Even before the pandemic and the recent global rise in food prices, millions of South Africans were hungry. In 2019, nearly 18% of households could not access enough nutritious food for a healthy and productive life. Child stunting remains stubbornly high, affecting 27% of children under five (double the global 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% of women and 31% of men. They are behind a rise in health problems such as heart disease and diabetes. In South Africa, diabetes affects approximately 4.5 million people and is the leading cause of death among women.
Obesity and stunting are linked, and often found in the same households as both result from not being able to access the right kinds of (nutritious) food.
Yet, in South Africa, everyone should be able to access their basic needs, like food, in a dignified manner (without shame and unreasonable obstacles). The right to food is enshrined in South Africa’s constitution. Section 27(1)(b) states that “everyone has the right to have access to sufficient food and water”. Section 28 recognises the right to food for children.
South Africa has also ratified many international and regional human rights agreements on the right to food. The right to food is a human right recognised under national and international law, which protects the right of people to access food and feed themselves, either by producing their food or by purchasing it.
This right has been successfully litigated in countries like India. Until recently no case directly related to the right had been brought to the Constitutional Court of South Africa.
This changed in mid-2020 when the NGO Equal Education and the public interest group Section27, together with two Limpopo school governing bodies, won their case, forcing the Department of Basic Education to resume the National School Nutrition Programme for nine million learners around the country.
The case is significant as it means that the question of hunger is now on the list of socioeconomic rights recognised under the law in South Africa. Other rights have been litigated, creating a body of jurisprudence for the court to act on.
According to Baone Twala from Section27, speaking at an online Food Imbizo, a number of principles were set out in the landmark court case, which helps flesh out what the constitutional right to food means in practice in South Africa.
First, the case confirms that the right to basic nutrition for children is unqualified. The progressive realisation of the right depending on the government’s available resources – which usually applies to other social economic rights in the constitution and the right to food for adults – does not apply here. The government has an obligation to ensure the immediate fulfilment of those rights, as opposed to housing, for example, where it depends on what government can do.
Second, the implication of this right is that the state must provide it in circumstances where parents and caregivers are unable to. An example would be when they can’t afford to.
Third, the National School Nutrition Programme is a component of the right to basic education in the sense that it enables the child to be able to fulfil their right to education; eating gives the child the mental ability to focus.
Fourth, the right to basic nutrition for children is self-standing and independent of the right to education. This means that the right to food exists whether or not a child is in school, and the state has a duty to fulfil that right, regardless of where the child is.
Finally, removing a pre-existing right (like cancelling the school nutrition programme) is a retrogressive measure, and can only be implemented under very specific circumstances. When it comes to children, this should be the very last measure that is taken.
The first direct Constitutional Court ruling on the right to food was used in 2020 to force the Department of Basic Education to restart the school nutrition programme. The challenge now is how to ensure these principles are reflected across a broader set of policies.
It might be tempting to immediately focus on finding other strategic litigation cases on the right to food to build up a body of jurisprudence. But court cases can be difficult and time-consuming to build. Sometimes the outcomes are very specific, and they can even go against the intended outcome.
Twala argues that there is now an opportunity through advocacy and civil society mobilisation to make sure that the principles are used to counteract policy and programme decisions that contravene them. For example, the principle on removing the pre-existing right could be applied to other feeding programmes for children or vulnerable members of society, significantly curtailing the ability of government to stop these.
Taking up these principles (and especially the second principle) through advocacy and mobilisation also aligns well with a growing consensus that children (and mothers) should be the focus of right to food campaigns. This ties in well with existing high-profile campaigns, such as the ones coordinated by Black Sash for the full retention of the Social Relief of Distress grant introduced during the pandemic, and to increase the Child Support Grant and extend this to pregnant women.