NHI: Unconstitutional to not meet healthcare needs of asylum seekers and undocumented persons

Social justice organisations say that the National Health Insurance (NHI) Bill should be amended to grant access to asylum seekers and undocumented persons.  The Bill that was recently approved by the National Assembly does not cater for the healthcare needs of these vulnerable individuals.

“The current form of the NHI bill, which is now before the National Council of Provinces (NCOP), is unconstitutional, specifically because of the way in which it excludes the healthcare needs of asylum seekers and those of undocumented persons”, says Sibusisiwe Ndlela, a human rights lawyer at Section 27.

Going against the Constitution

Speaking on Thursday during a webinar organised by Collective Voices for Health Access, she questioned to what extent the NHI will promote universal health coverage, ‘given the type of care for asylum seekers and undocumented persons which is contemplated by the NHI Bill.’

Ndlela says key provisions of the Constitution are not reflected in the Bill. Section 27 of the Constitution states every person has the right to have access to health care services, including reproductive health care, and no person may be refused emergency treatment.

“The specific wording refers to everyone and the term everyone in the context of the The Bill of Rights has been interpreted by our constitutional court to basically mean every single person. That would necessarily include asylum seekers and undocumented persons so the failure of the NHI Bill to provide healthcare services for everyone will therefore be contrary to this specific provision of the Constitution,” explains Ndlela.

The National Health Act affords everyone the right to access free primary healthcare services. Currently, both asylum seekers and undocumented persons are entitled to the same type of hospital care as South Africans. Ndlela says the Bill  will severely limit access to healthcare, because it moves away from free healthcare services that are currently provided, including HIV care.

“Under the NHI access to HIV care has been stripped away and we are well aware of the fact that HIV is quite a prevalent condition in the country. To make sure that HIV is not transmitted, we need to make sure that every single person is afforded access to HIV care, whether that be in testing, or access to ARVs.”

She also warns that the current form of the NHI Bill does not seem to be consistent with the right to equality and the right to human dignity.

Under the NHI, there will be one pool of healthcare funding for private and public healthcare providers alike. There will be a mandatory fund contribution for all South Africans, dependent on ability to pay.-Health-e News.


  • Ndivhuwo Mukwevho

    Ndivhuwo Mukwevho is citizen journalist who is based in the Vhembe District of Limpopo province. He joined OurHealth in 2015 and his interests lie in investigative journalism and reporting the untold stories of disadvantaged rural communities. Ndivhuwo holds a Bachelor of Arts degree in Media Studies from the University of Venda and he is currently a registered student with UNISA.

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