Health As Human Right

Guest columnist FEMI FALANA

The non-justiciability and non-observance of the fundamental objectives and directive principles of State policy contained in Chapter two of the Constitution has severe socio-economic consequences for Nigeria. The right to health which is part of socioeconomic rights is connected to political, economic and social welfare and security for all citizens. Its enforceability is crucial for the sustenance of Nigeria, the lack of which may result in human insecurity, widespread diseases and endemic infections and lack of access to health care, all resulting in deprivation, as well as a retarded economic development and poor standards of living.

The right to health necessitates that the Nigerian government and judiciary take positive action to ensure the right to health for Nigerians. The Nigerian executive and judicial arms of government are obliged to take proactive steps in safeguarding that Nigerians have acceptable socio-economic infrastructures to live a purposeful life. When Nigeria lives up to its duty to safeguard its citizens these rights, they would have developed a knowledge based economy and a future generation. In the words of Mahatma Gandhi, “It is health that is real wealth and not pieces of gold and silver.”

The Nigerian archetypal law on fundamental objectives and directive principles of state policy is identical to the Article 37 of the Constitution of India. Article 37 of the Indian Constitution provides the fundamental objectives and directive principles of state policy, wherein it clearly stipulates that its provisions shall not be enforceable by any court. The Constitution however takes cognizance of the importance of these principles by regarding them as fundamental in the governance of the country and as such the State has a duty to apply these principles in making a remarkable 1957 case of State of Madras v Champakam Dorairajan, the Supreme Court held that since fundamental rights are enforceable and the Directive Principles are not, then Directive Principles must conform to and run ancillary to fundamental rights for them to be enforceable.

The Supreme Court of India modified its position on the subordinate character of Directive Principle in Minerva Mills Ltd v Union of India when Justice Bhagwati rejected the view that Directive Principles were ancillary to fundamental rights in terms of importance. His Lordship stated that the fact that Directive Principles are not enforceable in a court of law does not mean they cannot create obligations or duties binding on the state. The Lord Justice proposed that once it is proven that the Directive Principles impose an obligation; the State would be bound by a constitutional mandate to carry out such duties. Thus, Justice Chandrachud in Kesavananda v Bharati rightly conceived that: “the Constitution accords a place of pride to fundamental rights and a place of permanence to the Directive Principles”. It is readily observed that the courts in India are more proactive than the courts in Nigeria, as they have held that fundamental rights in a robust manner include Fundamental Objectives and Directive Principles.

Flowing from the above, human rights in Nigeria could be classified into civil-political and socio-economic rights. Civil-political human rights pertain to civil and political liberties or empowerments (for example the right to life, freedom from torture, freedom from slavery, freedom from discrimination, freedom of religion, freedom of assembly and the freedom of movement). Socio-economic human rights, on the other hand, interconnect to the social needs of people (food, shelter, education and health). Civil, economic, political and social rights are a comprehensive class of human rights guaranteed under the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as other international and regional human rights treaties

Socio-economic rights are the most questioned in legal debate in Nigeria and lack both legal and political recognition given the fact that the Nigerian Constitution considers that social and economic rights as non-justiciable. Although these duties and responsibilities are imposed upon the government, the critical question is what happens when these provisions are not observed? If they are not observed could it be argued that the provisions are merely decorative? Section 13 of the Nigerian 1999 Constitution (as amended) states:

It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.

The Right to Life and Health

The ‘right to life’ is a central human right that is always enforceable in a court of law. But the right to life is worthless except citizens of Nigeria have negligible access to food, clean water, satisfactory shelter and the right to health. Safe guarding the ‘right to life’ requires that socio-economic rights such as the right to health to be taken into account.

The right to health is guaranteed by section 17(c) & (d) of the Nigerian 1999 Constitution (as amended) which states:

The State shall direct its policy towards ensuring that:

(c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

(d) there are adequate medical and health facilities for all persons.

Since the fundamental objectives are not enforceable it has been argued that the right to health enshrined in section 17(c) & (d) of the Constitution (as amended) is not justiciable. An issue is justiciable if it can be tried according to the law. However, the right to life cannot be sustained without good health. Section 33(1) of the Constitution which has guaranteed the right to life provides that “Every person has a right to life and no one shall be deprived intentionally of his right to life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

It seems quite clear that the Nigerian courts are reluctant to declare that the right to health a human right under Chapter 2 of the Constitution. In the case of Femi Falana v. Attorney-General of the Federation the Federal High Court dismissed an application to secure the right of the applicant to life and health. The Applicant had prayed the court to declare an act as unconstitutional where senior civil servants had access to be treated abroad since junior civil servants were not granted such medical treatments. It was the view of the court that section 17 of the Constitution which guarantees the right to health is not justiciable.

But in Sunday Akinyemi v. Attorney General of the Federation & Anor. the federal high court linked the right to health to the right to life. In that case the applicant who was standing trial in a criminal case was remanded at Ikoyi prison in Lagos on the orders of the trial judge. During the trial he took ill and was admitted at the Lagos University Teaching Hospital where he was diagnosed of cancer of the colon. As the medical condition of the applicant deteriorated in prison custody he filed an application at the Federal High Court for the enforcement of his fundamental right to life. Since the defendants were not prepared to fund his foreign medical trip he prayed the Federal High Court to allow him to travel abroad for urgent medical treatment at his own expense. Notwithstanding that the applicant had been denied bail by the Lagos High Court, Justice M.B Idris of the Federal High Court said:

There is no doubt that life is ultimate measure of all things and for that reason the right to life is unarguably the most fundamental of all liberties. Without the right to life, no other right can be enjoyed, and it is for that reason that it is guaranteed under section 33 of the Constitution, and Article 4 of the African Charter on Human and Peoples Rights…

However, the National Council on Health is under an obligation to “ensure that children between the ages of zero and five years and pregnant women are immunized with vaccines against infectious diseases”. 58 Under the National Programme on Immunization Act, there is no limitation with respect to age as the Government is required to effectively control, through immunization and the provision of vaccines the occurrence of certain deadly diseases such as tuberculosis, poliomyelitis, diphtheria, whooping cough, tetanus, neonatal tetanus, measles, diseases of women of child-bearing age and so on.

The National Council on Health shall ensure the delivery of basic health services to the people of Nigeria and prioritize other health services that may be prescribed from time to time by the Minister of Health after consultation with the National Council on Health. The “basic minimum package” means the set of health services as may be prescribed from time to time by the minister of Health after consultation with the National Council on Health. Without prejudice to the right of any Nigerian, no public officer shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be duly approved by the Minister or the Commissioner of Health of the state as the case may be. A health care provider, health worker or health establishment shall not refuse a person emergency medical treatment for any reason whatsoever.”

In breach of the provisions of the Act the federal government has not allocated one percent of the budget to the National Health Fund. Neither has the Minister of Health prescribed the basic minimum package of health services for the Nigerian people and set out the categories of persons who are eligible for exemption from payment for health care services at public health establishments. At this juncture, I am compelled to call on the National Assembly which has begun deliberations on the 2018 Appropriation Bill to ensure that sufficient fund is provided for funding the basic minimum package of health services for the masses. The houses of assembly of the states should also bear in mind the statutory duty imposed on state governments with respect to the funding of health care services.

Other legislations for the protection of the right of the Nigerian people to health include the National HIV/AIDS Agency Act, National Agency for Food and Drug Administration and Control Act, Food and Drugs Act, Dangerous Drugs Act, Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act and Quarantine Act. The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act and other environmental protection legislations and regulations have also protected the right to health. Indeed, article 24 of the African Charter on Human and Peoples Rights Act has guaranteed the right to a satisfactory and safe environment in a manner that the right to life and health are preserved and protected.

Conclusion

I know the defenders of the status quo are going to say that the federal and state governments cannot afford to fund health care for all citizens. My answer is that the governments can if they are prepared to make health care for all citizens a priority. This has been demonstrated by Cuba, which has for over 50 years funded free health care for all her citizens. That country which is ahead of many developed countries in the area of medical services has no oil, gold or diamond. Since it may be argued that the population of Cuba is only 12 million what of China, which has guaranteed affordable health care for her teeming popular of 1.4 billion people. If we do not want to follow the example of Cuba and China we can learn from western countries which have extended medical services to the poor and disadvantaged people by opting for medical insurance. The ruling class in has already opted for the latter and has enacted the National Health insurance Scheme Act. Our duty is to make the law work in the overall interest of the masses of our people.