The Rule of Law as a Social Determinant of Health


Director of Proceedings, it is a single honour to address you on the importance of the rule of law in fostering better health outcomes. I am humbled by your invitation to join many of the global legal and judicial luminaries gathered here today.

I address you in my capacity as the Co- Chair of the African Think Tank on HIV, Health and Social Justice and President of the Africa Judges Forum on HIV, Human Rights and the Law.

The rule of law is increasingly understood as a foundational determinant of health, and which underlies other socioeconomic, political and cultural factors associated with health outcomes. Quite simply, strengthened rule of law and related human resource capacity are critical for achieving the health outcomes of the 2030 Agenda, Agenda 2063, the African Health Strategy and other global and regional development frameworks in Africa. The law and justice sector plays a critical, though often unacknowledged, role in every health challenge. Universal health coverage (UHC) systems can only be established, financed and monitored through processes and structures established by law. Good health systems governance also require civil society participation, and government transparency and accountability.

Enabling legal environments are essential to reduce the burden of communicable and non-communicable diseases, as well as injuries, and to provide care, treatment and support to people affected. States need legal powers and the human resource capacity to regulate production, marketing and sales of tobacco and other unhealthy products, and to resist spurious legal challenges in national and international courts and tribunals.

A functioning criminal justice sector is essential to stemming the flood of falsified and substandard medicines across the African continent. Capacity to understand international legal obligations to protect intellectual property is essential to ensure access to affordable medicines. Legal capacity to understand trade and investment treaties is essential to national regulation of the importation of unhealthy foods and beverages.  Public health law capacity – broadly understood – is critical to achieving 21st century health goals. The scope and depth of public health law capacity needed to achieve these goals is still poorly understood. Few legal graduates have the multi-disciplinary perspective and capacity to support government action to achieve these goals.

Expanded legal education and partnerships between faculties of law, medicine, economics, and other sectors are urgently needed to support resilient systems for sustainable health. Civil society networks, including advocates for civil and political rights, must be engaged to ensure robust public debates on the allocation of resources for health. Long-term capacity building plans are needed, as well as urgent short-term assistance. Enabling legal environments and public health law capacity must be acknowledged as amongst the building blocks of African health systems.

Access to justice, whether to courts, alternative dispute resolution mechanisms or traditional justice systems, can help to improve access to health services for girls and women and vulnerable and marginalised populations. Court action can challenge overly broad legislation on constitutional grounds, e.g. inappropriate public health measures to address infectious diseases. Court action may also advance group health rights, e.g. for HIV-positive pregnant women who need medication to prevent HIV transmission to their infants at birth. Conversely, competent and affordable legal advice and representation may help to vulnerable groups to fight discrimination (e.g. key populations most at risk of HIV infection).

Because court action often goes hand in hand with social mobilisation, respect for civil rights is essential. The global revolution in drug pricing and access to generic medication began in 2000 in South Africa and it was defended by civil society organizations of patients, communities and legal activists. When the government policy was challenged in court by global pharmaceutical corporations, the court permitted civil society organisations to join the action in support of the government policy. Mass social mobilisation resulted in intense global media coverage, and pharmaceutical corporations dropped the case. As a result, many millions of people across Africa and around the world now have access to more affordable essential medicines for HIV and other diseases Effective laws and an enabling legal environment are as essential to a healthy society as clean water. Every public health challenge – from infectious and non-communicable diseases to injuries, from mental illness to universal health coverage – has a legal component. Despite this, in many countries, legislation, policies and practices are antiquated, contrary to human rights obligations, and hostile to public health goals - threatening the achievements of SDG health targets in those countries and regions.


What are the Social Determinants of Health?

According to the WHO, the social determinants of health are the conditions in which people are born, and then grow, live, work and age. These circumstances are shaped by the distribution of money, power and resources at global, national and local levels.

Social determinants arguably play the largest role in determining the public’s health. Our public health is determined by the policies and practices in place in our homes, our schools, our workplaces, and our communities. Many of these determinants are difficult, if not altogether impossible, to control, such as economic standing, genetic predispositions or proclivities, and the customs, traditions, norms and attitudes of the community in which we are raised. By developing those policies that have a wide-reaching impact and improve both social and economic aspects of communities, social determinants of the public’s health can have a positive impact, as well. There is a great deal of research on the social determinants of health. Most of it points to three overarching factors:

Income inequality. Once a country has reached the point of development where most deaths come not from infectious diseases (tuberculosis, dysentery, cholera, malaria, flu, pneumonia, etc.), but from chronic diseases (heart disease, diabetes, cancer), the economic and social equality within the society is a greater determinant of death rates and average lifespan than the country’s position with regard to others. The United States, for instance, lags behind Japan, Sweden, Canada, and many other less affluent countries in the life expectancy of its citizens. The difference seems to be the size of the gap between the most and least affluent segments of the society.

Social connectedness. Many studies indicate that “belonging” – whether to a large extended family, a network of friends, a social or volunteer organisation, or a faith community – is related to longer life and better health, as well as to community participation.

Sense of personal or collective efficacy. This refers to people’s sense of control over their lives. People with a higher sense or stronger history of efficacy tend to live longer, maintain better health, and participate more vigorously in civic life.

Although few international laws have been adopted specifically to promote human health, many international laws have possible indirect effects on health, as they may impact the social determinants of health (i.e., the external conditions in which people live that may affect their health). Examples of social determinants of health include armed conflict, employment, empowerment, environment, finance, human rights, poverty, sanitation, social policies, trade, and water supply.

Social Determinants of Health can also be understood as the circumstances in which people are born, grow, live, learn, work, and age, which are shaped by a set of forces beyond the control of the individual. They are intermediate determinants of health, ‘down stream’ from the Structural Determinants. They include material circumstances, and psychosocial and behavioural characteristics. They include the living and working conditions of people, such as their pay, access to housing, or medical care.


Structural Determinants

Structural Determinants are the ‘root causes’ of health inequities, because they shape the quality of the Social Determinants of Health experienced by people in their neighbourhoods and communities. Structural Determinants include the governing process, economic and social policies that affect pay, working conditions, housing and education. The Structural Determinants affect whether the resources necessary for health are distributed equally in society, or whether they are unjustly distributed according to race, gender, social class, geography, sexual identity, or other socially defined group of people.


Good Governance and Health

While many public policies contribute to health and health equity, improving population health is not the sole purpose of societies and their governments. A lack of policy coherence across governments can result in one part of government supporting the implementation of national strategies (e.g. on malnutrition, or non-communicable diseases) or international treaties (e.g. the WHO Framework Convention on Tobacco Control), while other parts of the government promote trade, industrial development and initiatives that can be harmful to health and well-being.

One reason that these inconsistencies arise is a lack of understanding across sectors about the linkages between health and quality of life, and the broader health determinants, such as economic growth. Another reason they arise is because seemingly unrelated policies may have unintended impacts that go unmeasured and unaddressed. These linkages are particularly important for how health inequities arise between population groups.

To contribute to policy coherence across government in order to address the Social Determinants of health equity, the health sector needs to understand the imperatives of other sectors and form common understanding of health, its determinants and broader societal well-being or quality of life. This requires political will and innovative solutions and structures that build channels for dialogue and decision-making that work across traditional government policy siloes.

In practice ,this means engaging in several different actions, including: Coordination support to a networks of trainers implementing the WHO Training Manual on Health in All Policies in countries, regions and WHO programmess;

Supporting and implementing workshops for improving the skills of government policy-makers, programme leaders and health provider groups to ensure coherence across sectors in policies, services and programmes responding to disadvantaged groups’ needs; and Supporting dissemination of information on intersectoral governance for determinants of health equity and exchange of evaluated case studies through an intersectoral action database (Intersectoral Action Case Study Database for Health Equity (ISACS).

*Justice Key Dingake is a High Court Judge. This was his Address at the World Justice Forum, Hague, Netherlands

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