in the past, and perhaps even now, the most despotic and oppressive regimes had rules on the basis of which they governed. Examples that come to mind are Nazi Germany and apartheid South Africa; yet no contemporary lawyer, of substance, can credibly argue that those regimes observed the rule of law; even as they believed they did.

Nowadays, as that doyen of the US Judiciary, Cardazo, once said the ultimate objective of law is the welfare of society. The law has no finer hour than when it cuts through the walls of prejudice. And judges should never been willing executioners of unjust laws that offend the core values of human rights.

Consequently, any claim, from whosoever that the rule of law is being observed whilst systematically denying other persons their rights, purely on the basis of prejudice and little knowledge, cannot be taken seriously.

It is correct to assert, in the context of HIV, TB and human rights in particular, that the legal and policy environment globally and in Africa in particular is generally hostile,  inconsistent and in conflict with the 2016 Political Declaration that aims to end the epidemic by 2030.

The Lancet Report recently released paints a grim picture of the state of human rights globally as affects key populations in a number of places. It is plain to me that if these challenges are not urgently addressed the noble goal to end the HIV epidemic will remain a hollow dream. Once again, a tipping moment in history has been reached where, we, the people, must refuse to surrender our dignity or be complicit in the violation of their rights either by doing nothing or just mourning. Tragically, whilst human rights are inherent in every person they are hardly granted on a silver platter.

The Special issue of the Lancet report of which I make reference, says that prisoners are the most neglected and vulnerable of all populations in the global HIV/AIDS response. This is paradoxical because the rule of law asserts that prisoners do not seize to be human beings by being imprisoned; they have full rights, just like all of us, save those necessarily taken away by virtue of imprisonment.

The aforesaid report says that in Ukraine, for example, arresting and locking up people, who, inject drugs, may account for half of all new infections amongst this population. It follows that concentrating these people in crowded, unhealthy conditions in prisons without proper health care and treatment creates increased risk, both in prison and the communities to which they return.

Worldwide, sex workers are reported to be disproportionately affected by HIV, yet the Lancet report says criminalizing sex work could prevent up to 46 percent of new infections amongst sex workers.

The Lancet Report speaks of millions of transgender people who still face discrimination. These experiences include discrimination at schools, public health facilities, workplaces and mainstream economy.

According to the report, many of the health challenges faced by transgender people are made worse by laws and policies that deny them gender recognition. The report further says: “ Faced with stigma, discrimination and abuse transgender people are pushed to the margins of society, which leaves them at the mercy of further ill-health.”

The report makes far reaching recommendations, including that revisions be made to WHO’s diagnostic manual, due to be revised in 2018,including removing diagnosis for transgender people from the chapter relating to: “ mental and behavioural disorders”, as it unduly reinforces stigma. One of the abiding myths that envinces, in my view,  breathtaking ignorance of the diversity of humanity is the notion that there are two genders: male or female.

In Africa, the narrative is more or less the same. Acute deficit of rule of law credentials as demonstrated by an epidemic of laws that criminalizes same sex consensual relationships and prosecutes people living with HIV for transmission or conduct risking transmission is turning rights holders into potential criminals and driving them away from accessing treatment and care; in addition to fueling stigma and discrimination. These violations of rights cannot be consistent with modern notions of the rule of law.

In Africa we are witnessing too many instances where the imperatives of the rule of law are not followed. Organizations that agitate for LGBTI rights are denied the right to exist by their governments and to call for legal reforms. In cases where courts have intervened to force recognition of their rights there has been reluctance to obey court orders, yet the rule of law says that court orders are not negotiable; and that governments must lead by example as failure to do so teaches the citizenry that it is fine to disobey court orders. In some jurisdictions human rights organizations fighting for LGBTI rights are frustrated by having their accounts frozen for doing human rights work and the police are routinely unleashed to raid sites where key populations are supposed to be accessing health related services.

A proper understanding and application of the rule of law requires that criminal laws that do not serve public interest and deny people access to health facilities, treatment and care be repealed. Its important that we must use the rule of law values to transform our legal/and policy environments if we are to succeed in ending HIV by 2030.

The Courts are the final guarantors of fundamental human rights and freedoms.  Courts can protect fundamental human rights firstly through the lawmaking powers of interpretation.  It used to be thought that judges don’t make law; that thinking belongs to a bygone era.  Judges may not be primary law makers; but they do make law.

Increasingly new constitutions in Africa, such as those of  South Africa, Malawi and Kenya, have given judges sweeping powers to develop the law. For law to keep growing to serve the ends of justice we require a judiciary that is informed by science, new data and rationality in adjudicating over issues of HIV/TB and human rights. The judiciary should not hesitate where the facts and the law permit to engage in transformative constitutionalism. Transformative constitutionalism connotes an enterprise of inducing social change through law ÔÇôand is part and parcel of the ever evolving rule of law project.

Judges because of their learning, independence, impartiality, and integrity can provide a bridge between the status quo characterized by indignity and injustice and a future founded on the recognition of human rights.

Every historical epoch has its mood and the judges for that mood.  It falls upon the judges of today to raise the bar on human rights discourse.  To do this, they need to have hearts, brains, and courage.

In jurisdictions where the legal and constitutional frameworks are not developed enough to protect human rights of people living with HIV, TB, international human rights law offers an opportunity to fashion appropriate remedies within the limits of the legal system they operate in.

It is obvious from my discussion above  that a proper understanding and application of human rights can shape better legal/policy environments that conform to the dictates of the rule of law.

The integration of human rights based approaches into AIDS/TB programmes, policies and interventions can help achieve universal access to health through:

  • Contributing to prevention;
  • Facilitating access to care
  • Empowering patients and communities
  • Reaching out to key populations
  • Improving quality of health services


More  significantly, all interventions must ideally have the input and participation of those affected ÔÇô and as it is often said: “ Nothing for us without us”.

Civil societies, including political movements, have historically turned to litigation to advance the cause they believe in.  The resulting litigation is best described as strategic.

In this context, the litigation is strategic in the sense that it attempts to persuade the Courts to use their learning and integrity to enforce the rights, especially of marginalized and vulnerable groups.           

Strategic litigation casts Civil Society Organizations as some kind of a radical social critic of the unsatisfactory status quo and they litigate in order to persuade the courts to replace the present unjust reality with a just and equal future.  Strategic litigation emphasizes the vision of justice as a continual struggle.  Those involved in strategic litigation do not mourn lost cases, because its primary purpose is to advance a vision of a better society. The rule of law project is work in progress. It requires a civil society, grounded in the communities to demand rights from those unjustifiably withholding them; and calling upon governments to accounts.

In my mind, Civil Society Organizations and other individuals engaged in the task of affecting a better society, the symbol of justice is not the traditional scales connoting calm and detached balancing of the scales but an imagery of a turbulent cascading river.

Strategic litigation serves to educate. It educates all those involved in the litigation, including the judges.  It also teaches the broader society.

To this extent, civil society must understand that even judgments dismissing cases in which civil society sought to bring about a fairer and better society leaves behind a narrative of resistance.  The lessons learnt by future generations are not that the case was lost, but that civil society groupings and lawyers found courage, energy, and creativity to resist injustice in the face of overwhelming odds. 

Thank you for your attention.


*OBK Dingake is the Co-Chair of the African Think Tank on HIV, Health and Social. He was presenting at the recent International AIDS Conference, Durban


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