SA Human Rights Commission CEO's talk at the Sept 2018 conference

 
 
 
Thipanyane

At the recent World Federation of Right to Die Societies' 22nd biennial conference hosted by DignitySA in Cape Town, the CEO of the SAHRC, Adv. Tseliso Thipanyane, spoke out on the right to die. Below, his presentation:

World Federation of Right to Die Societies Conference

Assisted Dying in South Africa:  A human rights perspective (TST 20-30 min)

Introduction

Human dignity, the essence of our being as human beings, is what defines us as individuals and as members of our respective societies and communities. There is no “us” or “me” without dignity or Botho or Ubuntu as referred to in the Sotho and Nguni language groups in South Africa.

Human dignity - “the right of every person to inherent dignity and to have this right respected and protected”- forms one of the founding values upon which the post-apartheid and democratic society of South Africa is founded upon.[1] Chaskalson P (as he was then), referred to the right to dignity, together with the right to life, “as the most important of all human rights”  that should be valued above all other human rights. According to him, the right to dignity and life are the source of all other rights.[2] The Constitutional Court in Dawood  and Another v Minister of Home Affairs and Others[3] referred to this rights as a “value that informs the interpretation of many, possibly, all other rights” in our Bill of Rights. The Court went on to say that human dignity is “not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected.”[4] The right to dignity is also enforced by the right to “freedom and security of the person” which includes amongst others, the right of every person to “security in and control over their body.”[5] 

Notwithstanding the importance of human dignity and life, as values and rights in our country and in all communities and societies, many people, due to disease (mental and physical) and violations of their human rights in the most intrusive and brutal manner as sexual violence and sustained psychological assaults end up taking their lives and so do so in very painful and often traumatic ways due to the lack of know, advise and or support.  It is reported that around 20 people take their own lives in South Africa on daily basis and that about 13% percent of rapes victims commit suicide whilst about 30% to contemplate suicide due to the devastating impact of these assaults on their sense of being and worth.

Assisted Dying: Legal Position in SA

Unfortunately the law and societal attitudes in general do not favour nor support the act of taking one’s life, and more so, the assistance given by others to such acts. In South Africa, whilst the taking of one’s life or attempt to do so is not a criminal offence, assisting someone to take his or her life (assisted suicide or active voluntary euthanasia) is unlawful.[6] Mercy killing/euthanasia including physician administered euthanasia is currently regarded as murder in South Africa.[7]   There are a few countries, however, such as Canada and the Netherlands euthanasia is allowed by and there are also countries, such Germany and the Netherlands, where assisted suicide is also allowed.

Critique of SA’s current legal position

The general negative attitude shown by society towards suicide, assisted suicide and euthanasia whilst understandable from a religious and cultural point of view is difficult to understand and accept from a human rights perspective and the right to dignity in particular.

The right to dignity and the right of every person to “security in and control over his or her body” both entrenched in South Africa’s Bill of Rights clearly provides a basis for the acceptance of euthanasia, and at the very least, physician administered euthanasia. These provisions provide a basis for a more enlightened and progressive approach to these issues. There are a number of reasons that inform this view.

·         The current law in South Africa already allows individuals to take their own lives and does not punish those who fail in an attempt to do so. Punishing those who help/assist those wishing to take their lives, more so, in the context of terminal illness and unbearable pain, is not only illogical to say the least.

·         Prohibiting euthanasia negates entrenched human rights provisions in the country’s constitution pertaining to human dignity and the rights of individuals of security and control over their bodies. This prohibition, using the words of Arch Bishop Tutu deprive dying people the right to “choose how and when they leave mother earth,”[8] and goes against the country’s new value system based on the right to dignity. Human dignity, according to the Constitutional Court in S v Makwanyane[9] is “ the touch of the political order’ and if one may add, a new social order that requires people to lead dignified lives and in this regard, dignified deaths too.

·         The reasons for not changing the current prohibitive law in relation to euthanasia, such as the possibility of abuse of euthanasia due to family pressures motivated by financial challenges, do not justify the prohibition and its blanket application as a response to a problem that can be regulated by good controls. These controls would include, for example, approval by a panel of physicians for euthanasia – this is one of the requirements in some of the countries where euthanasia in already permitted (Luxemburg, for example).

·         The issue of culture cited by the Supreme Court of Appeals in the Stransham-Ford case and possible religious concerns as a basis for not permitting euthanasia in the country has an effect of imposing cultural and religious views on the whole of society. This is not only unfair but negates a very important principle of our Bill of Rights which provides that the enjoyment and practice of culture and religion should not be inconsistent with other provisions of the Bill of Rights, more so the right to dignity which is the  main basis for euthanasia.

·          The current prohibition of the right to euthanasia constitutes an unjustifiable limitation of the right of dignity for those who want to end their lives. This limitation would not meet the requirements of the limitation clause which is depended amongst other things, ‘ an open and democratic society based on human dignity, equality and freedom, which  in this regard entails the right to die in dignity, the equal enjoyment of the right given to those who commit suicide on their own.

Conclusion/way forward

There is certainly a need to review our laws and attitudes as society in relation to the right of individuals to take up their own lives and to be duly and appropriately assisted by others if their sense of dignity leads them to this conclusion. This could be done by enactment of appropriate legislation or by our courts through their power to develop our common law in a manner that the prohibition of euthanasia would come to an end. The current prohibition of euthanasia is contrary to the “spirit, purport and objects of the Bill of Rights.

Bodies like the South African Human Rights Commission should take up this matter and fight for the dignity of terminally ill South Africans and unbearable pain.

In closing, if the Constitutional Court in Dawood made it clear that the right to dignity is a fundamental value in our country and a justiciable right that must be respected and protected, should those who chose to express this right and value by taking their lives not be respected and protected too, and should this right and respect not also include the right to be duly and appropriately assisted? Is it part of our Ubuntu philosophy and values to deny those who are terminally ill and in pain the right to die in dignity because of some cultural and or religious views?

There is an increasing support for the removal of the prohibition of euthanasia in South Africa and the law makers should take heed. South African has taken the lead in many human rights advances and this is an area where South Africa could lead as well, at least in the African continent.  

[1] See sections 1 and 10 of the Constitution of the Republic of South Africa, 1996.
[2] See S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995(2) SACR (CC) and 1995 (6) BCLR 665 (CC) para 144.
[3] 2000 (3) SA 936(CC); 2000 (8) BCLR 837(CC) para 35.
[4] Ibid.
[5] Section 12(2)(b) of the Constitution.
[6] See R v Peverett 1940 AD 213, cited in Minister of Justice and Correctional Services and Others v Estate Late Robert James Stransham-Ford and Others 2017(3) SA 152 (SCA) (6 December 2016) para 28 and para 30.
[7] See  Stransham-Ford, ibid, para 40.
[8] See Rebecca Davis “Euthanasia back in Courts as doctor fights for right to die” Daily Maverick, 20 September 2017.
[9] Makwanyane above note 2 at para 329.

A video of his talk can be found here: https://www.youtube.com/watch?v=VBMmIinI1aU&t=22s