Forbath on the Treatment Action Campaign in South Africa

Realizing a Constitutional Social Right - Cultural Transformation, Deep Institutional Reform, and the Roles of Advocacy and Adjudication is a recently posted paper by William E. Forbath, University of Texas School of Law. Here is the abstract:

The South African case of Minister of Health v. Treatment Action Campaign (2002) may be the world's best known recent social rights decision. Usually studied in terms of doctrine and remedy, the decision has been praised or blamed for its cautious approach to defining and enforcing social rights. But neither the court's approach to doctrine and remedy nor the case's larger significance for social rights advocacy and constitutional theory can be understood apart from the movement-building, cultural transformations and institutional reform strategies that shaped both the litigation and the Constitutional Court's response. This draft book chapter, drawing on primary research and extensive conversations with Treatment Action Campaign's leaders and lawyers, offers an empirically rich, theoretically informed account of these more complex dimensions of the 2002 case, its setting and its aftermath, to the present.

This richer narrative analyzes the work of social rights advocates and social movement in creating political and institutional contexts that enabled seemingly gingerly judicial review and narrow judicial remedies to promote broad and deep reforms. In doing so, it draws together two realms that constitutional theory usually keeps apart: transformations in constitutional meaning, rights interpretations, and rights-bearing identities wrought by successful social movements; and institutional reforms and innovations produced by successful collaborations between courts and other social and political actors. Theorized separately in scholarship, as practices on behalf of the dispossessed, they depend on one another. I call this a polity-based approach to social rights advocacy and contrast it with other approaches.

At once a NGO and a social movement, Treatment Action Campaign (TAC) led the decade-long struggle to prod the South African government to provide life-saving anti-retroviral treatment to hundreds of thousands of HIV/AIDS sufferers in the nation's public healthcare system It prevailed despite the obdurate resistance of the nation's President and much of the African National Congress leadership. TAC made the polity and not the courts its chief sphere for rights claims. Melding the nation's new Bill of Rights with a grammar of protest and cultural contention inherited from the Anti-Apartheid movement and grass-roots "empowerment" and "treatment literacy" strategies culled from around the world, TAC built up hundreds of local branches and a poor people's social movement among HIV/AIDS sufferers. Treatment Literacy combined with "rights education" enabled poor South Africans with HIV/AIDS to participate in and make demands on their own treatment and care - and to remake themselves into rights-bearing members of local communities, activist organizations and larger publics. By holding Treatment Literacy workshops not only in hospitals and clinics but in countless schools, churches, union halls and workplaces, TAC also succeeded in providing South Africans with a new public vocabulary for understanding and reckoning with the pandemic in the face of official HIV/AIDS "denialism."

At the same time, TAC's attorneys, activists, and its academic, NGO and professional allies pushed forward policy initiatives, programmatic alternatives and institutional experiments at every level of healthcare governance. TAC used litigation in service of these many-sided strategies to open up policy-making processes, to fashion democratic and pro-poor programs and policies, to prod government to implement them and to monitor its progress. While it used litigation sparingly, TAC's court victories provided invaluable political leverage and moral authority - far more powerfully so than the scholarly literature of juris-skeptics or even juris-optimists would predict. The key was not the unique South African Constitution or judiciary, but the uneasy partnership of courts and social movement; the shift in normative outlook and factual understandings throughout the polity that the movement, buoyed by the courts, produced; and the sophisticated decade-long collaboration among rights advocates, healthcare professionals and NGOs, reform-minded state actors and the courts persistently exploring and highlighting what institutions needed to be reformed and how to reform them.