AN ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE REALIZATION OF THE RIGH TO HEALTH IN NIGERIA

ABSTRACT
 
Health is an important element of an individual life and also to the individual’s country. A country cannot develop with its citizens sick and dying. A healthy state is a wealthy state. As such, states must provide adequately for the health of its citizens. The research analysed international law and national legal framework that regulate the health system under international law and in Nigeria. It also examined health policies, institutions and other regulatory bodies established for the protection of the right to health in Nigeria. The research was informed by the dismal performance of Nigeria’s health care system when the World Health Organization assessed its 191 member states in terms of responsiveness, fairness, overall goal attainment, level of health expenditure per capita, impact on health and overall performance. Nigeria was ranked 187 out of 191 despite its human and natural resources compared with many other African countries which is indeed a cause for concern. This is evidenced from the high level of maternal and childhood mortality, HIV/AIDS related deaths which continue to ravage families and communities, the slow pace of attaining international goals for health and survival and negative progress towards attaining the Millennium Development Goals (MDGs).The research adopted as methodology the doctrinal approach which entailed the use of relevant literature including international instruments, reports and general comments/recommendations. Nigeria is a party to the major regional and international human rights instruments recognizing and protecting the right to health and has assumed tripartite obligations- obligations to respect protect and fulfill the right to health of the Nigerians. Right to health under the Nigerian Constitution is non -justiciable. However, non justiciability of the right to health is a challenge but not a bar to the protection of the said right. It does not also absolve Nigeria from its obligation to protect health of its citizens. The research finds that according health the status of non-justiciable right is not infact related to any inability to deal with socio-economic rights including the right to health as was exemplified with the experience of South Africa which has justiciable socio- economic rights including the right to health. It also finds that the debate whether or not the right to health exist or is non-justiciable is irrelevant as the Indian experience revealed. The research therefore, recommends the court to adopt judicial activism in adjudicating socio-economic rights including the right to health as is done in India. The research finds that Nigeria had put in place and established laws, policies and institutions for the protection of health of her citizens. The research also finds that  several factors impede the realization of the right to health in Nigeria including legal impediments, socio-economic impediment and lack of political will on the part of the government. It is also a finding of the research that Nigeria is moving at a slow pace towards attaining the MDGs with less than a year to the target date. Although the research finds that some progress had been achieved especially in reducing childhood mortality and halting HIV/AIDS, the progress is not sufficient to meet the MDGs target date of 2015. The research finds that several key challenges exist which exercabates the slow pace at which Nigeria is moving towards achieving the MDGs notably among them are lack of reproductive health care services, poverty, low socio-economic status of women, inequities in the distribution of human health resources which if addressed will come a long way in helping Nigeria to move faster towards achieving the MDGs and subsequently in fulfilling its obligations under the right to health.
TABLE OF CONTENTS
Title Page — — — — — — — — — i
Declaration — — — — — — — — — ii
Certification — — — — — — — — — iii
Dedication — — — — — — — — — iv
Acknowledgement — — — — — — — — v
Table of Cases — — — — — — — — vii
Legal Instruments — — — — — — — — ix
List of Tables — — — — — — — — — xi
Abstract — — — — — — — — — — xii
Table of Contents — — — — — — — — xiii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the study — — — — — — 1
1.2 Statement of Problem — — — — — — — 3
1.3 Objectives of the Research — — — — — — 6
1.4 Scope of the Study — — — — — — — — 7
1.5 Research Methodology — — — — — — 7
1.6 Justification of the Study — — — — — — 8
1.7 Literature Review – — — — — — 9
1.8 Structure of the Study – — — — — — 14
CHAPTER TWO
CONCEPTUAL CLARIFICATION OF HISTORICAL DEVELOPMENT RELEVANT TERMS AND THEIR
2.1 Introduction – — — — — — 16
2.2 Human Right – — — — — — 16
2.2.1 Historical and Philosophical Evolution of Human Rights — — 17
2.2.2 Definition and Characteristics of Human Rights — — 23
2.2.3 Origin of Health as an International Human Right — — 25
2.3 Concept and Definition of the Right to Health — — — 30
2.3.1 Nature of the Right to Health – — — — — — 32
2.4 Maternal Mortality – — — — — — 38
2.5 Maternal mortality Ratio — — — — — — 39
2.6 Childhood Mortality – — — — — — 39
2.7 Linkages between Health and Human Rights — — — 39
CHAPTER THREE
THE RIGHT TO HEALTH IN NIGERIA
Legal Framework on the Right to Health In Nigeria — — — 43
Health as a Justiciable Right – — — — — — 48
Judicial Application of the Right to Health in
Selected National Jurisdictions – — — — — 50
3.3.1 South Africa – — — — — — 51
3.3.2 India – — — — — — 58
3.4 Application of International Human Right to Health in Nigeria — 65
3.5 Nigeria‟s Obligations under International and Regional
Instruments Protecting the Right to Health — — — — 68
3.5.1 Obligation to Respect` – — — — — — 68
3.5.2 Obligation to Protect – — — — — — 71
3.5.3 Obligation to Fulfil – — — — — — 73
Effective Remedies for the Violation of the Right to Health — — 75
Declaratory Order – — — — — — 78
Mandatory Order – — — — — — 79
Structural Interdicts – — — — — — 80
International Monitoring Mechanisms for the
` Protection of the Right to Health – — — — — 83
Reporting System under Art. 16 and 17 of the ICESCR — — 83
Optional Protocol to the ICESCR — — — — — 87
CHAPTER FOUR
DOMESTIC IMPLEMENTATION OF THE RIGHT TO HEALTH IN NIGERIA
4.1 Introduction – — — — — — 89
4.2 Legal Protection of the Right to Health in Nigeria — — — 90
4.2.1 Constitutional Protection – — — — — — 90
4.2.2 Child Right Act 2003 – — — — — — 93
4.2.3 The African Charter on Human and Peoples‟ Rights — — — 95
4.3 Review of the Implementation of the Right to
Health Policies in Nigeria – — — — — — 97
4.3.1 National Health Policy – — — — — — 97
4.4 Health Institutions and their Regulatory Bodies
Protecting Health in Nigeria – — — — — — 100
4.4.1 Federal Ministry of Health — — — — — — 100
4.4.2 Courts – — — — — — 101
4.4.3 National Human Rights Commission — — — — 102
National Agency for Food and Drug Administration and Control — 106
National Health Insurance Scheme — — — — — 108
Nigerian Medical and Dental Practitioners Act — — — 113
Legislations Dealing with Access to Qualitative Drugs — — 116
4.5.1 National Drugs ForSmulatory and Essential Drugs List Act — — 116
4.5.2 Dangerous Drugs Act – — — — — — 118
4.5.3 Food and Drug Act – — — — — — 118
4.6 Proposed Law — — — — — — 120
4.6.1 National Health Bill – — — — — — 120
4.7 Substantive Elements of the Right to Health in Nigeria — — 124
4.7.1 Availability — — — — — — — 124
4.7.2 Accessibility — — — — — — — 125
4.7.3 Acceptability — — — — — — — 127
4.7.4 Quality — — — — — — — 127
CHAPTER FIVE
AN ANALYSIS OF MILLENNIUM DEVELOPMENT GOALS AND THE RIGHT TO HEALTH IN NIGERIA
5.1 Introduction — — — — — — — 129
5.2 Millennium Development Goals and the Right to Health in Nigeria — 131
5.3 Millennium Development Goals in Nigeria — — — — 132
5.4 An Overview of MDG 4 (Reduction of Childhood Mortality),
5 (Improving Maternal Health) and 6 (Combating HIV/AIDS,
Tuberculosis, Malaria) — — — — — — 135
5.4.1 Eradicating Poverty and Extreme Hunger — — — — 135
5.4.2 Achieving Universal Primary Education — — — –\ 136
5.4.3 Achieving Gender Equality and Women‟s Empowerment — — 138
5.4.4 Childhood Mortality — — — — — — 140
5.4.5 Maternal Mortality — — — — — — 142
5.4.6 HIV/AIDS, Tuberculosis and Malaria — — — — — 144
Key Challenges to Attaining the MDGs in Nigeria — — — 149
Inequities in the Distribution of Human Health Resources and Facilities- 149
Poverty and Cost of Healthcare — — — — — 151
Availability of Health care facilities and Poor Utilization of
Reproductive health services — — — — — 155
Women‟s Low Socio-Economic Status and Lack of Empowerment — 159
CHAPTER SIX
FACTORS IMPEDING THE REALIZATION OF THE RIGHT TO HEALTH IN NIGERIA
6.1 Introduction — — — — — — 162
6.2 Constitutional Impediment — — — — — — 162
6.3 The Attitude of Courts/Judges — — — — — 164
Socio-Economic and Cultural Factors — — — — 168
Corruption and Mismanagement of states resources — — — 169
6.6 Poverty — — — — — — — — 170
Debts, Debt Servicing and Structural Adjustments Programmes — 173
Lack of Political Will to Address the Health Sector Crisis — — 175
CHAPTER SEVEN CONCLUSION
7.1 Summary — — — — — — — 177
7.2 Findings — — — — — — — 179
7.3 Recommendations — — — — — — — 181
Contribution to Knowledge — — — — — — 184
Suggestions for Further Research — — — — — 184
BIBLIOGRAGHY
1. Books — — — — — — — — 186
2. Journals — — — — — — — — 187
3. Conference Papers — — — — — — — 189
4. Other Sources — — — — — — — 189
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
International Trade has been of immense importance in the existence of the nations of the world and its economy because no nation is completely self-reliant or sufficient. Also, the needs and wants of people in all parts of the world are better served by exchanging goods and services.1 Trade increases the standard of living for all modern countries. For some, foreign market takes a third to a half of the total output and the standard of living depends crucially on the international division of labour that foreign trade permits.2 However, there are opinions to the effect that international trade has negative effects on the standard of living of the nations of the world and consequently, trade barriers are necessary to protect the earth‘s natural environment, reduce domestic unemployment and also prevent the exploitation of the world‘s impoverished workers.3
International trade has played and continues to play critical role in the ability of countries to grow, develop and be economically powerful throughout history. International transactions are becoming increasingly important in recent years as countries seek to obtain the more benefits that accompany increased exchange of goods, services and factors. It is worthy to note that little is known about the earliest trade. However, English flint used to make primitive tools, which was widely traded in Europe thousands of years before Christ, and so was the salt from the mines in Central Europe. Moreover, the Egyptians as far back as 3000 B.C. ranked far in Africa in search of gold, antimony and slaves. By 1700 B.C., the Cretans traded extensively by sea.4
Every sovereign nation is free to establish laws, taxes and regulations governing its foreign trade. Initially, these nations used certain policy instruments to protect their country and citizens that are players at the international market against certain consequences that might arise as a result of unrestricted trade practices and thereby interfere with free trade. Some of these
instruments include: import tariffs, export taxes, and subsidies, import quotas, voluntary export restraint, government procurement provisions, domestic content provisions, trade related investment measures, etc.5 These measures to a great extent interfere with free trade.
However, in the 19th century, there was an important change in government6 policies towards trade, away from mercantile protectionism, all brands freer trade – fewer prohibitions and lower duties on foreign trade. Furthermore, after World War II, various circumstances combined to obstruct world trade. The nations found it convenient to agree to rules that limit their own freedom of action in trade matters, and generally to work towards removal of artificial and often arbitrary barriers to trade. Thus, in 1947, the major trading countries, initiated comprehensive multilateral negotiations in an effort to prevent a post war contraction of world trade similar to the tariff war of the 1930‘s.7 The negotiations resolved in the formation of the General Agreement on Tariff and Trade (GATT).
The agreement (GATT) incorporated a code of international trade rules, made provisions for multilateral trade negotiations, established a procedure for adjudicating trade grievances among member states and provided for the continuing review of actions by member countries. The implementation of GATT resulted in the reductions in tariffs, coupled with improvements in transportation and communication at the time, foreign trade for instance grew and by the dawn of 1970 and early 1980‘s the value of total world goods and trade reached an almost $300 billion a year and $56 billion to $60 billion for annual services.8
It should be noted that such increase indicated a greater international interdependence and a more complex international trade network encompassing not only final consumable goods but also capital good, intermediate goods, primary goods and also commercial services. Thus, not only did individual nations experience the economic benefits that accompany international trade but also realized that her economic prosperity depends on economic prosperity in the world as a
whole. It is also a well-known fact that while increased interdependence has many inherent benefits, it also brings with it a greater adjustment requirements and greater needs for policy coordination among trading partners.
Consequent on the above, in September, 1986, new round of negotiation – the Uruguay Round began. Member states who participated in the round established groups to work on the different areas of the negotiation, including the four areas dealing with GATT itself (example – dispute settlement procedure and the complementation of the Non-Tariff Barriers Codes (NTB) of the Tokyo Round)9. The round recorded certain achievements, some of which included the adoption of new procedure for the settlement of disputes and the creation of the World Trade Organisation (WTO).
It is further important to note that since the Marrakesh Agreement of 1994 entered into force on 1st January, 1995, the World Trade Organisation now provides the principal forum for negotiations on multilateral trading relations among member states, and for the binding settlement of disputes arising under WTO agreements10. At the centre of the multilateral trading system are the WTO agreements which are the legal ground rules for international commerce. Essentially, they are contract guaranteeing member countries important trade rights. They also bind governments to keep their trade within agreed limits to everybody‘s benefits.
Also, member nations, upon convinced of the need to provide security and predictability to the multilateral trading system, preserves the rights and obligations of the member states under the agreements and to be able to clarify the rights and obligations of the member states through interpretation, created a dispute settlement system, which is continued in the understanding on Rules and Procedure governing the settlement of Disputes (DSU).
Generally, a policy of free trade will inevitably involve some conflict with international environmental agreement or an environmental protection requirement in national law, which has the effect of restricting trade in certain commodities. Although some environmentalists condemn