Right to health

Human rights are interdependent, indivisible and interrelated, and the distinction between civil and political rights, as catalogued in the International Covenant on Civil and Political Rights (ICCPR), as well as economic and social rights, as provided in the International Covenant on Economic, Social and Cultural Rights (ICESCR), is a practical one, having to do with state obligations under the two covenants.

Whilst a state’s obligation in terms of honouring the rights in the ICCPR is immediate, state obligation, with regard to implementing ICESCR, is one of progressive realisation.

This is essential because it is generally accepted that rights detailed in the ICESCR are more resource-oriented than those prescribed in the ICCPR. With this brief clarification of the rights in ICCPR and ICESCR done with, we continue to the subject of today’s article: the right to health.

The right does not mean the right to be healthy, as no human right can possibly guarantee that. We live in a world where, due to lifestyle behaviours, the constituent DNA of people, the inevitability of disease, accidents, famine, etc., people are bound to fall ill at some stage.

No state can, therefore, guarantee citizens an unconditional right to be healthy. What the right to health connotes in international human rights law is that everyone shall have a right to the highest attainable standard of health.

Accordingly, the right to the highest attainable standard of physical and mental health has been given legal status in the ICESCR, as well as the other treaties. Article 12 (1) and Article 12(2) are an amalgam of rights and entitlements which together ensure the enjoyment of the rights guaranteed therein.

Citizens are given the freedom, for example, to preferred sexual and reproductive rights, as well as from freedom from undue and illegal interference.

Obligation

State obligation to the attainment of the rights as provided in Article 12(2) ICESCR: (a) the provision for the reduction of stillbirth rate and of infant mortality and for the healthy development of the child; (b) the improvements of all aspects of environmental and industrial hygiene; (c) the prevention, treatment and control of epidemic, endemic occupational and other diseases; (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

The HRC of the UN has provided a General Comment on the right to health. As previously explained in these columns, General Comments clarify the content of rights provided for in treaties, outlining potential violations and providing guidance on ways of complying with a state’s obligations under a treaty.

General Comment 14 specifically explains the scope and extent of the right to health as provided in the ICESCR: Availability, Accessibility, Acceptability and Quality.
Availability means the existence of a sufficient quantity of functioning health facilities across the country.

On accessibility, all these health facilities have to be accessible to everyone within the country. There are four interrelated aspects of accessibility: non-discrimination, physical accessibility (in person), economic accessibility (affordability) and information accessibility (the right to seek, receive and impart information and ideas concerning health issues).

Regarding quality, the right implies that all health facilities, goods and services must be scientifically and medically appropriate and of good quality. This involves the requirement for skilled medical personnel, scientifically approved and unexpired drugs, appropriate hospital equipment, safe and potable water and adequate sanitation.

The accessibility element of the right to health enjoins states to have all health facilities, goods and services be respectful of prevailing ethics, as well as being culturally sensitive to gender and life-cycle requirements.

The import of all these is that every citizen should have a right to access a quality healthcare facility on a non-discriminatory basis, regardless of social or economic background in times of sickness.

There also have to be conditions that will allow the enjoyment of good health – proper sanitation, potable water and the availability of highly qualified health personnel.

Just like all the other economic, cultural and social rights, states are enjoined to adopt and implement a national public health strategy and plan of action based on epidemiological evidence that addresses the health concerns of all.

There is no explicit right to health provided under the 1992 Constitution. However, as a starting point, advocates and rights activists can, in my opinion, litigate via the non-discriminatory clause in the Constitution, at least, concerning the uneven availability of good quality health services, potable water and sanitation across the country.

The growing jurisprudence of the African Human Rights Commission could be instructive.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com