DUDZAI MUREYI
As some of us go about our business, dissembling our interest yet secretly aquiver in anticipation of the outcome of what is possibly the most important court case of this year, an occasion has presented itself, to reflect on the role of the Judiciary arm of the State in fate determination.
The judicialisation of issues is not a difficult undertaking. In healthcare, the framing of access to medicines and medical services can rapidly turn into a constitutional matter if access to certain medications, products or health services is framed as a human rights issue. The case of the Treatment Action Campaign of South Africa vs the Government of South Africa (which at the time was under the leadership of President Mbeki) immediately recommends itself as an example. The Treatment Action Campaign, largely through suing the government of South Africa, among other activist strategies, was instrumental in the introduction of free access to antiretroviral therapy for HIV-infected individuals in the public health system. So significant was this achievement that one of the leaders of the TAC, was once nominated for the Nobel Peace Prize for his contribution., is a particularly poignant example of how matters of healthcare delivery can be decided not by pharmacists, doctors and/or nurses in hospitals, but by lawyers, judges and activists in court rooms.
Healthcare practice in Zimbabwe is a highly regulated enterprise – for good reason too; it is literally a matter of life and death, the information and power asymmetry between practitioners of healthcare and recipients of care makes recipients vulnerable to predatory practices, and the consequences of predatory healthcare practices are quite dire. With this ultra-regulation comes a high risk of conflict with anything that threatens to disrupt a model that has been perceived to be working for decades. This is the curse of E-health (the deployment of electronic technologies for healthcare purposes). Even in the very technologically advanced and rather progressive countries like the United States of America, the advent of disruptive e-health technologies that are performing some tasks that have hitherto been performed by medical professionals, has confounded regulators of healthcare products.
Like I mentioned in the article preceding this one, many things that can easily be done by digital ICT technologies, much to the convenience of both patients and healthcare practitioners, are illegal according to the archaic rules and regulations in force, some penned as far back as when I was two years old. However, as lawyers will happily tell you, sometimes the illegality of a thing depends on framing and interpretation.
The Zimbabwean Constitution is rather progressive- it holds in high regard things that: are in service of human rights promotion in particular and national development in general. Any statutory instrument has to be read and interpreted through the prism of this progressive Constitution and state actors, including healthcare regulators, have to be guided by their chief mandate of ‘promoting national development’. What this means for a determined
E-health innovator who has a beneficial implementable but disruptive idea whose operationalisation is being impeded by a looming grey cloud of alleged illegality, can argue before a judge, that their idea is in service of both national development and the right to health (or other constitutionally protected rights), and obtain the legal right to implement.
Laws, in any case, are neither cast in stone nor written by the fingers of Olympian gods. They can be amended, repealed and replaced. From reading the history of Econet Wireless, following the news on the cryptocurrency ban by the Reserve Bank of Zimbabwe, and from my own personal experiences as an Ehealth innovator, I have encountered more than enough evidence that the Zimbabwean judiciary is a useful ally of digital disruption outfits, who run to it for relief when the State regulators, notwithstanding all their best intentions, threaten to impede the private sector from providing much needed solutions.
So, I dare all those trenchant minds that are sitting on digital solutions and prototypes (and potential profits) that can improve our health system because those prototypes, on the face of it, run counter to existing healthcare regulatory frameworks. Get a second opinion. Get a legal advisor. Get yourselves before a judge and get a second opinion on what’s legal and what’s not.
Dudzai Mureyi is a pharmacist skilled in health policy analysis, currently pursuing doctoral studies in Global Health. Find her on Twitter: @BonnieDudzai or email her at: dudzai8787@gmail.com
