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.
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.
Read more https://nairalaw.com/health-as-human-right-by-femi-falana-san/