Bangladesh University of Professionals

Department of Law
Program: LL.M. (Master of Laws)

Course Title: International Human Rights Law

Course Code: (Law: 5101)
Term Paper: The Right to Health under the African Human Rights System:
Challenges and Way Forward.

Submitted To:
Md. Abu Bakar Siddique
Assistant Professor & Coordinator (LLM-Professional)
Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)

Submitted By:
Masudur Rahman Rana
ID: 2042361045
E-mail: ranalaw65@gmail.com
Date of Submission: 30.06.2020

1
 TABLE OF CONTENTS

Serial List of Contents Page

Number Numbers
 Cover Page 1

 Table of Contents 2

 Abstract 3

1. Introduction 4

2. Outline of the African Human Rights System 4

3. The Right to Health under the African Human Rights System 5

3.1 The Interpretation according to the Guidelines on the ICESCR in Africa 5-6

3.2 The Right to Health in the Practice of the States Parties to the ACHPR 6

4. The African Commission Jurisprudence on the Right to Health 6

4.1 Indivisibility Approach 6-7

4.2 The underlying Determinants of a Health Approach 8

5. Challenges to the realization of the Right to Health in African 9-10

Region
6. Lessons for Bangladesh from the African Human Rights System 11
7. Recommendations 12

8. Conclusion 13

 Bibliography 14-16

2
 Abstract:

The African Human Rights System has three principal mechanisms for protecting human rights
on the continent: a Charter, a Commission and a Court all devoted to Human and Peoples Rights.
The paper analyses the right to health enshrined in Article 16 of the African Charter on Human
and Peoples Rights (ACHPR). In particular, it deals with the effective implementation of the
right to human health in the African countries. The Guidelines on the Economic, Social and
Cultural Rights in Africa, the practice of the African Commission and, mainly, the practice of the
States Parties to the ACHPR help to lead the analysis. As for the State practice, particular
attention is paid to infer some lesson for Bangladesh from the African Human Rights System.
Its central analysis is, the right to health system is rather weak, still violated in numerous African
countries and therefore needs to be reformed. Thereafter, it explores its weaknesses, challenges
and proposes strategies for their reform. Primary and secondary data has been used to complete
the paper through qualitative method. Thus the main objective of this paper is to give an
overview of the complete scenario of the right to health under the African Human Rights system,
to make this paper useful for researchers, planners, administrators and people concerned with the
enactment and enforcement of law.

Key Words: Africa, Right to Health, Charter, Violation, Enactment, Enforcement, Challenges,
Bangladesh, Guidelines.

3
 1. Introduction:
The concept of human rights has become universal. The right to health is the economic, social,
and cultural right to a universal minimum standard of health to which all individuals are entitled.
The concept of a right to health has been enumerated in international agreements which include
the Universal Declaration of Human Rights, International Covenant on Economic, Social and
Cultural Rights, and the Convention on the Rights of Persons with Disabilities.1 There is debate
on the interpretation and application of the right to health due to considerations such as how
health is defined, what minimum entitlements are encompassed in a right to health, and which
institutions are responsible for ensuring a right to health. The human right to health is not part of
customary international law. In this regard, it is worth remembering Article 16 of the ACHPR,
on the African regional level. However, enforcement and implementation of human right to
health norms embodied in the African Human Rights system remains a challenge.

2. Outline of the African Human Rights System:

The African Continent established its own regional human rights system through the ACHPR,
adopted during the eighteenth assembly of the Heads of States and Governments of the
organization of African Unity, which took place in Nairobi (Kenya), 1981.2 At present, all the
African States are Parties to the ACHPR, the only exception being the Kingdom of Morocco.3
The African Courts4 decisions are binding on states. Under the current structure, only the African
Commission and states have direct access to the African court. Individuals and NGOs do not
have direct access to it. They can only get direct access to the African court if states make a
declaration to that effect.

1
Right to Health: <https://en.wikipedia.org/wiki/Right_to_health> accessed on 23 June, 2020
2
F Ouguergouz: The African Union: ‘Legal and Institutional Framework’ (2012) pp 25-26
<https://brill.com/view/title/21102> accessed on 22 June, 2020
3
T Maluwa: ‘The Kingdom of Morocco and The African Unity’
<https://www.jstor.org/stable/resrep12679?seq=1#metadata_info_tab_contents> accessed on 22 June, 2020
4
Frans Viljoen: Human Rights for Africa and Africans (2004) p 74 <https://ijrcenter.org/regional/african/> accessed
on 22 June, 2020

4
 3. The Right to Health under the African Human Rights System:
Under the African human rights system, the first attempt to guarantee the right to health is found
in Article 165 of the African Charter. Article 16 of the Charter provides as follows:

1. Every individual shall have the right to enjoy the best attainable state of physical and mental
health.
2. State Parties to the present Charter shall take the necessary measures to protect the health of
their people and to ensure that they receive medical attention when they are sick.

From this provision it is clear that slight differences exist in the language used when compared
with that of Article 12 of the ICESCR. First, while the provision of the ICESCR is addressed to
states (duty-bearers), the first part of Article 16 of the African Charter focuses on ‘every
individual’ (right-holders).

3.1 The Interpretation according to the Guidelines on the ICESCR in Africa:

The Guidelines and Principles on ESC Rights in the ACHPR are a soft law instrument.6 They
aspire to inform the African States on how to implement the ‘second generation’ human rights
proclaimed in the ACHPR.7 According to the Guidelines,8 the human right to health does not
simply mean that everyone has the right to be healthy. It entails the right of each person to
benefit from the underlying determinants of health, which include: access to safe and potable
water; adequate supply of safe food; healthy housing, occupational and environmental
conditions; access to health-related education and information, including sexual health; and the
freedom from unwarranted medical treatments. As a consequence, the States parties to the
ACHPR have an obligation to supply their populations with all the aforementioned determinants

5
The African Protocol on Women’s Rights comes into force (2006) Journal of African Law 72
<https://www.jstor.org/stable/27607957?seq=1> accessed on 24 June, 2020
6
Cherubini Curier: ESC Rights and the African Charter (2013) <https://brill.com/view/journals/hrlr/4/2/article-
p147_1.xml?language=en> accessed on 24 June, 2020
7
C Tomuschat: Human Rights: Between Idealism and Realism (3rd Edition, Oxford University Press, 2nd Edition,
2013) p 26
8
Javaid Rahman: International Human Rights Law (Pearson Education Limited, 1 st Edition, 2003) p 246

5
of health. The guidelines add that each State must have an effective healthcare system, accessible
to all. Then, they require special attention for vulnerable groups, without any discrimination in
the fruition of health services.

3.2 The Right to Health in the Practice of the States Parties to the ACHPR:
The majority of the African States do not fulfill the obligations which the human right to health
under lie. It is worth remembering the following data: one out of every eight children born in
sub-Saharan Africa dies before the age of five; there are nearly 9 million under-five deaths
worldwide, half of them in Africa; the maternal mortality rate in the continent is abysmal; Africa
leads the rest of the world in deaths resulting from HIV/AIDS, malaria and other preventable
diseases; and life expectancy has plummeted to 45 years, worse than anywhere else. 9 In general,
the majority of the African States do not implement their obligations arising from the human
right to health.10

4. The African Commission Jurisprudence on the Right to Health:

The African Commission has adopted two approaches to deal on the right to health issue-
indivisibility and underlying determinants- to interpreting the right to health provisions in the
African Charter. This part of the paper discusses some of these cases and their relevance for
advancing the right to health in the region.

4.1 Indivisibility Approach:

During the Vienna Program of Action the international community resolved that all human
rights- CP and ESC are universal, interrelated, interdependent and indivisible.11 The indivisibility
approach to human rights became necessary due to the artificial classification of rights as first

9
United Nations Millennium Development Goals (2015) <www.un.org/millenniumgoals> accessed on 22 June,
2020
10
Nnamuchi Ortuanya: The Human Right to Health in Africa and Its Challenges: A Critical Analysis of
Millennium Development Goal 8 (African Human Rights Law Journal, 2012) p 178
11
Ebenezer Durojaye: The approaches of the African Commission to the right to health under the African Charter
(Community Law Centre, 2014)

6
generation and second generation. This unnecessary classifications of rights accords first
generation rights (CP) more importance than second generation rights (ESC).

SERAC v Nigeria [2001],12 the African Commission found that the Nigerian government was in
violation of Articles 4 (right to life), 16 (right to health), and 24 (right of peoples to a satisfactory
environment), amongst others. The Commission held that the right to enjoy the best attainable
state of physical and mental health enunciated in Article 16(1) of the African Charter and the
right to a general satisfactory environment favourable to development obligate governments to
desist from directly threatening the health and environment of their citizens.

Purohit and others v Gambia [2001],13 the Commission has explained that the right to health
includes access to health facilities, goods and services on a non-discriminatory basis and that
denial of medical attention to people suffering from mental disability will violate the non-
discrimination provision of the African Charter.

In Sudan the Human Rights Defenders case [2017],14 three human rights activists had been
arrested and tortured because they were suspected to have cooperated with the International
Criminal Court in the well-known affair concerning President Omar al-Bashir. They suffered
both physical and mental injuries. In its final report, the African Commission specified that the
human right to health also entails the right to be free from torture and other forms of ill-
treatment.

12
The Social and Economic Rights Action Center v. Nigeria [2001] Reference Number 155/96
13
Purohit and others v Gambia [2001] Communication Number 241

14 Human Rights Defenders case [2017] Reference Number 147/83

7
4.2 The underlying Determinants of a Health Approach:
The Committee15 on ESCR in its General Comment 14 has explained that the right to health is an
inclusive right limited not only to timely and appropriate health care but including underlying
determinants of health, such as, safe food, nutrition and housing, healthy occupational and
environmental conditions, and access to health related education and information.

The African Commission has attempted to adopt this approach in a number of cases. For
instance, in the Free Legal Assistance Group v. Zaire [1995],16 the Commission noted that the
failure of the Government to provide basic services, such as, safe drinking water and electricity,
and the shortage of medicine amounts to a violation of Article 16.
In Sudan Human Rights Organization v. Sudan [2009],17 the Commission noted that the right
to health extends not only to timely and appropriate health care services but also to the
underlying determinants of health, such as, access to safe and portable water, an adequate supply
of safe food, and nutrition. This is a bold step by the Commission that deserves commendation.

Some lessons can be learnt from the jurisprudence of the South African constitutional court with
regard to the reasonableness test in socio-economic rights cases. For instance, in the Minister of
Health and others v. Treatment Action Campaign and others [2002],18 where the
constitutional court held it to be unreasonable government policy to limit nevarapine to a few
public hospitals on account of its inefficacy and lack of capacity to properly manage the
prevention of mother-to-child transmission of HIV programme. According to the Court, these
excuses were untenable and tended to undermine the constitutional right to health of HIV
pregnant women and their unborn babies. While the Court observed that the constitutional
obligations to achieve the right to health should be progressively realized, it nonetheless
reasoned that policies that fail to address the urgent need of vulnerable and marginalized groups
in society cannot be said to be reasonable.

15
Ibid, p 6
16
Free Legal Assistance Group and others v. Zaire [1995] Communications 25/89, 47/90, 56/91, 100/93
17
Sudan Human Rights Organization and another v. Sudan [2009] Comm. No. 279/03-296/05
18
Minister of Health and others v. Treatment Action Campaign and others [2002] 5 SA 721 (CC)

8
 5. Challenges to the realization of the Right to Health in African Region:
Africa is faced with different health challenges ranging from the devastating effects of the
HIV/AIDS pandemic, high maternal mortality, and deaths resulting from tuberculosis, to
repeated cases of malaria. Today, African remains the greatest burden-bearer of sexual and
reproductive ill health. While the region accounts for about 15% of the world’s population, it is
home to about 70% of the total number of people living with HIV worldwide.19 According to
UNAIDS, about 23 million out of the 34 million people living with HIV worldwide are from
Africa.20 Worse still, ten of the worst places for a woman to give birth in the world are in
Africa.21 The maternal mortality rates in some countries, such as, Chad and Somalia, are about
1,000 deaths to 100,000 live births.22 These are the challenges below for the realization of the
right to health in the African region.

i. Non justiciability of the Right to Health: Very few countries (including South
Africa and Kenya) have explicitly recognized the right to health as legally
enforceable in their national constitutions.23
ii. Access to the health care services, medical products and technologies: The most
common barriers in this region is to access to the health care services, medical
products and technologies.
iii. Remedies and enforcement of decisions:24 The African Court has power to enforce
its judgments against States that have violated the provisions of the African Charter,
ratified by States concerned through its binding nature.

19
Ibid, p 6
20
UNAIDS: AIDS Epidemic Report (2018) <https://www.unaids.org/globalreport/> accessed on 24 June, 2020
21
Save the Children: State of the World’s Mothers Report (2015)
<https://en.wikipedia.org/wiki/Save_the_Children_State_of_the_World%27s_Mothers_report> accessed on 24
June, 2020
22
WHO, UNICEF and UNFPA: Trends in Maternal Mortality: 2000 to 2017 (2017)
<https://data.unicef.org/resources/trends-maternal-mortality-2000-2017/> accessed on 24 June, 2020
23
Fuller L ‘The forms and limits of adjudication’ (Harvard Law Review, 1978) p 353
24
The Guardian “Healthcare spending around the World: Country by country”
<http://www.theguardian.com/news/datablog/2012/jun/30/healthcare-spending-world-country> accessed on 23 June,
2020

9
 iv. Lack of resources or underfunding: Due to the weak economies of many of its
member states, the AU has failed to meet its financial obligations on health matters.
v. Coverage and accessibility: It is not clear whether many African people are aware of
the remedies available to them through these sub-regional courts. And it is hard to
imagine that many people could not ever afford the legal costs to seek redress for
violations of their rights.
vi. Lack of political will: Africa have lacks of the human and natural resources to meet
the health needs of its people but due to a lack of political will on the part of African
leaders.
vii. Corruption and the right to health: Transparency International25 shows that over
half of East Africans polled admitted to having paid bribes to access public services
that would have been otherwise freely available.
viii. Lack of independence and impartiality: The African Charter does not mention the
word ‘independence’.26
ix. Lack of professionalism: One way in which many of the staffing personnel are non
Africans, sometimes student without knowledge on the African human rights system,
and necessary experience.

These are the main challenges to the realization of the right to health in the African Region. The
challenges mentioned above are not insurmountable; efforts have been made since the adoption
of the African Charter and such prospects are good for the protection and promotion of human
rights in Africa.

25 Transparency International 2009

<http://www.transparency.org/news_room/latest_news/press_releases_nc/2009/2009_07_02_kenya_index>accessed
on 26 June, 2020
26
African Charter on Human and Peoples Rights
<https://en.wikipedia.org/wiki/African_Charter_on_Human_and_Peoples%27_Rights> accessed on 26 June, 2020

10
6. Lessons for Bangladesh from the African Human Rights System:
In the context of right to health, situations in African states and Bangladesh are almost same,
both of its have such vulnerable conditions. The prime concern of the government commitment
and desire is for better provision of health service for the masses, the practical scenario is not
good enough. It is disheartening and gloomy. The present health system has not succeeded to
materialize and to realize the vision enunciated in government plans, policies and programmes. It
is only able to provide basic services for about forty percent of the population, which indicates
that the rest are unable to access the health system, and this may be regarded as a violation of
human rights. The state has largely failed to respect, fulfill, protect and to promote basic human
rights. According to UDHR, ICESCR and the Bangladesh Constitution, it is the obligation of the
State to institute policies to address human development, which realize human dignity and thus
help to promote human rights.
The Irish Constitution of 1937 had introduced the constitutional model of protection of
economic, social and cultural rights as judicially unenforceable principles. Bangladesh has
followed this Irish model in recognizing ESC rights in its constitution.27 However, in African
region South African constitution incorporated, ESC rights are protected as judicially
enforceable principles just like civil and political rights.
In this Covid-19 situation, Bangladesh Supreme Court has held that a denial of treatment to a
patient will constitute as criminal offence.28 Bangladesh can learn from the reasonableness test
approach of the South African constitutional court from the African region. This approach may
serve as an effective accountability mechanism in assessing the commitment of a state towards
meeting its obligations under the African Charter. The question to be asked is not how much
resources are available to a state but how reasonable are the steps and measures taken by it to
fulfill its right to health obligations.

27
Muhammad Ekramul Haque: In Search of Origin of Recognition of Economic and Social Rights as Constitutional
Principles: From Ireland to Bangladesh (Dhaka University Law Journal, Vol. 23, No. 2, 2012)
28
‘No patient can be denied treatment at any hospital: HC’ The Daily Star (June 15, 2020)
<https://www.thedailystar.net/no-patient-can-be-denied-treatment-any-hospital-hc-1914777> accessed on 25 June,
2020

11
7. Recommendations: Suggestions regarding prospects of right to health in the African
region are stated below:

i. The African Commission can learn from the reasonableness test approach of the South
African constitutional Court.

ii. The existing enactments, which directly or indirectly relate to the problem of right to
health in African region, are found inadequate to preserve the right of the peoples. So,
here need some special enactments for this region.

iii. Existing laws and policies should be implemented and executed properly and law
enforcing authority should give special focus on right to health measures.

iv. The African Charter does not protect the right to an adequate standard of living, the right
to rest and leisure. That is very much necessary to live as a human being.
v. For improving health sector, need such management of the capitals invested by the
international donors for the development of the African welfare.
vi. African States should have a strong political will and determination to solve the
problems.
vii. African States of their obligations to respect, protect and fulfill the right to health in the
context of access to medicines. They must ensure availability, accessibility, acceptability
and quality health care services to all, giving special attention to the needs of vulnerable
and marginalized groups.
viii. It is imperative that all efforts adopted by the African governments towards curbing the
spread of HIV must be respectful of individuals human rights.

ix. Africa has continued to bear the largest burden of maternal deaths and injuries in the
world with many African countries listed among those that have not made appreciable
effort to address maternal mortality. Worried by the situation of maternal deaths, that it
should be declared a state of emergency in Africa.

12
 8. Conclusion:
The findings of this paper leads us that conclude that despite the various provisions made by
Member States, a lot needs to be done towards the full realization of the right to health in the
African Region. Member States are encouraged to review their legislation and policies to assess
their consistency with human rights standards, and put in place institutional mechanisms that will
ensure their implementation and enforcement. Member States should endeavor to implement the
primary health care approach and define the minimum essential components of the right to health
to include equitable access to, and distribution of, health facilities, goods and services, maternal
and child health services, access to health-related education and information and the availability
of appropriately trained health personnel. Together with these, countries should provide
sufficient budgetary allocations for healthcare provision and reduce gender-related inequities by
systematically integrating a gender-based approach in the development of health sector strategies
and other national policies. Member States should adopt participatory process, and in conformity
with human rights principles identify multi-sectoral collaboration mechanisms between all
relevant government ministries, parliamentary committees (where they exist), national human
rights institutions and civil society to: identify and address the specific healthcare needs of
vulnerable and marginalized populations; increase the public awareness of this right; and monitor
its implementation.

13
 Bibliography:

o Primary Sources:

Cases:

• Free Legal Assistance Group and others v. Zaire [1995] Communications 25/89, 47/90,
56/91, 100/93
• Human Rights Defenders case [2017] Reference Number 147/83
• Minister of Health and others v. Treatment Action Campaign and others [2002] 5 SA 721
(CC)
• Purohit and others v Gambia [2001] Communication Number 241
• Sudan Human Rights Organization and another v. Sudan [2009] Comm. No. 279/03-
296/05
• The Social and Economic Rights Action Center v. Nigeria [2001] Reference Number
155/96

Statutes:

• African Charter on Human and Peoples Rights, 1981

• International Covenant on Civil and Political Rights, 1966
• International Covenant on Economic, Social and Cultural Rights, 1966
• Universal Declaration of Human Rights, 1948
• The Constitution of Bangladesh, 1972
• The Constitution of Ireland, 1937
• The Constitution of South Africa, 1996

o Secondary Sources:

Books:

• Christian Tomuschat: Human Rights; Between Idealism And Realism (2003) p 22

• C Tomuschat: Human Rights: Between Idealism and Realism (3rd Edition, Oxford
University Press, 2nd Edition, 2013) p 26

14
 • Javaid Rahman: International Human Rights Law (Pearson Education Limited, 1st
Edition, 2003) p 246

Encyclopedias:
• Right to Health: <https://en.wikipedia.org/wiki/Right_to_health> accessed on 23 June,
2020

Journal Articles:
• Cherubini Curier: ESC Rights and the African Charter (2013)
<https://brill.com/view/journals/hrlr/4/2/article-p147_1.xml?language=en> accessed on
24 June, 2020
• Ebenezer Durojaye: The approaches of the African Commission to the right to health
under the African Charter (Community Law Centre, 2014)
• F Ouguergouz: The African Union: ‘Legal and Institutional Framework’ (2012) pp 25-26
<https://brill.com/view/title/21102> accessed on 22 June, 2020
• Frans Viljoen: Human Rights for Africa and Africans (2004) p 74
<https://ijrcenter.org/regional/african/> accessed on 22 June, 2020
• Fuller L ‘The forms and limits of adjudication’ (Harvard Law Review, 1978) p 353
• Muhammad Ekramul Haque: In Search of Origin of Recognition of Economic and Social
Rights as Constitutional Principles: From Ireland to Bangladesh (Dhaka University Law
Journal, Vol. 23, No. 2, 2012)
• Nnamuchi Ortuanya: The Human Right to Health in Africa and Its Challenges: A
Critical Analysis of Millennium Development Goal 8 (African Human Rights Law
Journal, 2012) p 178
• Nsongurua J. Udombana: Toward the African Court on Human and People’s Rights:
Better Late Than Never (Yale Human Rights & Dev. L.J., 2000) pp 45, 48
• T Maluwa: ‘The Kingdom of Morocco and The African Unity’
<https://www.jstor.org/stable/resrep12679?seq=1#metadata_info_tab_contents> accessed
on 22 June, 2020

15
Website and Blogs:
• African Charter on Human and Peoples Rights
<https://en.wikipedia.org/wiki/African_Charter_on_Human_and_Peoples%27_Rights> accessed
on 26 June, 2020
• UNAIDS: AIDS Epidemic Report (2018) <https://www.unaids.org/globalreport/>
accessed on 24 June, 2020
• United Nations Millennium Development Goals (2015)
<https://www.un.org/millenniumgoals> accessed on 22 June, 2020
• Save the Children: State of the World’s Mothers Report (2015)
<https://en.wikipedia.org/wiki/Save_the_Children_State_of_the_World%27s_Mothers_
report> accessed on 24 June, 2020
• The African Protocol on Women’s Rights comes into force (2006) Journal of African
Law 72 <https://www.jstor.org/stable/27607957?seq=1> accessed on 24 June, 2020
• Transparency International 2009
<http://www.transparency.org/news_room/latest_news/press_releases_nc/2009/2009_07_
02_kenya_index>accessed on 26 June, 2020
• WHO, UNICEF and UNFPA: Trends in Maternal Mortality: 2000 to 2017 (2017)
<https://data.unicef.org/resources/trends-maternal-mortality-2000-2017/> accessed on
24 June, 2020

Newspaper Articles:
• ‘No patient can be denied treatment at any hospital: HC’ The Daily Star (June 15, 2020)
<https://www.thedailystar.net/no-patient-can-be-denied-treatment-any-hospital-hc-
1914777> accessed on 25 June, 2020

16