The interface between the right to life and the right to health in Lesotho: Can the right to health be enforced through the right to life?

 Hoolo ‘Nyane
 LLB (Lesotho) LLM (North West) LLD (South Africa)
 Associate Professor and Head of Department, Public and Environmental Law, School of Law, University of Limpopo, South Africa
 https://orcid.org/0000-0001-5674-8163
  This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 22 No 1 2022
 Pages: 266 - 288
 Citation: H ‘Nyane ‘The interface between the right to life and the right to health in Lesotho: Can the right to health be enforced through the right to life?’ (2022) 22 African Human Rights Law Journal 266-288
http://dx.doi.org/10.17159/1996-2096/2022/v22n1a11
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Summary

As a liberal constitution, the Constitution of Lesotho maintains a bifurcated human rights framework. Human rights are embodied in two distinct chapters – chapter II and chapter III – with different legal implications. Chapter II contains civil and political rights styled ‘fundamental human rights and freedoms’ while chapter III embodies socio-economic rights styled ‘principles of state policy’. The right to life falls under chapter II, while the right to health is under chapter III. The juridical effect of this division is that socio-economic rights are not judicially enforceable. The courts have been tenacious in maintaining this division. The High Court’s recent decision in Lesotho Medical Association v Minister of Health has challenged this prevailing judicial policy. In this case the Court adopted a liberal approach to the right to life in enforcing the right to health. The Court held that the failure by the Ministry of Health to provide personal protective clothing to health workers was a violation of the right to life. The main question for human rights scholarship is whether this decision could signal a change of approach by the judiciary in Lesotho in favour of the liberal approach to the right to life. This article sets out to investigate this question.

Key words: Constitution of Lesotho; right to life; right to health; liberal approach; restrictive approach

1 Introduction

The enduring feature of liberal constitutions is that their priority is to limit state power.1 Human rights are a central pillar of this grand scheme – they are used to limit the state’s functional space.2 Hence, under the liberal constitutional conception, the most important human rights are negative rights.3 Negative rights pre-eminently prevent states from doing, rather than directing the state to do.4 The development of human rights, to a great extent, is based on this approach.5 The notion of human rights has developed through the stages that categorise them; these have been styled ‘generations’.6 First generation rights comprise the classical rights that were the first to be accepted as inalienable and innate because of their affinity to liberal thought. These rights came to be known as civil and political rights. The central feature of these rights is that they are negative.7 These rights became the chief struts of major revolutions such as the French Revolution and the American Revolution.8 The right to life is categorised under this first generation of rights. Second generation rights, which came later in human rights development, comprise social and economic rights. These rights are pre-eminently positive – they impose positive obligations on states.9 Along with other rights, such as the rights to housing, a livelihood, work, water and education, the right to health belongs to this generation.10

Second generation rights have not gained the widespread acceptance enjoyed by civil and political rights. Even where these rights have been included in the same Bill of Rights as civil and political rights, as in South Africa, their enforcement continues to generate much great controversy.11 Although the Universal Declaration of Human Rights (Universal Declaration) treated human rights as indivisible,12 human rights thus far have been remained primarily bifurcated. This division at the international level is evidenced by the existence of two main international conventions – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – that anchor this duality.13

The most recent category of rights, styled ‘the third generation of rights’, comprises collective rights such as the right to peace, the right to development, and the right to a clean environment. According to Mubangizi, ‘[t]he emergence of this category of rights is closely associated with the rise of Third World nationalism and the realisation by developing states that the existing international order is loaded against them’.14

This traditional categorisation of human rights has largely informed the way in which national constitutions treat human rights.15 Most liberal constitutions have classified human rights into two main categories – civil and political rights, and social and economic rights. The former category is judicially enforceable, while the latter category is not.16 The Constitution of Lesotho is a prototype of these liberal constitutions,17 providing for a bifurcated human rights framework. Human rights are embodied in two distinct chapters in the Constitution – chapter II and chapter III – with varying legal implications. Chapter II contains civil and political rights styled ‘fundamental human rights and freedoms’,18 which are enforceable. Section 22(1) of the Constitution provides:

If any person alleges that any of the provisions of sections 4 to 21 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

This is in sharp contrast to what the Constitution says about socio-economic rights, which are embodied in chapter III as ‘principles of state policy’. Section 25 of the Constitution provides that these ‘principles’ shall form part of state policy, and they

shall not be enforceable by any court but, subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho, and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation or otherwise, the full realisation of these principles.

The right to health falls under chapter III,19 and it therefore is judicially unenforceable. The superior courts of Lesotho have been very consistent in maintaining the non-enforceability of socio-economic rights.20 It appears that the High Court challenged this prevailing judicial policy in its recent decision in Lesotho Medical Association v Minister of Health.21 The case arose from an extraordinary situation where health practitioners challenged the government’s short supply of personal protective equipment during the COVID-19 pandemic. The practitioners alleged, among others, that the short supply of protective gear was a violation of their right to life as envisaged under section 5 of the Constitution. Despite the plain language of section 25 of the Constitution – that ‘principles of state policy’ shall not be enforceable in any court – the Court decided that the failure by the Ministry of Health to provide personal protective clothing to health workers was a violation of the right to life.22 The main question for human rights scholarship is whether this decision could signal a change of approach by the judiciary in Lesotho in favour of the liberal approach to the right to life, or whether it simply was a knee-jerk solution to the then prevalent problem of the shortage of protective equipment for frontline health workers.23 This article seeks to investigate this central question. The article contends that while the decision certainly is welcome, it may not significantly change the entrenched attitude of the superior courts of Lesotho towards social and economic rights. The article uses the content analysis method24 to analyse the Lesotho Constitution, the judicial pronouncements, and the trends at the international level.

2 Conceptual framework: The interface between the right to life and the right to health

2.1 Right to life

The right to life is regarded as the most basic right as it forms the basis of all other human rights.25 It is one of the most primordial human rights. In the Lockean conception the right to life philosophically antedates civil society. Alongside the rights to liberty and property, it forms the basis for the social contract.26 Therefore, philosophically and historically it is the most animating of all human rights. As the South African Constitutional Court instructively observed in S v Makwanyane,27 ‘[t]he right to life is, in one sense, antecedent to all other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them.’28 Menghistu describes the pre-eminence of the right to life as follows: ‘The right to life is the most basic, the most fundamental, the most primordial and supreme right which human beings are entitled to have and without which the protection of all other human rights becomes either meaningless or less effective.’29 The Human Rights Committee’s General Comment 6 of 1982 identifies the right to life as ‘the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation’.30 The 1982 General Comment has since been replaced by General Comment 36 of 2018.31 The 2018 General Comment equally exalts the right to life as a right that should not be interpreted narrowly.32 The General Comment expansively provides that the right to life ‘is the supreme right from which no derogation is permitted even in situations of armed conflict and other public emergencies which threatens the life of the nation’.33

The right to life is protected in almost all modern constitutions. At the international level, the right is recognised under article 3 of the Universal Declaration,34 article 6 of ICCPR,35 article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,36 and article 4 of the African Charter on Human and Peoples’ Rights (African Charter).37

Therefore, it is apparent that the right to life is exalted and sanctified within the broader human rights discourse.38 This evident unanimity about the importance of the right to life notwithstanding, there is considerable controversy about its proper contours and purpose. The right continues to divide the scholarship and jurisdictions into two main schools of thought. On the one side are scholars who advocate the restrictive approach, while on the other side there are scholars who support the liberal and much more expansive interpretation of the right. The proponents of the restrictive approach posit that the right to life has the salutary purpose of protecting life; it protects human beings against the arbitrary deprivation of life.39 It does not extend to the right of livelihood. Therefore, it is not a ‘positive right’ and it belongs to the realm of civil and political rights.

The restrictive approach distinguishes the right to life from what may be styled the ‘right to living’ which, according to Przetacznik,40 means an expanded definition of rights to include an ‘appropriate standard of living’.41 The ‘right to living’ thus includes other conditions that make life meaningful, such as health, food and water. The right to life exclusively and narrowly signifies every human being’s entitlement not to be deprived of his or her life. This formulation follows the strictly dual human rights framework in terms of which the right to life belongs to the realm of civil and political rights, and the ‘right to living’ belongs ‘to the domain of economic, social and cultural rights, which are recognised and affirmed in the International Covenant on Economic, Social and Cultural Rights’.42 According to this formulation, the right to health is patently distinguishable from the right to life. The South African Constitutional Court endorsed this approach in Soobramoney v Minister of Health (KwaZulu-Natal).43 In this case a terminally-ill man suffering from renal failure needed dialysis treatment which the state could not provide. He sued the state and based his application on both section 27(3) of the Constitution, which provides that ‘[n]o one may be refused emergency medical treatment’, and section 11, which stipulates that ‘everyone has the right to life’.44 The Court preferred a restrictive approach to the right to life and ruled as follows:45

In our Constitution, the right to medical treatment does not have to be inferred from the nature of the state established by the Constitution or from the right to life which it guarantees. It is dealt with directly in section 27. If section 27(3) were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and (2) to provide health care services to ‘everyone’ within its available resources.

However, the Constitution of South Africa must be treated with caution. Unlike the constitutions of which the human rights frameworks are bifurcated, such as those of Lesotho and India, the Constitution of South Africa has one Bill of Rights, which renders both political and socio-economic rights enforceable.46 Therefore, there is no desperate need to seek the expansive approach to the right to life to realise socio-economic rights such as the right to health.47 Nevertheless, there still are pockets of decisions in South Africa that favour the liberal, rather than the restrictive, approach to the right to life, for example, S v Makwanyane,48 Minister of Health v Treatment Action Campaign (No 2),49 Hay v B50 and Victoria & Alfred Waterfront v Police Commissioner, Western Cape.51

The liberal approach to the right to life, on the other hand, posits that the right to life may not be denied only through the direct termination of life,52 but may also be denied by denying the essential conditions of livelihood such as food and health.53 The liberal approach seems to be dominating the contemporary conception of the right to life at the international, regional and domestic levels. The international level is based on article 6(1) of ICCPR, which provides that ‘[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ In interpreting the article, the Human Rights Committee has adopted the liberal rather than the restrictive approach.54 The Committee decried the narrow interpretation of the right, observing that ‘[t]he expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.’55 The Committee’s approach is that it should include positive steps ‘to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’.56

The liberal approach seems to have percolated to the sub-regional level. Article 4 of the African Charter provides that ‘[h]uman beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right’. The African Commission on Human and Peoples’ Rights (African Commission) has taken the liberal approach to article 4. In the case of Forum of Conscience v Sierra Leone57 the Commission found that the failure to follow due process in the trial that culminated in the death sentence violated article 4 of the African Charter. The case concerned the 24 soldiers who were tried and sentenced to death by a court martial for their alleged roles in the coup that overthrew President Tijan Kabah. The Sierra Leonean court martial, which tried and convicted the above-mentioned soldiers, allowed no right of appeal against conviction or sentence to a higher tribunal. The Commission noted that the right to life was the ‘fulcrum of all other rights’.58 The Commission further noted that the right to life, as envisaged under article 4 of the African Charter, was ‘the fountain through which other rights flow, and any violation of this right without due process amounts to arbitrary deprivation of life’.59 The Commission took a similar approach in Amnesty International & Others v Sudan.60 It found that death resulting from acts of torture or trials concluded in breach of article 7 due process guarantees also violated the African Charter’s prohibition against the arbitrary deprivation of life.61

The jurisprudence of the Inter-American Court of Human Right is among the most illuminating on the interface between the right to life and the right to health.62 It is based on article 4 of the American Convention on Human Rights,63 which states that ‘[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.’ In construing this section, the Court has unequivocally adopted the liberal approach to a wide array of socio-economic rights such as the right to healthcare services, the right to food and the right to water.

On the right to health, in particular, the flagbearer for the jurisprudence is the decision in Yakye Axa Indigenous Community v Paraguay.64 In this case the Inter-American Commission on Human Rights had approached the Court to decide, inter alia, whether Paraguay had breached article 4 (the right to life).65 The Commission alleged that the state had not ensured the ancestral property rights of the Yakye Axa indigenous community and its members because although the community’s land claim had been processed since 1993, no satisfactory solution had been found. According to the Commission in its application, such delay made it impossible for the community and its members to fully own their land. Such land deprivation kept the community in a vulnerable situation in terms of food, medical care and public health care.66 The state argued for a restrictive approach to the right to life and contended that it had not arbitrarily deprived the community members of any life.67 The Court rejected the restrictive approach and instead adopted its long-established approach that ‘[e]ssentially, this right includes not only the right of every human being not to be arbitrarily deprived of his life, but also the right that conditions that impede or obstruct access to a decent existence should not be generated’.68 The Court further reaffirmed that ‘one of the obligations that the state must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person’.69

At the domestic level, the jurisprudence of the Supreme Court of India arguably is the trailblazer for this approach.70 The Constitution of India subscribes to the separation of human rights into two categories – political rights and socio-economic rights.71 Nevertheless, the Indian Supreme Court has been highly innovative in deriving the realisation of socio-economic rights from civic and political rights, in general,72 and the right to life, in particular.73

On the interface between the right to life and the right to health care, the flagbearer of the Court’s jurisprudence is its decision in Paschim Banga Khet Mazdoor Samity & Others v State of West Bengal.74 In this case the applicant, who had fallen off a train and suffered severe head injuries and a brain haemorrhage, sued the state for its failure to provide adequate health care. The case was based on article 21 of the Indian Constitution, among others. Article 21 provides that ‘[n]o person shall be deprived of his life or personal liberty except according to procedure established by law’. The Court took a liberal approach to the right to life and found that in addition to the state’s obligation not to arbitrarily deprive people of life, the state also has an obligation to preserve life. The Court decreed that the ‘[f]ailure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21’.75

Hence, it is apparent that at almost all levels – international, regional and domestic – the approach to interpreting the right to life is moving discernibly towards the liberal approach.76 The right to life no longer protects life only against arbitrary deprivation. It also protects against the deprivation of life through the denial of the conditions necessary to sustain life.

2.2 Right to health

Unlike the right to life, which is widely accepted and enforceable across jurisdictions, the right to health does not have a very firm grounding in the global human rights discourse.77 This precarious position of the right to health in international and domestic rights instruments is a common feature of all social and economic rights.78 The recognition of the right to health is a relatively recent phenomenon. It was first recognised only in 1946 as a ‘right’ in international law by the World Health Organisation (WHO) constitution.79 The preamble provided that ‘[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social conditions’. This formulation inspired the development of the right at the international level. In 1948, when the Universal Declaration of Human Rights (Universal Declaration) was adopted – the norms of which are now generally regarded as principles of international customary law80 – the right to health was recognised under article 25, albeit bundled together with other rights such as the rights to food, clothing, housing and medical care.81 In 1966, when the International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted, the right was recognised for the first time in a binding international convention. Article 12(1) provides that the state parties to the Covenant ‘recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Thereafter, the right was recognised in a broad range of international conventions.82

The way in which the right is formulated in these international instruments confirms that the expression ‘right to health’ is shorthand for different formulations of the right in various instruments. Some scholars have observed that the shorthand formulation is misleading. For instance, Roemer observes that ‘the phrase a right to health may be incomplete and conceptually misleading. We suggest that a more correct phraseology would be a right to health protection, including two components, a right to health care and a right to healthy conditions.’83 For convenience, the shorthand formulation is often preferred, as it is in this article.84

The content and scope of this right are always dependent on how it is formulated in a particular instrument and how it has been interpreted under that specific instrument. Article 25 of the Universal Declaration recognises the right to a standard of living adequate for health. It seems that the approach of the Universal Declaration is that the right is composite – it includes ‘food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’.85 Article 12(1) of ICESCR has improved slightly upon the formulation of the Universal Declaration, in that it recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. The jurisprudence about this article demonstrates that the right is not limited to health care, but extends to broader conditions for a healthy life. While this right, like all other socio-economic rights, is progressively enforceable given the available resources, it imposes minimum core obligations on states.86 These are the minimum essential levels below which a state may not drop in discharging its obligations under the Convention.

Under the African Charter the right to health is defined as the ‘right to enjoy the best attainable state of physical and mental health’.87 States have obligations to take the necessary measures to protect their people’s ‘health and ensure that they receive medical attention when they are sick’.88 The African Charter uses the formulation used in article 12 of ICESCR with a slight modification. While the African Charter uses the word ‘best’, ICESCR uses ‘highest’. Perhaps the difference is insignificant. The essence of the formulation is that the right to health, like all socio-economic rights, is progressively realised. The obligations of states differ depending on the available resources, as long as the minimum core obligations are met.89

In keeping with the pattern at the international level, the emergent trend in Africa is that the right to health is a necessary component of the right to life. In 2015 the African Commission adopted General Comment 3 on the African Charter on Human and Peoples’ Rights.90 The Comment demonstrates that article 4 of the African Charter must be given a liberal interpretation. In particular, it provides that there is a symbiotic relationship between the right to life and the right to health. According to the General Comment, states’ obligations under article 4 include the duty ‘to address more chronic yet pervasive threats to life, for example, with respect to preventable maternal mortality, by establishing functioning health systems and eliminating discriminatory laws and practices that impact individuals’ and groups’ ability to seek healthcare’.91 The treatment of the right to health as an integral part of the right to life was new to the jurisprudence of the African Commission. In its 2001 decision in Social and Economic Rights Action Centre (SERAC) & Another v Nigeria92 the Commission was seized with a complaint, among others, alleging that the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards.93 The African Commission found:94

The pollution and environmental degradation to a level humanly unacceptable has made it living in the Ogoni land a nightmare. The survival of the Ogonis depended on their land and farms that were destroyed by the direct involvement of the government. These and similar brutalities not only persecuted individuals in Ogoniland but also the whole of the Ogoni community as a whole. They affected the life of the Ogoni society as a whole.

A similar approach – that the right to health is part of the right to life – is preferred at several domestic levels in Africa and beyond. The Constitutional Court of Uganda is one of the flagbearers of this approach. In a landmark decision in Centre for Health, Human Rights and Development (CEHURD) v Attorney-General95 the Court had to deal with a petition challenging the Ugandan government’s failure to provide basic maternal health services in violation of both the right to health and the right to life under the Ugandan Constitution. The Court found, among others, that ‘the government’s omission to adequately provide basic maternal health care services in public health facilities violates the right to life and is inconsistent with and in contravention of article 22 of the Constitution’.96 A similar approach was adopted by the High Court of Kenya in Patricia Asero Ochieng v the Attorney General.97 There the Court held that the rights to health, life and human dignity are inextricably bound.

The jurisprudence of the Supreme Court of India remains the trailblazer for domestic courts on this approach. In Francis Coralie Mullin v The Administrator, Union Territory of Delhi,98 for instance, the Indian Supreme Court found that ‘the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter’.99 In a much more direct manner, in Parmanand Katara v Union of India100 the same Court decreed:101

Article 21 of the Constitution casts the obligation on the state to preserve life. The provision as explained by this court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. Therefore, a doctor at the government hospital positioned to meet this state obligation is duty-bound to extend medical assistance for preserving life.

In similar manner, in Consumer Education and Research Centre v Union of India102 the Court gave more meaning to the interface between the right to health and the right to life, as follows: ‘The right to health to a worker is an integral facet of [the] meaningful right to life to have not only a meaningful existence but also robust health and vigour without which [a] worker would lead [a] life of misery. Lack of health denudes his livelihood.’103 India is not the only country where the dilemmas of enforcing the right to health, and other socio-economic rights, have been circumvented by liberalising the interpretation of the right to life. This emergent global pattern is also discernible in the jurisprudence of the Constitutional Court of Colombia.104

3 Constitutional framework in Lesotho and the judicial approach: Is the approach changing?

The Constitution of Lesotho follows a model of negative constitutionalism.105 Therefore, Chapter II is dedicated to negative rights – otherwise styled as civil and political rights. This is the characteristic feature of liberal constitutions.106 The right to life is located in Chapter II of the Constitution. Section 5(1) provides that ‘[e]very human being has an inherent right to life. No one shall be arbitrarily deprived of his life.’ The framing of the section already suggests that the drafters had in mind the restrictive conception of the right. The right is couched in a manner that protects life against the arbitrary deprivation of life, and no more. Its draftsmanship is not as open-ended as the similar section in the Constitution of South Africa, which frames the right in a general and all-encompassing manner, as ‘[e]veryone has the right to life’.107

In fact, the right to health in Chapter III is envisaged as an unenforceable ‘principle of state policy’. Section 27 of the Lesotho Constitution provides that ‘Lesotho shall adopt policies aimed at ensuring the highest attainable standard of physical and mental health for its citizens’.108 The formulation of the right to health under Lesotho’s Constitution has adopted the approach of both the Universal Declaration and ICESCR. It recognises the right in a composite manner. It imposes duties on the state to provide for the reduction in the rate of stillbirth and infant mortality and the healthy development of the child;109 to improve environmental and industrial hygiene;110 to provide for the prevention, treatment and control of epidemic, endemic, occupational and other diseases;111 to create conditions which would provide everyone with medical services and medical attention in the event of sickness;112 and to improve public health.113 Therefore, it can be safely deduced that the jurisprudence on the right to life, developed under the ICESCR,114 applies to Lesotho’s interpretation of the right. The essence of this jurisprudence is that the right not only protects health, but also recognises the conditions necessary to sustain health.

There is a paucity of scholarly commentary and judicial precedent in Lesotho on the right to life, in general, and its interface with the right to health, in particular. The most critical case in which the superior courts – both the High Court and the Court of Appeal – had to deal with the scope of this right in Lesotho was Khathang Tema Baitsokoli v Maseru City Council.115 The issue did not concern the arbitrary termination of life. Rather, it concerned the question of whether the right, as it is couched under Lesotho’s Constitution, can be interpreted to include the right to livelihood. The applicant organisation, in this case, represented the street vendors who were plying their trade along Maseru City’s main street, Kingsway. The market along the street is more lucrative. However, the Maseru City Council refused to grant them permits to trade along Kingsway Street and the Council, therefore, removed the vendors from the street. The vendors approached the Court seeking to challenge the decision of the Council to deny them permits.

The mainstay of their case was that their removal from their trading areas along Kingsway Street in Maseru was a violation of their right to life as envisaged under section 5 of the Constitution. Therefore, the Court was confronted with the dilemma of choosing between the restrictive and liberal approaches to the right. The Indian jurisprudence, which favours the liberal approach, was presented to both the High Court and the Court of Appeal to persuade the courts to adopt the liberal approach to the right.116 Both courts declined to do so. The High Court was very forthright about its interpretation of the right, finding:117

A fair reading of section 5 of our Lesotho Constitution gives one an irresistible impression that it is the ‘right to life’ of the human being and its biological existence as a living organism that is being protected by the Constitution rather than its wellbeing, happiness or welfare. The court comes to this somewhat restrictive interpretation because under section 5, what may be abridged under subsections 2(a), (b), (c) and (d) is not the livelihood but the deprivation of human life itself eg through act of war, lawful execution (ie hanging) or self-defence.

The Court adopted this approach despite having praised the Indian jurisprudence, which is liberal. The Court confirmed that ‘the Indian approach to the right to life is indeed very progressive and deserves all laudation’.118 The Court of Appeal vindicated the restrictive approach adopted by the High Court.119 The Court of Appeal took the approach of widening the gulf between Chapter II and Chapter III of the Constitution. The Court stated that

the right to life in section 5 of Lesotho’s Constitution does not encompass a right to a livelihood. That is the subject of specific and separate provision in section 29. The latter derives its status from its inclusion as a principle of state policy.120

The Court of Appeal’s disjunctive and restrictive approach made it very difficult for these two generations of rights – political and socio-economic – ever to be treated as interdependent and mutually reinforcing in Lesotho.121

The innovative approach to the interface between the right to health and the right to life emanated from Lesotho Medical Association v Minister of Health.122 The case was heard in the early days of the COVID-19 global pandemic in Lesotho. It is imperative to note that Lesotho started introducing measures to combat COVID-19 before the official registration of the first case.123 The first case was recorded in May 2020,124 yet the strict measures were pre-emptively instituted in March 2020.125 On 19 March 2020 the Government Secretary published a memorandum styled ‘National Emergency Response to the Coronavirus (COVID-19)’.126 This memorandum communicated the decisions of the Cabinet on measures intended to contain the spread of the virus. These were far-reaching measures such as, but not limited to, limitations on meetings, the closure of schools, the closure of borders and the limitation of working hours. In communicating these measures, the Government Secretary did not refer to any provision of law permitting such drastic human rights derogations. The government departments responded immediately to these Cabinet decisions.

The brief facts of this case are that the applicant association, which represents the healthcare workers, applied to the Court to, among others, declare that the government’s failure to provide their members with protective equipment against COVID-19 was a violation of their right to life. The Court’s approach was that section 5 of the Constitution, which embodies the right to life, imposes both positive and negative state obligations. The state not only has a duty to respect the right to life (negative),but it also has a duty to fulfil, promote and protect the right to life.127

The Court extensively toured the comparative jurisprudence of the European Human Rights Court,128 and gleaned five principles that may apply to interpreting the right to life in Lesotho.129 The first principle is that the state must discharge its positive obligation to the right to life by putting in place the legal framework for protecting life. A failure by the state to discharge this obligation is a violation of the right. The second principle is that if the state is aware of the threat to the right, it cannot plead lack of resources as justification for not discharging its obligation. The third principle is that the state has a responsibility to take preventive operational measures to protect life. The fourth principle is that the state should preserve life in any context – whether in public or private contexts. The fifth principle, which is derived from the UK Supreme Court’s decision in Smith v Minister of Defence,130 is that the failure to provide equipment to groups such as soldiers, police and doctors who work in risky environments is a violation of the right. The Court observed that ‘[a]lthough the medical doctors’ routine job is inherently risky and carries with it the potential for loss of life from infection with deadly diseases, however, constitutionally they cannot be left to their own devices by the state’.131 It is intriguing to note that the Court considered the precedent already set by the Court of Appeal in Khathang Tema Baitsokoli in which the Court of Appeal categorically refused to liberalise the interpretation of the right to life.132 The High Court in Lesotho Medical Association sought to distinguish the two cases, perhaps to cleverly avoid any direct contradiction with the apex court.133 However, it is clear that the High Court wanted to chart a new approach to the enforceability of socio-economic rights in Lesotho. To that end, the Court observed:134

While I agree that the DPSP [Directive Principles of State Policy] are not justiciable, this should [not] be taken to mean that they are worthless. The DPSPs are not merely decorative of the paper on which they have been crafted, they are relevant as a constitutional guide to the state in formulating policies and, with regard to the courts, as a constitutional interpretative guide in interpreting legislation.

This somewhat progressive view of the Court was influenced by Viljoen’s view that, at the very least, Directive Principles of State Policy should work as aides to the interpretation of the Constitution.135 In particular, Viljoen criticises the approach of the Court of Appeal in Khathang Tema Baitsukuli.136 Indeed, the approach of the Court of Appeal to the right to life and its interface with socio-economic rights, in general, and the right to health, in particular, may not stand the test of time as in many respects it is out of step with contemporary developments in the area.137

Ultimately, the Court in Lesotho Medical Association held in favour of the applicants, finding that the state’s failure to provide protective medical gear constituted a violation of the right to life.138 It consequently ordered the government to comply with its constitutional obligation in terms of section 5 of the Constitution, within a reasonable time, by providing medical doctors and other health professionals with personal protective equipment.139 The Court’s finding and order are very innovative given the restrictive approach taken in Khathang Tema Baits’okoli.140

4 Conclusion

The jurisprudence of the superior courts in Lesotho, as demonstrated in Khathang Tema Baitsokoli,141 is tenaciously in favour of the restrictive approach to the right to life. If this approach were to hold, the glimmer of hope for a liberal approach started by the High Court, exercising its constitutional jurisdiction in Lesotho Medical Association,142 would be extinguished. In any event, the Court of Appeal’s decision would still prevail in light of the doctrine of judicial precedent. However, as demonstrated in the foregoing survey of the foreign and international developments on the scope and content of the right to life, the approach of the Court of Appeal to the right to life is not in keeping with the international trends. It is now almost settled that the right to life not only protects the physical existence of a human being, but also covers the conditions necessary to sustain life.143 The Indian Supreme Court’s jurisprudence is the most persuasive guide for Lesotho’s constitutional jurisprudence as the constitutions of both countries maintain bifurcated human rights frameworks that render socio-economic rights unenforceable.

The High Court’s approach in Lesotho Medical Association is laudable. It may be recommended in future situations where the court is confronted with the interface between the right to life and socio-economic rights, in general, and the right to health, in particular. To that end, the jurisprudence of the Constitutional Court of Colombia may provide some guidance. Its essence is that the right to life is intertwined with the right to health.144 However, care should be taken to ensure that the liberalisation of the right to life does not blur the boundaries between the right to life and the right to health, because the two rights remain distinct.145 The part of the right to health that is more intricately related to the right to life has been styled the ‘core obligation’.146 The obligation to ensure the equitable distribution of all health facilities, goods and services, as the High Court ruled in Lesotho Medical Association, is part of the state’s core obligation.147