In addition, the Preamble of the Constitution explicitly acknowledges the “injustices of the past”, and vows to ensure social justice and “improve the quality of life of all citizens”.  The loss of over 100 patients not only violates the spirit of the Preamble, but is also in gross violation of the constitutionally enshrined rights to life, dignity, and healthcare. 

Moreover, in terms of section 7(2) of the Constitution, the State must “respect, protect, and promote” the rights outlined in the Bill of Rights. The government failed to monitor the provincial and national healthcare policies. 

In June 2015, now former MEC Qedani Mahlangu announced that the Gauteng Health Department would be terminating their 40-year contract with Life Esidimeni. This decision was met with widespread push-back from professional and civil society stakeholders, including the South African Society of Psychiatrists (SASOP), the South African Depression and Anxiety Group (SADAG), and the South African Federation for Mental Health (SAFMH).  Families of Life Esidimeni patients were also in contact with the Department about their concerns over the transfer. 

Additionally, the National Mental Health Policy Framework and Strategic Plan 2013-2020, warns against the implications of “deinstitutionalisation” stating, “deinstitutionalisation has progressed at a rapid rate in South Africa…This has led to a high number of homeless mentally ill, people living with mental illness in prisons and revolving door patterns of care”.  Thus, Mahlangu and colleagues were well-advised, by myriad stakeholders, to the ramifications that would arise from transferring patients out of Life Esidimeni. 

For this reason, it is necessary that those who are responsible for this gross negligence are held accountable. A considerable amount of cautionary information was provided to Mahlangu and the provincial health department, yet large-scale deaths still occurred. It is important to note though, a glimpse of optimism was revealed in the Gauteng Government’s budget speech, earlier this month.  Finance MEC, Barbara Creecy, stated that the provincial government has increased its budget for mental healthcare from R700 million to R893.8 million. Additionally, the Gauteng Government would be allocating R40.2 billion towards health, up from the R37.6 billion it allocated during the 2016/17 financial year. The provincial government’s financial commitment to mental health issues is only the first of many steps needed to bring justice to those who fell victim to structural violence.

If justice and accountability are denied, the maltreatment of South Africa’s most vulnerable population will endure. It is the State’s constitutional responsibility to ensure that people’s rights are protected. When the State falls short of this mandate, the Constitution grants oversight to Parliament in terms of which, “The National Assembly must provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it”.  In the case of Life Esidimeni, constitutional provisions were violated. Those responsible for the deaths of over 100 innocent people must not walk free without impunity. 

By Ms Kiah Murphy: Intern, Centre for Constitutional Rights