Staff Writer
In a damning indictment of the current legal order inherited by the current government, the Ombudsman, Stephen Tiroyakgosi has declared that Batswana currently possess no constitutional right to health, leaving them vulnerable to a system that views their survival as a policy privilege rather than a binding state obligation.
Delivering the findings of an intensive investigation into the collapse of the public health sector yesterday, Tiroyakgosi stated that the country has reached a “fork in the road.” He explicitly noted that while the constitution protects fundamental freedoms, it “does not expressly articulate the right to health”.
Consequently, the state faces “non-compulsion” to fulfil its duties, allowing administrative failures to fester without legal consequence. This has led to years of worsening health care in the country, he said.
To reverse this deep-rooted and systematic rot, the Ombudsman has advised the government to immediately ratify and domesticate the International Covenant on Economic, Social and Cultural Rights (ICESCR), specifically Article 12, to establish a legally enforceable entitlement to the “highest attainable standard of physical and mental health”.
What is the ICESCR?
The International Covenant on Economic, Social and Cultural Rights is a landmark United Nations treaty. Its 12th Article goes beyond basic medical care, requiring nations to recognise the right of everyone to the enjoyment of the highest attainable standard of health.
According to the UN Committee that oversees the Covenant, this right is inclusive. It extends not only to timely and appropriate health care but also to the “underlying determinants of health,” such as access to safe water, sanitation, and adequate food. Crucially, it obliges the state to use “maximum available resources” to realize this right, meaning a government cannot easily plead poverty when essential services fail.
Lessons from Abroad: South Africa and Brazil
If Botswana follows this advice, it would join nations like South Africa and Brazil where the right to health has moved from paper to practice, often through the courts.
In South Africa, Section 27 of the Constitution guarantees the right to have access to health care services. This provision was the weapon used in the famous Treatment Action Campaign (TAC) case. When the South African government refused to make the anti-retroviral drug Nevirapine available in public hospitals to prevent mother-to-child HIV transmission, activists sued. The Constitutional Court ruled that the government’s refusal was unreasonable and ordered them to roll out the drug nationwide, saving tens of thousands of lives.
In Brazil, the Constitution declares health a “right of all and a duty of the State”. This has led to the “judicialization of health,” a phenomenon where citizens routinely sue the government to obtain specific medicines or surgeries that the public system has failed to provide. Courts there frequently rule that the state’s duty to preserve life overrides financial arguments, forcing the immediate purchase of life-saving drugs for individual patients.
What This Means for the Average Motswana
For the average citizen of Botswana, this shift would be revolutionary. Currently, the Ombudsman’s report notes that patients at Princess Marina Hospital wait up to 120 hours for admission, and facilities like Nyangabgwe Referral Hospital operate with drug availability as low as 66%. Under the current system, these are viewed as administrative failures.
If the right to health were domesticated, these failures could become human rights violations actionable in court. A mother whose child is denied emergency care due to a lack of ambulances, a fleet where 87 vehicles are currently inactive could potentially sue the Ministry for failing to meet its constitutional obligations. The government would be forced to prove in a court of law that it is doing absolutely everything possible to provide care, rather than simply admitting to “deficiencies in competency” as they did during this investigation.
As the Ombudsman concluded, the lack of a legal basis has led to a culture where the state is “wanting in meeting its obligations”. Ratifying the ICESCR would strip away the excuse of administrative discretion, handing the power of enforcement back to the people.
