Chuma Himonga

The right to traditional, complementary, and alternative health care

Background State parties to human rights conventions and declarations are often faced with the seemingly contradictory problem of having an obligation to protect people from harmful practices while also having an obligation to enable access to culturally appropriate effective healing. As people increasingly migrate across the globe, previous distinctions between ‘traditional’ and ‘complementary and alternative medicine’ practices are being transcended. There are connections across transnational healing pathways that link local, national, and global movements of people and knowledge. Objective This paper contributes to the development of the concept and practice of the right to health in all its forms, exploring the right to traditional, complementary, and alternative health (R2TCAH) across different contexts. Design The paper draws on four settings – England, South Africa, Kenya, and Jordan – and is based on key informant interviews and a literature review undertaken in 2010, and updated in 2013. The paper begins by reviewing the international legal context for the right to health. It then considers legal and professional regulations from the global north and south. Results Additional research is needed to establish the legal basis, compare regulatory frameworks, and explore patient and provider perspectives of regulation. This leads to being able to make recommendations on how to balance protection from harm and the obligation to ensure culturally appropriate services. Such an exploration must also challenge Western theories of human rights. Key concepts, such as individual harm, consent, and respect of the autonomy of the individual already established and recognised in international health law, could be adopted in the development of a template for future comparative research. Conclusions Exploration of the normative content of the right to health in all its forms will contribute to supporting traditional, complementary, and alternative health service users and providers in terms of access to information, non-discrimination, clarification of state obligations, and accountability.

Social solidarity and the right to health: essential elements for people-centred health systems

The right to health has been advanced as one of the key elements to creating pro-poor people-centred health systems (Hunt and Backman 2008; Gruskin et al. 2012). However, one of the challenges for realizing the right to health is the seeming conflict between public health utility and the entitlements afforded by a human rights approach to health. This dichotomy begs two sub-questions, both of which have relevance for building responsive health systems. Firstly, human rights affords individuals important protections against state victimization; yet where the state is acting to advance a public good, including action to realize the right to health, its actions may well infringe on individual rights. How to balance these competing rights imperatives in ways that are justifiable and fair, so that health policies and programmes are responsive to people’s individual freedoms presents one set of challenges to building people-centred health systems. A second, and related challenge for rights-based approaches to health systems, is one more related to the normative content of the right to health and how it is interpreted. Here, a tension exists in the nature of the entitlement. When the right to health is interpreted and operationalized as an individual entitlement to a health benefit, it may undermine or even contradict public health efforts aimed at realizing health benefits for collectives, and so potentially limit the contribution possible to building people-centred health systems. It is this second problem that this article principally seeks to address, drawing on the experience of the Learning Network for Health and Human Rights (LN) to reconceptualize the right to health in its collective dimension. However, because there is a tremendously strong and deeply rooted utilitarian ethic in Public Health that appears to render public health decision makers deeply suspicious of claims that might redirect resources in ways inconsistent with maximizing public utility, we start by reflecting on how a human rights approach can manage the trade-off between individual freedoms and efforts to advance public health good. We then map out the contours of a debate over the nature of the entitlement contained in the right to health, drawing both on our experience through structured reflection and on the literature to problematize the individualist framing of rights in the construction of responsive health systems. We draw also on non-Western philosophical perspectives to argue that a more useful framing of health rights involves foregrounding social solidarity in claims to collective health (Stuttaford et al. 2012a), a perspective more consistent with the principles of public health, which emphasize ‘collective action by society’ as essential to ‘the art and science of promoting and protecting good health’ (Last 2007). Lastly, we conclude that if claims to the Right to Health are framed as strengthening the collective agency of the most vulnerable, then recognizing the importance of social solidarity within the right to health can be an important strategy for building responsive health systems (Hunt and Backman 2008; Meier et al. 2010).

South Africa’s System of Dispute Resolution Forums: The Role of the Family and the State in Customary Marriage Dissolution

The Recognition of Customary Marriages Act has been a welcome legislative effort to remedy the vulnerabilities experienced by women in the dissolution of their customary marriages. Through an analysis of research findings, this article contributes to the debate about the achievement of the Act’s objectives. We argue that the Act is falling short in fulfilling its objectives, owing to the shortcomings within South Africa’s system of customary and state dispute resolution forums. Our findings demonstrate that both customary and state dispute resolution forums were under-utilised by couples who experienced the dissolution of their customary marriages. The lack of financial resources, information and power has arguably limited women’s access to state courts upon marital breakdown. Moreover, research participants did not perceive traditional courts as appropriate forums for the resolution of certain customary marriage disputes. We argue that these shortcomings prevent the Act’s application to customary marriage breakdowns. Furthermore, given that the Act is applied in divorce proceedings in state courts to ensure equitable outcomes upon marriage dissolution, the article questions whether state support is provided to couples at too late a point in their marital breakdown. By addressing the above-mentioned shortcomings and providing state support to couples at an earlier point in marital breakdown, the objectives of the Act stand a better chance of being achieved.

Centring the intersection of race, class, and gender when a customary marriage ends: An intersectional critique of the Recognition of Customary Marriages Act of 1998

abstract Based on an empirical study of marital dissolution, this article explores the race, class, and gender dimensions of the Recognition of Customary Marriages Act (120 of 1998) (RCMA). Drawing on data from court (divorce) files and semi-structured interviews, it provides an intersectional critique of the laws for customary wives who seek to regulate marital dissolution through both judicial and extra-judicial systems. The article focuses specifically on the financial consequences of the dissolution of a customary marriage, one of the main criticisms of the Act. The RCMA was supposed to improve the entitlements of women in customary marriages; however, this study found that in practice the law is of little use to most poor, rural-based black South African women whose lives are far removed from any interaction with the state or norms generated by it. There are two main reasons for this: firstly, the rhetoric of rights and the provision of rights overlook the failure of the state to assist individuals in claiming the rights, and secondly, the strong belief held by divorcees and traditional leaders that marital assets belong to the husband (and husband’s family or the marital family as it pertains to children) leads to resistance to an equal division of marital assets. The authors argue that a more dedicated and systematic effort which uses intersectionality in thinking about institutional transformation is required to curb financial exploitation upon the dissolution of a customary marriage.

Reflection on Bhe v Magistrate Khayelitsha: In Honour of Emeritus Justice Ngcobo of the Constitutional Court of South Africa

This article highlights the major areas of convergence between Justice Ngcobo’s judgment and living customary law as revealed in the findings of recent empirical research. Its purpose is to enhance the confidence of the courts and inform their interpretation of the Reform of the Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 by drawing on the minority opinion. Put differently, the article seeks to vindicate the minority opinion in Bhe & Others v Khayelitsha Magistrate & Others with regard to its reflection of the grounded realities of succession under living customary law, using the findings of recent empirical research. In this way, the article highlights the contribution that Justice Ngcobo’s constitutional jurisprudence can make to the interpretation of legislation dealing with the reform of the customary law of succession—subject, of course, to the fact that any precedent has inherently limited value for understanding a dynamic and ever-evolving system of law such as living customary law. Needless to say, the courts must continually be alert to this caveat when interpreting and applying any legislation that deals with customary law.

The constitutionality of section 7(1) of the Recognition of Customary Marriages Act: Ramuhovhi v President of the Republic of South Africa

ABSTRACT In Ramuhovhi v President of the Republic of South Africa (2016), a South African High Court declared section 7(1) of the South African Recognition of Customary Marriages Act (1998) (hereafter the RCMA) which regulates the proprietary consequences of polygamous marriages entered into prior to the commencement of the RCMA unconstitutional. This article examines a number of issues raised by this judgment. It explores the courts constitutional analysis of section 7(1) of the RCMA and argues that the analysis should have examined the living customary law on the matter. The dichotomy between official and living customary law raised in the judgment is reflected upon and the courts obvious preference for official customary law is highlighted. The courts failure to develop living customary law is critiqued and it is argued that the court of first instance is better placed than the Constitutional Court to develop customary law. Lastly, the article analyses the interim remedy provided by the court. It argues that while the remedy may acknowledge the communal nature of ownership in customary law, its practical implementation is questionable.