Litigating the Right to Health in Africa

Challenges and Prospects

Ebenezer Durojaye

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317104254
• Edition: 1
• Topic: Medicine
• Subtopic: Health Policy

Health rights litigation is still an emerging phenomenon in Africa, despite the constitutions of many African countries having provisions to advance the right to health. Litigation can provide a powerful tool not only to hold governments accountable for failure to realise the right to health, but also to empower the people to seek redress for the violation of this essential right. With contributions from activists and scholars across Africa, the collection includes a diverse range of case studies throughout the region, demonstrating that even in jurisdictions where the right to health has not been explicitly guaranteed, attempts have been made to litigate on this right. The collection focusses on understanding the legal framework for the recognition of the right to health, the challenges people encounter in litigating health rights issues and prospects of litigating future health rights cases in Africa. The book also takes a comparative approach to litigating the right to health before regional human rights bodies. This book will be valuable reading to scholars, researchers, policymakers, activists and students interested in the right to health.

Part I
The Normative Framework on the Right to Health

Chapter 1
The Normative Framework on the Right to Health under International Human Rights Law

Olubayo Oluduro and Ebenezer Durojaye

The right to the enjoyment of the highest attainable standard of health, popularly referred to as ‘the right to health’, has evolved at the international level over a number of years. While at an early stage the content and nature of this right was sketchy, in recent times ample jurisprudence – at both international and regional levels – has developed the concept of the right to health. Despite the positive development of the right to health the international community still faces numerous health challenges ranging from HIV/AIDS, malaria and tuberculosis to highly infectious diseases such as bird flu and more emerging health concerns over non-communicable diseases. Almost 30 years into HIV/AIDS epidemic, its devastating impact has not been halted. Millions of people worldwide are still at risk of infection, and mortality associated with the epidemic remains high. While it is important to point out that great strides have been made with regard to creating awareness about the epidemic and providing access to life-saving medication for people in need, it remains a source of concern that more than 1 million HIV-related deaths still occur each year.¹ Most of these deaths occur in developing countries, particularly sub-Saharan Africa. It also important to note that the impact of the epidemic is felt most among women, who constitute about 50 per cent of the total number of people living with HIV worldwide and about 60 per cent of those in sub-Saharan Africa.

In the 60 plus years since the World Health Organization (WHO) declared in the preamble to its constitution that the enjoyment of the right to health is a fundamental right, various developments have shaped the meaning and content of the right to health. Notable among these is the clarification provided by UN treaty monitoring bodies such as the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). For instance, in its General Comment No 14, the CESCR clarifies the essential elements of the right to health as guaranteed under article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It also attempted to clarify the nature and scope of obligations of states. In its General Recommendation 24, the CEDAW Committee has explained the meaning and scope of the right to health of women guaranteed under article 12 of the Convention. More recently, the Human Rights Council has adopted resolutions and guidelines with regard to maternal mortality as a human rights challenge. These clarifications have proved a useful guide to states, individuals and civil society groups, providing a better understanding of the right to health.

In a recent Global Status Report on Non-communicable Diseases the WHO noted that non-communicable diseases pose a great threat to millions of lives across the world.² According to the report, in 2008 an estimated 4 million people worldwide died as a result of non-communicable diseases. The report urges countries across the world to pay more attention to the negative consequences of non-communicable diseases by creating awareness and educating people about this fact. Given these recent developments and in view of the importance of the right to health, an understanding of its normative framework is required. A normative framework on the right to health would help to delimit the criteria used to identify and enforce the right, thus creating the preconditions for its enforceability and justiciability.

Against this backdrop, this chapter examines the normative framework for the realisation of the right to health as set out in international human rights instruments such as the ICESCR and other relevant regional human rights treaties. It provides a general overview of the sources and content of the right to health but does not engage in critical analysis of this right. It further discusses the main elements of the right to health and recent attempts at providing clarification of this right at international, regional and national levels. In this regard, the chapter examines the different interpretations provided by the CESCR, which monitors compliance with the ICESCR, and the role of academics, UN Special mechanisms such as the Special Rapporteur on health, national courts and the African Commission on Human and Peoples’ Rights in contributing to the understanding of the right to health.

The Right to Health: International Normative and Legal Standards

The problem of defining and implementing a right to health is threefold: indeterminacy (how to characterise it), justiciability (how to enforce it) and progressive realisation (how to raise the standard over time).³ In order to make the right to health an enforceable right, it must be specified and clearly defined. As pointed out by Gostin, ‘a right to health that is too broadly defined lacks clear content and is less likely to have a meaningful effect’.⁴ The right to health may also be viewed as ‘a right to a functioning system of health protection rather than simply in terms of buildings, doctors, nurses, medicines, water and sanitation’.⁵ As equal human beings, this right belongs to every human being and so governments of every nation must guarantee to every individual in society an equal opportunity to enjoy the highest attainable standard of both physical and mental health. This right has been recognised as a fundamental human right for several years. Indeed, the 1946 Constitution of the World Health Organization asserts that

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. 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 … The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health.⁶

Health is of ‘foundational importance … for human happiness, the exercise of rights and privileges, and the formation of family and social relationships’.⁷

Although the WHO definition of health ‘captures the full dimensions of the state of health, it is probably too broad a definition for government policy makers charged with the responsibility for a nation’s health care’.⁸ Also, there is no consensus on what type and amount of health care services constitutes adequate care, nor is there an understanding of the true cost or quality of those services.⁹ However, attempts have been made by scholars to delineate the important ‘issue of what governments should assure or provide in terms of health care services and, specifically, what may be the content of a morally acceptable package of health care services’.¹⁰ Suffice to say that the right to health implies more than just access to medical care and medicines; to limit the right to health to mere provision of health services appears restrictive and limiting. It goes beyond health care to include the satisfaction of basic needs that make health possible, such as access to sanitation, food, potable water, housing, clothing and so forth, as the absence of these results in most of the world’s diseases.

A close look at the development of public health in the nineteenth century in Europe and the United States reveals that the most remarkable interventions for the promotion and improvement of the health of populations do not involve health services per se, but rather are dependent on the realisation of economic, social and cultural rights: food, housing, hygiene and so on.¹¹ In other words, the right to health is intrinsically linked to many other rights, categorised as civil and political – rights to life, not to be subjected to torture or cruel, inhuman or degrading treatment, and to information – and economic, social and cultural – rights to food, housing, hygiene, clothing, food, work, water, education, healthy occupational and environmental conditions, and access to health-related education and information – which are contained in international treaties and domestic constitutions. For example, misuse of information about ill-health may compromise the right of an individual to enjoy his other fundamental rights and actively contribute to the democratic process or exercise the privileges or carry out his responsibilities as a citizen of his country. It may hinder the fulfilment of all rights – personal liberty, autonomy,¹² human dignity, exercise of franchise and so on – in the sense that the capacity of individuals to claim and enjoy these rights may depend on their physical, mental and social well-being. The HIV status of an individual may lead to restrictions of the right to education and to housing, arbitrary termination or denial of employment, violations of the right to marry and found a family, limitations of freedom of movement, arbitrary detention or exile, protection from abuse and neglect, and even cruel, inhuman or degrading treatment.¹³ The CESCR, in its General Comment No 14, has observed that

The right to health is closely related to and dependent upon the realisation of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms addres...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Preface
• Acknowledgments
• Introduction: The Relevance of Health Rights Litigation in Africa
• PART I THE NORMATIVE FRAMEWORK ON THE RIGHT TO HEALTH
• PART II COUNTRY CASE STUDIES
• PART III COMPARATIVE REGIONAL STUDY
• Index