RESPONSES TO AIDS AND CONSTITUTIONALISM IN SOUTH AFRICA

Abstract

The article is an appraisal of policy and legal responses to HIV/AIDS since the manifestation of the epidemic in the early 1980s, but with a particular emphasis on the constitutional values enshrined in the Bill of Rights. It is suggested that in terms of constitutional values, policy and legal responses to HIV/AIDS in South Africa can be understood in the context of two main political eras – the apartheid era which was marked by the absence of a constitution as the supreme law of the land, and the post-apartheid era in which a constitution has become the supreme law. During the apartheid era, responses to HIV/AIDS seemed to be informed by racism, homophobia, xenophobia and the authoritarian state, rather than genuine public health concerns. The respect for the human rights of people living with HIV/AIDS was a peripheral concern, if at all. Responses in the new constitutional dispensation, on the other hand, have largely been informed by the values of human dignity, equality and freedom. State responses have been conspicuously alive to maintaining a sense of proportionality between protecting public health and respecting human rights. At the same time, the responses of the state have not been without blemish. The proposal by the Department of Health in April 1999 to render AIDS a notifiable disease, and government's prevarication over the provision of access to antiretroviral therapy to prevent mother-to-child transmission of HIV stand as detractions from an otherwise libertarian record in the era of constitutionalism.