AN ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE REALIZATION OF THE RIGHT

CHAPTER ONE GENERAL INTRODUCTION

• Background of the Study

Health is important for every human being in the world. It is an important matter for individuals and states. It is a fundamental human right indispensable for the exercise of other human rights. This can be seen in the impact the denial or enjoyment of other rights can have on a person‟s ability to achieve the highest attainable standard of physical and mental health and, conversely, the role health plays in our enjoyment of other rights.¹A person in bad health cannot live life to the fullest. Enjoying good health therefore, is a prerequisite to the enjoyment of other human rights. For instance, a sick person can work to earn a living, go to school and be educated therefore leading life to the fullest and ultimately contribute to the development of his country. Denying people good health care is to deny them the right to life as good health is an indispensable element of life.

Also, social and economic development is closely tied to good health. A country cannot achieve economic growth and development with sick and dying population. As such, for any country to achieve development, it must take care of its citizen‟s health. The World Health Organization (WHO) recognizes the international human right to health in its Constitution by stating that “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.”²

This has led to global debate to focus on the human right to health which now occupies a prominent place on the agenda of the international community. Given the importance of health as a vital feature of the human condition, health has been recognized as a human right in numerous international documents and every country in the world is a party to at least one human right treaty that protects health either directly or indirectly.

However, right to Health which is rooted under International Covenant on Economic, Social and Cultural Rights (ICESCR) has for long been objected to, and still suffers from marginalization. Although Civil and Political Rights and Economic, Social and Cultural Rights (ESCR) are said to be interdependent, interrelated and of equal importance,³ there is the tendency on the part of the Western states (e.g. United States of America) to accord more significance to Civil and Political rights.⁴ This is attributed to the language in which the ICESCR is couched which makes its contents to be regarded as non-justiciable, vague and regarded as „general directives for states rather than rights.⁵ In this regard, the right to health shares the same fate with Economic, Social and Cultural Rights (ESCR) which are also recognized in international treaties and whose meaning is only gradually being clarified.⁶

Countries whose legal systems are based on English Common Law generally do not provide constitutional guarantees regarding the right to health⁷, though implicit references to public responsibilities for health can be found in the preambles to many constitutions, and in some of the content regarding social policy.⁸ The United States, for example, does not include any reference to health in its Constitution. However, countries with socialist constitutions incorporate the right to health as a fundamental right, along with all other economic, social and cultural rights.

Health in Nigeria is protected in the Constitution under the Fundamental Objectives as objective statement on certain socio-political, economic, and cultural issues meant to guide the government in the formulation of policies. The security and welfare of the Nigerian state being of paramount importance of the government,⁹ the Constitution places a duty and responsibility on all “organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions”¹⁰ of the fundamental objective. Health in Nigeria is also protected in other legally binding legislations and regional instruments which Nigeria has domesticated. Nigeria has also established institutions that seek to protect the health of its citizens. However, the health status of Nigerians is said to be in a deplorable state. It is against this background that this dissertation seeks to make an analysis of the legal and institutional framework on the realization of the right to health in Nigeria.