Even before the pandemic and the recent global rise in food prices, millions of South Africans were hungry. In 2019, nearly 18% of households did not have access to enough nutritious food to lead healthy and productive lives. Child stunting remains stubbornly high, affecting 27% of children less than five years (twice the world average). And 10% of children are either wasted (thin for their height) or underweight.
At the same time, overweight and obesity rates are increasing, affecting 68% women and 31% men. They cause an increase in health problems such as heart disease and Diabetes. In South Africa, diabetes affects about 4.5 million people and is the leader cause of death among women.
Obesity and stunting are linked and are often found in the same households, as both result from the inability to access the right kinds of (nutritious) food.
The protracted nature of the pandemic and its continuing social and economic impact have increased these high and persistent levels of food insecurity. This was driven by rising food prices.
Yet, in South Africa, everyone should be able to access their basic needs, such as food, in a dignified manner (without shame or unreasonable obstacles). The right to food is enshrined in the South African constitution. Article 27(1)(b) states that “everyone has the right to have access to sufficient food and water”. Article 28 recognizes the right to food for children.
South Africa has also ratified many international and regional human rights agreements relating to the right to food. The right to food is a human right recognized by national and international law, which protects the right of people to access food and to nourish themselves, either by producing their food or by purchasing it.
This right has been successfully challenged in countries like India. Until recently, no case directly related to this right had come before the Constitutional Court of South Africa.
This changed in mid-2020 when the NGO Equal Education and the public interest group Section27, along with two Limpopo school governing bodies, won their case, forcing the Department of Basic Education to take over the National School Nutrition Program for nine million students across the country.
The case is significant as it means that the issue of hunger is now on the list of socio-economic rights recognized by law in South Africa. Other rights have been challenged, creating a body of case law on which the court can act.
According to Section27’s Baone Twala, speaking in an online conference Imbizo fooda number of principles were set out in the landmark court case, which help to flesh out what the constitutional right to food means in practice in South Africa.
First, the case confirms that the right to basic food for children is absolute. The progressive realization of the right according to available government resources – which generally applies to other social economic rights enshrined in the constitution and the right to food for adults – does not apply here. The government has an obligation to ensure the immediate realization of these rights, unlike housing, for example, where it depends on what the government can do.
Second, the implication of this right is that the state must provide it in circumstances where parents and guardians are unable to do so. An example would be when they can’t afford it.
Thirdly, the National School Nutrition Program is a component of the right to basic education in the sense that it allows the child to realize his right to education; eating gives the child the mental ability to concentrate.
Fourth, the right to basic nutrition for children is autonomous and independent of the right to education. This means that the right to food exists whether the child is in school or not, and that the State has a duty to respect this right, regardless of where the child is.
Finally, the removal of a pre-existing right (such as the cancellation of the school nutrition program) is a retrograde measure and can only be implemented in very specific circumstances. As far as children are concerned, this should be the very last step to take.
The Constitutional Court’s first direct ruling on the right to food was used in 2020 to force the Department of Basic Education to restart the school nutrition program. The challenge now is to ensure that these principles are reflected in a broader set of policies.
It might be tempting to immediately focus on researching other strategic right to food litigation in order to build a body of case law. But court cases can be difficult and take time to build. Sometimes the results are very specific and may even go against the intended result.
Twala argues that there is now an opportunity, through advocacy and civil society mobilization, to ensure that the principles are used to counter policy and programmatic decisions that contravene them. For example, the pre-existing entitlement principle could be applied to other feeding programs for children or vulnerable members of society, greatly reducing the government’s ability to stop them.
Embracing these principles (and particularly the second principle) through advocacy and mobilization also aligns well with a growing consensus that children (and mothers) should be at the center of right to food campaigns. This fits well with existing large-scale campaigns, such as those coordinated by Black Sash for the full continuation of the Distress Social Relief Grant introduced during the pandemic, and for increase child support and extend it to pregnant women.