PATTERNS OF HUMAN RIGHTS VIOLATIONS

The International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. To that end, it mandates a series of steps be undertaken, one of which is the creation of conditions which ensure medical service and medical attention to all in the event of sickness.¹²⁸ Other provisions call for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child;¹²⁹ improvement of all aspects of environmental and industrial hygiene;¹³⁰ and the prevention, treatment and control of epidemic, endemic, occupational, and other diseases.¹³¹

A General Comment drafted by the United Nations Committee on Economic, Social and Cultural Rights, the body which oversees implementation of this instrument, declares that obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights, are not alleviated by a lack of resources. The General Comment lists deprivation of essential primary health care among a substantial portion of the population as one of the grounds for a fundamental violation.¹³²

Moreover, lack of resources was not the primary reason that the South African government failed to make a serious effort to respond to the health needs of the black majority. The health sector afforded a standard of health care for the minority white population comparable to many developed European countries, including high technology interventions. Apartheid policy mandated an intentional maldistribution of resources to the benefit of the white population. The priorities of the Ministry of Health also encouraged its staff to ignore serious health problems if they did not affect whites.

1. Failure to respond to serious health problems

· "The apartheid government…failed to give appropriate attention to combating preventable diseases, particularly those that affected the black population."¹³³
· Until 1968, all cases of kwashiorkor had to be notified to the
government. Presumably since it struck seven whites and almost 11,000 non-whites in 1967, the government deemed it a useless waste of money to keep track of cases. According to an article published in 1981, "[a] spokesman for the Department of Health rationalized the removal of kwashiorkor from the list of notifiable diseases by stating that `notification was far too time consuming," "figures too inaccurate," and that a "general idea" of the prevalence of kwashiorkor had been gained by that stage."¹³⁴

· In 1978 at a conference convened by the New York Academy of Sciences, the presentation of research of two South African researchers linking asbestos-related diseases to workers in asbestos mines was "suppressed" by the Medical Research Council of South Africa. The instruction to withdraw the paper was allegedly issued "at the request of the asbestos mining companies in the Northern Cape who wanted to prevent evidence of a link between blue asbestos and cancer being disclosed."¹³⁵

· Disease patterns reflect major differences in access to health care and socio-economic conditions. "Amongst Africans and coloreds, diseases of the respiratory system such as tuberculosis, pneumonia, enteritis and other diarrheal diseases as well as hypertension are major causes of death. The health system was, however, geared towards the disease patterns of whites, who, for example, had higher levels of ischaemic heart disease."¹³⁶

2. Racially directed allocation of public money for health care

· In one year R400 million was allocated to the Pretoria academic hospital (primarily white), while R15 million was allocated to the Medical University of South Africa (MEDUNSA— primarily black)¹³⁷

· Per capita expenditures on health care for white South Africans were four times greater than the expenditures for Africans.¹³⁸

· The per capita expenditures on health care in the Homelands in 1983-84 ranged from R16 to R45. In the Provinces the expenditures for curative care ranged from R79 to R127 per capita. "Only 12 percent of public health expenditures went to the homelands where perhaps 40 percent of the population lived."¹³⁹
· The government paid the Smith Mitchell organization (now called Life Care), a private organization that provides custodial care for the chronic mentally ill and mentally handicapped, three times more for white patients than for black patients.¹⁴⁰

· Homeland hospitals received approximately half the funding that provincial hospitals of the same size received. Infrastructure support was erratic.¹⁴¹

· As of 1983, high technology tertiary care comprised 97 percent of the health budget, while most of the population was not receiving adequate primary health care.¹⁴²

· The Separate Amenities Act required separate hospital accommodations for different racial groups Under the Act, a quota of approximately 5 percent of beds in designated white facilities could be used for patients of another racial group.¹⁴³

· Until the early 1970s the government was not even authorized to provide psychiatric services anywhere but in hospitals. To some extent, the government got around this restriction by funding NGOs for community services, but this money went overwhelmingly to services for whites.¹⁴⁴

3. Failure to provide basic health services

· Black "[p]atients died because they were not given timely treatment which they could have received had they been from a different race group."¹⁴⁵

· There was a shortage of doctors in the homelands. The Department of Health provided no incentives for South African doctors to practice in rural areas where the quality of life was poorer than that in the cities.¹⁴⁶

· Doctors from other countries were willing to work in the rural areas of South Africa, but the South African Medical and Dental Council had difficult and inconsistent procedures for registering foreign doctors that limited their ability to provide medical assistance.¹⁴⁷

· Accessibility to private general practitioners for black workers is limited due to the high cost of care, "physical geographic separation (since the general practitioner's [offices] are often located in the better parts of town), and social and cultural (language) barriers (as 80 percent of all doctors are white, while 70 percent of the population is African)"_ [according to 1983 figures].¹⁴⁸

· The government provided no incentive for general practitioners to immunize children. As a result there was high morbidity and mortality from preventable illnesses like the measles, particularly among poor, black children.¹⁴⁹

4. Failure to respect women's reproductive rights

The Convention on the Elimination of All Forms of Discrimination Against Women¹⁵⁰ condemns discrimination against women in all its forms and requires governments to establish legal protection of the rights of women on an equal basis with men. Article 12 applies these principles to the field of health care, including access to health services and those related to family planning. It specifies that States Parties ensure appropriate services in connection with pregnancy, confinement and the post-natal period, including granting free services where necessary.

The violations noted below go beyond the failure of the South African government to respect women's reproductive rights and are indicative of the lack of willingness to respect women's basic human dignity, particularly non-white women. The threat of reprisals, unless non-whites accepted family planning measures, was part and parcel of the apartheid system's efforts to reduce the size of the black population in relation to the number of whites. Both the Women's Convention and the International Covenant on Economic, Social and Cultural Rights contain provisions to require paid maternity leave for women workers and protection of their jobs while they are on maternity leave.¹⁵¹

· "Midwifery patients...were often discharged immediately after birth, day and night, to wait for the next bus home" because of bed shortages.¹⁵²

· In some clinics large groups of black women were subjected to vaginal examinations in full view of each other. This was validated by a practitioner in 1982, who stated: "there was nothing wrong with this behavior since these women were not upset as they were `black' and that `natives' were more communal and don't mind…"¹⁵³
· Until the early 1970s public sector black nurses could only be hired as temporary employees, and thus had no maternity leave, so they had to resign from their posts and reapply after they gave birth.¹⁵⁴

· "As late as the early 1990s, no female public servants were entitled to paid maternity leave and they had to prove marriage. Even to date paid maternity leave (84 days) is granted" only for the first two pregnancies or adoptions.¹⁵⁵

· Black women were injected with the controversial contraceptive Depo Provera, often without their consent, counseling, or being given another birth control option. White women weren't even told about Depo Provera. Factories coerced black women to be injected.¹⁵⁶

· "Much of the so-called family planning services of [the Department of Health] were directed at controlling the size of the black population. In 1981, the Director-General of this department warned that sterilization and abortion might have to be made compulsory unless `certain ethnic' groups accepted family planning measures. While fortunately this was not enforced, this laid the foundation for the Department's approach to family planning."¹⁵⁷

NOTES

¹²⁸ CESCR. Article 12, paragraph 2.

¹²⁹ Id. p. § 2 (a).

¹³⁰ Id. p. § 2 (b).

¹³¹ Id. p. § 2 (c).

¹³² Committee on Economic, Social and Cultural Rights. General Comment No. 3: The Nature of States Parties Obligations (Art. 2(1), 5th Sess., para. 10, UN Doc. E/1991/23.

¹³³ AAAS, p. 12.

¹³⁴ HHRP. The Scientific Justification; Page 7, para. 1.

¹³⁵ Id. p. 8, para. 4.

¹³⁶ Id. p. 4

¹³⁷ Pretorius (Deputy Minister of Health) and Melvin Freeman (Director of Mental Health, Ministry of Health). Interview by M. Gregg Bloche., June 25,1997, p. 17.

¹³⁸ Department of Health, p. 4.

¹³⁹ Id. p. 5.

¹⁴⁰ Society of Psychiatrists of South Africa, p. 3.

¹⁴¹ Giddy and Reid, section 1.2

¹⁴² Id. appendix, untitled _ Dept of Medicine, p. 23.

¹⁴³ Society of Psychiatrists of South Africa, p. 25 (appendix).

¹⁴⁴ Zwi, Ruth (Director of Mental Health, Gauteng Province). Interview by Len Rubenstein, June 1997.

¹⁴⁵ Department of Health, p. 18.

¹⁴⁶ Giddy and Reid, section 2.1.1.

¹⁴⁷ Id. p. section 2.1.4.

¹⁴⁸ HHRP. Appendix (untitled _ Dept of Medicine), p. 22

¹⁴⁹ Giddy and Reid, section 3.3.

¹⁵⁰ CEDAW.

¹⁵¹ Id. p. art. 11, §2; CESCR, art. 7.

¹⁵² Democratic Nursing Organization of South Africa, p. 10.

¹⁵³ Islamic Medical Association of South Africa, section 4.2.4.

¹⁵⁴ Democratic Nursing Organization of South Africa, p. 7.

¹⁵⁵ Id.

¹⁵⁶ Health and Human Rights Project. Apartheid Health Policies and Planning; Page 12; Para. 2-5

¹⁵⁷ Department of Health, p. 15.