oa Comparative and International Law Journal of Southern Africa - The right to health care, the best interests of the child, and AIDS in South Africa and Malawi



Africa is characterised by poverty, disease and malnutrition. Sub-Saharan Africa has the highest incidence of HIV / AIDS worldwide. Both South Africa and Malawi were faced by the onslaught of the HIV / AIDS pandemic at a time of political upheaval. Both are committed to international and regional human rights instruments that entrench the rights of the child to, inter alia health care. In addition, South Africa has entrenched the right to health care as one of the justiciable socio-economic rights contained in the Bill of Rights in chapter 2 of the constitution (Act 108 of 1996). In realising the right to health care, and in an attempt to halt the spread of HIV / AIDS it is proposed that children should be prioritised in the allocation of resources. Despite horrifying AIDS statistics, the risk of a child dying of malnutrition in Africa is higher than the risk of him or her dying of AIDS. If this reality is to change poverty must be eliminated as a disease vector. South Africa and Malawi lack the resources to deal with poverty alone. They need massive injections of foreign aid. Wealthy nations cannot risk the potential negative economic impact that might result if AIDS in Africa is allowed to precipitate a developmental crisis.


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