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Whither the right to health in Nigeria?

If human rights are inalienable and immutable, such that we cannot deprive any person of the rights without affront to justice, then can we rightly…

If human rights are inalienable and immutable, such that we cannot deprive any person of the rights without affront to justice, then can we rightly conclude that any threat to the necessities of life such as food, health care, shelter, hygienic environment, access to potable water, sanitation, and functional health infrastructure, even for detainees and prisoners, constitute sufficient infringement on a Nigerian’s right to life? No doubt, the health of a nation’s citizens, detainees inclusive, reflects the nation’s socio-political and economic health.

Good health is an essential asset to the existence of man, and ill health is an impediment to human productivity. The question, therefore, remains that if the right to life is dependent and closely interconnected with good health, then why is right to health and well-being not the mother of all rights? We may never really achieve right to life and the dignity of human person unless we achieve the right to health. Unfortunately, though Chapter II of the 1999 Constitution of the Federal Republic of Nigeria provides for the socio-economic rights which connects with social needs of Nigerians (such as food, education, health and shelter), the Court of Appeal in Okogie v. A.G Lagos upheld the non-justiciability clause of section 6 (6)(c) of the Constitution when it held that “while section 13 of the constitution makes it a duty and responsibility of the judiciary among other organs of government, to conform to, observe and apply the provisions of Chapter II, section 6(6)(c) of the same constitution makes it clear that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the provisions of Chapter II of the constitution.”

For any nation to attain its real potentials of greatness, it must protect the socio-economic rights of its citizens. Conscious of this, the first three goals of the United Nations’ Sustainable Development Goals identified that in order not to leave anyone behind, the goals of No Poverty, Zero Hunger, and Good Health and Well-being of the people are top priority. Five decades earlier, the International Covenant on Economic, Social and Cultural Rights recognised the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” as a critical element of socio-economic and human rights. The Committee on Economic, Social and Cultural Rights further broadened the right extending “not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.” There are plethora of other international instruments that guarantee the health to right, but perhaps, the African Charter on Human and Peoples Rights provides a conclusive response to our question of the interdependency of right to life and right to health and well-being, when it provides that “civil rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”.

To recognise and make the right to health enforceable in Nigeria, we cannot ask our legislators for a constitutional amendment that will insert the right to health as a fundamental right because they will have plethora of reasons to exonerate their excuses. They would argue that it would open a flood gate of litigations against the governors by the governed – but if the governors are governing well, to the extent that the governed can unarguably feel the impact of governance on social needs like health, education, equal opportunities, shelter, food, hygienic environment, potable water, and human dignity, would there still be need for litigation on enforcement of socio-economic rights? I doubt so, save for frivolous and ill-motivated litigations. But we can ask our judiciary to lend to a legacy of proactiveness and judicial progressivism. We can ask our Lords and Justices to borrow the light of judicial interpretations from other jurisdictions with similar and peculiar constitutional circumstances, in line with our laws particularly section 12 of the constitution by ensuring that international or regional treaties on socio-economic rights that have been domesticated by the National Assembly are enforced. The courage of His Lordship Nwodo, J. in Odafe & Ors v. A. G. Fed. & Ors, instructively puts us on this path that the “government of this country has incorporated the African Charter on Human and Peoples Rights Act Law Cap. 10 as part of the law of this country” and is applicable in Nigeria as the Court of Appeal has affirmed in Ubani v. Director, SSS when it held that the “African Charter is applicable in this country. The Charter entrenches the socio-economic rights of person. The Court is enjoined to ensure the observance of these”.

Our Lords and Justices are called to see the merits and wisdom that the unenforceability of the directive principles does not mean that they cannot create obligations and corresponding duties which the state is bound. Hence, the complaints and pleadings of parties for the enforceability of their socio-economic rights should be granted once they prove that the directive principles of State policy impose an obligation which the state should be bound by a constitutional mandate to implement. This is the posture the Indian Supreme Court has taken since Justice Bhagwati jettisoned the idea that directive principles were ancillary to the provisions of fundamental rights in terms of importance. In furtherance of this, the Supreme Court of India in the case of Paschim Banga Khet Mazdor Samity & Ors v. State of West Bengal & Another held that “the right to health is a fundamental and enforces the labourer’s right to compensation and linked the right to health to the right to life which is justiciable under Article 12 of the Indian Constitution.

It is understandable that the provision of quality healthcare is dependent on the resources of the state and limited resources constitute a challenge for the implementation of such schemes and legislations such as the National Health Insurance Scheme Act 2004, and the National Health Act, 2014 which are in consonance with the right to health and makes provision for a minimum package of healthcare services for all Nigerians with a predictable and sustainable financing options. However, the state can build quality health infrastructure and provide quality and accessible health for all Nigerians if we curb corruption and channel state resources prudently in executing projected votes  for health sector in government budgets at all levels. More importantly, our political elite must not be allowed to continue accessing healthcare abroad if the hope of building a healthcare system for Nigerians will be realised.

The unenforceability of the provisions of Chapter II of the constitution would continue to constitute a core challenge and severe socio-economic consequences for our country unless the executive arm of government begins to prioritize health sector investment and the judiciary begins to recognize the right to health. As Gro Harlem told the European Ministers Conference, there can be no real hope for the spread of freedom, democracy, and human dignity unless we treat health as a basic human right. In furtherance of this, the Human Rights Commission is enjoined to set up and maintain human rights desks in hospitals across the country, for swift responses to patience’s complaints about negligence, malpractices, and abuse of service in the health sector.

Ekpa writes from Abuja

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