Cut Gay Rights From Constitution say Traditional Leaders! #Constitutional Much??

“The National House of Traditional Leaders wants to remove a clause from the Constitution which protects people from being discriminated against because of their sexual orientation.”

Section nine of The Constitution of the Republic of South Africa states:

 "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

In 1993 the African National Congress endorsed legal recognition of same-sex marriages, and the interim constitution opposed discrimination on the basis of sexual orientation and promised to defend a right to privacy. These provisions were kept in the new constitution, approved in 1996, due to the lobbying efforts of LGBT South Africans and the support of the African National Congress. Hence, South Africa became the first nation in the world to explicitly prohibit discrimination based on sexual orientation in its constitution. Two years later, the Constitutional Court of South Africa ruled in a landmark case that the law which prohibited homosexual conduct between consenting adults in private, violated the Constitution. 

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from unfair labour discrimination on the basis of sexual orientation, among many other categories [6] In 2000, similar protections were extended to public accommodations and services with the approval of the Promotion of Equality and Prevention of Unfair Discrimination Act 

In December 2005, the Constitutional Court of South Africa ruled that it was unconstitutional to prevent people of the same gender from marrying when it was permitted to people of opposite gender, and gave the South African Parliament one year to allow same-sex unions. In November 2006, Parliament voted 230:41 for a bill allowing same-sex civil marriage, as well as civil unions for unmarried opposite-sex and same-sex couples. However, civil servants and clergy maintain the right to refuse to solemnize same-sex unions.

South Africa, country that had its first democratic elections in 1994 after a long struggle against the oppression of people of colour. The legacy of Apartheid had tremendous impacts on the social, economic and psychological disparities in our communities. The impacts left devastating scars amongst the black population; however the idea of living within a democratic dispensation could only be viewed in a positive light. There were many to whom the struggle could be greatly attributed to however in this context it would be key to pay specific cognizance to those who were part of the constitutional developments of our country. described by many as the best in the world and modelled by many countries, the South African Constitution was designed to protect the rights of all citizens in whatever en-devours they may decide to pursue. These range from political engagement to socioeconomic to the most fundamental one, the ability to describe one’s self without fear of discrimination or harm.

 

It would be beneficial to first note that the Traditional Courts and the Traditional leaders were questioned as to whether they should have been included or formally recognised within the administration or decision making of the state. Many such as the likes of Dr Rampehele were vocally against this, stating that the involvement of traditional leaders was detrimental in most aspects as they are often reluctant to move with the times was a fundamental hindrance to note. However the presidency lead by former President Nelson Mandela noted that the Traditional leaders’ exclusion would have been a suppression of true democratic or constitutional ideals. I cannot however wonder though whether this was not an obligation by the ANC to repay the Traditional leaders for their involvement in the formation of the ANC.

 Fortunately I had the opportunity this year to attend a panel discussion which included the Chief Phathekile Holomisa who is the Chair of the of the Constitutional Review Committee as well as being the head of the Traditional Leaders Congress as well as the Honourable Dr Ramphele at the University of Cape Town Law faculty Constitutional Week programme. The manner in which Dr Ramphele chose in tackling or outlining how the traditional leaders are extremely detrimental to the development of the communities they govern and the lack of formal judicial processes in those communities was enlightening. Traditional leadership in South Africa has been proven in many instances to disregard the judicial processes of the country as stipulated by the Constitution. Issues of gender equity in these communities and the judicial processes that these chiefs have chosen to adopt as supreme law usually disadvantage women and children. Women and inheritance issues are almost an issue that is taboo. How often do we hear of sentences passed from these informal traditional courts which claim that people be stoned or punished severely on accusations of bizarre charges such as witchcraft. It is important to hold the stance that I find that Traditional leaders have an extensive role to play in the moral regeneration of our society as well as preserving and maintaining the African principles of respect and most importantly, Ubuntu. We are to respect Tradition however balance its application with the demands of uplifting our socio economic status in the global markets by ensuring democratic stability in this country in order to seek investors. I am not responding to these allegations in fear of LGBTI people being in any form of danger but rather to question what would actually cause the Traditional Leaders to take such a stance. One would think that the fact that their eligibility to participate (formally) within democratic and constitutional processes after being questioned for so long, they would have championed  the application and protection of minority interest rights. Im simply compelled to comment about how they are failing to own their democracy (one they were nearly deprived of for a long time). South Africa is currently heading up the promotion of LGBTI Rights in the UN and countless members of the Judiciary have raised that with the removal of any citizens rights within the Constitution, they would immediately resign. 

The official South African Tourism site offers in depth travel tips for the gay traveller. Gay friendly establishments are situated all over South Africa and could be found on one of the various gay travel websites. Since anti-discrimination laws exist, many gay professionals are employed at major corporate companies throughout the country. Queer folk are also targeted through various marketing campaigns, as the corporate world recognizes the value of the "Pink Rand". Even in religious circles some prominent leaders voiced their support for the LGBT community. Archbishop Desmond Tutu and Dr. Allan Boesak are vocal supporters of gay rights in South Africa. Even the conservative Dutch reformed church also recently ruled that gay members should not be discriminated against and could hold certain positions within the church. However a lot of criticism still exists against the church and a recent court ruling against a congregation of the church for firing a gay musician caused an uproar in the gay community and within liberal circles.

National Health Insurance: Policy ambition much??!!

Ridiculed with economic inequalities and disparities, South African government services to communities till this day are haunted by the devastating effects of the segragatory laws of apartheid which advocated for separate amenities as well as separate government. The idea was to create self-governing Bantu states, which would operate in separate function from the white governing states, under minimal resources.  Socio-economic rights at that time was an issue only the black population could dream of while the white population enjoyed the privileges of the best provided services. With the country in absolute chaos from civil conflict that spontaneously occurred every now and again, health services became a vital component of survival for the black population. Injuries as well as many other medical issues such as cholera (which resulted in most cases from lack of basic sanitation or poor living conditions) were all the issues which burdened the incapable health system within black communities. With minimal infrastructural growth and lack of technology in medical services provided to black communities, the situation could only take a turn for the worse creating extreme backlog in the black communities’ health services. Remote areas as a result of the Group Areas Act as well as Bantu Stans that were developed resulted in many of the remote rural villages which harboured a large black population of mainly women and children (as a result of men mainly working in cities) having poor if none at all medical facilities or even access to health care. Townships were to some extent lucky as they were provided with clinics however the population density of these areas could not keep up with the demand of health care that was needed.

Health issues such as the confrontation with HIV and Aids during the late 1980s were all the contributing factors which played very much against the black population. A large influx of Migrant as well as local rural mine workers would in most cases contract the sickness (due to the prevalence of sex workers within cities) in cities and be the carriers who infected their wives and children as a result of a lack of knowledge or access to information within their rural communities. For a long time HIV Aids continued to eat away within mainly the black population and the apartheid government chose to ignore the situation paying little if any respect to the consequences that this sickness would have on the Health Sector and the demand of health services that would then be required as the population continued to decline. Constant surges and outbreaks of Cholera as a result of poor if any basic sanitation or access to water within black communities meant a great demand of health services to these large pools of people who were increasingly now relying on health care to be provided for their everyday survival. Stigmatised as well as misinformed responses by the black population concerning all illnesses also created a severe negative impact on the responsibility that Health Care would have on these issues as these communities often relied on the understanding provided by Traditional Science which was unable to adequately address the issue and bring about reasonable change or any form of assistance.

The above history of the health sector as well as the conditions that it operated under are an effort of emphasising how much socioeconomic rights as entrenched within the Bill of Rights which are now being enjoyed under the new post-apartheid democratic dispensation are of importance (given our past history). These socioeconomic rights can only be enjoyed through redress of all the common interlinked issues expressed by the above history. Therefore one would expect that the proposed National Health Insurance (NHI) scheme would be cognisant of these here fore mentioned variables and maintain a stance that would aim to address these issues as a response. The NHI Policy Paper by the South African Department of Health claims that “the South African health system is inequitable, with the privileged few having disproportionate access to health services. There is no recognition that this system is neither rational nor fair. Therefore, the NHI is intended to ensure that all South African citizens and legal residents will benefit from healthcare financing on an equitable and sustainable basis. NHI will provide coverage to the whole population and minimise the burden carried by individuals of paying directly out of their pocket for healthcare services. This model of delivering health and healthcare services to the population is well accepted, described and widely promoted by the World Health Organisation as universal coverage” (Department of Health Policy Paper, 2012:5).

Dr Aaron Motswaledi the current Minister of Health along with his task team of the NHI have in most cases claimed that the NHI is an attempt to address the issue of complying with acceptable standards of healthcare this commonly known as universal coverage (UC). “UC should provide financial protection for all against the costs of health care, with it now being widely accepted that “pre-payment” and pooling of resources and risks in financial risk protection” (McIntyre, 2010:147). Also most of the conversation around the NHI is has its first research beginnings from the Taylor Commission. The Taylor Commission is formally known and recognised as the Committee of Inquiry into a Comprehensive Social Security for South Africa which was formed in 2002. The South African Department of Social Development appointed Prof Viviane Taylor of the University of Cape Town Social Development School as the chair and to explore the possibility of a comprehensive health care system which would be able to cater for all South Africans from a reasonable and fair or just approach. “The Commission recommended that there must be mandatory cover for all those in the formal sector earning above a given tax threshold and that contributions should be income-related and collected as dedicated tax for health. The Committee also recommended that the state should create a national health fund through which resources should be channelled to public facilities through the government budgetary process” (Department of Health Policy Paper, 2012:35).

The NHI from the manner in which it was drafted assumes naively a South African society without any economic disparities. Many critics have noted that it does not take into cognisant the circumstances, which continue to further deteriorate, that are noted above from the previous dispensation under Apartheid rule. The first point of call for a policy of this magnitude to be implemented in a country like South Africa would be sourcing the funding. The capital of such a programme is of large costs and given the statistics that prove that the entire population would be reliant on this for provision of such a service. South African economy relies largely on tax sourced income from citizens as the form of sustaining any form of services provided by government. This means that as noted by the Taylor Commission that certain citizens above a certain tax threshold would have to contribute more taxes above their current contributions. “In relation to revenue collection, the proposal is that funds would will be mainly derived from general tax revenue but will probably be supplemented by some form of mandatory payroll contribution by formal sector workers” (McIntyre, 2010:153). South Africa is slowly facing serious issues concerning the tax burden that many middle class citizens are currently facing as a result of many deficits that the South African government was unable to foresee within the Policy formulation phase. Such examples can be found in the infrastructure of various facilities which were built for the FIFA South African 2010 World Cup which now has to be maintained by the introduction of Toll-Roads which creates more costs for ordinary working citizens. In a statement found on the South African Medical Association site a source is identified as saying that “if we are going to try and implement it in the timelines given by the ANC, it is going to create a huge demand on the taxpayer and the taxpayer is not ready to pay more given the current economic situation” (Bus Report, 2010).

This process will in terms of finances and how these funds will be used will be administered under the procurement regulations of South Africa and as noted in many instances issues of procurement in South Africa have often resulted in failure to account by the service providers in terms of delivering the services that is expected to them. Procumbent in South Africa has been largely beneficial to large cooperation’s and detrimental to Small, Medium and Micro Enterprises which is never conducive to the economy as it displaces many businesses and left destitute also this leads to unemployment. The health public sector is unable to maintain their procurement deals in terms of how the deals are administered. The process is ridiculed with corruption and in most cases companies or individuals are awarded deals which they are in most cases unable to maintain or complete due to resources or financial in capabilities even though they receive full payment from government. This clearly would result in the misuse or waste of taxpayer’s moneys on unsatisfactory services. Current cases against the Department of Health in various provinces particularly those provinces which under the Apartheid dispensation and suffered a backlog of resources and adequate provision of services (Limpopo, Eastern Cape, certain parts of Kwazulu-Natal) prove that the department is not ready for policy of this magnitude. This then speaks to the issue of decentralising health care services.

The decentralisation of health care speaks to the dispersing equally of resources and facilities of health care. This speaks to the infrastructural problems that exist in the health care sector as most communities still don’t have health care centres and those that have them are in most cases not in acceptable standards or are overburdened by the growing demands of health care. Many reports prove that health care is still not accessible to many South Africans as a result of lack of facilities. “Although in theory South Africans enjoy a fair amount of financial protection via health services that are either fully funded or heavily subsidised, the reality is that many cannot access services when needed. There are many y access barriers, but a recent national household survey has indicated that some of the greatest barriers to access remains distance to facilities” (McIntyre, 2010:149). This is also affected by the demands of health care which has been highly due to the rise of the HIV and Aids pandemic that has resulted in South Africa having to administer a large Antiretroviral programme with no change to health infrastructural developments. Reports of public medical care facilities being unable to administer these programmes effectively flood the department’s reports as well as the media. The lack of resources in many health care facilities such as even basic pregnancy scanners proves that the problem is beyond just addressing the issues that come at face value. The former Minister of Health Peggy Nkonyeni in Kwazulu Natal was arrested on charges of fraud and furthermore those on interference in procurement deals under the Public Finance Management Act. Her ill conduct proves how the NHI would become vulnerable to interference by public health care officials in issues of financial gain. Also it was the excellent work of the National Prosecuting Authority (NPA) which was able to capture this act however one ought to question whether the implementation of the NHI would not over burden and further cripple any oversight body such as the NPA therefore opening up even more room for corruption within the health sector.

The NHI calls for somewhat a process of Public Private Partnerships (PPP) a system adopted by government in about the year 2000. This system was adopted and regulated by the national treasury and is defined by South African law as a contractual agreement between government and private sector ownership. It seeks to establish that the private sector to provide state services within the attainable means of state. It the transfer of substantial project risk (financial, technical and operation) being transferred to the private party. The capacity of oversight on public expenditure upon these contractual agreements as stipulated by the NHI document would mean the strengthening of oversight bodies such as the courts and any other bodies that are in charge of overseeing public funds and resources as they are already currently in a dilemma of being unable to deal with the current demand as a result of high levels of corruption in many sectors as well.

“In 2006 a total of 33 220 medical practitioners were registered with the Health Professions Council and therefore able to practice in this country (Table 1). This represented a 14 per cent increase since 1999 and an annual average growth of (1.76 per cent) 1.9 per cent. The number of practicing doctors is lower than the total registered because the register does not distinguish between doctors who are actually practicing and those who are not. Therefore the total could include some who are retired, out of the country or just inactive. Data from the latest Labour Force Survey should help us to state the numbers who are actually working but unfortunately the data seems too inconsistent to be reliable”( Mignonne, 2007:11). Therefore the NHI also assumes a strong and capable civil service within the health care sector yet South Africa faces a dilemma of a shortage of specialists within the health care system as the country often has to keep these professionals pleased by offering them more than what foreign countries offer. The migration of health care workers and specialists leaving South Africa into other countries is a result of the poor working conditions as well as low pay rates. South Africa’s inability to offer more pay to these individuals as an incentive to remain domestically is clearly an issue that or option that cannot be explored as already the health care system is operating on a financial deficit and the implementation of such a policy (NHI) would mean most of any finances accumulated through tax revenue and other methods would need to be contributed to infrastructure, resources as well as the sustaining of both in order to meet the current demand. South Africa provincial Departments of Health were already in debt of R7.5 billion as of April 2009 with the figures increasing rapidly. “This study asks whether there is a shortage of doctors in South Africa and whether medical practice should be regarded as a scarce skill. It finds, after evaluating various forms of evidence, that there is indeed a shortage of medical doctors and argues that the profession should be recognized by the Department of Labour as a scarce skill” (Mignonne, 2007:7). This further proves that the health care profession is in fact in a crisis of skills shortage. Institutions of Higher Learning as well as training facilities are said to be unable to produce the demands as set out by the NHI its goals. The timeframes it sets would be unrealistic in producing the number of professionals it requires. This is largely due to many contributing external factors that the development of the NHI did not take into mind. These vary from the education standards in South Africa with reference to Maths and Science to the training facilities of particularly doctors and specialists. The Minister of Higher Education is already facing a crisis due to the demands of our economy in terms of producing skilled individuals who would in essence be part of the expansion and facilitate the sustainability of this economy with health services being one of the direst imperative and extremely important sectors where the problem lies.

Many economists argue that the shift into the NHI is economically not viable or advisable in a country such as South Africa with the ruling parties (ANC) discussions paper being critiqued by many in a negative onset. “The health budget for the current financial year is R100 billion, with R117 billion provisionally budgeted for the 2012-13 financial year- suggesting that the additional amount required for the roll-out would be just R11-billion in the first year” (Parker, 2010). This would result in the middle class suffering serious economic devastation in South Africa and as usual it results in even worse economic disparities amongst the poor and the rich. This would seem relatively controversial from a party that argues for the upliftment of socioeconomic rights for all. It was under the advice of the former Minister of Finance Trevor Manuel in his budget report, under the rule of President Thabo Mbeki and the surge of the South African economy expanding into global markets, that the ANC refused to use the accumulated finances to invest in much needed infrastructure such as hospitals that would not need have come from tax payer revenues. However after refusing this advice and now under a new presidential era and after realising the devastating effects of not heeding that call, the ruling party’s policies now seek to move in a manner that seeks to address these issues and tragically enough that economic feasibility is no longer there.

There is an important aspect of the provision of health care provision to those who do not have access to it which is surprisingly not noted by the NHI policy document. The extent to which private companies and large cooperation’s that employ general labour and accumulate extreme amounts of wealth have not been regulated or enforced by the law to provide workers with medical care for themselves as the primary and principle members and also have family members as dependants. This sector which is inclusive of mines, logistics, transport and commercial farms employs a seriously and notably large part of the individuals who do not have access to adequate medical treatment yet they accumulate extreme amounts of wealth. This could be argued to be a redress mechanism and also bearing in mind that it would not place extreme pressure on the tax payers’ revenue which was the NHIs first point of call for funding. Cooperate or private sector players should be made to realise that their existence mainly relies on the existence of the general as well as skilled labour which they employ and that the health of these individuals as well as their families should also partly if not entirely be their responsibility as well. If the government is able to regulate the employment environment of these sectors, then it is well capable of regulating the conditions of employment such as this issue of health care provision. However due to inadequate research into sourcing finances for the implementation of this policy, the government still has not explored this option.

From the policy formulation process of the NHI one can conclude that a lot of emotive and ideological conversation or dialogue clouded the conversation around the core issues which would prove detrimental in the implementation of the plan. It takes on the assumption that South Africa through ushering in democracy has been able to eradicate the conditions that previously burdened the health sector. Clear evidence of a lack of infrastructural development within the sector and the lack of resources proves that a comprehensive plan of approach of this kind would be detrimental to the growth of our economy due to such social security spending. The health sector environment clearly is still operating on a financial deficit and to assume that the collection of funds through tax revenues and investments of government investment profits into this system would fix this would be a premature step. The health sector still remains highly, if none at all available due to the overburden of facilities to may South Africa as a result of government failure to bring these facilities to the citizens (mainly those in rural and remote areas) by failing to design a comprehensive plan that focuses on the decentralisation of infrastructural developments such as clinics and hospitals. Yes it is true that the private health care sector is accumulating extreme amounts of money and that this should not be acceptable however government can only then enter into Private Public Partnerships with private sector only after it has assumed its role and fixed the services it is able to provide as this could have serious consequences such as the clear role of each of the stakeholders in the agreement. The oversight on a programme of this scale around issues of finance monitoring and evaluation as well as the quality of the service that can provided by this policy will be almost impossible to control as already the facts and statistics or even the role of the NHI has been exaggerated and also fixed with many figures that many have noted. The NHI assumes a seriously ambitious role and the fact that it would be shared risk on the public and private sectors would honestly leave the citizenship of our country with no one to hold accountable if the system would prove to be a failure. The collapse of a policy of this magnitude in the implementation phase could have serious fatal consequences on the citizens as well as the economy of the country. The expenditure that is proposed seems to large a risk to enter and yes in as much there are socioeconomic rights in South Africa, there is also rational economic responsibility. The NHI is not ideal in addressing the health sector problems in South Africa. Many issues need to further revised and the timeframe for all of this is extremely ambitious and could have serious negative consequences if not properly administered.