Swimming Upstream: An AIDS Law Project Takes Aim at the Social Determinants of Health

Scott Burris, J.D.

South Africa’s AIDS Law Project, founded seventeen years ago to take on the legal challenges of HIV, is transforming itself into SECTION27. The aim of this new organization, summarized by its tag line "catalysts for social justice," is to use its proven HIV advocacy strategies of coordinated litigation and grassroots campaigning to advance a broader agenda of human rights and rule of law. (Nathan Geffen’s new book, Debunking Delusions: The Inside Story of the Treatment Action Campaign, tells the story very well.) Attending the launch of SECTION27 last week in Johannesburg gave me an opportunity to reflect on what this change in one of the most successful HIV advocacy outfits says about the legal struggle for health.
The new name, which refers to the section of South Africa’s constitution that guarantees the rights to health care, food, water and social security, signifies two changes in the organization’s mission. First, it is taking on broader health goals, not just HIV and not just health care. Although Section 27 does not encompass all the social and economic rights protected in the South African Constitution, the rights it does encompass -- to food, water and social security -- put the advocates squarely on course to tackle the conditions of social inequality that act as “social determinants” of health. Instead of focusing on the mouth of the river – HIV – the group will be taking on the upstream structural conditions that produce vulnerability to a range of ills, and their unfair distribution. 
Second, the new mission includes facing South Africa’s present crisis of corruption and disrespect for the rule of law.  The change reflects the team’s recognition that now, less than two decades after a model Constitution was written in a time of hope, there is a pressing need to  “promote and defend foundational rule of law questions such as transparency, accountability and the appropriate regulation of both public and private power.” At the AIDS Law Project, the lawyers relied on the Constitution to press for health rights; now they’ve also got to act to protect the Constitution itself.
The ALP was always a cutting-edge group, and as SECTION27  they are ahead of the curve as usual. HIV/AIDS brought law back into an important place in public health, spawning the health and human rights movement and a generation of advocates who learned to use law to support prevention and care and fight discrimination and oppression. Over time, though, most of us have come to realize that HIV/AIDS is just a symptom, a product of a disease machine pumping out a wide range of health inequities. We found ourselves engaged in battles for gay rights, for the rights and human dignity of drug users and sex workers, for the protection of marginalized peoples like Roma and Uighurs, for racial justice. And as AIDS lawyers were working back to the social determinants of health, social epidemiologists were tracing social determinants to the law. The Final Report of the WHO Commission on the Social Determinants of Health is as much a manifesto for sweeping law and policy reform as it is a summary of epidemiological evidence. In attributing the level and distribution of global health to “political, social, and economic forces,” it demands far more than better access to doctors and medicines: it is a call for social justice.   The social determinants view has made human rights and social justice hard to distinguish from public health, and all of us in progressive public health work are now facing the challenge of putting this vision into practical effect in our work.
It is notable that the AIDS Law Project is taking on this issue. It is equally important that it takes it on as a challenge of constitutional law, and in particular the articulation, interpretation and fulfillment of social and economic rights. In one of his contributions to the launch discussion, Anand Grover, the UN Special Rapporteur for the Right to Health, and a distinguished AIDS lawyer in his own right, observed the irony that people on the progressive left have become the strongest defenders of liberal constitutionalism. In the face of massive and entrenched inequality, and armed with powerful epidemiological evidence about the nature and workings of inequality, we are nonetheless turning to the slow, incremental ways of democracy and the law. To some this reflects a failure of ideology, but in practice it is a celebration of committed humanism.
I certainly saw this in its most moving form at the SECTION27 launch. Poor people in South Africa have made incredible legal strides and won striking human rights victories. The SECTION27 launch brought together a wide range of social activists from groups like the Treatment Action Campaign, most from the most deprived of backgrounds, who displayed the qualities of leadership, sophistication, subtlety and commitment that refute any suggestion that grassroots movements depend upon elite gardeners, let alone that self-directed movements of the poor are impossible.
Yet poor people in South Africa are also worse off than ever, or at least worse off than they should be. The government of the people too rarely works for the people, and some participants in the launch spoke of the “Con-stitution,” a deception, a document enshrining the status quo and the rights of the haves in flowery – and empty – promises to the poor. Cynicism about cronyism, inefficiency and failure threatens support for the Constitution and the democracy, and is being used by the cronies in government to whip up popular support for changes that undermine judicial independence and transparency in government. 
South Africa has been a beacon of hope for constitutionalists all over the world, with its progressive Constitution guaranteeing social and economic as well as political and civil rights, and a talented and committed core of activists, lawyers and judges working with great skill to put the guarantees into practice. We thought of the Constitution as a great way to promote the right to health, but now SECTION27 will also be promoting the health of the Constitution itself.
Of course, in the way of all great movements there are moronic traffic cops. In the case of SECTION27, the launch was enlivened, or perhaps I should say amused, by the government’s response to the group’s request to register its new name:
“Your proposed name connote governmental patronage. The wording employed to serve as a name cannot be allowed and are calculated to cause damage moreover misleading and undesirable.”
Upon further inquiry, the manager of the Companies and Intellectual Property Registration Office (CIPRO), explained:
“the Registrar cannot allow or approve names that construe itself as the provision of the Act of Parliament. In view that, you cannot employ Sec 27 of the Constitution of the Land to serve as the name of an entity or any organization…. If you want to incorporate Section 27 of the Constitution of the South African Act, you need to obtain a written consent from the Parliament of South Africa.”
So SECTION27’s first lawsuit, AIDS Law Project v. The Registrar of Companies et al.,  is, in essence, about who owns the right to health. As a first case, it is a bit of a gift. Happy first birthday, SECTION27, and many triumphant returns.