Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria

Journal of African Law

Volumn 52, Issue 1, 2008, Pages 1-42

  Nnamuchi, Obiajulu ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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[No Author keywords available]

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EID: 72449184577     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855308000016     Document Type: Article

References (229)

1. K Anan, former United Nations ("UN") secretary general, World Health Organization ("WHO") "Health and human rights", available at: ,http://www.who.int/hhr/en/. (last accessed 6 July 2007).
2. The Constitution of the Federal Republic of Nigeria 1999, chap II.
3. The Constitution of the Federal Republic of Nigeria 1979, chap II.
4. The terms "Directive Principles" and "chapter II of the constitution" are used interchangeably in this article to refer to socio-economic interests or goods enumerated in the constitution.
5. Chap 10, vol 1, Laws of the Federation of Nigeria ("LFN") 1990.
6. See general comment no 14 "The right to the highest attainable standard of health" UN COMM. ESCR, 22nd Session, 11 August 2000, UN doc E/C.12/2000/4 (2000), at paras 4 and 11; also available at: http://www.unhchr. ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En. (last accessed 19 June 2007).
7. The indivisibility, interdependence, interrelatedness and equal importance of human rights is no longer disputable. See the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para 4, reprinted in (1998) 20 Human Rights Quarterly 691-705;
8. Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights UN doc E/CN.4/1987/17, annex, para 3, reprinted in (1987) 9 Human Rights Quarterly 122-35 and (1986) 37 International Commission of Jurists Review 43-55.
9. Fundamental Objectives and Directive Principles first appeared in the 1979 constitu tion, and are similar to the provisions of part IV of the Indian 1949 constitution, as amended in 1951. See J Akande The Constitution of the Federal Republic of Nigeria 1979 with Annotations (1982, Sweet & Maxwell) at 13;
10. "Report of the committee on Fundamental Rights and Directive Principles of state policy and press freedom" (1976) II The Report of the Constitutional Conference Containing the Resolutions and Recommendations 105.
11. See the Report of the Constitution Drafting Committee (vol 1, 1976, Government Printer) at v; Akande The Constitution of the Federal Republic of Nigeria, above at note 8;
12. B Okere "Fundamental Objectives and Directive Principles of state policy under the Nigerian Constitution" (1983) 32 International and Comparative Law Quarterly 214 at 214.
13. Because "Directive Principles" are not rights in the strict sense, this article employs the term "interest" or "goods" in reference to the Directive Principles of chap II of the constitution.
14. Equivalent, in part, to art 37 of the Indian 1949 constitution which not only describes Directive Principles as "fundamental in the governance of the country" but also imposes a duty on the state to "apply these principles in making laws".
15. For some authors though, there is no convolution. In the opinion of O Agbakoba and W Mamah, as far as the justiciability of socio-economic rights in Nigeria is concerned, the constitution is clear; sec 6(6)(c) simply means that an aggrieved party cannot take the government to court based solely on violation of chap II of the constitution: Towards a Peoples' Constitution in Nigeria: A Civic Education Manual for the Legal Community (2002, Human Rights Law Service) at 43.
16. This provision is analogous to art 37 of the Indian constitution. Nevertheless, as shown below, courts in India, unlike their Nigerian counterparts, have consistently assumed jurisdiction and vigorously enforced the right to health care. Paradoxically, Indian courts have the added burden of justifying enforcement of Directive Principles (hence their reliance on the rights to life and human dignity as enforcement vehicles), a burden which Nigerian courts no longer need to shoulder since the domestication of the African Charter.
17. The word "Directive" in the title of the chapter implies an order or command, meaning that the provisions of the chapter are mandatory and create obligations for the government. Nonetheless, even though the Directive Principles are not taken into account in formulating and implementing national policies, the courts in Nigeria are yet to intervene.
18. [1990] LRC (Const) 735. See also Archbishop Okojie v The Attorney General of Lagos State (1981) 2 NCLR 337 which relied, inter alia, on the Indian case of State of Madras v Champakan Dorairajan AIR 1951 SC 226 (which held that caste quotas for admission to state medical school were unconstitutional).
19. R Harrison Bentham: The Arguments of the Philosophers (1983, Routledge & Kegan Paul) at 78.
20. B Nwabueze Constitutional Law of the Nigerian Republic (1964, Butterworths) at 408.
21. He would prefer that such socio-economic rights were Directives Principles as opposed to rights capable of immediate enforcement. He asserts that, although not legally enforceable, the benefit of such principles is that they provide a yardstick for the critical assessment of government actions. Moreover, as Laskar argued, while politicians may not have to answer for violations of Directive Principles in a court of law, they will be compelled to answer for them before the electorate during elections: S Laskar Directive Principles of State Policy in Indian Constitution: A Study of Its Implementation (1988, Deep & Deep Publications) at 116.
22. And, in the words of Uwaifo J, "[w]hile they remain mere declarations, they cannot be enforced by legal procedure but would be seen as a failure of duty and responsibility of State organs if they acted in clear disregard of them ..." (Attorney General of Ondo State v Attorney General of the Federation & Ors [2002] 9 NWLR (pt 772) 222 at 382 paras A-B).
23. Nwabueze Constitutional Law, above at note 17 at 408.
24. Akande The Constitution of the Federal Republic of Nigeria, above at note 8 at 18. Although the book focuses on the 1979 constitution, it is widely regarded as an authoritative source of interpretation of the 1999 constitution, in respect of those subjects where the provisions of both constitutions are similar, such as chap II.
25. Uwaifo J, in Attorney General of Ondo State v Attorney General of the Federation & Ors, above at note 17 at 391 paras G-H and 410 para G. The exclusive legislative list refers to those items with respect to which the National Assembly has exclusive legislative competence. See second schedule to the constitution, part 1, item 60(a).
26. A recent example is the reduction in social assistance to the poor in the United States of America and Canada, criticized by the International Commission of Jurists ("ICJ") as depriving millions of their socio-economic and cultural rights. See ICJ "The justiciability of economic, social and cultural rights: national, regional and interna tional experiences", available at: ,http://www.icj.org/IMG/pdf/3.pdf. (last accessed 23 June 2007).
27. For a contrary perspective, see M Pardue, The Heritage Foundation, "Sharp reduction in black child poverty due to welfare reform", available at: ,http://www.heritage.org/Research/Welfare/bg1661.cfm. (last accessed 20 June 2007);
28. C Schafer, J Emes and J Clemens Surveying US and Canadian Welfare Reform (2001, Frazier Institute) at 34-35.
29. Primary health care is the cornerstone of Nigeria's revised national health policy and is based on the WHO's strategy of enabling people to attain a state of health that permits them to lead socially and economically productive lives. It is defined as "essential health care based on practical, scientifically sound and socially acceptable methods and technology made universally accessible to individuals and families in the community through their full participation and at a cost that the community and country can afford to maintain at every stage of their development in the spirit of self reliance and self-determination..." See the Declaration of Alma-Ata, adopted by the International Conference on Primary Health Care jointly sponsored by the WHO and UNICEF at Alma-Ata, USSR, 6-12 September 1978, available at: ,http://www.who.int/hpr/NPH/docs/declaration-almaata.pdf. (last accessed 19 June 2007) at para VI.
30. Secs 14(1) and (2)(b), common to the constitutions of 1979 and 1999.
31. Sec 14(2)(b). In the context of socio-economic rights, such responsibility must include "furthering the wellbeing of the people as a whole". See Limburg Principles, above at note 7 at para 52.
32. Sec 14(1).
33. R Misra J, in Vincent v Union of India AIR 1987 SC 990 at 995, in P Bhat Fundamental Rights: A Study of their Interrelationship (2004, Eastern Law House) at 292.
34. See the WHO constitution, preambular para 10, available at: , http://www.who.int/governance/eb/who-Constitution-en.pdf. (last accessed 18 June 2007).
35. Akande The Constitution of the Federal Republic of Nigeria, above at note 8 at 18. See note 22 above on the focus of the national health policy.
36. Most states are capable of providing basic health care with "relative ease, and without significant resource allocation". See Maastricht Guidelines, above at note 7 at para 10. Providing basic health care is a minimum core obligation binding on state parties to the International Covenant on Economic, Social and Cultural Rights ("ICESCR"). General comment no 14, above at note 6 at paras 43 and 47. Nigeria ratified the covenant on 29 July 1993. Table of country ratifications available at: ,http://www.ohchr.org/english/countries/ratification/3.htm. (last accessed 22 June 2007).
37. Sec 15(3).
38. Sec 15(5).
39. Sec 16(1)(b).
40. Agbakoba and Mamah Towards a Peoples' Constitution, above at note 12 at 42.
41. Minerva Mills v Union of India [1980] AIR SC 1789, in Agbakoba and Mamah Towards a Peoples' Constitution, above at note 12 at 43.
42. See note 8.
43. Sec 14(2)(b), 1979 and 1999 constitutions.
44. The concept of Directive Principles is based on the philosophy that, in a welfare state, individuals have rights to basic needs that make life worthwhile and the state has a duty to meet those needs. S Sharma Directive Principles and Fundamental Rights: Relationship and Policy Perspectives (1990, Deep & Deep Publications) at 9.
45. Above at note 12 at 43.
46. Ibid..
47. Ibid. See also Laskar Directive Principles of State Policy, above at note 17 at 119.
48. General comment no 14, above at note 6 at para 55.
49. UN Commission on Human Rights ("UNCHR") "Questions of the violation of human rights and fundamental freedoms in any part of the world: situation of human rights in Nigeria" (report submitted by the special rapporteur of the commission on human rights, Soli Jehangir Sorabjee E/CN/4/1999/36, 14 January 1999) at para 59.
50. For a brief but incisive account of multi-country kleptocracy as well as its relationship with socio-economic rights, see U Effeh "Sub-Sahara Africa: a case on how not to realize economic, social and cultural rights and a proposal for change" (2005) 3 North Western University Journal of International Human Rights 2 at 10-14.
51. For instance, though widespread corruption at "every level of government" was reported during the Gowon administration (1967-1975), there was no evidence of any involvement by top administration officials. See United States Library of Congress, Country Studies "Nigeria: crime, corruption, and political turbulence", available at: http://lcweb2.loc.gov/cgi-bin/ query/r?frd/cstdy:@field(DOCID+ng0044). (last accessed 19 May 2007).
52. N Omoigui "The palace coup of August 27, 1985 (PART 3)", available at: http://www.dawodu.com/omoigui17.htm. (last accessed 9 July 2007).
53. Such justification is a common feature of military politicking in Nigeria. For instance, Sanni Abacha, who subsequently became a corrupt dictator himself, specifically cited "inept and corrupt leadership" as a justification for the overthrow of the civilian government of Shehu Shagari in 1983. See "Radio coup", 9 January 1984, Time (USA), available at: ,http://www.time.com/time/magazine/article/0,9171,952302,00.html. (last accessed 24 July 2007).
54. UNCHR "Questions of the violation of human rights", above at note 42 at para 62. While it is true that economic downturn began a few years prior to Babangida's presidency, the corrupt style of his leadership frustrated and defeated subsequent attempts at economic recovery: an unfortunate legacy that was bequeathed to his successors.
55. N Ribadu "Corruption: the trouble with Nigeria" (speech delivered at the 3rd Media Trust Annual Dialogue in Abuja, Nigeria on 19 January 2006), available at: ,http://www.againstbabangida.com/news/2006/0106- IBBcorrupt-ribadu.htm. (last accessed 30 March 2007).
56. Ibid, reechoing a statement by president Obasanjo in 2005 that "General Babangida is the main architect of the state in which the nation finds itself today, and that General Abacha was his eminent disciple, faithful supporter, and beneficiary". See O Akinbode "OBJ on IBB" (11 August 2005) The Guardian (Nigeria), available at: ,http://againstbabangida.com/ articles/2005/akinbode-obj-on-ibb.htm.(lastaccessed 9July 2007).
57. S Hargreaves "Time to right the wrongs: improving basic health care in Nigeria" (2002) 359 The Lancet 2030 at 2030. According to the UNCHR, "[a]s a consequence of the massive misappropriation of national resources, critical service sectors of the nation are in acute dysfunction. Power, water and fuel are in severely short supply and unavailable in many areas of the country ... Access to health care ... is largely unavailable for most of the population of the country": UNCHR "Questions of the violation of human rights", above at note 42 at para 62.
58. WHO The World Health Report 2006: Working Together for Health (2006, WHO) at 172 and 174.
59. World Bank "Country groups", available at: ,http://web. worldbank.org/WBSITE/EXTERNAL/DATASTATISTICS/0contentMDK:20421402~pagePK: 64133150~piPK:64133175~theSitePK:239419,00.html#Low-income. (last accessed 18 June 2007).
60. United Nations Population Fund "Population, health & socio-economic indicators /policy developments, overview: Nigeria", available at: ,http://www.unfpa.org/profile/nigeria.cfm. (last accessed 10 June 2007).
61. Population, health & socio-economic indicators /policy developments, overview: Nigeria, Ibid.
62. CIA "The WorldFactbook - Nigeria", available at: ,https://www.cia.gov/library/publications/the-world-factbook/geos/ni.html. (last accessed 7 July 2007).
63. African Development Bank ("ADB") "The ADB report on Millennium Development Goals", 2 October 2006, available at: ,http://www.afdb.org/portal/page?-pageid=293,158705&-dad=portal&-schema= PORTAL&focus-item=7148219&focus-lang=us. (last accessed 9 July 2007).
64. WHO "WHO country cooperation strategy: Federal Republic of Nigeria, 2002-2007", available at: ,http://www.who.int/countries/nga/about/ccs
65. UNCHR "Questions of the violation of human rights", above at note 42 at para 59.
66. Nuhu Ribadu, chairman of the Economic and Financial Crimes Commission ("EFCC") stated in an interview: "pressure came from abroad that we establish a new body to fight money laundering...EFCC was established to fight the crime": 20 June 2006 (Elendu Reports), available at: http://elendureports.com/index.php?option=com-content& task=view&id= 227&Itemid=29. (last accessed 9 July 2007).
67. Similar pressure was resisted by previous military administrations and might have been responsible for the refusal of International Monetary Fund and creditor countries to reschedule Nigeria's foreign debt. See the UN Economic Commission for Africa "Country report on Nigeria", available at: ,http://www.uneca.org/aisi/NICI/country-profiles/Nigeria/nigeriab.htm. (last accessed 9 July 2007).
68. The Corrupt Practices and Other Related Offences Act 2000 act no 5, LFN 2000.
69. The Independent Corrupt Practices and Other Related Offences Commission.
70. The Economic and Financial Crimes Commission (Establishment) Act 2002.
71. Comprising the following: (a) Money Laundering Act 1995; (b) Advance Fee Fraud and Other Fraud Related Offences Act 1995; (c) Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended; (d) Banks and other Financial Institutions Act 1991, as amended; (e) Miscellaneous Offences Act 1985; and (f) any other law or regulations relating to economic and financial crimes. See Sec 6(2) of the EFCC Act.
72. For activities of the commission, see the "Economic and Financial Crimes Commission", available at: http://www.efccnigeria.org/(last accessed 24 June 2007).
73. CDHR Annual Report of the Human Rights Situation in Nigeria (1999, CDHR) at 143-149
74. Tafa Balogun, the inspector general, was found guilty of corruption and sentenced to six months imprisonment. See "Ex police chief convicted over fraud", available at: http://www.nigeriafirst.org/article-5116.shtml (last accessed 24 October 2007). Though he was in the job for only two years, investigators discovered $52 million hidden in several bank accounts he operated. See T Ayodele et al "African perspective on aid: foreign assistance will not pull Africa out of poverty" (14 September 2005) 2 Cato Institute Economic Development Bulletin 2.
75. See Akinbode "OBJ on IBB", above at note 48. Failure to prosecute those involved in financial impropriety amounts to condoning the crime of corruption and the systematic violation of socio-economic rights. See UNCHR "Questions of the violation of human rights", above at note 42 at para 61. However, the recent inauguration of a new president in May 2007 and extension of the term of the EFCC chairman seem to have infused much desired vigour to the operation of the anti-graft agency. Following the conclusion of its investigation of all thirty-six former governors, the EFCC initiated prosecutions against six of them for corrupt enrichment under sec 14(1) of the Money Laundering (Prohibition) Act 2003. See I Ige, T Edike and C Ochayi "Nigeria: as Kalu, Nnamani, Dariye's trial begins - EFCC to arraign more ex-govs today" (16 July 2007) Vanguard (Nigeria), available at: http://allafrica.com/stories/200707180001.html (last accessed 25 July 2007);
76. I Ige "Nigeria: ex-govs Dariye, Turaki, Kalu diverted over N40bn public funds - EFCC" (14 July 2007) Vanguard (Nigeria), available at: http://allafrica.com/stories/200707160641.html (last accessed 25 July 2007).
77. For instance, out of the US$983 million recovered from Abacha's family, only $12 million was found to have been deposited in the Central Bank of Nigeria, raising questions as to the whereabouts of the balance. Ayodele et al "African perspective on aid", above at note 65, citing G Ayittey African Unchained: The Blueprint for Africa's Future (2005, Palgrave Macmillan) at 439.
78. CDHR Annual Report, above at note 64 at 146;
79. UNCHR "Questions of the violation of human rights", above at note 42 at para 61.
80. CDHR Annual Report, above at note 64 at 148.
81. Id at 145.
82. Id at 148. Abubakar was in office for less than a year (9 June 1998 - 29 May 1999).
83. Notable among these investigative bodies were the Christopher Kolade Panel (1999), the Oluwole Rotimi Panel (1999) and the Pius Okigbo Panel (1994), the report of which successive governments have declined to release. See "The missing Okigbo panel report" (18 November 2003) Punch (Nigeria) (Editorial Page), available at: ,http://www.nigeriavillagesquare1.com/Articles/ punch-okigbo.html. (last accessed 31 July 2007);
84. Nigerian Muse "Panel on the reorganization and reform of Central Bank of Nigeria (1994)", available at: ,http://www.nigerianmuse.com/ nigeriawatch/okigbo/.(last accessed 17 July 2007);
85. G Acquaah-Gaisie "Curbing financial crime among third world elites" (2005) 8/4 Journal of Money Laundering Control 372 at 373.
86. L Riefel "Nigeria's Paris Club debt problem" (policy brief no 144, the Brookings Institution, August 2005), available at: ,http://www.brook. edu/comm/policybriefs/pb144.htm. (last accessed 24 July 2007). The Paris Club is an association of wealthy industrialized countries, including France, Germany, Japan, the United Kingdom and the USA, which provides debt relief to debtor nations, usually through restructuring or cancellation.
87. UNCHR "Questions of the violation of human rights", above at note 42 at para 60.
88. Riefel "Nigeria's Paris Club debt problem", above at note 73.
89. CDHR Annual Report, above at note 64 at 149.
90. Unless enacted into law by the National Assembly, a treaty does not have the force of law in Nigeria. The federal legislature enjoys far-reaching powers in this regard, extending to matters not included within the exclusive legislative list. See secs 12(1) and (2) of the constitution.
91. Attorney General of Ondo State v Attorney General of the Federation & Ors, above at note 17 at 408 para H - 409 para A.
92. Chap 10, LFN 1990. Note that, although the National Assembly enacted the statute in March 1983, it entrusted the president with the power to set a commencement date for the statute, but the civilian president was overthrown in a military coup before he could set the date. However, the revised edition of the LFN includes the statute, its commencement date appropriately backdated to 17 March 1983. See U Umozuruike The African Charter on Human and Peoples' Rights (1997, Kluwer Law International) at 111.
93. African Charter Act, sec 1.
94. [1994] 1 LRC 376.
95. Id at 385 C-D; F Viljoen "Application of the African Charter on Human and Peoples' Rights by domestic courts in Africa" (1999) 43 Journal of African Law 1 at 10.
96. See O Eze and E Onyekpere Study on the Right to Health in Nigeria (1998, Shelter Rights Initiative) at 45, arguing that Nigeria entered no reservations with respect to socio-economic rights of the African Charter, as it could have if a bifurcated application were intended.
97. See the Fundamental Rights (Enforcement Procedure) Rules 1979, part B special instruction no 1 of the supplement to Official Gazette no 64, vol 66 (20 December 1979); entered into force 1 January 1980.
98. Order 1 rule 2(1). The High Court of a state and the Federal High Court have concurrent original jurisdiction with respect to enforcing fundamental rights. An applicant is at liberty to seek leave from, and commence proceedings in, either court. See secs 46(1) and 252(1) of the constitution.
99. Order 6 rule 1(1).
100. The present constitution reconfirms the authority of the chief justice to make rules for enforcing human rights. Sec 46(3) empowers Nigeria's chief justice to "make rules with respect to the practice and procedure of a High Court for the purposes" of enforcing fundamental human rights.
101. General Sanni Abacha & Ors v Chief Ganni Fawehinmi ("Fawehinmi") (2000) 6 NWLR (pt 660) 228 at 293 para E - 294 para A.
102. Fajunmi v The Speaker, Western House of Assembly (1962) 1 SCNLR 300;
103. Saude v Abdulahhi (1989) 4 NWLR (pt 116) 387;
104. Minister of Internal Affairs v Shugaba (1982) 3 NWLR 915 at 997;
105. Ogugu v State (1994) 9 NWLR (pt 366) 1 at 293 paras E-F and 321 paras B-D.
106. (1994) 9 NWLR (pt 366) 1.
107. Id at 26-27;
108. and Fawehinmi, above at note 88 at 293, paras F-G
109. quoting Ogugu v State, above at note 90 at 26-27.
110. Garba v Lagos State Attorney General ("Garba") held that the African Charter supersedes the provisions of a military decree and therefore the court had jurisdiction notwithstand ing contrary provisions in the decree: suit ID/599M/91, judgment of 31 October 1991, High Court of Lagos State (unreported); Femi Falana, "Application of fundamental human rights in Nigeria" (unpublished paper presented at a workshop on Law, Legal nstitutions and Human Rights in Nigeria, held in Lagos, Nigeria, 24-25 November 1994) at 7;
111. Viljoen "Application of the African Charter", above at note 82 at 8.
112. Wahab Akamu v Attorney General of Lagos State was decided shortly after Garba but came to a different conclusion: suit M/568/91, judgment of 23 January 1992, High Court of Lagos State (unreported).
113. Fawehinmi, above at note 88.
114. Id at 289 at paras D-E. This accords with the doctrine of pacta sunt servanda which requires that obligations assumed by states parties to a treaty be performed in good faith.
115. See art 26, Vienna Convention on the Law of Treaties, adopted 22 May 1969 by the UN Conference on the Law of Treaties: UN Treaty Series, vol 1155 at 331, available at: ,http://untreaty.un.org/ilc/texts/instruments/english/ conventions/1-1-1969.pdf. (last accessed 31 July 2007);
116. Umozuruike The African Charter, above at note 79 at 112
117. citing Norwegian Loans Case ICJ rep (1957) 9, 37.
118. Fawehinmi, above at note 88 at paras E-F.
119. Suit FHC/CS/B/153/2005, Federal High Court, Benin City, judgment of 14 November 2005 (unreported), available at: ,http://www.climatelaw.org/media/gas. flaring.suit.nov2005. (last accessed 26 June 2007) ("Gbemre v Shell").
120. Note that, though an earlier case to which Nigeria was a party had previously established the right to a healthy environment, the decision was by the African Commission. As such, its value as a precedent is not clear. See The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria ("SERAC") African Commission on Human and Peoples' Rights comm no 155/96 (2001), which found there had been a violation of the right to health.
121. Right to life.
122. Right to health care.
123. Right to satisfactory environment.
124. Sec 20 casts the government obligation regarding environmental protection as a Directive Principle.
125. Compare with Nemi v The State, above at note 81.
126. Gbemre v Shell, above at note 96.
127. The court did not indicate whether art 16 (right to health) and art 24 (right to a healthy environment) are free standing rights, capable of being adjudicated and enforced on their own, but this was probably because the question was not one of the issues submitted for determination.
128. Thus, like many provisions on socio-economic rights, the article attracts criticism as being vague and imprecise, thus diminishing its value as a foundational basis for a human rights claim.
129. See sec 318.
130. M Gomez "Social economic rights and human rights commissions" (1995) 17 Human Rights Quarterly 155 at 161.
131. P Alston "Out of the abyss: the challenge confronting the new UN committee on economic, social and cultural rights" (1987) 9 Human Rights Quarterly 332 at 352-53;
132. Gomez "Social economic rights and human rights commissions", above at note 106 at 164.
133. See chap one, reprinted in S Thorne et al The Great Charter: Four Essays on Magna Carta and the History of Our Liberty (1965, Pantheon Books) at 113.
134. Dred Scott v John FA Sandford 60 US 393, which held that blacks, whether free or slave, could never become citizens of the United States and therefore could not sue in the Federal Court; and Plessy v Ferguson 163 US 537 (1896), which upheld racial segregation. It was the thirteenth amendment to the US constitution that abolished slavery, following ratification by the required three-quarters of the states, on 18 December 1865.
135. UN General Assembly res 217 A (III) of 10 December 1948, available at: http://www.unhchr.ch/udhr/lang/eng.htm (last accessed 17 July 2007).
136. Art 2.
137. ICJ "Justiciability of economic, social and cultural rights", above at note 21.
138. For instance, it was only in 1973 that the right to privacy in the United States was redefined to include a woman's right to abortion. Roe v Wade 410 US 113 (1973).
139. See also R. v Morgentaler [1988] 1 SCR 30, in which the Canadian Supreme Court struck down sec 251 of the Criminal Code (which restricted abortion) as unconstitutional, in that it violated a woman's right to security of the person under sec 7 of the Canadian Charter of Rights and Freedoms. Until 1988, sec 7 had never been understood to confer a right to abortion.
140. Gomez "Social economic rights", above at note 106 at 161-63. Referring to the diffi culty of enforcing socio-economic rights, Yacoob J held, "[t]his is a very difficult issue which must be carefully explored on a case-by-case basis": Government of the Republic of South Africa v Grootboom ("Grootboom") 2001 (1) SA 46 (South African Constitutional Court - "S Afr Const Ct") at para 20.
141. In order to ensure that courts overcome this difficulty and vigorously scrutinize violations and uphold accepted standards, the legal profession needs to be resourceful in interpreting the law. See Y Mokgoro "The implementation of socio-economic rights in Africa - a strategy for the eradication of poverty" (2000) Oct - Dec Africa Legal Aid Quarterly 8 at 9; general comment no 14, above at note 6 at para 61; and Maastricht Guidelines, above at note 7 at para 28. It has been stated that the reason for the present difficulties regarding justiciability of socio-economic rights is not a result of their inherent complexity but due principally to the neglect of these rights and failure on the part of the human rights community and governments to devote sufficient time to understand and protect them: ICJ "The justiciability of economic, social and cultural rights", above at note 21. In this regard, the admonition with respect to the potency of the African Charter as an instrument for actualizing human rights is compelling. Prof Umozuruike, former president of the African Commission, recommends a "bold and teleological interpretation" of its provisions: U Umozuruike, interview (1996) Oct - Dec Africa Legal Aid 47 at 47.
142. A Chapman "Indicators and standards for monitoring economic, social and cultural rights", available at: ,http://hdr.undp.org/docs/events/ global-forum/2000/chap-man.pdf (last accessed 19 June 2007).
143. The landscape is changing. As noted by the UN special rapporteur on the right to health, despite attracting more international, regional, non-governmental and academic attention, socio-economic rights are not yet at par with civil and political rights, but the deficit has shrunk. P Hunt "Ten years after the Vienna world conference on human rights" (unpublished presentation, 16 October 2003), available at: http://www2.essex.ac. uk/human-rights-centre/rth /docs/FIAN.doc (last accessed 29 July 2007).
144. See also the UN Food and Agriculture Organization ("FAO") "Justiciability of the right to food", information paper IGWG RTFG/INF 7 (October 2004) at 13 at para 66.
145. See note 7 above.
146. Ibid. The drafters were unequivocal about its use as a tool, particularly for "monitoring and adjudicative bodies" interpreting socio-economic and cultural rights. See preambular provisions and para 5.
147. The book Thesaurus of Economic, Social and Cultural Rights: Terminology and Potential Violations (1999, American Association for the Advancement of Science) seeks to untangle the complex web of relationships among socio-economic rights; Chapman "Indicators and standards", above at note 115.
148. Forinstance, the special rapporteurofthe CommissiononHuman Rightsoneveryone's right to the enjoyment of the highest attainable standard of physical and mental health, established pursuant to res 2002/31, adopted at its 49th Meeting, 22 April 2002: E/2002/23- E/CN.4/2002/200, available at: ,http://www.ohchr.org/english/issues/health/right/. (last accessed 19 June 2007).
149. See note 6.
150. See note 29.
151. This view was affirmed by the African Commission in 2001. See SERAC, above at note 96 at para 49. Relying on this provision, the commission has borrowed extensively from the experience of other international human rights adjudicatory bodies in resolving petitions brought before it. For instance, it relied on general comment no 9 (adopted by the Committee on ESCR in 1998, on the domestic application of the ICESCR, E/C.12/1998/24, at para 3) in its ruling that, while non-domesticated treaties may not be directly enforceable in Zambian national courts, such treaties nonetheless impose obligations on the country.
152. See Legal Resources Foundation v Zambia, African Commission on Human and Peoples' Rights comm no 211/98 (2001) at para 59.
153. See also paras 63 and 70: the commission cited UN Committee on Human Rights general comment nos 18 (XXXVII/1989) and 25 (XXXVII/1996). Also, in holding that the rule requiring prior exhaustion of domestic remedy as a precondition for admissibility of communications means that such domestic remedy must be available, adequate and effective in the state concerned, the commission relied on a petition decided by the Inter-American Court on Human
154. See Liesbeth Zegveld and Messie Ephrem v Eritrea, African Commission on Human and Peoples' Rights, comm no 250/2002 (2003) at para 36.
155. L Forman "Ensuring reasonable health: health rights, the judiciary, and South African HIV/AIDS policy" (2005) 33/4 Journal of Law, Medicine & Ethics 2 at 2.
156. See Bate J in Cheranci v Cheranci (1960) NRNLR 24.
157. This argument refers to the view that the doctrine of separation of power precludes the courts' jurisdiction in matters revolving around resource allocation, that courts lack the capacity to weigh and balance the complex issues involved and concomi-tantly ought to refrain from entertaining such cases. But this view is increasingly under attack, as demonstrated by decisions emerging from several jurisdictions. Regarding the approach adopted by courts in India, see below at notes 167-68. Even South African courts, despite their self-imposed restraint, are cognizant of the judicial prerogative to entertain such cases. While recognizing the need for each of the three branches of government to deal with matters that are pre-eminently within their domain, the Constitutional Court does not construe this as meaning that courts are precluded from making orders that have policy ramifications. Where a state policy is inconsistent with its constitutional obligation, the court is within its powers to say so. Though such action might constitute an intrusion into the domain of the executive, "it is an intrusion mandated by the Constitution itself". See Minister of Health v Treatment Action Campaign No.2 ("TAC") 2002 (5) SA 721 (S Afr Const Ct) at paras 98 and 99.
158. See also notes 161-65 below. For additional reasons sustaining this view, see FAO "Justiciability", above at note 115 at 13 at para 68.
159. Fose v Minister of Safety and Security 1997 (3) SA 786 (S Afr Const Ct) at para 69.
160. See the Report of the Constitution Drafting Committee, above at note 9 at XV;
161. B Okere "The protection of human rights in Africa and the African Charter on Human and Peoples' Rights: a comparative analysis with the European and American systems" (1984) 6 Human Rights Quarterly 141 at 148.
162. See for instance the Constitution (Suspension and Modification) decree no 107 of 1993 which not only suspended the constitution but also stipulated that no decree promulgated after December 1983 could be challenged in a court in Nigeria. The decree was subsequently held to constitute a breach of art 7 (right to be heard) and art 26 (obligations to establish and protect the courts) of the African Charter. See Civil Liberties Organization v Nigeria African Commission on Human and Peoples' Rights, comm no 129/94 (1995).
163. For thepurposesofjusticiability,itissufficient that judicialorquasi- judicial proceedings took place on the basis of a complaint alleging a violation of the right to health and that the complaint formed the basis forthe decision.See B Toebes The RighttoHealthasaHuman Right in International Law (1999, Intersentia /Hart) at 170.
164. Akande The Constitution of the Federal Republic of Nigeria, above at note 8 at 13
165. quoting the Report of the Constitution Drafting Committee, above at note 9;
166. Okere "Fundamental Objectives", above at note 9.
167. By the Committee on ESCR, general comment no 3, UN COMM. ESCR, 5th Session, supp no 3, annex III, UN doc E/1991/23(1990), para 10.
168. General comment no 14, above at note 6.
169. See note 29.
170. What constitutes "essential drugs" is not defined by the Committee on ESCR. But the WHO defines the term to comprise medicines that satisfy the priority health care needs of the population. They are selected with due regard to relevance to public health, evidence on efficacy and safety, and comparative cost-effectiveness. Essential medicines are intended to be available within the context of functioning health systems at all times in adequate amounts, in the appropriate dosage forms, with assured quality and adequate information, and at a price the individual and the community can afford. The implementation of the concept of essential medicines is intended to be flexible and adaptable to many different situations. Determining what constitutes essential medicines is a national responsibility. See the WHO "Essential Medicines", available at: ,http://www.who.int/topics/essential-medicines/ en/. (last accessed 31 July 2007).
171. Allowing countries some margin of discretion in determining what constitutes essential medicines within their respective territories seems to recognize that, given the variations in types and incidence of diseases in different countries, it is prudent for each government to set its own priorities. For instance, since malaria and tuberculosis are ravaging Africa, determinations of essential drugs in Africa ought to be skewed toward medicines that are indicated for the treatment of these two diseases. The WHO publishes a list of essential medicines that has been updated every two years since 1977. The current version, the 15th, dates from March 2007 and is available, in addition to three other editions, at: http://www.who.int/medicines/publications/ essentialmedicines/en/(last accessed 3 August 2007).
172. See general comment no 14, above at note 6 at para 43.
173. See the Declaration of Alma-Ata, above at note 22 at para VII. Note that adopting and implementing a primary health care programme as recommended by the declaration would satisfy the minimum core obligations.
174. See the Report of the International Conference on Population and Development (Cairo, 5-13 September 1974) (UN publication, sales no E.95.XIII.18) chap I, resolution 1, annex, chaps VII and VIII, particularly paras 7.6 and 8.4, available at: ,http://www.iisd.ca/Cairo/program/p00000.html. (last accessed 31 July 2007).
175. General comment no 14, above at note 6 at para 47. This represents a striking departure from general comment no 3, which permits derogation from core obligations in the event that the government can demonstrate the impossibility of compliance even after all available resources have been deployed, as a matter of priority, for the purpose: see above at note 131.
176. Non-derogation from core obligations was also reiterated by the Maastricht Guidelines, above at note 7 at para 9.
177. The Maastricht Guidelines, above at note 7 at para 10;
178. V Dankwa, C Flinterman and S Leckie "Commentary to the Maastricht Guidelines on violations of economic, social and cultural rights" (1998) 20 Human Rights Quarterly 705 at 717;
179. C Ngwena and R Cook "Rights concerning health" in D Brand and C Hen (eds) Socio-Economic Rights in South Africa (2005, Pretoria University Law Press) 107 at 117-118
180. The Limburg Principles, above at note 7 at para 26.
181. Ngwena and Cook "Rights concerning health", above at note 140 at 118. This dovetails with the original intent of the drafters of the ICESCR. Art 2 speaks of "progressively" realizing the rights recognized in the covenant by all appropriate means.
182. Purohit and MoorevThe Gambia ("Purohit and Moore") African Commission on Human and Peoples' Rights, comm no 241/2001 (2003) at para 84.
183. Per Chaskalson P in Soobramoney v Minister of Health of Kwazulu-Natal ("Soobramoney") 1997 (12) BCLR 1696 (S Afr Const Ct) at para 11
184. cited with approval per Yacoob J in Grootboom, above at note 114 at para 46.
185. Grootboom, above at note 114 at para 46.
186. Maastricht Guidelines, above at note 7 at para 10.
187. African Commission on Human and Peoples' Rights, comm no 25/89, 47/90, 56/91, 100/93 (1995) at para 47.
188. Media Rights Agenda and Ors v Nigeria, African Commission on Human and Peoples' Rights comm no 105/93, 128/94, 130/94 and 152/96 (1998) at paras 90 and 91.
189. Maastricht Guidelines, above at note 7 at para 24.
190. Grootboom, above at note 114 at para 41.
191. TAC, above at note 125 at paras 34 and 39.
192. Grootboom, above at note 114 at para 33.
193. For a critique of the "reasonableness test" paradigm at the S Afr Const Ct, see Forman "Ensuring reasonable health", above at note 123 at 9-11.
194. Above at note 144.
195. Above at note 114.
196. Above at note 125.
197. Id at para 44.
198. Id at paras 60 and 61.
199. Id at paras 68 and 80.
200. Id at para 68.
201. "A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters": per Chaskalson P in Soobramoney, above at note 144 at para 29. Referring to the decision of the court below, he explained that a danger of judicial intrusion into the allocation of scarce medical resources, for instance, is that a court order might have the undesirable effect of denying those resources to other patients for whom a better outcome could have resulted (at para 30).
202. Id, per Sachs J at para 58;
203. TAC, above at note 125 at para 37.
204. Soobramoney, above at note 144 at para 30
205. quoting Sir Thomas Bingham MR in R v Cambridge Health Authority, ex parte B, [1995] 2 All ER 129 (CA) at 137 d-f.
206. Above at note 125 at para 38.
207. Soobramoney, above at note 144 at para 29.
208. See note 13 above.
209. (1996) 4 SCC 37 ("Samity"). See also Parmanand Katara v Union of India AIR 1989 SC 2039;
210. State of Punjab and Others v Mohinder Singh AIR 1996 SC 2426;
211. and Mahendra Pratap Singh v State of Orissa AIR 1997 Ori 37.
212. See MCMehtav Stateof Tamil Nadu&Others[1996]6 SCC756.As inSamity,theIndianSupreme Court issued far-reaching remedial orders, in a case concerning child labour.
213. Suit no M/76/78, Lagos State High Court (unreported). In Ojukwu v Governor of Lagos State (1986) NWLR (pt 18) 621, while the court was still adjudicating the matter, government agents, disregarding an interim injunction to maintain the status quo, forcibly entered the property and ejected the plaintiff. Tawogbade v Oyo State Government is yet another case in which the government ignored a court order, prompting the court to warn: "It is unfortunate if the impression is created that there is a separate law binding on the citizens from that binding on the government. It is all the more dangerous if government tends to create a posture indicating that it may choose not to obey certain orders of court. That will be tantamount to executive recklessness which may lead to lawlessness." (1991) 2 NWLR (Part 171) 52 at 60.
214. Though the right to health and medical care is a fundamental right under art 21 of the Indian constitution, a reduction of employee entitlement to medical benefit on grounds of scarcity of state resources does not constitute a violation of the constitution: Consumer Education and Research Centre v Union of India (1995) 3 SCC 42.
215. For a working definition of primary health care, see note 22.
216. See the Declaration of Alma-Ata, above at note 22 particularly art VI; and National Health Policy of Nigeria (2004, Federal Ministry of Health) chap 4, secs 4.1 and 4.2.
217. Adaptation from the book title: C Flood (ed) Just Medicare: What's In, What's Out, How We Decide (2006, University of Toronto Press).
218. C Flood, C Tuohy and M Stabile "What is in and out of Medicare? Who decides?" (CHSRF - OMHLTC Research Project "Defining the Medicare basket", Institute for Research on Public Policy working paper series no 2004-2006) at 3, available at: ,http://www.law.utoronto.ca/healthlaw/basket/ docs/working5-inandout.pdf.(lastaccessed24July2007).
219. Statement to the House of Commons on 22 March 2000, available at: ,http://www. number-10.gov.uk/output/Page1523.asp. (last accessed 23 July 2007).
220. The prescription drug coverage went into effect on 1 January 2006. For explanations as how the statute affects medical coverage, see "Want to learn more about the new prescription drug coverage?" available at: ,http://www.medicare.gov/medicarereform/drugbenefit.asp. (last accessed 23 July 2007).
221. Concern about the rising cost of health care is a constant feature of policy debates in all systems. In the United States, for instance, it is estimated that federal spending on social security, Medicare and Medicaid will jump from 9% to 28% of gross domestic product in 2050 if spending is maintained at current levels. M Barone "Slouching towards France" (17 April 2006) US News & World Report, available at: ,http://www.usnews.com/usnews/news/ articles/060417/17barone.htm. (last accessed 24 July 2007).
222. Sachs J in Soobramoney, above at note 144 at para 52.
223. Neither is juridical validation. Though undeniable that judicial recognition of the right to health care will probably not translate into the immediate availability of the core elements needed for its enjoyment, it does achieve an important goal. It marks the beginning of a tripartite dialogue in which the judicial and legislative (having enacted the law) arms are on one side, inviting participation of the executive branch: an invitation that a responsible government (or one so aspiring) can ill-afford to ignore. This is the context that brings to the fore the importance of firm judicial presence in human rights discourse, particularly in relation to its role as an arbiter of socio-economic rights disputes.
224. For instance, the Committee on ESCR, being cognizant of varying socio-political situations in different jurisdictions, allows each state party to the ICESCR wide latitude of discretion in determining the appropriate means of implementing its obligations under the covenant. The undertaking "to take steps" in art 2 (1) of the ICESCR means that any system that could operationalize the right to health care through appropriate means (legal, administrative, financial, educational or social measures) is deemed to be compliant with the covenant. See general comment no 3, above at note 131 at para 7; general comment no 14, above at note 6 at para 53; Maastricht Guidelines, above at note 7 at para 6; Limburg Principles, above at note 7 at paras 7-20.
225. A typical example is the Canadian system. While the Canada Health Act contains far-reaching provisions on access to health care (medical insurance coverage to all Canadians on the basis of need as opposed to ability to pay), it is not a human rights code conferring a right to health care (RSC 1985, c. C-6). However, its operation is heavily influenced by the Canadian Charter of Rights and Freedoms (schedule B to the Canada Act 1982 (UK) 1982, c. 11).
226. Since its enactment, the charter has been consistently invoked and relied upon to determine the propriety of government action with respect to access to physician, hospital and related services. Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624 (Canadian Supreme Court) held that a failure to provide medical interpreter services for deaf patients violated equality rights under sec 15(1) of the charter);
227. Auton (Guardian ad Litem of) v British Columbia (Attorney General) [2004] 3 SCR 657, 2004 SCC 78 (Canadian Supreme Court) held that a failure to fund applied behavioural therapy for autistic children did not violate the children's sec 15 equality rights; Chaoulli v Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 (Canadian Supreme Court) held that a prohibition of private health insurance violates the right to life and security of persons under the Quebec Charter of Human Rights and Freedoms.
228. Maastricht Guidelines, above at note 7 at para 10.
229. Ibid..