Blog post by Dr Cristiano d’Orsi, a Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg.*
Definition of “mixed migration”
The 2018 Global Compact for Safe, Orderly and Regular Migration does not provide a definition of “mixed migration” and prefers to use the expression “mixed movements” (Objective No. 12(e)). The International Organization for Migration defines “mixed migration” as “a movement in which a number of people are travelling together, generally in an irregular manner, using the same routes and means of transport, but for different reasons” (2019). In contrast, the European Commission defines “mixed migration” as a “complex migratory population movement including refugees, asylum-seekers, economic migrants and other types of migrants as opposed to migratory population movements that consist entirely of one category of migrants” (2018). In Africa, mixed flows of migrants at times include large numbers of persons seeking asylum but who are moving for non-protection reasons. Tanzania, creates the perception that asylum systems are being abused, and increases the tendency to associate migrants with criminality, which in turn feeds problems of xenophobia and intolerance towards foreigners, as I will demonstrate below. For example, consider the now infamous Whatsapp text sent on 12 April 2015 by the Patriotic Movement, Pan Local Forum, Unemployed Workers Forum, Anti-Crime Movement telling African foreigners in South Africa (no matter their legal status) to return to their home countries:
“There are signs of drug-dealing, prostitution and other criminal acts that you conduct, sometimes in cahoots with desperate locals. Your presence at this moment in our history is most destructive and destabilising to our country and our citizens. […] Please GO HOME and BUILD Africa. Millions will die if you do not. This we can guarantee”.
In this contribution, I analyse whether discrimination is permitted, whether it happens anyway, and what could be done to combat intolerance against refugees and migrants in South Africa and Kenya in terms of their access to healthcare in these host countries. I chose these two countries because they are among the African countries with the longest history of hosting aliens.
International and regional protection of the right to healthcare
Many African countries have struggling health systems and high burdens of disease, major challenges for health authorities in ensuring universal health coverage. That is one reason why migrants face barriers to affordable health insurance and social protection to access health services, in already stretched health systems. Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR: ratified by 51 out 54 African sovereign states, the exceptions being Botswana, Mozambique and South Sudan) dedicated to the right to health, at its paragraph (d) provides that states parties should create the conditions which would assure to “everyone” “all medical service and medical attention in the event of sickness”. Moreover, the 2000 ICESCR General Comment No. 14 (on Article 12), affirms that states should refrain from denying or limiting equal access for all persons, “including […] asylum-seekers and illegal immigrants” to health services (para 34).
Article 23 (“Public Relief”) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) clearly stipulates that “[t]he Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals”. For what concerns the meaning of “public relief”, according to the views expressed in the Travaux Préparatoires to the Convention (commented by Weis 1990) should be interpreted extensively: it should include “hospital treatment, emergency relief, […] where social security benefits are not applicable” (p. 125). The Refugee Convention has been ratified by both South Africa (1996) and Kenya (1966).
Apart from the international conventions to which African countries are party to, in Africa, the right to healthcare is guaranteed by the 1981 African Charter on Human and Peoples’ Rights. Article 16 is specifically entitled “Right to Health” and stipulates “1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2) State parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick”. This recognizes the responsibility of every state to provide healthcare services to all individuals, including with no exception of migration status. The right to healthcare is further expanded upon in the 2011 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, where it is highlighted that National Plans on health and access to healthcare should “prioritise members of vulnerable and disadvantaged groups in access to healthcare” (para 67(x)). Para 1(e) includes in the “disadvantaged groups” migrant-workers (both documented and un-documented), asylum-seekers and refugees. Besides, this document also ensures access to affordable health facilities “to all without discrimination of any kind” (para 67(y)). Against this backdrop, in Purohit and Moore v. The Gambia (2003 Communication 241/01) the African Commission on Human and Peoples’ Rights (ACHPR) emphasized the significance of the right to health describing it as “vital to all aspects of a person’s life and well-being, and [ ] crucial to the realisation of all the other fundamental human rights and freedoms” (para 80). In another important passage of this communication, the ACHPR spelt out its position on this issue:
“The African Commission would like to read into Article 16 the obligation on part of States […] to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realized in all its aspects without discrimination of any kind” (para 83).
Additionally, in Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt (2001 Communication 334/06) the ACHPR underlined the significance of the right to health in Africa. In this regard, the ACHPR held that “[s]tates have a legal obligation to protect the right to health of its citizens, including […] taking concrete and targeted steps towards the full realization of the right, and adopting legislation or other measures to ensure equal access to health-related services and health care” (para 264).
As for sub-regional documents, the 1999 Southern African Development Community (SADC: organization to which South Africa is a party) Protocol on Health, at its article 2(b)(“Principles”) provides for the State Parties to promote, coordinate and support individual and collective efforts “to attain an acceptable standard of health for all their people”. Foreigners are apparently excluded from this formulation. Similarly, the 2001 Regional Indicative Strategic Development Plan clearly indicates that, in the area of health, the main goal of integration among the SADC countries is to reach an acceptable standard of health “for all SADC citizens” (para 220.127.116.11). Along the same lines, the Treaty for the Establishment of the East African Community (EAC), of which Kenya is a member, although dedicating its Article 118 to the subject of health, does not mention if the access to a decent healthcare could be also provided to aliens.
Access to healthcare by “mixed migrants” in South Africa and Kenya
The situation in South Africa
The 1998 South African Constitution (article 27) contains an equality-threshold that forbids group-based distinctions in the provision of health services, and forbids arbitrary or unfair exclusion from health-related programs and provision of healthcare services. According to Ngwena (2000, p. 29) article 27 realizes the idea that providing healthcare to “everyone” is one of the means of securing equality of opportunity in the South African democracy. The 1997 White Paper for the Transformation of the Health System in South Africa confirmed the view that the right to healthcare should be extended also to migrants and especially to those from Southern Africa who have contributed, through their labour, to the economic development of South Africa. In this context, in the 2002 Minister of Health and Others v Treatment Action Campaign case, the Constitutional Court confirmed that the state is obliged to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to healthcare for all (para 94). In 2003, the Supreme Court of Appeal in Minister of Home Affairs and Others v Watchenuka and Others affirmed that “[a] person who wishes to be given asylum must apply to be recognized as a refugee. If that recognition is granted, the refugee – and his or her dependents – enjoys […] various rights […] which include […] the right to receive […] health services […]” (para 3). In 2004, in Khosa and Others v Minister of Social Development and Others the Constitutional Court held that equality in respect of socio-economic rights is implied in the use of “everyone” in section 27(1) of the Constitution regarding those individuals entitled to the rights laid down there. According to the Court, the word “everyone” in this section “cannot be construed as referring only to “citizens”” (para 47). The Constitutional Court confirmed the view adopted in 2002 in the 2017 Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ case (para 45).
However, in July 2018, the South African Human Rights Commission (SAHRC) highlighted the patent discrimination towards migrants (including refugees) when it comes to the right to healthcare. That is why the SAHRC argued that South Africa should develop a comprehensive multi-sectoral approach to migration and health, beyond infectious diseases and border control. In the opinion of the SAHRC both the 2003 National Health Act and the 2002 Immigration Act should explicitly provide for migrant healthcare, and the Immigration Act should be amended to adequately reflect the health rights of both documented and undocumented migrants. In contrast, the Immigration Act provides for a “Medical treatment permit” (section 17) that may be released to foreigners under certain circumstances. The SAHCR even talked of “medical xenophobia”, accusing public hospitals and clinics of not providing asylum-seekers and refugees their right to proper healthcare in general (as established by section 27(g) (Rights and Obligations of Refugees) of the 1998 Refugee Act) and also in terms of foreign nationals accessing anti-retroviral treatment. Furthermore, SAHRC has highlighted that undocumented migrants cannot be refused emergency medical treatment based on their lack of documentation. They may, however, be charged a fee for any other health services. This is in line with section 2(3)(a) (Access to Healthcare) of the 1999 Patients’ Rights Charter of the South African National Department of Health, stating “everyone has the right to access healthcare services that include receiving timely emergency care at any healthcare facility that is open, regardless of one’s ability to pay” (para 2(3)(a)).
The situation in Kenya
In Kenya, the Bill of Rights, which is anchored in the 2010 Constitution, recognizes that it is a fundamental duty of the state to observe, respect, protect, promote, and fulfil the rights and fundamental freedoms of all people in Kenya. Article 43 (1)(a), stipulates that “every person has the right to the highest attainable standard of health which includes the right to health care services, including reproductive health care”. Article 43(2) provides further that a person shall not be denied emergency medical treatment. With respect to the implementation of article 43, the Constitution provides in article 21(2) that the state shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed therein. Additionally, article 21(3) provides further that all State organs and public officers have the duty to address the needs of vulnerable groups within society.
Silent on the right to healthcare of aliens are the 2010 Immigration Act, the 2006 Refugee Act and the 2019 Refuge Bill. The 2017 Health Act does not discriminate against aliens, given that, for example, it provides that the state should develop laws and policies to “protect, promote, improve and maintain the health and well-being of every person” (section 4(1)(a)). In addition, it states that “every person has the right to the highest attainable standard of health” (section 5(1)) and “every person has the right to emergency medical treatment” (section 7(1)). The Kenya Health Policy 2014-2030 provides for direction on how to ensure improvement in the overall status of healthcare in Kenya. This document recognizes that political instability in Eastern Africa generates a flow of refugees into Kenya and this has the result of increasing the demand for health services but, at the same time, may also result in raising the risk of spreading communicable diseases. However, the policy aims to attain a right to health that highlights the importance of human dignity, having particular concern for the needs and rights of vulnerable groups, and emphasising that the health system is “made accessible to all” (p. 29). The court’s role in the realization of the right to healthcare did not begin to take shape until the 2010 Constitution was promulgated and socio-economic rights became justiciable. Before this, the courts were seldom confronted with the question of the right to healthcare. Until now, no cases have been brought before the courts by foreign nationals but, in the 2012 Maimuna Awuor and another v The Attorney General and Others case, the High Court stated that “accessibility [to health services] requires non-discriminatory access to health facilities, goods and services, “especially [for] the most vulnerable or marginalized sections of the population”” (para 138). The implication is that this includes refugees and migrants, as well. Along the same lines, in the 2013 Okwanda v. Minister of Health and Medical Services, et al. case, the High Court of Kenya emphasised the importance of socio-economic rights in improvement of the conditions of poor and vulnerable individuals and populations that live in the margins of society. The Court stated that the failure to address the issues of poverty, ignorance, unemployment and disease would undermine the foundation of the Constitution (para 13).
Against this backdrop, studies stresses that in Nairobi of particular concern is the marginalization of migrants from mainstream health programmes. On the other hand, refugees in Kenya generally experience challenges in access to healthcare, although those in the camps tend to live in a better situation, given that these settings are designed to provide humanitarian assistance to the refugees including healthcare. Such refugee-dedicated systems do not exist in urban settings and refugees are often left on their own to take care of themselves and their families. In Kenya, it does not appear that major stakeholders, including policy makers and state officers (p. 83), have deliberately made efforts until now to legally integrate refugees and host population health systems. This is in spite of the fact that the 2019 Refugee Bill proposes a section entirely dedicated to the integration of refugees in Kenya (section 34). As for access to healthcare, the situation for both urban migrants and urban refugees in Kenya is similar. Although I cannot talk of “medical xenophobia” as in South Africa, in Kenya, foreigners, irrespective of their status in the country, are periodically victims of xenophobic attacks, being considered as unwanted people because they are blamed for job scarcity and the increase of rent prices in the housing market. Many Somalis started to be targeted with an increased harassment by both the local police and population after the wave of kidnappings, bombings and gun attacks striking Kenya and following the offensive that Kenyan forces launched against the insurgent group of Al-Shabab in South Somalia at the end of 2011.
South Africa and Kenya are only two examples. That is why, in the African states where discrimination towards refugees and migrants occurs, the anti-discrimination law should be supported by a comprehensive national policy, that also details how undocumented migrants should be treated, and that is applied universally. Beyond constitutional provisions, every nation should critically review all types of barriers to equal access to healthcare. It is important that discrimination is challenged and services are adapted to the needs of vulnerable groups who are likely to suffer from discrimination.
* The author would like to express his gratitude to the reviewer (Rose) for her invaluable assistance.
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