AN ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE REALIZATION OF THE RIGHT TO HEALTH IN NIGERIA
Health is an important element of an individual life and also to the individual’s country. A country cannot develop with its citizens sick and dying. A healthy state is a wealthy state. As such, states must provide adequately for the health of its citizens. The research analysed international law and national legal framework that regulate the health system under international law and in Nigeria. It also examined health policies, institutions and other regulatory bodies established for the protection of the right to health in Nigeria. The research was informed by the dismal performance of Nigeria’s health care system when the World Health Organization assessed its 191 member states in terms of responsiveness, fairness, overall goal attainment, level of health expenditure per capita, impact on health and overall performance. Nigeria was ranked 187 out of 191 despite its human and natural resources compared with many other African countries which is indeed a cause for concern. This is evidenced from the high level of maternal and childhood mortality, HIV/AIDS related deaths which continue to ravage families and communities, the slow pace of attaining international goals for health and survival and negative progress towards attaining the Millennium Development Goals (MDGs).The research adopted as methodology the doctrinal approach which entailed the use of relevant literature including international instruments, reports and general comments/recommendations. Nigeria is a party to the major regional and international human rights instruments recognizing and protecting the right to health and has assumed tripartite obligations- obligations to respect protect and fulfill the right to health of the Nigerians. Right to health under the Nigerian Constitution is non -justiciable. However, non justiciability of the right to health is a challenge but not a bar to the protection of the said right. It does not also absolve Nigeria from its obligation to protect health of its citizens. The research finds that according health the status of non-justiciable right is not infact related to any inability to deal with socio-economic rights including the right to health as was exemplified with the experience of South Africa which has justiciable socio-economic rights including the right to health. It also finds that the debate whether or not the right to health exist or is non-justiciable is irrelevant as the Indian experience revealed. The research therefore, recommends the court to adopt judicial activism in adjudicating socio-economic rights including the right to health as is done in India. The research finds that Nigeria had put in place and established laws, policies and institutions for the protection of health of her citizens. The research also finds that several factors impede the realization of the right to health in Nigeria including legal impediments, socio-economic impediment and lack of political will on the part of the government. It is also a finding of the research that Nigeria is moving at a slow pace towards attaining the MDGs with less than a year to the target date. Although the research finds that some progress had been achieved especially in reducing childhood mortality and halting HIV/AIDS, the progress is not sufficient to meet the MDGs target date of 2015. The research finds that several key challenges exist which exercabates the slow pace at which Nigeria is moving towards achieving the MDGs notably among them are lack of reproductive health care services, poverty, low socio-economic status of women, inequities in the distribution of human health resources which if addressed will come a long way in helping Nigeria to move faster towards achieving the MDGs and subsequently in fulfilling its obligations under the right to health.
1.1 Background of the Study
Health is important for every human being in the world. It is an important matter for individuals and states. It is a fundamental human right indispensable for the exercise of other human rights. This can be seen in the impact the denial or enjoyment of other rights can have on a person‟s ability to achieve the highest attainable standard of physical and mental health and, conversely, the role health plays in our enjoyment of other rights.1A person in bad health cannot live life to the fullest. Enjoying good health therefore, is a prerequisite to the enjoyment of other human rights. For instance, a sick person can work to earn a living, go to school and be educated therefore leading life to the fullest and ultimately contribute to the development of his country. Denying people good health care is to deny them the right to life as good health is an indispensable element of life.
Also, social and economic development is closely tied to good health. A country cannot achieve economic growth and development with sick and dying population. As such, for any country to achieve development, it must take care of its citizen‟s health. The World Health Organization (WHO) recognizes the international human right to health in its Constitution by stating that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”2
This has led to global debate to focus on the human right to health which now occupies a prominent place on the agenda of the international community. Given the importance of
1Byrne, I. (2005). Making the Right to Health a Reality: Legal Strategies for Effective Implementation A Paper presented at the Common Wealth Law Conference, London, Sept 2005 Retrieved 13/08/13 from http:https://ift.tt/2MmH7DZ 2 Preamble to the World Health Organization Constitution (WHO)1946, opened for signature 22 July 1046, 62 Stat. 6279, 14 UNTS 185 (WHO Constitution)
health as a vital feature of the human condition, health has been recognized as a human right in numerous international documents and every country in the world is a party to at least one human right treaty that protects health either directly or indirectly.
However, right to Health which is rooted under International Covenant on Economic, Social and Cultural Rights (ICESCR) has for long been objected to, and still suffers from marginalization. Although Civil and Political Rights and Economic, Social and Cultural Rights (ESCR) are said to be interdependent, interrelated and of equal importance,3 there is the tendency on the part of the Western states (e.g. United States of America) to accord more significance to Civil and Political rights.4 This is attributed to the language in which the ICESCR is couched which makes its contents to be regarded as non-justiciable, vague and regarded as „general directives for states rather than rights.5 In this regard, the right to health shares the same fate with Economic, Social and Cultural Rights (ESCR) which are also recognized in international treaties and whose meaning is only gradually being clarified.6
Countries whose legal systems are based on English Common Law generally do not provide constitutional guarantees regarding the right to health7, though implicit references to public responsibilities for health can be found in the preambles to many constitutions, and in some of the content regarding social policy.8 The United States, for example, does
3 Art. 5 of the Vienna Declaration states: “All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms” 4Art 2(1) International Covenant on Economic, Social and Cultural Rights (ICESCR) 5Toebes, B.(1999).Towards an Improved Understanding of International Human Right to Health. Health and Human rights Vol. 23 No. 3 pp. 661-679 6 Leary V. A. (1994).The Right to Health under International Human Right Law in Health and Human Rights Vol. 1 No. 1 p 27 7With the exception of South Africa which has its own progressive constitution reflecting the values of the pluralist, egalitarian and democratic state that replaced apartheid in 1994. 8Nigeria, Ghana and Uganda.
not include any reference to health in its Constitution. However, countries with socialist constitutions incorporate the right to health as a fundamental right, along with all other economic, social and cultural rights.
Health in Nigeria is protected in the Constitution under the Fundamental Objectives as objective statement on certain socio-political, economic, and cultural issues meant to guide the government in the formulation of policies. The security and welfare of the Nigerian state being of paramount importance of the government,9 the Constitution places a duty and responsibility on all “organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions”10 of the fundamental objective. Health in Nigeria is also protected in other legally binding legislations and regional instruments which Nigeria has domesticated. Nigeria has also established institutions that seek to protect the health of its citizens. However, the health status of Nigerians is said to be in a deplorable state. It is against this background that this dissertation seeks to make an analysis of the legal and institutional framework on the realization of the right to health in Nigeria. 1.2 Statement of problem
Health is an important and beneficial asset for individual for them to lead a productive life. Until recently, health was considered as the private affair of individuals rather than the state as “issues related to the health of population and the availability of health care was not considered to be major social or governmental concern.”11However, the health of the population is now considered important for the state for any progress and development to be achieved. This acknowledgement “reflects a broadened sense of
9S. 14 (2) (b) Constitution of the Federal Republic of Nigeria 1999 as amended (1999 Constitution FRN) 10 S. 13 Ibid 11Ladan, M. T. (2006). Introduction to Jurisprudence: Classical and Islamic Malthouse Press Ltd p.322
governmental responsibility for the welfare of its citizens and a more inclusive understanding of human rights.”12
The realization of the right to health can be achieved through many complimentary approaches such as formulation of policies, implementation of health programmes or the adoption of specific legal or international instruments.13 The Nigerian Constitution14 recognizes and protects health in a non-justiciable context under chapter II (Fundamental Objectives and Directive Principle of State Policy). The constitution establishes a state policy of ensuring the adequate provisions of medical and health facilities for all15 and also ensuring that the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused.16 The security and welfare of the citizens being of paramount importance, the Constitution places a responsibility on all organs of government to conform, observe and apply the provisions enshrined under chapter II.17 Nigeria is also a party to major international and regional treaties protecting the right to health including the African Charter on Human and Peoples Rights.18
However, despite the legal framework put in place for the protection of health in Nigeria, the health system is said to be in a deplorable state. For example, in 2000, the World Health Organization (WHO) assessed the performance of its 191 member states in terms of their responsiveness, fairness, overall goal attainment, level of health expenditure per capita impact on health and overall performance, Nigeria was ranked 187 out of the 191
12Ibid 13 Aniekwu, N. I. (2006). Health Sector Reform in Nigeria: A Perspective on Human Rights and Gender Issues, Local Environment: The International Journal of Justice and Sustainability 11:1 p. 128 14Constitution of the Federal Republic of Nigeria 1999 as amended (1999 Constitution) 15 S. 17 (3) (c) 1999 Constitution 16S. 17 (3) (d) Ibid 17S. 13 Ibid 18African Charter on Human and People‟s Rights Adopted 26th June, 1981,O.A.U Doc.CAB/LEG/67/3 Rev. 5 Entered into force 21 Oct. 1986. Nigeria signed on 31 Aug. 1982 and ratified in 1983.