Even before the pandemic and the recent rise in global food prices, millions of South Africans were starving. In 2019, nearly 18% of households did not have access to enough nutritious food for a healthy and productive life.

Child stunting remains stubbornly high, affecting 27% of children under the age of five (double the global average). And 10% of children are either emaciated (thin for their height) or underweight.

At the same time, the rate of overweight and obesity is increasing, affecting 68% of women and 31% of men. They are behind the 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 occur in the same households, as both result from lack of access to the right types of (nutritious) food.

The protracted nature of the pandemic and its long-lasting social and economic impact have increased this consistently high level of food insecurity. This was caused by rising food prices.

However, in South Africa everyone should have decent access to their basic needs such as food (without shame or unreasonable barriers).

The right to food is enshrined in the South African constitution. Section 27(1)(b) states that “everyone has the right to access to adequate food and water”. Section 28 recognizes children’s right to food.

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 recognized by national and international law that protects people’s right to access food and feed themselves, either by producing food or by purchasing it.

This right has been successfully challenged in countries like India. Until recently, no case directly related to the law was referred to the Constitutional Court of South Africa.

That changed in mid-2020 when the NGO Equal Education and public interest group Section27, along with two Limpopo school authorities, won a case forcing the Department of Basic Education to reinstate the National School Meals Program for nine million students across the country. .

The case is important because it means that the issue of hunger is now on the list of socio-economic rights recognized under the law in South Africa. Other rights were considered, creating case law upon which the court could act.

READ ALSO: Food shortage averted in KZN, but access is a problem

Important principles

According to Section27’s Baone Twala, speaking at the Food Imbizo online conference, a number of principles were set out in a landmark court case that 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 unconditional. Gradual implementation of the right depending on available state resources – which usually applies to other socio-economic rights in the constitution and the right to food for adults – does not apply here.

The government has a duty to enforce these rights immediately, unlike, for example, housing, where it depends on what the government can do.

Second, the importance of this right is that the state must provide it in cases where parents and guardians are unable to do so. An example would be if they can’t afford it.

Third, the National School Feeding Program is a component of the right to basic education in the sense that it enables the child to exercise his right to education; food gives the child the mental ability to focus.

Fourth, children’s right to basic nutrition is independent and independent of the right to education. This means that the right to food exists regardless of whether the child is in school, and the state is obliged to fulfill this right regardless of where the child is.

Finally, removing an existing right (such as eliminating the school meal program) is a retrogressive measure and can only be implemented in very specific circumstances. When it comes to children, this should be the last resort.

Let’s move forward

The Constitutional Court’s first direct ruling on the right to food was used in 2020 to force the Department of Basic Education to reinstate the school meals programme. The challenge now is how to ensure that these principles are reflected in a wider set of policies.

It may be tempting to immediately focus on finding other strategic food law cases to build a body of case law. But court cases can be difficult and time-consuming.

Sometimes the results are very specific and may even contradict the intended result.

Twala argues that there is now an opportunity, through advocacy and the mobilization of civil society, to ensure that the principles are used to counter policies and program decisions that contradict them.

For example, the principle of rescission of a pre-existing right can be applied to other food programs for children or vulnerable members of society, significantly limiting the government’s ability to stop them.

Embracing these principles (and especially the second principle) through advocacy and mobilization also dovetails well with the growing consensus that children (and mothers) should be the focus of right-to-food campaigns.

This sits well with existing high-profile campaigns such as those coordinated by the Black Sash to fully retain the welfare subsidy introduced during the pandemic, and to increase the child support subsidy and extend it to pregnant women.

This article is republished from The Conversation under a Creative Commons license. Read the original article here.

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