COVID-19 and Africa Symposium: The State’s Duty to Provide PPE to Health Workers in Lesotho

[Khanyo Farisè is a Legal Advisor at the International Commission of Jurists, Africa Regional Programme.]

Healthcare workers have been at the forefront of the fight against the COVID-19 pandemic playing a key role in saving lives. Sadly, being at the forefront of responding to COVID-19 has placed healthcare workers, the significant majority of whom are women, at increased risk of contagion and has left them exposed to various negative impacts. According to the World Health Organisation (“WHO”) there are “mounting reports of infections, illness and attacks among health workers fighting COVID-19.”

As detailed in the ICJ’s global health report, in many parts of the world, healthcare workers have faced challenges in accessing PPE necessary to protect them from COVID-19 transmission. In addition to this, an Amnesty International report found that health workers across the world have “faced reprisals from the authorities and their employers for raising safety concerns, including arrests and dismissals, and even in some cases been subjected to violence and stigma from members of the public”.

The situation has been the same in the African context with the African Commission on Human and Peoples’ Rights calling on states to “ensure that health workers are provided with the necessary protective gears (sic) and treatment protocols to ensure that they are protected from exposure to infection.” The WHO has repeatedly called on governments to address the persistent threats to healthcare workers’ health and safety. But what can healthcare workers do when these rights are violated? Can courts come to their assistance and provide effective remedies for the violation of health workers’ rights?

Doctors in Lesotho take government to Court for provision of PPE

Approaching the Lesotho High Court, individual doctors and members of the Lesotho Medical Association, decried their working conditions in the following stark terms:

“We do not have requisite tools including, among others, safety kits and we from time to time work with our bear (sic) hands handling patients with open wounds and sometimes with highly communicable or infectious diseases. This imposes a threat to doctors’ own physical integrity, life and renders it hard for them to practice their profession.”

The doctors therefore asked the court to come to their aid. They argued that the State’s failure to provide them with adequate PPE violated their rights to just and favourable conditions of work and, ultimately, their right to life. They also asked the court to declare the conditions under which they were compelled to work in violation of their right to “physical, mental and emotional life”.

In response, the Lesotho government alleged a “serious lack of funds” and denied that it held an obligation to make provision of PPE to healthcare workers even in the context of the COVID-19 pandemic.

Domestic and international protection of health workers’ rights

Healthcare workers, like all other people, enjoy the protection of the rights to the “highest attainable standard of physical and mental health”, “just and favorable conditions of work” and “safe and healthy working conditions” in terms of the International Covenant on Economic Social and Cultural Rights (ICESCR). Lesotho has acceded to ICESCR and various other international treaties that require States to respect, protect, promote and fulfil ESCR such as the rights to work and health.

While the Lesotho Constitution explicitly entrenches a right to life (Article 5), it includes “ensuring the highest attainable standard of physical and mental health” (Article 27) and “securing just and favorable conditions of work” (Article 30) as non-justiciable Directive Principles of State Policy (DPSP). Article 25 of the Lesotho Constitution states that principles of State Policy shall not be enforceable by any court.  The health workers therefore relied on the right to life, arguing that “health is an integral (sic) of right to life”.

In terms of international law, the Human Rights Committee has described the right to life as a “right to life with dignity”. In General Comment 36 it indicated as follows:

“The right to life is a right which should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.”

As a matter of international human rights law, the rights to work and health are justiciable, as is the right to life broadly construed. The ICJ has summarized the justiciability of ESCR in domestic contexts as follows: “at a minimum, domestic judges should interpret domestic law consistently with the States obligations under the ICESCR”.

Court’s decision in Lesotho Medical Association

In its judgment in Lesotho Medical Association and Another v Minister of Health and Others, the High Court explained that though designated “not justiciable” by the Constitution, DPSP’s are “not merely decorative of the paper on which they have been crafted” but instead are “a constitutional guide to the state in formulating policies” and a “constitutional interpretative guide” to Courts.

The Court therefore clearly applied the DPSPs in interpreting the content of the right to life, emphasizing that the State carries a positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction, including doctors. In coming to this conclusion, it reasoned that a “violation of the right to life will be found to exist where the state knew or ought to have known about the threat to life” and failed to take appropriate steps.

The Court found furthermore, that in the current circumstances the State’s “cries of budgetary constraints” could not excuse the violations of the doctors’ rights and that the State was obliged to:

“take preventive operational measures to protect the lives that are potentially being endangered by the work environment, or to at least, minimise the occurrence of loss of life”.

Describing the risk to doctors from COVID-19 as “continuing and ever omnipresent” and decrying the government’s “procrastination and lack of political will” as “disturbing to say the least” the court held the Ministry of Health’s failure to provide adequate PPE was unconstitutional. It therefore ordered the government to provide “medical doctors and other health professionals with PPE” within a “reasonable time”.

Importance of this decision

Although relying on domestic constitutional law, the Lesotho High Court’s judgment is consistent with the regional and international human rights standards detailed above.

In many jurisdictions, as in Lesotho, ESCR are either not included in domestic constitutions at all or they are included as non-justiciable “directive principles” or “objectives” giving direction to state policy. This judgement is important because, despite these rights being non-justiciable, the Court emphasised that these DPSPs must be considered by courts carefully when interpreting legislation and justiciable constitutional provisions. Furthermore, the case highlights the creative ways in which human rights defenders can secure the protection of the right to health through judicial adjudication.

Despite coming to a conclusion consistent with international human rights law standards, disappointingly the judgment fails to consider or adopt directly relevant international human rights law standards binding on the Lesotho state, including the judiciary.

As the CESCR has highlighted “as frontline responders to this crisis, all healthcare workers must be provided with proper protective clothing and equipment against contagion” states must ensure health workers are “provided proper protective clothing and equipment against contagion.” This judgement shows the important role of the judiciary in ensuring that the ESCR of health workers are upheld by states.

It is likely, that faced with litigation of this nature, many states would “cry budgetary constraints”. Such claims should not discourage appropriate judicial interventions required in terms of domestic and international human rights law. ICESCR requires the realization of all ESCR by each State “to the maximum of its available resources”. The duty to ensure immediate access to at least the minimum essential level of health services, facilities and goods is a minimum core obligation, not subject to such resource constraints.

Especially in the context of the COVID-19 health emergency, where the risk is “continuous and omnipresent”, threats to human life cannot be justified on allegations of absence of resources alone. Indeed, as CESCR has indicated in its statement on COVID-19 and ESCR States must take measures to ensure “the extraordinary mobilization of resources to deal with the COVID-19 pandemic”. States claiming inadequacy of resources to respond to COVID-19 should be required by Courts to show evidence of adequate budgeting and expenditure as well as “extraordinary” measures to access resources including through private donations and international cooperation and assistance.