Donor Withdrawal as a Human Rights Event: HIV Care After the 2025 US Foreign Assistance Freeze

Mnotho Ngcobo

Abstract

The 2025 US foreign assistance freeze exposed the extent to which the continuity of HIV care in donor-dependent health systems can rest on financing arrangements that remain legally and institutionally fragile. Focusing on South Africa and Kenya, this paper examines donor withdrawal as a human rights issue that brings into focus states’ continuing obligations when essential services have long been financed or delivered through external programs. It distinguishes the international minimum core framework from the South African reasonableness review and argues that the relevant retrogression inquiry should focus on state conduct, including failures to regulate, monitor, and plan for the foreseeable termination of external financing. The paper also examines earlier transition and co-financing commitments, showing how formal commitments to sustainability may coexist with inadequate preparedness, particularly for community-led services, key-population programs, and other interventions that are difficult to absorb into ordinary public systems. It proposes enforceable transition arrangements centered on advance planning, continuity of access, transparency, and accountability, while also considering the legal and ethical responsibilities of withdrawing donor states where serious extraterritorial harm is foreseeable.

Introduction

On January 20, 2025, his first day in office, President Trump signed Executive Order 14169, directing a 90-day pause of US foreign development assistance pending a review of its consistency with his administration’s foreign policy.[1] Four days later, a State Department stop-work directive extended the pause to existing programs, including those funded through the President’s Emergency Plan for AIDS Relief (PEPFAR); a limited waiver for life-saving services followed on February 1, but its implementation stalled amid administrative confusion, and by late February many implementing partners had received outright termination notices.[2] Within weeks, clinics across Sub-Saharan Africa reported dismissed staff and interrupted supplies of antiretroviral medicines.[3]

Most commentary has read these events in fiscal terms, as a hole in the HIV budget that ministries of health and multilateral agencies must now scramble to fill. I seek to propose a different reading and to hold it alongside the fiscal one rather than in place of it. The withdrawal of a donor is also a legal event. It activates obligations that the affected state already holds and never surrendered. Two decades of externally financed service delivery did not transfer the duty to secure HIV care; that arrangement concealed where and by whom the duty was being discharged. When the money stopped, the obligation did not lapse with it. The obligation simply became visible, and at the same moment it became unmet. For patients, that unmet obligation is not abstract. Treatment interruption can mean viral rebound, opportunistic infection, drug resistance, and increased onward transmission. It also damages trust in health systems that had invited people to rely on continuous care, only to leave them exposed when the financing arrangement changed.

The problem is especially visible in South Africa and Kenya, both heavily affected by the withdrawal and both home to among the strongest constitutional guarantees of the right to health anywhere, yet neither of which entered 2025 with an enforceable legal framework governing how a major donor-supported health program should be wound down. That combination is the problem this paper addresses.

The withdrawal and its projected human cost

The scale of the exposure is now quantified rather than speculative. Using an established individual-based transmission model, Jan Hontelez, Hannah Goymann, Yemane Berhane, and their coauthors, a team working across European, American, and African institutions, estimated that the 90-day freeze would produce 60,000–74,000 excess HIV deaths across seven sub-Saharan countries between 2025 and 2030, together with 35,000–103,000 additional infections.[4] The harm does not end when funding notionally resumes. Interrupted treatment, together with the slow and logistically constrained work of re-enrolling patients, means that elevated mortality can persist for up to five years beyond the freeze itself.[5] South Africa accounted for the largest single share of projected deaths, and Kenya ranked among the next most affected.[6] Looking further out, and modeling a sustained rather than temporary retreat, Aditya Gandhi, Linda-Gail Bekker, A. David Paltiel, and colleagues projected for South Africa alone up to 565,000 additional HIV infections and 601,000 additional HIV-related deaths over the following decade.[7] These forward projections build on early assessments and estimates that had already documented dismissed workers, halted programs, and likely substantial mortality in the weeks after the order took effect.[8] The models have since been overtaken by events rather than corrected by them. By late 2025, the PEPFAR Program Impact Tracker was estimating roughly 147,000 deaths associated with the disruption, while subsequent analysis of PEPFAR expenditure data found that prevention spending fell by 51% between fiscal years 2024 and 2025.[9] Then, in June 2026, the State Department announced that most PEPFAR support to South Africa would end by September 30, with a residual allocation for critical personnel running only to March 2027, converting what the 2025 literature had modeled as a temporary freeze into the sustained retreat it had treated as the worst case.[10]

Long before the 2025 withdrawal, transition from external HIV financing had been treated as something that required advance planning, greater domestic financing, and the progressive absorption of program costs. Both PEPFAR and the Global Fund to Fight AIDS, Tuberculosis and Malaria had incorporated versions of those expectations into their sustainability and country-ownership frameworks.[11]

Although both governments had signed versions of these commitments, neither had implemented them with the seriousness or urgency their terms implied, leaving much of the transition architecture on paper when the freeze arrived. That history makes it difficult to place responsibility entirely on one side of the financing relationship. A government that participated for years in transition discussions and entered into co-financing undertakings cannot plausibly treat donor withdrawal as wholly unforeseeable. At the same time, those commitments do not give a donor license to withdraw overnight from a system it knows remains materially dependent on its support.

In South Africa, the Partnership Framework Implementation Plan with the United States for 2012/13 to 2016/17 expressly contemplated movement away from direct service delivery and toward South African responsibility for clinical services, with sustainability and mutual accountability written into the partnership itself.[12] Kenya entered a similar framework, and by 2012 the State Department’s own inspector general was recommending annual reporting on the Kenyan government’s financial performance against the commitments in its implementation plan, a recommendation that presupposed the commitments were not keeping themselves.[13] Earlier transitions had already exposed the practical difficulty. When PEPFAR handed direct service support in the Western Cape back to the government in 2013, absorption and retention in care proved uneven despite years of preparation, and when its 2015 geographic reprioritization moved more than 400 Kenyan facilities to government support, the evaluation that followed described rushed implementation, discontinued services, and disrupted laboratory support.[14] The vulnerability exposed in 2025 was, in other words, documented a decade in advance.

These projections and documented service disruptions establish the scale of the harm, but they do not resolve the legal question of where responsibility for that harm lies. That inquiry cannot be answered simply by identifying which government or agency financed the relevant services in January 2025.

Why the financing structure does not shift responsibility

The right to the highest attainable standard of health, set out in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), carries a floor of minimum core obligations that the Committee on Economic, Social and Cultural Rights identified in General Comment 14. That floor includes nondiscriminatory access to health facilities, goods, and services; the provision of essential medicines as defined by the World Health Organization; and the equitable distribution of health services.[15] General Comment 14 treats these core obligations as non-derogable, meaning that a state party cannot justify falling below them by reference to resource scarcity.[16] Progressive realization governs the ambitious upper reaches of the right. It does not govern the floor.

Delegation does not lower that floor either. A state may lawfully contract out the delivery of a health service, and it may finance that service from external sources, but neither arrangement transfers the underlying obligation. The duty is owed by the state to the person, and a third party’s involvement in discharging it does not make the third party the duty bearer. Here, the domestic and international layers have to be kept apart because they do different work, and South African constitutional law does not simply track the approach of the Committee on Economic, Social and Cultural Rights. The Constitutional Court has never adopted the minimum core as a freestanding, judicially enforceable standard. In Government of the Republic of South Africa v. Grootboom, it declined to give the housing right a predetermined core content and reviewed instead the reasonableness of the program the state had actually adopted; and in Minister of Health v. Treatment Action Campaign, it carried the same method into health, assessing the government’s restriction of nevirapine for the prevention of mother-to-child transmission to a handful of pilot sites, a restriction defended partly on grounds of cost and capacity, and finding it unreasonable.[17] Whether reasonableness review under-protects relative to a minimum core approach is a long-standing debate in South African socioeconomic rights scholarship, pressed by David Bilchitz, who insists that a right without defined minimum content gives a court nothing to measure a program against, and answered by Sandra Liebenberg, who reads reasonableness as capable of demanding priority for survival interests without fixing content in advance.[18] That debate need not be resolved here. The minimum core supplies the substantive floor at the international layer, where South Africa is bound as a state party, while reasonableness supplies the review methodology at the domestic layer, and the two frameworks should not be run together as if they converged on a single standard.[19] What matters here is that both routes arrive at the state and that neither the Committee on Economic, Social and Cultural Rights’ floor nor the Constitutional Court’s method can be satisfied by pointing outward at a donor. The Treatment Action Campaign decision made this point explicitly, holding that the availability of nevirapine from other sources did not relieve the state of its obligations under section 27 of the South African Constitution. Kenya reaches the same result structurally, domesticating international law through articles 2(5) and 2(6) of its Constitution and guaranteeing the highest attainable standard of health in article 43.[20]

The consequence for the two decades of PEPFAR financing is precise. The period in which a donor financed the majority of certain service lines did not reduce the state’s obligation by a corresponding amount. Where external programs supplied the larger part of delivery capacity, the constitutional entitlement was being satisfied through arrangements that no domestic institution regulated or controlled. An entitlement met in that way is contingent in a specific and consequential sense: Its practical content depended on decisions made by a foreign executive that owed no duty to the affected population. The executive order made that contingency visible in a single stroke.

Retrogression and the reversed burden of proof

Beyond the question of non-delegability, the argument also engages the doctrine of retrogression. The ICESCR permits progressive realization yet treats deliberately retrogressive measures as presumptively impermissible. Reading General Comment 3 together with General Comment 14, any backward movement in the enjoyment of the right to health calls for the most careful consideration, and it must be justified by reference to the totality of the rights in the covenant and to the full use of the state’s maximum available resources, with the burden of that justification resting on the state.[21]

The claim requires some care because the coverage collapse of 2025 cannot itself be treated as the retrogressive measure. General Comment 3 addresses deliberate state measures, while the immediate cause of the disruption was a third party’s unilateral withdrawal. The stronger formulation therefore lies in the distinction between obligations of conduct and obligations of result.[22] On that account, the relevant retrogressive conduct is the state’s continuing omission: the failure, sustained over years, to regulate, monitor, or plan for the foreseeable termination of a financing arrangement that remained unilaterally revocable by a foreign executive. An omission of that kind is deliberate in the relevant sense and fits more readily within the committee’s framework. It also connects to the committee’s 2007 statement on maximum available resources, which asks whether the state’s steps were deliberate, concrete, and targeted and whether low-cost measures and available international assistance were pursued before incapacity was pleaded.[23] A state may still answer that the deficit arrived suddenly through foreign geopolitical decisions it did not control and that no state can be required to provide what its resources make impossible. The reply lies in the meaning of maximum available resources. It is a dynamic standard rather than a snapshot of the existing budget, so a court assessing an abrupt structural shortfall may ask whether the state pursued emergency reallocation, sovereign borrowing, and available international assistance before concluding that the core of the service could not be maintained and, on the conduct-based account, whether reasonable preparatory measures had been taken during the years in which the dependency and possibility of transition were already known. The obligation is not to achieve the impossible; it is to exhaust what is genuinely available, and to have planned, before pleading incapacity.

In South Africa, Treatment Action Campaign provides a useful domestic analog because the government resisted wider rollout partly on affordability and capacity grounds, and the Constitutional Court nevertheless required the restrictions on access to nevirapine to be removed. The case therefore shows that a plea of resource constraint is subject to judicial scrutiny rather than accepted at face value. The response to the 2025 withdrawal points in the same direction. South Africa released emergency funds under section 16 of the Public Finance Management Act and later enacted the Special Appropriation Act 1 of 2026, allocating R754.5 million to the health budget to offset the shortfall, while Kenya, by March 2025, was calling for increased domestic health financing and pointing to local manufacturing as part of its existing transition road map.[24] The ability of both governments to mobilize some of these measures after the withdrawal strengthens the inquiry into what preparatory measures could reasonably have been undertaken before the disruption occurred.

Kenya has converted that interpretive presumption into a domestic rule of evidence, which is what makes it so useful for the problem of donor exit. Article 20(5) of the Constitution provides that when a claimant alleges that the state has failed to provide an economic or social right, and the state pleads a lack of resources, the responsibility for showing that resources were genuinely unavailable falls on the state.[25]Kenyan courts have applied the provision in exactly those terms; in Mathew Okwanda v. Minister of Health and Medical Services and 3 Others, the high court read article 43 together with article 20(5) and treated the state’s responsibility to show that resources are not available as the price of any scarcity plea.[26] The statutory framework reinforces the same obligation. The HIV and AIDS Prevention and Control Act directs the government, to the maximum of its available resources, to take the steps necessary to ensure access to essential health care services and affordable essential medicines for people with HIV and those at risk, and the Health Act of 2017 makes it a duty of the national government to see that financial resources are mobilized for uninterrupted access to quality health services countrywide.[27] Provisions like these make it hard to describe the continuity of HIV care as an obligation that appeared only when the donor left. Applied to withdrawal, the rule is demanding. A ministry does not discharge its obligation by observing that a donor departed. It must show that, after reallocating within the maximum of its available resources, it still could not maintain the core of the service. The sentence “the funding disappeared” describes the difficulty; under article 20(5) it does not answer the claim.

The regulatory vacuum and how to close it

If the obligation persisted intact throughout, the failure exposed in 2025 was a failure of regulation, and of implementation, rather than of doctrine. Neither South Africa nor Kenya had enacted a statute requiring advance notice of donor withdrawal, mandating joint transition planning, or imposing an enforceable duty to maintain access while a program was wound down. The effective notice period was zero. The transition commitments that did exist—the co-financing undertakings and sustainability road maps described earlier—sat in grant agreements and planning documents that no patient could invoke and no court could enforce, which is a second and quieter kind of vacuum. And the vacuum is narrower than an absence of public finance law. Kenya’s Public Finance Management Act already sets conditions for the receipt of grants by the national government, and South Africa’s National Health Act directs the National Health Council to advise the minister on financial assistance received from foreign governments, the conditions attached to it, and the mechanisms for ensuring compliance with those conditions.[28] External health financing, in other words, was already a subject of domestic governance; what was missing was the specific machinery for its withdrawal. Parallel financing made the vacuum worse, because donor-funded programs operated beside the public system with their own staff, procurement, and patient records, while aggregate coverage statistics combined the outputs of both. The blending left the state’s own capacity difficult to identify and its accountability easy to diffuse. Withdrawal then proceeded with no assessment of foreseeable harm, terminating clinical relationships in a way that ordinary continuity-of-care norms do not permit, and leaving patients whose treatment pathways changed without notice, counseling, or a transfer plan.

The vacuum also has a distributional dimension that a budget-level analysis can obscure. Commodities such as antiretroviral medicines may be easier to absorb into national procurement systems, particularly in South Africa, which was already purchasing around 90% of its own supply.[29] More difficult to absorb are community-led and peer-led services; programs for key populations for whom criminalization, stigma, or distrust may make ordinary government facilities inaccessible in practice; human rights monitoring; and prevention programs directed at adolescent girls and young women. The early evidence reflects that vulnerability, with prevention spending falling sharply and implementing partners reporting closures of community sites and key-population services.[30] Those disruptions have particular significance for equality and nondiscrimination because the populations most dependent on specialized or community-based services may also be the least able to rely on general public facilities when those services disappear.[31] African scholarship on donor transition had identified the same risk before the 2025 crisis: Fiscal sustainability can coexist with programmatic fragility, particularly where transition is measured primarily in financial terms.[32]

Three reforms answer directly to those three gaps, and each does the same underlying work of turning an obligation that already exists into a rule an administrator can follow and a court can enforce. Donor exit should be governed by statute, setting minimum notice periods, requiring joint transition planning between donor and recipient, and creating a continuity-of-access duty enforceable in court, so that a departure becomes a managed legal process instead of an unregulated administrative act. Parallel programs should be progressively integrated into national systems under explicit workforce and budget absorption plans, so that the state’s delivery capacity and its legal responsibility are brought back into alignment. And the withdrawal of a program on which large populations depend should trigger ethical review proportionate to the foreseeable harm. The closure of a clinical trial already supplies the template, since sponsors and researchers may not simply end access to an intervention that participants have come to rely on without arranging post-trial provisions for those who still need it, a principle reflected in paragraph 34 of the Declaration of Helsinki.[33] The 2024 revision of the declaration frames this as a duty of planning: Post-trial provisions must be arranged in advance by sponsors and researchers, whether delivered by themselves, by health systems, or by governments, which is to say an obligation of conduct in precisely the General Comment 3 sense rather than an obligation of result.[34] The analogy is not perfect, since a trial investigator stands in a direct relationship with a bounded cohort while a donor state acts at the macro level of foreign policy toward a whole population. The relevant principle survives that difference in scale. Where a population has come to rely on a program for continuing care, withdrawal without notice or mitigation engages the same concerns of non-maleficence and continuity of care that underlie post-trial planning.

Stated properly, all three reforms are obligations of conduct in the same sense: specific, monitorable duties, notice given or not given by a date, a transition plan filed or not filed, an equality impact assessment done or not done, against which a court can measure compliance without redesigning health policy from the bench. And they should not be read as a call to build new machinery while the existing machinery goes unexamined. The co-financing and transition commitments already in circulation would do much of this work if they were made transparent, published alongside budget documents, tracked, and opened to domestic enforcement, so the first task is less the invention of new rules than the conversion of existing undertakings from grant conditionality into public law.

The duties of the withdrawing state

Responsibility extends beyond the recipient state, although the extent of the withdrawing state’s obligations requires careful consideration. The United States signed the ICESCR in 1977 but has never ratified it, so it is not bound as a state party, and an argument resting on article 2(1) as binding treaty text against the United States would invite a textualist dismissal. What the human rights framework offers here is a standard for evaluating the legality and ethics of exit rather than a settled treaty rule that the United States has breached. The obligation of international assistance and cooperation under article 2(1), elaborated in General Comment 14, binds the many donor and recipient states that are parties and expresses a wider cooperation norm.[35] The Maastricht Principles on Extraterritorial Obligations provide one framework for that evaluation.[36] Particularly relevant is principle 13, which sets out the extraterritorial obligation to respect, requiring states to refrain from conduct that nullifies or impairs the enjoyment of economic, social, and cultural rights beyond their own territory. That obligation is distinct from the Maastricht Principles’ later provisions on international assistance and cooperation (principles 28 through 35), which concern positive obligations to fulfill and remain considerably more contested.[37] The argument here does not depend on those broader positive obligations. It is narrower and concerns whether the manner in which a state withdraws support may be assessed where the consequences for rights outside its territory are foreseeable. Framed in that way, the claim falls within the negative obligation expressed in principle 13.

Principle 14 adds a related procedural requirement by calling for prior assessment of the extraterritorial effects of laws and policies.[38] That requirement is particularly relevant where a decision to terminate support is taken without any prior assessment of its likely consequences for populations dependent on the services being withdrawn. The Maastricht Principles remain an expert restatement rather than a binding legal instrument, and the customary status of the broader norm against extraterritorial harm in this field is unsettled. The argument therefore has to be stated with some caution. The question is whether the manner of withdrawal can be evaluated against these principles where serious harm was foreseeable and the decision was implemented without adequate notice, assessment, or mitigation. This does not require the further conclusion that a donor is legally obliged to finance a program indefinitely, or that existing international law plainly required the United States to continue PEPFAR funding. The narrower claim is that withdrawal itself does not place the manner of exit beyond legal and ethical scrutiny. A planned transition that allows time for assessment, mitigation, and continuity of care presents a different legal and ethical problem from an abrupt termination that provides none of those protections.

Conclusion

The 2025 freeze is being absorbed as a financial shock, and the immediate task of assembling replacement funding is real and pressing. Reading the episode only as a budget problem, though, misses what it revealed. In two countries with exemplary constitutional guarantees, a foreign executive’s decision translated almost at once into interrupted treatment and projected death, because nothing in domestic law stood between that decision and the patient, and nothing in the transition frameworks both governments had signed stood there either, since those commitments had never been converted into anything a patient could invoke. The obligation to prevent the outcome was present the entire time. What was missing was the legal machinery to make the obligation operate in advance of the harm rather than through litigation after it, and litigation, available in both countries repairs damage case by case only once it has already been done.[39] The same vacuum governs tuberculosis, malaria, maternal health, and childhood immunization in every donor-dependent system, so the problem is not unique to HIV. The work now is to build the law of donor transition before the next withdrawal, rather than after it.

Mnotho Ngcobo is an assistant professor of law at the Louis D. Brandeis School of Law, University of Louisville, Kentucky, United States, and a visiting researcher at the Max Planck Institute for Social Law and Social Policy, Munich, Germany.

Please address correspondence to the author. Email: mnotho.ngcobo@louisville.edu.

Competing interests: None declared.

Copyright © 2026 Ngcobo. This is an open access article distributed under the terms of the Creative Commons Attribution-Noncommercial License (http://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited.

References

[1] Executive Order No. 14169, Reevaluating and Realigning United States Foreign Aid, 90 Fed. Reg. 8619 (January 30, 2025).

[2] J. Kates, “The Status of President Trump’s Pause of Foreign Aid and Implications for PEPFAR and Other Global Health Programs,” KFF (February 3, 2025), https://www.kff.org/global-health-policy/the-status-of-president-trumps-pause-of-foreign-aid-and-implications-for-pepfar-and-other-global-health-programs/; K. Cullinan, “US Terminates Thousands of Life-Saving Global Health Grants Including for HIV, TB and Malaria,” Health Policy Watch (February 2, 2025), https://healthpolicy-watch.news/us-terminates-thousands-of-life-saving-health-grants-including-for-hiv/.

[3] E. Lankiewicz, A. Sharp, P. Drake, et al., “Early Impacts of the PEPFAR Stop-Work Order: A Rapid Assessment,” Journal of the International AIDS Society 28/2 (2025).

[4] J. A. C. Hontelez, H. Goymann, Y. Berhane, et al., “The Impact of the PEPFAR Funding Freeze on HIV Deaths and Infections: A Mathematical Modelling Study of Seven Countries in Sub-Saharan Africa,” eClinicalMedicine 83 (2025).

[5] Ibid.

[6] Ibid.

[7] A. R. Gandhi, L. G. Bekker, A. D. Paltiel, et al., “Potential Clinical and Economic Impacts of Cutbacks in the President’s Emergency Plan for AIDS Relief Program in South Africa,” Annals of Internal Medicine 178/4 (2025).

[8] Lankiewicz et al. (see note 3); K. H. Tram, J. Ratevosian, and C. Beyrer, “By Executive Order: The Likely Deadly Consequences Associated with a 90-Day Pause in PEPFAR Funding,” Journal of the International AIDS Society 28/3 (2025).

[9] K. Cullinan, “UNAIDS: Funding Cuts Pose ‘Perilous Risks’ for HIV Response,” Health Policy Watch (November 25, 2025), https://healthpolicy-watch.news/unaids-funding-cuts-pose-perilous-risks-for-hiv-response/; amfAR, “amfAR Study Finds More Than 1,700 HIV Service Sites Worldwide Shut Down Following Cuts to PEPFAR Funding” (July 21, 2026), https://www.amfar.org/news/amfar-pepfar-pulse-study-hiv-service-sites-closed-funding-cuts/.

[10] S. Feller, “US to End Funding for South Africa’s HIV Programs over Policy Issues,” UPI (June 19, 2026), https://www.upi.com/Top_News/World-News/2026/06/19/safrica-united-states-to-end-hiv-program-funding/9291781895822/; A. Roeder, “What the End of PEPFAR Funding Could Mean for South Africa’s HIV Response,” Harvard T.H. Chan School of Public Health (July 13, 2026), https://hsph.harvard.edu/news/what-the-end-of-pepfar-funding-could-mean-for-south-africas-hiv-response/.

[11] Institute of Medicine, Evaluation of PEPFAR (National Academies Press, 2013), ch. 10; Global Fund to Fight AIDS, Tuberculosis and Malaria, Sustainability, Transition and Co-Financing Policy, GF/B52/DP04 (2024).

[12] Government of South Africa and Government of the United States, Partnership Framework Implementation Plan in Support of South Africa’s National HIV, STI and TB Response, 2012/13–2016/17 (2012); National Research Council and Institute of Medicine, Evaluation of PEPFAR (National Academies Press, 2013).

[13] US Department of State, Office of Inspector General, Inspection of Embassy Nairobi, Kenya, ISP-I-12-38A (2012).

[14] I. T. Katz, I. V. Bassett, and A. A. Wright, “PEPFAR in Transition: Implications for HIV Care in South Africa,” New England Journal of Medicine 369/15 (2013); J. Chiliza, R. Laing, F. G. Feeley, et al., “Program Sustainability Post PEPFAR Direct Service Support in the Western Cape, South Africa,” PLOS One 16/5 (2021); D. C. Rodríguez, D. Mohan, C. Mackenzie, et al., “Effects of Transition on HIV and Non-HIV Services and Health Systems in Kenya: A Mixed Methods Evaluation of Donor Transition,” BMC Health Services Research 21/1 (2021).

[15] Committee on Economic, Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4 (2000), para. 43.

[16] Ibid., para. 47.

[17] Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC); Minister of Health v. Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC).

[18] D. Bilchitz, “Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance,” South African Law Journal 119/3 (2002); D. Bilchitz, “Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence,” South African Journal on Human Rights 19/1 (2003); S. Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta, 2010).

[19] L. Chenwi, “Unpacking ‘Progressive Realisation’, Its Relation to Resources, Minimum Core and Reasonableness, and Some Methodological Considerations for Assessing Compliance,” De Jure 46/3 (2013).

[20] Constitution of Kenya (2010), arts. 2, 43.

[21] Committee on Economic, Social and Cultural Rights, General Comment No. 3, UN Doc. E/1991/23 (1990), paras. 9–10; Committee on Economic, Social and Cultural Rights (2000, see note 15), para. 32.

[22] Ibid., para. 1.

[23] Committee on Economic, Social and Cultural Rights, An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant, UN Doc. E/C.12/2007/1 (2007), para. 8.

[24] Special Appropriation Act 1 of 2026 (South Africa); Kenya Ministry of Health, “Kenya Strengthens HIV Response Amid Global Funding Shifts” (March 13, 2025), https://www.health.go.ke/kenya-strengthens-hiv-response-amid-global-funding-shifts; Kenya Ministry of Health, “PS Harry Kimtai Calls for Sustainable Healthcare Funding amid Foreign Aid Cuts” (March 13, 2025), https://www.health.go.ke/ps-harry-kimtai-calls-sustainable-healthcare-funding-amid-foreign-aid-cuts.

[25] Constitution of Kenya (2010), art. 20(5).

[26] Mathew Okwanda v. Minister of Health and Medical Services and 3 Others [2013] eKLR, Petition No. 94 of 2012 (High Court of Kenya).

[27] HIV and AIDS Prevention and Control Act 14 of 2006 (Kenya), sec. 19(2); Health Act 21 of 2017 (Kenya), sec. 15.

[28] Public Finance Management Act 18 of 2012 (Kenya), sec. 47; National Health Act 61 of 2003 (South Africa), sec. 23(1)(a)(viii).

[29] South African Government News Agency, “Plans in Place to Minimise Impact of Potential Funding Withdrawal” (June 21, 2026), https://www.sanews.gov.za/south-africa/plans-place-minimise-impact-potential-funding-withdrawal.

[30] K. Alcorn, “PEPFAR Cuts Close Key Population Services and Accelerate Decline in Children’s HIV Treatment,” aidsmap (July 31, 2026), https://www.aidsmap.com/news/jul-2026/pepfar-cuts-close-key-population-services-and-accelerate-decline-childrens-hiv; Joint United Nations Programme on HIV/AIDS, “Impact of US Funding Cuts on HIV Programmes in East and Southern Africa” (March 31, 2025), https://www.unaids.org/en/resources/presscentre/featurestories/2025/march/20250331_ESA-region_fs; G. Meyer-Rath, L. Jamieson, E. Mudimu, et al., “The Cost of the Plunge: The Impact and Cost of a Cessation of PEPFAR-Supported Services in South Africa,” AIDS 39/10 (2025).

[31] E. Durojaye, “Realising Equality in Access to HIV Treatment for Vulnerable and Marginalised Groups in Africa,” Potchefstroom Electronic Law Journal 15/1 (2012); C. Ngwena, “The Recognition of Access to Health Care as a Human Right in South Africa: Is It Enough?,” Health and Human Rights 5/1 (2000).

[32] G. Oberth and A. Whiteside, “What Does Sustainability Mean in the HIV and AIDS Response?,” African Journal of AIDS Research 15/1 (2016); D. C. Rodríguez, A. Whiteside, and S. Bennett, “Political Commitment for Vulnerable Populations During Donor Transition,” Bulletin of the World Health Organization 95/2 (2017).

[33] World Medical Association, Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Participants (2024 revision), para. 34.

[34] Committee on Economic, Social and Cultural Rights (1990, see note 21), para.1.

[35] International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Committee on Economic, Social and Cultural Rights (2000, see note 15), paras. 38–39, 45.

[36] Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principle 13.

[37] Ibid., principles 28–35.

[38] Ibid., principle 14; O. De Schutter, A. Eide, A. Khalfan, et al., “Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights,” Human Rights Quarterly 34/4 (2012).

[39] For South Africa, Minister of Health v. Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC); for Kenya, P.A.O. and 2 Others v. Attorney General; Aids Law Project (Interested Party) [2012] eKLR, Petition No. 409 of 2009 (High Court of Kenya).