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?

Abstract

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.