Right to Health as a Constitutional or Policy Matter?

The Right to Health: A Constitutional Imperative or a Policy Promise in Nigeria?

The quest for a healthy populace is a universal aspiration, enshrined in numerous international human rights instruments. For Nigeria, a nation grappling with significant public health challenges, the question of whether the right to health is a fundamental constitutional entitlement or merely a guiding principle for policy formulation carries profound implications. This debate, deeply rooted in legal interpretation, socio-economic realities, and political will, shapes the lived experiences of millions.

While the global community increasingly recognizes health as a justiciable human right, Nigeria’s constitutional framework presents a complex picture, leading to a persistent disconnect between lofty ideals and ground-level realities. This blog post delves into the intricacies of this debate, examining the constitutional and policy dimensions of the right to health in Nigeria, identifying critical challenges, and proposing pathways towards its comprehensive realization.

1. Introduction: Defining the Landscape of Health Rights in Nigeria

The right to the highest attainable standard of physical and mental health is a fundamental human right, affirmed in instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These global commitments underscore that health is not a privilege but a prerequisite for human dignity and societal progress. In Nigeria, a country with a vibrant population and immense potential, the state of healthcare often paints a stark contrast to these international ideals. High maternal and infant mortality rates, prevalent infectious diseases, inadequate infrastructure, and limited access to quality medical services are pervasive challenges.

This inherent tension – between international recognition of a right and the domestic struggle for its realization – forms the crux of our discussion. Is the right to health in Nigeria primarily a constitutional mandate, offering a legal basis for citizens to demand accountability, or is it more of a policy objective, subject to the ebb and flow of political priorities and resource availability? This exploration will argue that while Nigeria’s constitution hints at a right to health, its current “non-justiciable” status significantly weakens its enforcement, necessitating a dual approach of constitutional reform and robust policy implementation to truly unlock its potential.

2. The Constitutional Framework: Where Does the Right to Health Stand?

Nigeria’s 1999 Constitution (as amended) is the supreme law of the land, yet its provisions regarding socio-economic rights, including the right to health, are a source of ongoing debate.

Chapter II of the 1999 Constitution: Fundamental Objectives and Directive Principles of State Policy

This chapter outlines the fundamental obligations of the government to its citizens. Specifically, Section 17(3)(d) states that “the State shall direct its policy towards ensuring that…adequate medical and health facilities for all persons.” This provision unequivocally places a responsibility on the government to work towards providing healthcare. However, the critical issue lies in its justiciability.

• The Justiciability Debate: The major hurdle for the right to health, as enshrined in Chapter II, is Section 6(6)(c) of the Constitution, which declares that “the judicial powers vested in accordance with the foregoing provisions of this section shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.”

  This clause has historically been interpreted by Nigerian courts to mean that the provisions of Chapter II are not directly enforceable in a court of law. They are seen as moral or political aspirations, rather than legally binding rights that individuals can claim. This “non-justiciability” renders Section 17(3)(d) largely aspirational, leaving citizens without direct legal recourse if the state fails to provide adequate medical facilities.

  Arguments for justiciability emphasize that denying legal recourse for such fundamental needs undermines the very essence of human rights. Proponents argue that a truly democratic and rights-respecting state must provide mechanisms for enforcing all human rights, including socio-economic ones. Conversely, arguments against immediate justiciability often cite resource constraints, judicial overreach (where courts might be forced to make budgetary decisions), and the idea that these rights are subject to “progressive realization” – meaning they are to be achieved gradually over time as resources permit.

  While Nigerian courts have largely maintained the non-justiciable stance on Chapter II, there have been nascent attempts by some legal scholars and human rights advocates to argue for a more liberal interpretation, linking Chapter II provisions to the justiciable rights in Chapter IV.

Implied Rights from Chapter IV (Fundamental Rights)

Chapter IV of the Constitution explicitly lists fundamental rights that are justiciable, meaning they can be enforced in court. Advocates for the right to health often argue that while not explicitly stated, the right to health can be implied from, or is inextricably linked to, several of these fundamental rights:

• Right to Life (Section 33): This is perhaps the strongest link. The argument is that without access to healthcare, the right to life becomes meaningless. A state’s failure to provide essential medical services, especially in emergencies or for preventable diseases, can directly lead to loss of life, thereby violating this fundamental right.
• Right to Dignity of Human Person (Section 34): Lack of access to healthcare, suffering from treatable illnesses without recourse, and living in conditions that severely compromise health can be seen as an affront to human dignity.
• Right to Freedom from Inhuman and Degrading Treatment (Section 34): Similar to dignity, the denial of necessary medical care that results in prolonged suffering or severe disability could be construed as inhuman or degrading treatment.
• Right to Privacy (Section 37): While less direct, this can be linked to the confidentiality of health information and the right to make informed decisions about one’s body and health.

The legal landscape regarding these implied rights is evolving, with some judgments cautiously expanding the scope of justiciable rights to encompass health-related aspects, particularly in cases involving emergency medical treatment.

International Instruments Ratified by Nigeria

Nigeria has ratified several international and regional human rights treaties that explicitly recognize the right to health, including:

• The International Covenant on Economic, Social and Cultural Rights (ICESCR): Article 12 recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
• The African Charter on Human and Peoples’ Rights (Cap A9 LFN 2004): Article 16 states, “Every individual shall have the right to enjoy the best attainable state of physical and mental health.” Crucially, the African Charter has been domesticated into Nigerian law, meaning it is legally binding and enforceable in Nigerian courts. This domestication potentially offers a more direct legal avenue for enforcing the right to health than the provisions of Chapter II of the Constitution. However, the interpretation and application of Article 16 in specific health-related cases remain an area of ongoing judicial development.

The ratification and domestication of these instruments demonstrate Nigeria’s commitment on the international stage to the right to health, even if domestic constitutional hurdles limit its direct enforcement.

3. The Policy Landscape: Government Initiatives and Their Impact

Beyond the constitutional pronouncements, Nigeria has developed various policies and legal frameworks aimed at improving healthcare delivery. These policy interventions represent the government’s practical attempts to fulfill its health obligations.

National Health Act 2014

The National Health Act (NHA) of 2014 is a landmark piece of legislation designed to provide a legal framework for the regulation and management of Nigeria’s national health system. Key provisions include:

• Basic Health Care Provision Fund (BHCPF): A cornerstone of the Act, the BHCPF aims to provide a minimum package of health services to all Nigerians, particularly the vulnerable. It is funded by not less than 1% of the Consolidated Revenue Fund (CRF) of the Federation, as well as grants from international donors and other sources.
• Rights of Users and Healthcare Personnel: The Act explicitly outlines rights of patients, such as the right to information, consent, confidentiality, and emergency medical treatment without immediate payment. It also defines the responsibilities of healthcare providers.
• Emergency Medical Treatment: The Act mandates that no person shall be refused emergency medical treatment by any health establishment, whether public or private, regardless of their ability to pay.

Implementation Challenges of the NHA: Despite its progressive intent, the NHA has faced significant implementation challenges:

• Funding Shortfalls and Delays: The consistent allocation and release of the 1% CRF to the BHCPF have been inconsistent, hindering its effective operation.
• Low Awareness: Many Nigerians, including healthcare professionals, remain largely unaware of the provisions of the NHA and their rights and obligations under it.
• Weak Governance and Coordination: Effective coordination between federal, state, and local governments, as well as with the private sector, remains a challenge.
• Capacity Gaps: Lack of trained personnel and adequate infrastructure at the primary healthcare level undermines the goals of the BHCPF.

National Health Policy

Nigeria’s National Health Policy has evolved over time, with a consistent focus on strengthening primary healthcare (PHC) as the bedrock of the health system. Other focus areas include maternal and child health, control of communicable diseases (e.g., malaria, tuberculosis, HIV/AIDS), and increasingly, non-communicable diseases.

Effectiveness and Gaps: While these policies articulate laudable goals, their effectiveness has been hampered by:

• Inadequate Funding: Despite policy commitments, the health sector consistently receives insufficient budgetary allocations.
• Poor Implementation: Policies often exist on paper but fail to translate into tangible improvements in service delivery due to weak execution, corruption, and lack of accountability.
• Lack of Data and Monitoring: Insufficient data collection and robust monitoring and evaluation systems make it difficult to track progress and hold stakeholders accountable.

Health Sector Reforms and Health Insurance

Various health sector reforms have been initiated, including efforts to promote public-private partnerships and expand health insurance coverage. The National Health Insurance Authority (NHIA) Act 2022 replaced the previous NHIS Act, aiming to make health insurance mandatory for all Nigerians and move closer to universal health coverage. However, challenges persist with low enrollment rates, particularly in the informal sector, and concerns about the quality of services covered.

Budgetary Allocations to Health

A critical indicator of political will and commitment to health is the proportion of the national budget allocated to the sector. In 2001, African heads of state, including Nigeria, signed the Abuja Declaration, pledging to allocate at least 15% of their annual national budgets to health. Nigeria has consistently failed to meet this target, with allocations often hovering around 4-6%. This chronic underfunding is a major impediment to improving healthcare infrastructure, human resources, and service delivery, leading to significant out-of-pocket expenditure for citizens, which pushes many into poverty.

4. Challenges to Realizing the Right to Health in Nigeria

The journey towards a robust realization of the right to health in Nigeria is fraught with multifaceted challenges:

• Chronic Underfunding and Mismanagement: Beyond low allocations, the inefficient use and corruption of existing funds further cripple the health sector. Resources are often diverted, leading to lack of essential drugs, dilapidated equipment, and unpaid salaries for health workers.
• Dilapidated Infrastructure: Many public health facilities, especially at the primary and secondary levels, are in a state of disrepair, lacking basic amenities like water, electricity, and functional equipment.
• Critical Human Resources Deficit: Nigeria faces a severe shortage of healthcare professionals, exacerbated by the “japa syndrome” (brain drain) where doctors, nurses, and other specialists migrate abroad in search of better working conditions and remuneration. The maldistribution of existing personnel, with a concentration in urban areas, further compounds the problem.
• Weak Governance and Accountability: A lack of transparency, weak regulatory frameworks, and insufficient mechanisms for holding government officials and healthcare providers accountable for failures in service delivery undermine trust and hinder progress.
• Geographical Disparities: Access to quality healthcare remains highly uneven, with rural and remote areas often having little to no access to even basic medical services, forcing residents to travel long distances or rely on informal care.
• Socio-cultural Barriers: Traditional beliefs, cultural practices, and gender inequalities can impede health-seeking behaviors and access to modern medical care, particularly for women and children.
• Emerging and Re-emerging Health Threats: Nigeria continuously battles outbreaks of infectious diseases (e.g., Lassa fever, cholera) and faces the growing burden of non-communicable diseases, stretching an already fragile health system.
• Medical Tourism: The exodus of Nigerians, including public officials, seeking medical treatment abroad, further depletes resources and highlights the profound lack of confidence in the domestic health system.

5. Arguments for Constitutionalizing the Right to Health (Making it Justiciable)

For many advocates, making the right to health explicitly justiciable in the Nigerian Constitution is the ultimate goal. The arguments for this position are compelling:

• Enhanced Accountability: If the right to health were justiciable, citizens could directly sue the government for failing to provide adequate healthcare. This would create a powerful legal incentive for the state to prioritize health and allocate sufficient resources.
• Empowerment of Citizens: Justiciability empowers individuals and communities to demand their rights, fostering a culture of rights-consciousness and participation in health governance.
• Prioritization of Health: Elevating health to a fundamental human right in the Bill of Rights would send a strong message about its importance, potentially leading to greater political will and budgetary commitment.
• Alignment with International Norms: Making the right to health justiciable would align Nigeria with a growing number of countries that recognize and enforce socio-economic rights, demonstrating a commitment to international human rights standards.
• Addresses Systemic Failures: Legal challenges could force a systemic review and overhaul of healthcare policies and infrastructure, rather than addressing problems on an ad hoc basis.
• Social Justice: It ensures that access to healthcare is not dependent on socio-economic status but is a universal entitlement, promoting equity and reducing health inequalities.

6. Arguments Against Pure Constitutionalization (and for a Policy-Driven Approach)

While the appeal of constitutionalizing the right to health is strong, some counter-arguments and practical concerns exist:

• Resource Constraints: Critics argue that directly enforcing the right to health could place an unbearable financial burden on the state, especially a developing nation like Nigeria with competing demands on its limited budget. Courts, they contend, are not equipped to make complex budgetary decisions.
• Judicial Overreach: There are concerns that making such a broad right justiciable could lead to judicial activism, where courts effectively dictate public policy and resource allocation, blurring the lines between the judiciary, executive, and legislature.
• Difficulty in Definition and Measurement: Defining what constitutes the “highest attainable standard of health” or “adequate medical facilities” can be subjective and challenging to measure, potentially leading to an influx of vague and difficult-to-adjudicate lawsuits.
• Focus on Process vs. Outcome: Critics suggest that constitutionalization might shift the focus from achieving actual health outcomes to merely ensuring legal compliance, potentially leading to symbolic gestures rather than substantive improvements.
• Progressive Realization: The concept of progressive realization, often applied to socio-economic rights, suggests that these rights are to be achieved gradually over time, subject to the availability of resources. A policy-driven approach allows for this incremental progress, adapting to economic realities.
• Alternative Mechanisms: It is argued that robust policy frameworks, effective implementation, strong regulatory bodies, and public advocacy can achieve similar outcomes without the complexities of constitutional justiciability.

7. Striking a Balance: A Hybrid Approach?

The prevailing sentiment among human rights advocates and many legal scholars is that a pragmatic approach is necessary – one that combines the aspirational power of constitutional recognition with the practical mechanisms of robust policy and effective implementation. This hybrid approach recognizes the interdependence of all human rights and seeks to leverage the strengths of both legal and policy frameworks.

• Interdependence of Rights: It is increasingly recognized that civil and political rights (which are justiciable) are inextricably linked to socio-economic rights. Without basic health, education, and living standards, the exercise of political freedoms can be severely hampered. This interconnectedness provides a basis for courts to interpret existing justiciable rights more broadly to include health dimensions.
• Judicial Activism within Limits: While outright judicial overreach is a concern, courts can engage in “judicial activism within limits.” This means interpreting constitutional provisions in a way that encourages legislative and executive action on health, without necessarily dictating specific budgetary allocations. For instance, courts could rule on the reasonableness of government efforts towards health, or on the absolute minimum core obligations to health.
• Strengthening Legislative Frameworks: Beyond the Constitution, enacting stronger, clearer, and more enforceable legislation that defines health rights and establishes clear mechanisms for redress is crucial. The National Health Act is a step in this direction, but its implementation needs to be vigorously pursued and its enforcement mechanisms strengthened.
• Robust Policy Implementation: Even with a non-justiciable constitutional provision, a government committed to the welfare of its citizens can implement effective health policies. This requires strong political will, transparent governance, efficient resource management, and robust monitoring and evaluation systems.
• Public Awareness and Advocacy: The role of civil society organizations (CSOs), media, and citizen groups is paramount in advocating for the right to health, holding government accountable, and raising public awareness about existing rights and avenues for redress.
• Leveraging International Law: Given the domestication of the African Charter, courts can increasingly refer to its provisions (e.g., Article 16) to guide interpretations of health-related issues, thereby infusing elements of justiciability through international obligations.

8. Recommendations for Advancing the Right to Health in Nigeria

To move beyond the perennial debate and towards a tangible realization of the right to health in Nigeria, several concerted actions are necessary:

• Constitutional Amendment: A long-term goal should be to amend Chapter II of the Constitution to make the right to health (and other socio-economic rights) directly justiciable, perhaps with clear parameters for progressive realization and the state’s minimum core obligations.
• Increased and Prudent Funding: The government must significantly increase budgetary allocations to the health sector, aiming to meet and exceed the Abuja Declaration target of 15%. Equally important is ensuring transparent and efficient utilization of these funds, with strict anti-corruption measures in place.
• Strengthening Health Systems: This involves massive investment in public health infrastructure (hospitals, primary healthcare centers), procurement of modern medical equipment, and ensuring the consistent availability of essential drugs and medical supplies.
• Effective Implementation of the National Health Act: The BHCPF must be fully operationalized and adequately funded, reaching all parts of the country, especially rural and underserved communities. Mechanisms for accountability in its management should be strengthened.
• Human Resources Development and Retention: Urgent measures are needed to train more healthcare professionals, improve their working conditions and remuneration, and create incentives to retain them within Nigeria.
• Accountability Mechanisms: Establish independent oversight bodies, strengthen regulatory agencies, and create accessible grievance redress mechanisms for citizens whose health rights are violated.
• Promoting Health Insurance: Expand the reach and effectiveness of the National Health Insurance Authority (NHIA) Act, ensuring mandatory enrollment and providing a comprehensive package of affordable services.
• Public-Private Partnerships (PPPs): Foster ethical and equitable PPPs to leverage private sector expertise and resources, while ensuring that access and affordability for all citizens remain paramount.
• Community Engagement: Actively involve communities in health planning, monitoring, and evaluation to ensure that health interventions are responsive to local needs.
• Judicial Education and Activism: Encourage and support judicial education on socio-economic rights, so that judges are better equipped to interpret existing laws and international obligations in a manner that promotes health rights. Legal practitioners should also explore innovative legal strategies to push the boundaries of justiciability.

9. Conclusion: Towards a Healthier Nigeria

The debate on whether the right to health in Nigeria is a constitutional or policy matter is not merely academic; it is a profound reflection of the nation’s commitment to the well-being of its people. While the Constitution’s current framework places the right to health largely within the realm of policy objectives, the inherent link between health and other justiciable fundamental rights, coupled with Nigeria’s international obligations, offers avenues for stronger advocacy and judicial interpretation.

Ultimately, a truly healthy Nigeria requires a multifaceted approach. It demands a political leadership unequivocally committed to prioritizing health, enshrined not just in aspirational policy documents but in enforceable legal provisions. It requires robust and transparent financial investment, efficient healthcare systems, and a dedicated, well-compensated workforce. Most importantly, it requires an empowered citizenry, aware of their rights and capable of holding their leaders accountable. Only then can the right to health transition from a distant promise to a lived reality for every Nigerian, fostering a nation where health is not a privilege, but a fundamental entitlement.