Developing and applying a constitutional rights-based approach to the regulation of the modifiable risk factors for noncommunicable diseases in South Africa.

Abstract

Non-communicable diseases (NCDs) caused by unhealthy diet, contribute significantly to South Africa’s burden of disease and are preventable. Policies and laws offer an evidence-based mechanism improve diet and prevent NCDs. However, the adoption of these measures is complex, often facing opposition from many actors. To address these challenges to the adoption of these interventions, scholars have looked to develop human rights-based (HRbased) approaches to the prevention of obesity and diet-related NCDs. These approaches have the advantages of supporting and guiding government action on NCDs, holding various actors accountable and providing a means to manage the competing rights implicated in NCD prevention efforts. However, to fully realise the benefits of an HR-based approach to NCDs, there is a need to anchor the approach in context-specific rights married with concrete and enforceable obligations. This thesis seeks to develop an HR-based approach to NCDs under the rubric of the South African Constitution. Often the right to health or the right to food can form the basis of an HR-based approach to NCDs. However, the peculiarities of section 27 of the Constitution require that the content of these rights be further developed to encompass NCD prevention, particularly where the interventions sit outside the healthcare system and are not biomedical in nature. This thesis explores and develops the content of the right to healthcare and the right to sufficient food to identify obligations that could support action on NCD prevention. Recognising that NCD prevention interventions may limit individual rights, this thesis then explores the relationship between public health and HR through the lens of colliding rights and section 36. Since many NCD prevention interventions may be novel, there arise implications for the section 36 limitations analysis. This thesis therefore addresses the application of section 36 analysis to novel NCD prevention interventions, outlining the kinds of considerations influencing whether the limitation of rights by a public health intervention can be found to be justifiable. This thesis with recommendations on how this HR-based approach may be used in South Africa to prevent NCDs.