Ensuring the Realization of the Right to Health Through the African Union (AU) System: A Review of Its Normative, Policy and Institutional Frameworks

Abstract

The African continent has been and continues to be at the epicentre of a global public health crisis. Each year millions of lives in the continent continue to be wasted from diseases preventable with relative ease such as malaria, diarrhoea, tuberculosis (TB), pneumonia, measles, HIV/AIDS, malnutrition, etc. It is the continent where individuals have the lowest life expectancy in the world by any standard of measures. Maternal, under-five and adult mortality rate is the highest in the world. Evidence also show that the continent, sub-Saharan region in particular, is the most food insecure part of the world where over one in four persons are undernourished. In spite of these staggering facts, Africa’s average total expenditure on health is one of the lowest in the world. The continent hosts poorly resourced health infrastructures and systems. Ordinary individuals, especially vulnerable persons, in the continent have the least possible access to health care and the underlying determinants of health as well as to other related social protection mechanisms such as social security and health insurance. These all raise very serious issues with the obligations of the States Parties to ensure the right to health for everyone within their jurisdictions. This contribution has accordingly the following two main objectives. The first is to identify the underlying obstacles to the realization of the right to health in the continent. In this respect, it particularly asks the extent to which the alleged lack of resources can be said to explain the inaccessability of health care and the underlying determinants of health. The second is to describe the relevant legal, policy and institutional frameworks available at the African Union (AU) level with the view to assessing their effectiveness in ensuring the right to health. In this regard, it is asked if and to what extent the two principal human rights organs of the AU with remedial powers, the Court and Commission, are able to practically hold the Member States accountable for their gross failures in realizing the right to health. Overall, it emerges from the discussion that the violation of the right to health in the continent is only a mirror of persistent socioeconomic injustices mainly resulting from lack of systemic accountability. This suggests that it is impossible to ensure the effective realization of the right to health without first addressing the structural accountability deficits not just in the health sector but also in the respective socioeconomic and political systems of the Member States as a whole.

PhD Candidate, Dept. International and Constitutional Law, University of Groningen, The Netherlands and Lecturer, Jimma University, Ethiopia. I would like to thank Toebes and Nnamuchi for their insightful comments; and Koleva for her worthwhile contribution to the editorial works. Any errors or mistakes whatsoever, however, remain on my shoulder. For reactions and comments the author can be reached through the below e-mail addresses.

There is still an enormous gap between the rhetoric of African governments, which claim to protect and respect human rights and the daily reality where human rights violations remain the norm.

[…]

So many people are living in utter destitution; so few of them have any chance to free themselves from poverty. Their dire situation is exacerbated by the failure of governments in the Africa region to provide basic social services, ensure respect for the rule of law, address corruption and be accountable to their people.¹

1 Introduction

It would not take much effort to appreciate the extremely severe problem of poor health in Africa. Facts and figures abound and each source confirms that Africa has been and is still at the epicentre of a global public health crisis. The life expectancy in Africa is unacceptably the lowest in the world by any standards of measures.² According to one of the recent WHO reports, for instance, the average life expectancy in the continent was 53 years (against 68 years of global average) in 2008. Adult mortality rate (described as the probability of dying between 15 and 60 years per 1,000 population) was 392 (globally 180) in 2008. The distribution of disease burden estimated by percentage of total Disability Adjusted Life Years (DALYs) per 2004 data shows that over 70 per cent of deaths occurred from communicable diseases (compared to global average of 39.7 per cent) of which infectious and parasitic diseases such as HIV/AIDS, diarrhoea, malaria, TB accounted for the largest proportion.³ Most Africans have the least possible access to basic goods and services: there are few health and other social services available to the population at large.⁴ They are also the least protected against socioeconomic causes of vulnerability such as sickness, unemployment, low income, ageing, drought, famine, etc., because there are no or insufficient social protection mechanisms it was, for instance, estimated in the World Health Report 2010 that only between 5 and 10 per cent of the population were covered by some form of social protection systems.⁵

Ill-health and related impoverishments due to lack of access to basic health entitlements disproportionately affects those vulnerable parts of the population in Africa such as children, women, the poor and rural population (note that the majority of the African population live in rural areas mostly on subsistence farming). For instance, under-five and maternal mortality still remain to be grave concerns for most countries in the continent. This was shown in one of the most recent reports concerned with assessing Africa’s progress towards MDGs.⁶ According to this report, of 26 countries worldwide with under-five mortality rates above 100 deaths per 1,000 live births in 2010, 24 were in Africa.⁷ Sub-Saharan Africa was the worst in this regard where ‘one in around eight children die before the age of five (121 deaths per 1,000 live births)’ and this was ‘nearly twice the average in developing countries overall and more than 17 times the average in developed countries’.⁸ The report also shows an unacceptably high rate of maternal mortality: the continent’s average mortality ratio (MMR) was said to be 590 deaths per 100,000 live births in 2008. ‘This means that, in 2008, a woman in Africa died as a result of pregnancy or childbirth every 2.5 min–24 h, 576 a day, and 210,223 a year.’⁹

The Africa Human Development Report, the first of its kind, can also help us to see the dire situation of health impoverishment through the prism of food insecurity in the continent which is, again, most severely affecting the vulnerable parts of the population. In particular, this is most severe in sub-Saharan Africa, the most food insecure part of the world, where it continues to impoverish the health of the population. As it states

For too long the face of sub-Saharan Africa has been one of dehumanizing hunger. More than one in four Africans is undernourished, and food insecurity—the inability to consistently acquire enough calories and nutrients for a healthy and productive life—is pervasive. The spectre of famine, which has virtually disappeared elsewhere in the world, continues to haunt parts of sub-Saharan Africa. Famines grab headlines, but chronic food insecurity and malnutrition are more insidious, often silent, daily calamities for millions of Africans.¹⁰

Paradoxically, the average proportion of expenditure on health is the lowest in the world, which does not reflect the state of ill-health in the continent.¹¹ It was in 2001 that the African leaders promised to increase the average national health expenditure on health to 15 % of the annual national budget by 2015¹² but only negligible number of countries has met or is on track to meet the target.¹³

These alarming figures raise very serious questions with respect to the international human rights obligations of the AU and its Member States. They particularly compel us to question the relevance and effectiveness of the international mechanisms for the protection of human rights mechanisms in Africa. Narrowing this question to the context of the right to health, the following discussion provides a review of the normative, policy and institutional frameworks in place at the AU level for the realization of the right to health in the continent. The following discussion shows that a great majority of countries in Africa are parties to numerous major international (that is, global and continental) human rights instruments providing for the right to health.¹⁴ There have also been series of global and continental policy initiatives and commitments concerned with addressing the health situation in the continent including the most recent AU Social Policy Framework adopted in 2008. Nevertheless, only very little has been achieved on the ground.¹⁵

Several factors can be blamed for such gross infectiveness and failures. Resource constraint (scarcity), poor socioeconomic conditions, lack of infrastructure development and poverty are among commonly cited factors impeding the realization of the right to health in the continent. This, however, sharply contradicts with overwhelming evidence indicating, for instance, the presence of abundant resources and endemic corruption. This author argues that the major underlying reason behind gross failures in ensuring the right to health has more to do with systemic, structural problems and less with scarcity. In making this argument, the author proposes to analyse the right to health in terms of three key pillars of protections that it guarantees under international law: the right to freedom of choice, basic health entitlements and access to justice. This approach provides us with very helpful framework in appreciating the extent to which the alleged lack of material resources could in fact be blamed for violation of the right to health in the continent. Accordingly, it will be seen that the obligation to ensure the first two key pillars falls within the elementary institutional responsibility of the State and by no means could be blamed on lack of resource constraints. Admittedly, ensuring the second element may involve substantial resource investment but this is not always the case. Not all the State Party failures in this respect can be attributed to the problem of scarcity as such.

The discussion, then, continues to ask if there exist strong and effective legal mechanisms, enforcement measures, so as to deal with the problem identified therein. In relation to this, the discussion proceeds from the basic normative principle regarding the responsibility of intergovernmental organizations like the AU which have joint responsibilities with its Member States for the protection of human rights in the continent. These responsibilities of the AU are clearly enshrined in its Constitutive Act and other relevant continental and global human rights treaties; that is, it is both a matter of constitutional and international legal responsibility for the AU to ensure the effective protection of human rights in the continent.¹⁶ From this follows the obligation to ensure the existence and effective functioning of legal mechanisms to redress (potential) violations of human rights at the continental level. In this regard, the discussion assesses if and the extent to which the Court and Commission, the two principal human rights organs of the AU with remedial powers, have been playing meaningful role in addressing the problem of structural accountability in the continent. For reasons to be seen, the finding in this respect is quite disappointing.

Overall, by engaging in such a comprehensive review of legal, policy and institutional frameworks and practices of the protection of the right to health through the AU systems, this contribution intends to provide a useful insight into the underlying factors paralysing global and continental efforts to improve conditions resulting from systematic exclusion, marginalization and impoverishment. To this extent, it particularly aims to inform, from the perspective of the right to health, future academic and policy debates concerning the collective international responsibilities of the AU and its Member States in ensuring the realization of human rights and basic social justice in Africa.

2 Human Dignity, the Right to Health and Social Justice

But before proceeding to the review of the realization of the right to health through the AU system, the overarching theoretical arguments inspiring this discussion as regards the normative foundation and implications of the right to health in general are discussed. The objective here is to show how fundamental it is for individuals to have their right to health respected and, correspondingly, how compelling it is on the part of the State to ensure, in certain respects as a matter of priority, the right to health for everyone within its jurisdiction. The principal argument is that the right to health directly flows from the principle of respect for human dignity.¹⁷ It is notable that international human rights law provides human dignity as the foundational normative principle¹⁸ of all human rights. Thus, all persons have equal and inalienable rights derived from the inherent dignity of human being solely because they are all born free and equal in dignity and the rights thereof and that the recognition of this is the foundation of freedom, justice and peace in the world.¹⁹

But what does the principle of human dignity practically entail? There seems to be a general consensus that the concept of human dignity in human rights law refers to the inherent value that everyone possesses just by virtue of being a human person and hence worthy of unconditional respect;²⁰ an ‘intrinsic’, ‘unconditional’, ‘incomparable’, ‘transcendental’ value of humanity.²¹ It is possible to construe the term ‘by virtue of being a human person’ as meaning by virtue of being a biological and moral person because a human being has, in essence, a biological and moral existence. This means the value of dignity pertains equally and inseparably to both the biological and moral aspects of humanness.²² As having both the biological and moral existence, every person has equal and inherent needs required to live and function as such.²³ Based on this we can say that the core and primary essence of the principle of human dignity concerns the safeguarding of the physical and moral inviolability (respect-worthiness, respectfulness) of a person by asserting respect for the inherent being and needs of every person.²⁴ The ideal of respect signified by human dignity itself has both negative and positive aspects. In the negative sense, it implies a prohibition of actions or behaviours infringing upon the inviolability of a human being. Whereas in the positive sense it prescribes a performance of positive actions required to ensure the inviolability of the same.²⁵ This shows that the principle of respect is the conceptual and normative essence of the notion of human dignity; in fact, it can be argued that without this ideal of respect there would not be any substantive meaning of human dignity as such.²⁶

This brings us to the next important question: how does this principle of respect for human dignity inform our understanding of the nature of the right to health—that is, the nature of freedoms and entitlements that it guarantees and the State obligations thereof? My argument in this respect proceeds in two steps. The first pertains to the foundation of the normativity of the right to health and the second to general overarching aim of socioeconomic rights, where the right to health is provided as one among such rights. Ultimately, we arrive on the conclusion that, in the context of the right to health, respect for the dignity of human being means respect for those basic biological and moral health needs of everyone. In practical terms, this entails the realization of the right to health care and its underlying determinants in strict accordance with the principle of social justice.

2.1 The Normativity of the Right to Health

With regard to the first point, it is needless to say that many have discussed at great length the meaning and implications of the right to health under international law.²⁷ It is not my intention to repeat those discussions here but to state the nature of the normativity of the right to health in light of the principle human dignity. We have just said above that the principle of respect for human dignity implies respect for the inherent biological and moral needs of a person; health stands out as one among such fundamental needs. It is a matter of common sense that a person must have access to his or her daily biological and moral needs so as to live a healthy life.²⁸ In fact, at some basic level one would not be able to dispense with such conditions and still be able to live as a being with dignity: at such basic level they become matters of existential needs.²⁹

Interestingly, this implies that a human life in which the essential conditions of life are not adequately available, is not a life of dignity and, hence, not a healthy human life.³⁰ This, in turn, establishes health as an integral component of the very notion of life of dignity. The essence of the right to health, its normativity, is clearly constituted by the nature of interest that it ultimately seeks to safeguard: a dignified human life. It does so by specifically requiring the realization of basic biological and moral health needs inherent in and indispensable for a life in dignity.³¹ Based on this, it is logical to hold that the normativity of the right to health is one of the principal constitutive elements of the principle of respect for human dignity. In Sect. 2.4, we will be considering specific kinds of guarantees and corresponding State Party responsibilities flowing from the right to health. But for the purposes of this contribution it suffices to stress that because of such substantive relationships between human dignity and the right to health it is impossible for the State to satisfy the core normative demands of the former without properly attending to the requirements of the latter: the realization of basic material and moral health needs of a person.³²

2.2 The Principle of Social Justice

The requirement of the right to health is part and parcel of the overarching State Party obligation under socioeconomic rights recognized in international law which, as I argue, concerns the realization of basic social justice for everyone in a society.³³ That the realization of basic social justice constitutes the underlying aim of socioeconomic rights can be substantiated with reference to the major human rights treaties providing for the same.³⁴ In essence, socioeconomic rights guarantee material and socioeconomic conditions of human dignity and, hence, wellbeing. There are several substantive principles of social justice that should guide the State Party’s performance towards the realization of the socioeconomic rights but which cannot obviously be considered here. So, of the several principles of social justice, the following paragraphs pay attention to the principle of equality (and non-discrimination) and solidarity because of their vital importance in relation to the whole system of socioeconomic rights protection and the topic under discussion. In explaining these, I would like to focus on Articles 21 through 26 of UDHR which, taken together with other subsequent treaties such as ICESCR and ACHPR, provide a comprehensive account of basic social justice and impose commensurate obligations on States Parties towards their people.³⁵ In substance, these provisions establish that the State Party bears particularly compelling obligations in guaranteeing an adequate standard of living worthy of human dignity for all members of the society.³⁶

Article 21 of UDHR is a crucial provision in that it, inter alia, recognizes the will of the people as the foundation of socioeconomic and political governance of a given society.³⁷ The provision also recognizes important rights flowing from or closely related to this: the right to equal participation in the government and the right to equal access to public services available in one’s country.³⁸ Everyone has these rights of equality simply by virtue of being a member with equal dignity and worth.³⁹ These rights, in turn, have significant bearings on the ability of individuals to obtain those material conditions indispensable for their wellbeing and the realization of their life-projects.⁴⁰ And, it is the State, a principal political institution which, as a matter of human rights law, bears a primary responsibility in ensuring the right to equal participation and access for all within its jurisdiction.⁴¹

Another equally important principle that should be mentioned here is the principle of solidarity. As enshrined in, inter alia, Articles 22 and 25 of UDHR, this principle essentially refers to the protection that must be afforded to vulnerable members of a society, those to whom basic material conditions of life are not available or who may be under an imminent risk of losing the same due to reasons beyond their control.⁴² Both Articles recognize, among other things, the right of everyone to be secured against different causes of vulnerability. Article 22 states, ‘Everyone, as a member of society, has the right to social security and is entitled to realization, …, of economic, social and cultural rights indispensable for his dignity and free development of his personality’.⁴³ And, Article 25(1) partly states, ‘Everyone has … the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his [or her]’.

The principle of solidarity is not quite different from the principle of equality (and non-discrimination) just mentioned above; in fact, they are complementary normative principles. Hence, by directly speaking to the needs of vulnerable persons and the corresponding State obligations, the principle of solidarity clearly seeks to reaffirm the general right of everyone to equal respect and concern. This is so because as long as vulnerable persons do not, in fact, have equal access to basic material conditions of life, it is very difficult to say that the State is treating them as persons with equal worth and, hence, respect and concern. Accordingly, the principle of equality (and non-discrimination) and solidarity are both fundamental regulative principle(s) that States Parties to treaties providing for socioeconomic rights must comply with in the realization of basic social justice for everyone within their jurisdictions.⁴⁴ This is even more crucial with respect to the State Party’s obligation to realize the right to health, for, as stated above, the interest that the right to health seeks to protect go to the very heart of human dignity and social justice.

Interestingly, it has clearly been shown that the most fundamental and pressing question pertaining to the right to health is the realization of the right to health care and the social determinants of health for everyone in a society in accordance with such principles as equality, fairness, justice and equity.⁴⁵ It is, thus, imperative that the right to health be ensured for everyone in society: ‘not just the wealthy, but also those leaving in poverty; not just majority ethnic groups but minorities and indigenous peoples, too; not just those leaving in urban areas, but also remote villagers; not just men, but also women’.⁴⁶ So it is noteworthy that the question of social justice in the context of the right to health does not just refer to the distribution of goods and services to certain individuals as such but rather to the ensuring of background justice, fairness and equity in the distribution of those goods and services in a society.⁴⁷ Such a question of systemic justice is indeed ‘a matter of life and death’.⁴⁸ The reason is that, as articulated by the Commission on the Social Determinants of Health (CSDH):

[social justice] affects the way people live, their consequent chance of illness, and their risk of premature death. … [The] inequities in health, avoidable health inequalities, arise because of the circumstances in which people grow, live, work and age, and the systems put in place to deal with illness. The conditions in which people live and die are, in turn, shaped by political, social and economic forces. Social and economic policies have a determining impact on whether a child can grow and develop to its full potential and live a flourishing life, or whether its life will be blighted. … The development of a society, rich or poor, can be judged by the quality of its population’s health, how fairly health is distributed across the social spectrum, and the degree of protection provided from disadvantage as a result of ill-health.⁴⁹

It may be very difficult to exaggerate how precarious and pervasive it is especially for vulnerable persons not to have access to the material conditions of life and, therefore, how aggravated the obligations of the State responsibilities towards the same should be. It should, however, be clear enough that ‘[a] life that achieves the full promise of human dignity requires, among other things, escape from premature death, the resources to withstand debilitating disease, the ability to read and write, and, in general, opportunities and freedoms unavailable in the amidst of extreme poverty and deprivation’.⁵⁰ In my view, this is essentially what comes out of the core normative demands of the principle of respect for human dignity, the right to health and principle of social justice.

3 The Legal Basis of the Right to Health in the AU System

3.1 Its Basic Features

An apt starting point in considering the legal frameworks for the protection of the right to health in Africa is an insight into the sources of the responsibilities of the AU and, by extension, its Member States. The vast majority of African countries are parties, to the major international (those adopted under the aegis of both the UN and AU) human rights treaties providing for the right to health.⁵¹ While it is not necessary to discuss the contents of each of the treaties here, it is essential to highlight the commonalities they share regarding the protection of the right to health. Therefore, notwithstanding their formal sources (whether originating from global or regional frameworks) and the scope of protections afforded by each treaty,⁵² there are several basic features that treaties providing for the right to health have in common. I would like to state three of such commonalities that I found pertinent for this discussion. One is that they all expressly recognize the right to health as a fundamental human right flowing from inherent human dignity aimed at ensuring basic material and moral health needs of a person. In fact, it is already argued above that the right to health is an integral component of the very notion of the right to human life in dignity.

The other is that they all define a particularly compelling obligation of the State Party.⁵³ The overarching compelling obligation of the State Party prescribed under international law ensuring the best (highest) attainable standard of physical and mental (moral) health for everyone within its jurisdiction.⁵⁴ From this of course follows several other specific obligations of both immediate and progressive nature.⁵⁵ But it is important to note that whether a given obligation of a State Party (flowing from the right to health) is immediate or progressive requires a careful analysis of all the relevant factors including the nature of the interests in question; the specific circumstances of the individuals; the nature of measures (that should be) adopted; the level of available resources in a given country; and the expenses associated with operationalizing those measures.⁵⁶ In particular, the analysis of the immediate or progressive nature of those specific obligations treads differently on the different pillars of protections afforded by the right to health in international law. For instance, it will be demonstrated below that ensuring the right of individuals to freedom of choice in decisions affecting their health entails an immediate obligation. In addition, it can also be argued that the obligation to ensure access to basic health care for vulnerable persons in a society is also a matter of an immediate State obligation.

Finally, the way international treaties define the right to health and the obligations thereof essentially expresses its systemic character. So we can say that the right to health is also a systemic right in the sense that it requires the State Party to adopt, rationalize and operationalize multiple kinds legal, policy and institutional measures that must function together, as a system, in order to give effect to the protections afforded by the right.⁵⁷ This, of course, is not unique to the right to health because the same is more or less true for the protection of other human rights as well.⁵⁸ Nevertheless, the understanding of the right to health as a systemic right means that the responsibility of the state flowing from it essentially consists not just in providing specific material goods and services to certain individuals but also in (ensuring) the establishment of those underlying systems through which basic material conditions of health are continuously produced and made available to all members of a society.⁵⁹

3.2 Its Key Pillars of Protections

The other point worth discussing here is the kind of protections afforded by the right to health under international law. Here, I would like to show that the right to health as enshrined under international law incorporates three key pillars (or components) of protections. These are the right to freedom of choice, the right to basic health entitlements and the right to access to justice.⁶⁰ Analysing the right to health in terms of its key components is very useful especially to disentangle and shed light on some of the issues often raised in connection with the corresponding nature of the State Party obligations. This is particularly so in relation to the discussion in this contribution which, among other things, is concerned with assessing the extent to which the often claimed lack of resources (i.e. scarcity) is, in fact, a major impediment to the effective realization of the right to health in Africa. After considering each of these components, we are able to see that the right to basic health entitlements indeed requires an investment from the State Party but this is not the case with respect to the obligation to ensure freedom of choice and access to justice. In fact, it is to be seen that, in Africa, it is not lack of resources as such but critical structural (systemic) problems that can best explain the unacceptable low level of health care and its underlying determinants (see Sect. 3.3). This assertion is to some extent also supported by the relevant jurisprudence of the African Commission on Human and Peoples’ Rights (the African Commission, the Commission) (Sect. 4.2.1): the discussion thereof shows that almost all of the violations of the right to health occurred in the context of detention and grave humanitarian crisis but so far there is no single communication before the Commission claiming the violation of the right to health on account of lack of resources as such.

Here, I might be criticized for not following the tripartite (i.e. respect, protect and fulfil) or quadruple (respect, protect, promote, fulfil) approach that both the CESCR and the African Commission use for assessing the state party obligations. I am aware of both the merits and demerits associated with such approaches but I may also have to mention that not all human rights tribunals follow this dimensional analysis.⁶¹ It should, however, be noted that my aim here is neither to depart from nor to confirm such categorization of State Party obligations, both generally and in relation to the right to health. In fact, it is my understanding that, one the one hand, the key components of the right to health I have just mentioned concern the general normative contents of the right to health (that is, what it guarantees for the right holder under international law). On the other hand, the tripartite (or quadruple) and other related standards such as availability, accessibility and quality⁶² are clearly about the quantitative and qualitative analysis of the State Party obligations in relation to each of these key components of the right to health (but this is not, at least directly, the focus of my discussion in this contribution).⁶³

3.2.1 Right to Freedom of Choice

The right to have and make free choices in respect of matters affecting one’s health forms one of the core pillars of the right to health under international law. In this sense, the right to health guarantees the right to be free from any sorts of external interferences, obstructions or influences in making decisions pertaining to one’s health as well as in the enjoyment of one’s healthy living.⁶⁴ In addition, it includes the right of every woman to autonomously choose and decide on matters of, for instance, family planning and the use of contraceptives.⁶⁵ To this extent, it is possible to say that the right to freedom of choice in matters affecting one’s health is the least disputed component of the right to health under international law. However, it is also worth noting that it may involve some complex and controversial ethical and policy issues as well. For instance, should public institutions interfere legitimately to prevent choices that may harm individual’s health in such cases as smoking, unsafe sexual behaviours, alcohol, drug; should health benefits or allowances be based on private conducts and to what extent and so forth.⁶⁶

In my opinion, the protection of this intimate and fundamental interest of a person is part and parcel of the elementary justification and, hence, responsibility of a State. This means that it is required to ensure the right to freedom of choice immediately and with utmost priority for everyone under its jurisdiction. In other words, this obligation is not the subject of progressive realization⁶⁷ because the right to freely choose and pursue decisions regarding one’s health goes to the very essence of human dignity. As such it aims to safeguard interests so intimate and fundamental to the wellbeing of a person such as autonomy, integrity and security. Accordingly, a State Party can hardly justify, even on account of lack of resources, its failure to, for instance, protect individuals against physical and mental pain; safeguard a patient against a treatment which he or she has not given effective consent to; and guarantee for every woman her reproductive health rights.

3.2.2 The Right to Basic Health Entitlements

The second key pillar of the right to health is the right to have access to basic health entitlements.⁶⁸ This generally entails, depending on the specific circumstance of the individuals concerned, both the right to have access to health care and the underlying determinants of health (such as adequate and safe drinking water, nutritious food, housing and essential medicines) in kind and the right to have access to the means required to obtain those goods and services.⁶⁹ Interestingly, the major theoretical arguments behind the right to health entitlements have already been presented above when discussing the principle of social justice as enshrined in the major UN and AU human rights treaties providing for the protection of socioeconomic rights (Sect. 2.2).

It should however be mentioned that this component of the right to health explains the reason why its human ‘right-ness’ was contested in the past. For instance, the background document to the 1978 Alma-Ata Conference on Primary Health Care makes it clear that the provision of the underlying determinants of health was considered for so long as a discretionary power of the State, not as something to be claimed on the part of the State as a matter of right and justice.⁷⁰ While it goes beyond the scope of this contribution to consider those arguments here, it can certainly be said that one of the major reasons behind such contestation was the fact that the obligations flowing from it entails, inter alia, the adoption of specific social and economic measures including those that concern direct provision of those basic goods and services to the vulnerable members of the society.⁷¹ In any case, it now seems that only few would deny, at least in theory, that the protections afforded by the right to health under international law also and necessarily include the right to have access to those basic health entitlements.⁷²

This should not, however, be taken as suggesting that the debate surrounding this component of the right to health has fully been resolved. In particular, the question whether a State Part bears an immediate or progressive obligation vis-à-vis the right to basic health entitlement is still ongoing. This, in turn, has to do with, admittedly, the complex nature of the measures that the State Party should adopt and the corresponding level of resources required to operationalize those measures. Indeed, given the substantial amount of resources that it requires, it may be difficult for the State Party to ensure an immediate access to basic health entitlements for everyone in a society and this is even more so for countries in Africa especially as a result of the fragility of their economies. But, under human rights law, the complexity of the measures and the level of expenses involved therein are not the sole determining factors in judging whether the State obligation to realize a given right is immediate or progressive. As suggested above, it is also equally significant to take into account other important factors such as the nature of the right and the interest it seeks to safeguard; the particular circumstances of the individuals concerned; the level of available resources; and the overall performance of the State in realizing the right.

Seen in this light, it can be argued that the right to basic health entitlements entails both immediate and progressive State obligations. For instance, it seems to me that a complete eradication of some of the social causes of ill-health solely through the actions of a State may be an impossible goal. But I also believe that, as a matter of human rights law, a State Party cannot justify its failure to provide basic health entitlements for vulnerable and disadvantaged individuals or groups in a society because doing so would essentially amount to repudiating the very raison d’etre of recognizing the right in the first place.⁷³

3.2.3 The Right to Access to Justice

The third core pillar of protection incorporated in the right to health is the right to access to justice. Possibly the right to access to justice has rarely been discussed not just in relation to the right to health but also with respect to socioeconomic rights in general because these categories of human rights were previously not seen as giving rise to a justiciable claim as such.⁷⁴ This contribution is of course not the right place to discuss the idea of the right to access to justice in socioeconomic rights⁷⁵ for my aim is simply to argue that it is one of the key components of the right to health. But it is important to note that the right to access to justice essentially consists of the right to individual justice and constitutional justice.⁷⁶ The right to individual justice is very familiar in human rights scholarship as it refers to the rights of a person (victim) to obtain a relief from those competent organs in relation to the personal damage(s) that he or she has suffered due to the acts (or omissions) directed against his or her person or property.⁷⁷ In this regard, both the suffering and relief sought are essentially personal to the victim. So, we can say that the main focus of the individual justice proceeding is essentially to retroactively condemn and redress previous violation(s) to the rights of an individual.

In contrast, there is also a notion of constitutional justice which concerns the right to have remedies against wider structural or systemic problems generally affecting the enjoyment of human rights in a given country. This, in turn, is premised on the understanding that the existence of a structural or systemic problem in a given country means that a violation to individual rights is certainly inevitable. When this is the case in a given country or system, a particular violation of an individual right is simply a mirror of what is in fact affecting the rights of everyone concerned in that country or system in general.⁷⁸ Thus, in constitutional justice the principal concern is to proactively identify and address those underlying structural defects or systemic obstacles impeding the effective realization of human rights in general. For instance, the right to constitutional justice in the context of the right to health means the removal of underlying structural factors impeding the realization of right to health for the population at large rather than a mere remedying of previous individual violations per se.⁷⁹ Such is the case when an issue before a tribunal, as an example, concerns structural policies resulting in the systematic exclusion and marginalization of the poor and other vulnerable persons in a society from health care and other social services. It should, however, be said that this notion of constitutional justice is more of a recent phenomenon in human rights discourse although there have been practices here and there, especially within some national legal systems, reflecting certain of its core elements.⁸⁰

Both of these elements of the right to access to justice are very crucial components of the international protection of the right to health but I would like to emphasis the particular relevance of the notion of constitutional justice especially in the context of this discussion. As we have said above, the right to health is characteristically a systemic right requiring the adoption of a complex set of measures aimed at materializing the underlying health needs of the society as a whole. The reason is that health is a public good par excellence. As a result, any corresponding measures taken by the State Party should target a wider population and be in strict accordance with the principles of social justice. As such it is crucial that health care and related social services be rendered for everyone in accordance with such principles as of fairness, justice, equality and equity.⁸¹ The failure of the State to ensure access to health care and its underlying determinants in such a manner affects not just one or two persons but almost all individuals in the society. And it is the addressing of such systemic failures that characteristically falls within the scope of the right to constitutional justice thus described.

As it is the case with the right to freedom of choice, the obligation to ensure the right to access to justice is part and parcel of the elementary obligations of the State Party both generally and in human rights law;⁸² it is the right that the State Party is required to realize immediately for everyone within its jurisdictions. In this regard, it should be stressed that the right to access to justice is the core element of the accountability of the States Parties for the realization of human rights.⁸³ For instance, in the context of the right to health, the interconnection between the right to access to justice and accountability can vividly be seen from a recent exposition of accountability by Potts.⁸⁴ Potts sees accountability as ‘the process which requires government to show, explain and justify how it has discharged its obligations regarding the right to the highest attainable standard of health’. As such, it also ‘provides rights-holders with an opportunity to understand how government has discharged its right to health obligations’ and to vindicate their rights ‘to effective remedies’ if it is established the government has failed in discharging its obligations thereof.⁸⁵ It is therefore clearly observable that in Potts’s conception of accountability, the right of individuals to an effective remedy, that is, the right to access to justice, holds significant place.

Hence, without the fundamental right of access to justice, which, in turn, goes to the very essence of accountability, it is almost inevitable that any legislative or policy commitment by the State remains utterly rhetorical. Hunt is very clear on this. ‘Without accountability’, says Hunt, ‘human rights can become no more than window-dressing. Whether human rights are applied to development, poverty reduction, trade, health systems, neglected diseases, maternal mortality, HIV/AIDS or anything else, they require that accessible, transparent and effective mechanisms of accountability be established.’⁸⁶

To summarize, it emerges from the discussion in this part that the treaties providing for the right to health, to which almost all of the AU Member States are parties to, define the right to health as a fundamental and systemic right consisting of the right to freedom of choice, basic health entitlements and access to justice. It also emerges that the obligations flowing from the right to freedom of choice and access to justice correspond to the core of the State Party’s obligations both generally and in human rights law in such a way that they ought to ensure the same for everyone within the State’s jurisdiction immediately. The realization of the right to basic health entitlements, however, entails both immediate and progressive obligations because of the nature of measures and level of resources involved in the materialization of the same for everyone in a society. Nevertheless, when it comes to the right to basic health entitlements of the vulnerable persons in the society, the State Party concerned still shoulders particularly aggravated, heightened, responsibilities that it cannot easily dispense with even on such grounds as resource constraints. This being said in general, we now have to specifically assess if the alleged lack of material resources indeed explains the dire shortage of access to health care and the underlying determinants of health.

3.3 Impediment to the Realization of Basic Health Entitlements in Africa: Lack of Resources or Systemic Problem?

The facts and figures provided in the introductory part clearly and alarmingly show the dire shortage of health care and the underlying determinants of health in Africa, most seriously in sub-Saharan region.⁸⁷ So it remains to be seen if the gross failures to ensure the right to basic health entitlements could be attributed to the alleged lack of resources. As revealed in the Background Report to Alma-Ata Conference 1978 (and, since then, in many other reports including the ones already cited in this writing), the following factors were responsible for the then existing dysfunctional health services in many countries, particularly in the developing world, where African countries line from the bottom up. According to the report, the then existing health services and systems were characterized by gross injustices, inequalities and inequities resulting, in turn, in the loss of millions of lives from what could have been prevented with relative ease. For instance, national health systems were described therein as essentially inefficient, poorly resourced and structured; available resources were particularly skewed towards expensive and tertiary health services only accessible to the rich and to those in political power; public health issues were not seen as forming the integral component of the wider social and economic development agenda of the countries. All these were further compounded by the problems pertaining to bad governance systems both generally and in relation to health sectors.⁸⁸

For the participants of the said Conference, responding to these major global public health crises was a matter of urgent concern. Nonetheless, access to health care and related services in the African continent are still as fragile as they were 30 years ago. Thirty years after the Alma-Ata Conference, the health systems of most African countries still remain ‘too weak’ and ‘too under-resourced’ ‘to support targeted reduction in disease burden and achieve universal access’ to health services as well as to provide ‘interventions’ that could ‘match the scale of the [existing health] problems’ mainly because of the reasons pertaining to the fragmentations of national policies and the inefficient utilization of available resources.⁸⁹ Still 30 years later, the health systems in the continent are infected with gross injustices, inequalities and inequities. For instance, the AU Social Policy Framework 2008 stresses that ‘[t]he benefits of health services do not equitably reach those with the greatest disease burden’; that there is no ‘social protection’ systems in place to safeguard the vulnerable and marginalized persons including those in a dire economic situations; that there is lack of community empowerment and participation at the national level; and that there is no effective administrative and accountability mechanisms in place to monitor and remedy those injustices in the sector, indicating, in turn, the ‘vicious circle’ between ill-health, poverty and bad governance in the continent.⁹⁰

These observations indicate that the fragility of the health services in Africa has less to do with the lack of resources than it has to do with the institutional decision-making system of the States Parties concerned.⁹¹ In fact, many agree that it is not scarcity as such but, following Acemoglu and Robinson, the lack of ‘inclusive’ governance systems or, conversely, the prevalence of the ‘extractive’ nature of the continent’s political and economic institutions that underlie the current state of structural and systematic exclusion of the population at large from practically every aspect of socioeconomic and political domain.⁹² The AU Social Policy Framework 2008 emphatically confirms this fact by expressing the presence of endemic corruption in the continent. It clearly recognizes that corruption is ‘the single greatest obstacle to development globally’; it has ‘significantly contribute[d] to a skewed distribution of the benefits of development and growth’; ‘[m]ost profoundly, corruption and associated crimes [has destroyed] the trust relationship between the people and the state’.⁹³

In fact, the longstanding and recurrent problem of Africa is a resource-curse much less than it is a resource-scarcity. The continent’s abundant resources have for so long been a ‘curse’, a source of ‘misery’ to most peoples in the continent instead of being a means to ensuring their wellbeing and dignity.⁹⁴ As an example, the African Human Development Report 2012 clearly states that the most food insecure part of the world, the sub-Saharan Africa, has abundant agricultural resources.

But shamefully, in all corners of the region, millions of people remain hungry and malnourished—the result of glaringly uneven local food production and distribution and chronically deficient diets, especially among the poorest. This is a daily violation of people’s dignity, with many governments not fulfilling their basic responsibility of protecting their citizens from hunger. […]

Agricultural productivity remains low—much lower than in other regions. Many sub-Saharan African countries are net food importers and even depend on food aid during all-too-frequent humanitarian crises. Where food is available, millions cannot afford it or are prevented from buying or trading it by underdeveloped markets, poor roads, long distances to markets and high transport costs. […]

Misguided policies, weak institutions and failing markets are the deeper causes of sub-Saharan Africa’s food insecurity. This tainted inheritance is most evident in households and communities, where unequal power relations trap vulnerable groups—subsistence farmers, the landless poor, many women and children—in a vicious cycle of deprivation, food insecurity and low human development….⁹⁵

Therefore, rather than resource constraints, the critical stumbling block obstructing the effective realization of basic health entitlements in the continent is essentially systemic in nature which mainly results from the extractive socioeconomic and political institutions in the continent. This, in turn, also speaks indirectly to the failure of the respective national legal systems in addressing the underlying systemic problem affecting not just the health sector but the entire socioeconomic spectrum of the Member States.⁹⁶ No doubt, in some respects financial constraint may indeed be a genuine problem of governments in Africa but it cannot justify decades of acute ill-health and impoverishment in the continent. On the contrary, there is overwhelming evidence here and there indicating decades of systematic and widespread social and political exclusion, marginalization, highly endemic and institutionalized corruption practices and absence of any meaningful accountability mechanisms in the continent.⁹⁷ In the presence of such evidence, the claim from resource-scarcity is nothing more than a smokescreen.

There have been series of initiatives, both globally and at the AU level, aimed at addressing the structural problems obstructing the realization of the right to health and other human rights. This is in fact one of the overarching aims of the AU Social Policy Framework 2008 mentioned above. The Policy Framework intends to deal with this persistent structural problem through continental policy-making and coordination. The approach taken therein is identifying the major continent-wide social problems and their underlying causes and, then, providing policy recommendations that should be adopted by all stakeholders, especially national authorities. Accordingly, it has identified eighteen core thematic or priority areas⁹⁸ at the heart of which lies the problem of lack of access to basic health entitlements and structural accountability in the continent.⁹⁹

To this extent, the Policy Framework could be hailed as both comprehensive and a landmark. However, the old question still remains: how effective would it be in bringing structural changes and thereby ensuring the right to health and basic social justice for those most in need? This question arises because the effectiveness of any legislative or policy commitment regarding the protection of human rights is essentially tied to the existence of a strong legal accountability mechanism through which the State Party can be held responsible both at the national and international level.¹⁰⁰ In addition to what has already been said in this section, an epigraphic note to this contribution also well-summarizes the fact that ‘there is still an enormous gap between’ the numerous legislative and policy rhetoric of the governments in the continent, on the one hand, and ‘the daily reality where human rights violations remain the norm’, on the other.¹⁰¹ Interestingly, lack of effective legal accountability mechanisms is not limited to the national system. As the following discussion also shows, the legal accountability mechanisms available at the AU level are almost dysfunctional which undermines the practical value of not just the AU Social Policy Framework 2008 but the entire framework of human rights commitments and policy initiatives of the AU and its Member States.

4 The Enforcement Mechanisms of the Right to Health in the AU System

4.1 Introduction

There is no question that AU has the legal responsibility to ensure not just the availability but also the effective functioning of the human rights protective (enforcement) mechanisms especially at the continental level. Currently, the Court and Commission are the two principal AU human rights institutions with the mandate to remedy violations of human rights in the continent. Although the statutory mandates of the Court and the Commission differ (in scope and nature), the two regimes are complementary to one another.¹⁰² While the Court’s principal function is essentially adjudicatory (protective mandate in the strict sense of the term);¹⁰³ the Commission is tasked with broader protective¹⁰⁴ and promotional¹⁰⁵ mandates but, awkwardly, it cannot directly compel the States Parties concerned to comply with its decisions as such.¹⁰⁶ It should be noted that it is not the aim of this discussion to compare and contrast the functions of the two institutions but to see the extent to which they are practically contributing to addressing the structural accountability deficits impeding the effective realization of the right to health in the continent.

Seen in this light, there is nothing that could be said about the actual role of the Court because, though it formally became operational in 2004, it is yet to become the Court of the continent in the full sense of the term due to the low rate of ratifications to its statute and related complications.¹⁰⁷ It is also yet to pronounce any judgment in relation to the topic under consideration. This means that it is a very important institution but with untested remedial power. Obviously, one can speculate on the immense potential of the Court in enhancing the standard of human rights protection in the continent but this goes beyond the scope of this contribution. However, the future ability of the Court to address the structural obstacles to the realization of social justice in general and the underlying conditions of the right to health in particular are determined by the extent to which it would be able to integrate issues of individual justice with that of constitutional justice.¹⁰⁸

In fact, it is possible to see the call upon the Court in the AU Social Policy Framework 2008 to ‘[a]ccord high priority’ to the questions of basic social justice as particularly suggesting the careful examination of the background factors underlying those complaints over which it will assume jurisdiction in the light of the structural accountability deficits in the continent, not just in the light of the individual justice as such. In this way it may be possible that some of the structural problems could be exposed to rigorous continental judicial scrutiny which, if so decided, the State concerned is legally bound to remedy within the period that the Court indicates under the pain of possible legal sanctions from the Assembly of the AU.¹⁰⁹ The hope is that this might ultimately push Member States to strengthen their national accountability mechanisms as well—but, it might have to wait for a while before its full judicial authority will be put to test over cases concerning basic social justice in the continent. This makes the Commission the only functioning human rights organ so far as the practical assessment of the legal enforcement of the right to health through the AU system is concerned.¹¹⁰

4.2 The Right to Health in the Practices of the Commission

The Commission is the oldest, in fact, the only human rights organ established in the Banjul Charter with fairly broad promotional and protective mandates and it has now been in operation for about 30 years.¹¹¹ The question is, therefore, if it has been able to deal with those issues of structural injustices undermining the realization of the right to health in the continent in its nearly 30 years of operation. Answering this question obviously requires a review of some of its decisions raising relevant issues with the protection and promotion of the right to health.

4.2.1 Decisions of the Commission on the Right to Health

It seems that the Commission’s decisions raising, in a more relevant sense, the violation of the right to health can generally be seen as concerning the following three major situations¹¹²: detention (including prisons and medical institutions), humanitarian crisis and poverty (lack of access to basic socioeconomic means needed to obtain health care and related goods and services). It should be noted that this categorization is merely based on the underlying situations leading to the alleged violations of the right to health (and nothing more) with the view to provide a clear picture as to the contexts engaging the responsibility of the State concerned. In this regard, it can be said that the major part of the Commission’s decisions concerns detention situations and that only few of them deal with situations of humanitarian crisis. With respect to the third situation we cannot find any (relevant) substantive discussion by the Commission but only a very general and indirect reference to the right to health in some of its decisions; that is, in all the communications concerning the third situation, we could only find the Commission making a general normative statement in just a paragraph or so but without providing substantive arguments to that effect. For this reason it is not necessary to discuss them here and I will, therefore, make reference to such communications just for the sake of completeness.¹¹³

As will be discussed below, the nature of violations established by the Commission under these three scenarios (though we cannot say much on the third one) raise very serious issues with each of the core pillars of the protections afforded by the right to health already discussed above expressing as such the gross contempt for the fundamental principle of respect for human dignity. For instance, it is to be observed that the Commission’s decisions pertaining to detention situations clearly show violations of the core elements of the right to have freedom of choice such as the right to have respect for one’s integrity, autonomy and wellbeing; the right to basic health entitlements commensurate with the circumstances and needs of the detainees. Most importantly, the decisions also show absence of systemic accountability (pertaining to the third core pillar of the protections afforded by the right to health) as the nature of the violations addressed by the Commission were not isolated incidents as such but rather carried out by the direct participation of or aid from the State Party. The absence of systemic accountability is even more serious in relation to the decisions of the Commission pertaining to the second scenario (situations of humanitarian crisis) which express gross, systematic and widespread violations of not just the right to health but of virtually all human rights recognized in the Banjul Charter and other human rights treaties.

4.2.1.1 In the Context of Detention

The right to health of persons in detention clearly engages a special kind of State Party responsibility which directly emerges from the very fact of the detention itself. Without going into detail, the Commission emphasized that this responsibility has both a substantive and a procedural element. So, in its substantive sense, the State Party is required to ensure respect for the dignity of the detainees by making available to them all those basic material and moral conditions of human life and health and by securing them against all forms of violence, inhumane and degrading treatments; in its procedural sense, it is required to guarantee due process of law and access to prompt and effective remedies.¹¹⁴

Thus, in Purhoit and Moore/The Gambia (Purhoit), for instance, subject of the complaint were the arbitrary and discriminatory nature of the legislation governing persons with mental disability and the substandard living condition in the detention centre.¹¹⁵ As the Commission stated, the right to the health ‘is vital to all aspects of a person’s life, wellbeing, and is crucial to the realization of all the other fundamental human rights and freedoms. This right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.’¹¹⁶ It emphasized that this obligation, especially owing to their conditions and needs, is more compelling in relation to those persons with mental disability who ought to be accorded a special treatment that aims to ensure the attainment and sustenance of optimal level of independence and integration. In particular, persons with mental disability ‘should never be denied their right to proper health care, which is crucial for their survival and their assimilation into and acceptance by the wider society’. Accordingly, the Commission found that the respondent State had failed to ensure the availability of clear therapeutic objectives and resources necessary to ensure a treatment required by and commensurate with the special conditions and needs of persons with disabilities¹¹⁷ and for this reason they were denied the right to have a decent, dignified and normal human life.¹¹⁸ The Purhoit case also revealed serious violations of the State responsibility to ensure equal and effective access to procedural guarantees for persons with mental disabilities including the right to have equal access to free and effective legal aid, the right to have the review of treatment or diagnosis resulting in their detention and the right to appeal against the decision of detention.¹¹⁹

The Commission has also addressed the particular significance of the right to health of persons particularly detained in the context of criminal law.¹²⁰ This entails the right to be provided with those basic conditions indispensable for their health and wellbeing,¹²¹ the right to have prompt and effective access to medical services such as access to qualified physicians and (adequate) medications and the right to have effective access to a legal counsel (lawyers).¹²² As the Commission makes it clear in each of the communications just referred to, the State concerned bears a heightened, in fact, an absolute and exclusive responsibility to ensure the personal safety, integrity and wellbeing of persons under detention not just as a matter of law but because of the fact of detention itself which creates a complete situation of dependency of those persons on the State for their livelihood. Especially in the case of EIPR/INTERIGHTS mentioned above, the Commission underscored the two most important rationales behind the right to have prompt and effective access to medical services for persons under custody: that it is an indispensable element of the protection of detainees against torture, cruel, inhuman and degrading and other kinds of ill-treatments and that it is an integral element of the right to fair trial.¹²³ Hence, the right to have prompt access to medical services constitutes the most effective mechanism to ensure the protection of detainees against abusive treatments as well as to bring meaningful accountability to the detention systems.¹²⁴ It also plays a critical role in ensuring that illegally obtained confessions and evidence will not be adduced against those persons accused of criminal offenses, a matter which becomes an absolute necessity for those accused of serious offenses leading to grave punishments. Hence, the State is under a heightened legal obligation to prevent torturous confessions and other evidence obtained through such methods as well as to facilitate and avail individuals with effective opportunities to have access to medical expertise without any conditions whatsoever so that they will be able to challenge the evidence brought against them.¹²⁵

4.2.1.2 In the Context of Humanitarian Crisis

The second instance in which the Commission has addressed the violations of the right to health pertains to the situations of humanitarian crisis, which in fact one can call human crisis,¹²⁶ which at their background have some basic systemic failures in the countries concerned, affecting the entire population or certain specific groups of the population.¹²⁷ For instance, the case of Malawi Africa Association et al. shows the worst and egregious form of violations committed by the Respondent State against certain ethnic communities following the incident of military takeover of government. As the series of communications filed before the Commission show, there were widespread, massive, arbitrary and routine arrests, detentions (in extremely harsh, deplorable and inhumane conditions, also referred to as ‘death camps’), torture (and other forms of inhumane treatments), massacres, persecutions, extrajudicial killings, summary executions, slavery, discriminations, expulsions, confiscations and destructions of livestock, harvests and villages by the State machineries particularly military forces just because those populations happen to be members of certain ethnic groups.¹²⁸ In declaring violations of, inter alia, the rights guaranteed under Articles 4¹²⁹ and 16¹³⁰ of the African Charter, the Commission stated that:

120. […] Denying people food and medical attention, burning them in sand and subjecting them to torture to the point of death point to a shocking lack of respect for life, and constitutes a violation of Article 4 (see para 12). Other communications provide evidence of various arbitrary executions that took place in the villages of the River Senegal valley (see paras 18 and 19) and stress that people were arbitrarily detained between September and December 1990 (see para 22).

122. The State’s responsibility in the event of detention is even more evident to the extent that detention centres are its exclusive preserve, hence the physical integrity and welfare of detainees is the responsibility of the competent public authorities. Some prisoners died as a result of the lack of medical attention. The general state of health of the prisoners deteriorated due to the lack of sufficient foo[d]; they had neither blankets nor adequate hygiene. The Mauritanian state is directly responsible for this state of affairs and the government has not denied these facts. Consequently, the Commission considers that there was a violation of Article 16.

In the DRC case the Commission found, more or less, a similar kind of gross human rights violations by Respondent States contravening their international obligations under general humanitarian law and the African Charter. The relevant part of its decisions reads as follows:

79. The [African] Commission finds the killings, massacres, rapes, mutilations and other grave human rights abuses committed while the Respondent States’ armed forces were still in effective occupation of the eastern provinces of the Complainant State reprehensible and also inconsistent with their obligations under Part III of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 and Protocol 1 of the Geneva Convention.¹³¹

88. The looting, killing, mass and indiscriminate transfers of civilian population, the besiege and damage of the hydro-dam, stopping of essential services in the hospital, leading to deaths of patients and the general disruption of life and state of war that took place while the forces of the Respondent States were occupying and in control of the eastern provinces of the Complainant State are in violation of Article 14 guaranteeing the right to property, Articles 16 and 17 (all of the African Charter), which provide for the rights to the best attainable state of physical and mental health and education, respectively.

The SERAC case, a complaint against the former military regime of Nigeria concerning the situation of Ogoni people, also expresses gross human rights violations ensuing from basic constitutional crisis in the sense employed in this writing. This was basically triggered by the military junta’s decision to engage in oil exploration in the Niger Delta in complete disregard to the basic rights and interests of the population, especially as regards the project’s impact on human health and the surrounding environment.¹³² As the communication shows, the Ogoni people had become victims of double sufferings. On the one hand, the pollution that resulted from the toxic substances and hazardous wastes from the oil exploration destroyed their wellbeing and livelihoods particularly because the ‘contamination of water, soil and air [had] had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems’ and ‘the pollution and environmental degradation to the level humanly unacceptable has made it living in the Ogoni land a nightmare’.¹³³ On the other hand, their livelihoods were also shattered by the ruthless military operations and other agents destroying their homes, villages, source of foods (farms, water sources, crops and animals) and causing massive displacements, evictions, detentions, torturing, killings and other forms of ill-treatments and terrorizations.¹³⁴ As the Commission states, ‘[t]hese and similar brutalities not only persecuted individuals in Ogoniland but also the whole of the Ogoni community[…]. They affected the life of the Ogoni society as a whole’.¹³⁵

The Darfur case, which alleged the atrocities committed against the people of Darfur, can be seen as a typical example of the gross violations of human rights (including the right to health) resulting from internal armed conflicts. Among other things, the Darfur case reveals the practice of large-scale killings (including extrajudicial executions), rape and torture, forced displacements, evictions, looting, destruction of foodstuffs, crops, livestock, poisoning of wells, denial of access to other water sources, and the destruction of public facilities and private properties and the disruption of the livelihoods of the Darfurian people, all through the direct participation of the state concerned and the agents it has sponsored.¹³⁶ For instance, the Commission concluded that ‘the Respondent state and its agents, the Janjawid militia, actively participated in the forced eviction of the civilian population from their homes and villages’ and that ‘[i]t failed to protect the victims against the said violations’; moreover, it, ‘while fighting the armed groups, targeted the civilian population, as part of its counter insurgence strategy’. According to the Commission, all these acts and omissions clearly amount to cruel and inhuman treatment which threaten the very essence of the dignity of the said population.¹³⁷

In finding the violation of the right to health, the Commission also held that ‘the destruction of homes, livestock and farms as well as the poisoning of water sources, such as wells, exposed the victims to serious health risks and’, therefore, ‘amounts to a violation of Article 16 of the Charter’.¹³⁸ There are several more violations that the Commission has established in the Darfur case. For instance, in finding the violations under Article 22 of the African Charter,¹³⁹ the Commission stated the following.

The attacks and forced displacement of Darfurian people denied them the opportunity to engage in economic, social and cultural activities. The displacement interfered with the right to education for their children and pursuit of other activities. Instead of deploying its resources to address the marginalization in the Darfur, which was the main cause of the conflict, the Respondent State instead unleashed a punitive military campaign which constituted a massive violation of not only the economic social and cultural rights, but other individual rights of the Darfurian people. Based on the analysis hereinabove, concerning the nature and magnitude of the violations, the Commission finds that the Respondent State is in violation of 22 of the Africa Charter.¹⁴⁰

At this point, it may be important to stress that the Malawi Africa Association et al. , Darfur case, SERAC and DRC case—all pertaining to the situation of humanitarian crisis in the sense described above—have one basic feature in common: they all manifest very serious systemic failures. In other words, the facts and evidence recorded therein overwhelmingly establish gross, massive and widespread violations of human rights where the States Parties concerned directly participated, through highly orchestrated means, in the shattering of the dignified existence and livelihood of the entire populations in question. This means that there is hardly any right recognized in the African Charter that the actions and omissions of the States Parties did not violate. In addressing the violations therein, the Commission took, in four of the communications, the painstaking approach to disentangle the facts and restate them in the terms of the substantive provisions of the Charter. Although this kind of approach is not wrong per se, I would argue that it is both redundant and ineffective in situations like this. For instance, it was the very same facts that the Commission addressed under almost all of the substantive provisions of the African Charter including right to life, bodily integrity, security, prohibition of torture and degrading treatments, property, housing, food, health, peaceful existence, so and so forth. More fundamentally, such an approach gives the false impression that the violations are the result of isolated incidents while, in fact, they are highly systematic and widespread in nature. It is generally true that it is the claim of the parties to a dispute that sets a general framework as to how a tribunal should analyse a given case but it is also true that the tribunal has an inherent power not just to determine the issues involved in the case but also how to resolve the issues. In my opinion, it would have been more effective had the Commission declared in Malawi Africa Association et al. , Darfur case, SERAC and DRC case that the States Parties concerned committed gross, massive, widespread and systematic violations of the African Charter and other related treaties of the AU.¹⁴¹

In this regard, it should be clear that I am not in any way suggesting that the declaration of violations under the relevant substantive provisions of the Charter is superfluous. Indeed, it might be necessary to specify the individual rights violated by the States Parties concerned but this could have easily been indicated in the operating part of the Commission’s decisions under consideration. The facts stated in four of the communications clearly indicate, for instance, that the right to health of the populations was violated in the worst ever possible manner one could imagine. We should, however, note the fact that this violation of the right to health was part and parcel of the widespread actions of the States Parties systematically carried out in order to silence those populations—the facts do not prove that the violations of the right to health was due to an isolated actions of the States Parties. That is why, in the situation where the very existence and livelihood of the population is actually under attack, analysing the facts and evidence therein as concerning the violation of a particular human right (as the right to health) is less effective and redundant.

All in all, the foregoing discussion on the jurisprudence of the Commission provides us with useful insights as to how it addressed the violations of the right to health in the context of detention and humanitarian crisis. Apart from this, we may not find any relevant authoritative normative guidance regarding the general positive obligations of the State Party to ensure equal access to health care and its underlying determinants for all within its jurisdiction. This is so because, on the one hand, in each of these communications the Commission found violations of the right to health on account of the direct actions or participation of the State Parties in the said violations. On the other hand, the positive obligation of the State to ensure the realization of the right to health care and its underlying determinants for the socioeconomically vulnerable parts of the society entails the adoption of deliberate, concrete and targeted legislative, policy and institutional measures. This clearly and minimally presupposes the existence of a thin functioning of the elementary principles of the rule of law for, this should be obvious, in the absence of this principle the normative basis upon which individuals can make a claim to have access to health care and basic social justice is simply non-existent. In any case, and as far as I am concerned, none of communications before the Commission so far has engaged, in a direct and relevant manner, the positive obligations of the State Party to realize the right to health and basic social justice.

4.2.2 The Right to Health in Other Activities of the Commission

The Commission has also dealt with some of the issues affecting the enjoyment of the right to health in its promotional and standard setting functions, especially in its Special Mechanisms. Ten out of sixteen Special Mechanisms¹⁴² currently in operation concern, directly or indirectly, the promotion of right to health.¹⁴³ Since the Commission started establishing these mechanisms in the late 1990s, the commission has issued a series of resolutions and declarations based on the works of or certainly with the participation from these special mechanisms. Beyond this, it is very difficult to explain their impact on the identification of specific systemic obstacles existing at the national level.

It should be mentioned that some have hailed the Commission’s adoption of the Principles and Guidelines on the implementation of socioeconomic rights in the continent (already referred to in this discussion) and the Guidelines on State Reporting under the Banjul Charter (Reporting Guidelines) which, in turn, is a short-hand version of the Principles and Guidelines.¹⁴⁴ Both are notable works of the Working Group on ESCR. Nonetheless, neither the Principles and Guidelines nor the Reporting Guidelines add any new substantive legal principles or standards to the area of socioeconomic rights. They are mere consolidations of already existing principles of interpretations of socioeconomic rights and the corresponding State obligations being developed in its own decisions, in the works UN human rights institutions and its specialized agencies (such as WHO and IFAO) as well as in the jurisprudence of various national and supranational human rights tribunals. One might, however, be surprised to observe that neither the Principles and guidelines nor the Reporting Guidelines makes any reference to the 2008 AU’s Social Policy Frameworks discussed in this contribution.¹⁴⁵ Thus, while it is not worth repeating here, it should be said that the protection of the rights of vulnerable persons is particularly emphasized in each of the documents. Both the Principles and Guidelines and Reporting Guidelines stress the need to pay due and appropriate regard to equality, non-discrimination, equity and accessibility in the provision of health care and other social services and to provide social protection measures for those without minimum income. Also, they both emphasize institutional principles such as accountability, transparency and participation as fundamental norms that must be ensured and complied with not only in the delivery of health services but also in the designing and execution of other public policies aimed at the realization of human rights in general.¹⁴⁶

4.2.3 Effectiveness of the Commission’s Practices

Thus, the main question is whether the above discussions would give us a reason to believe that the Commission is playing a meaningful role in the effort to ensure the realization of right to health and its underlying conditions. That is, whether the practices of the Commission could be said to match the kind of underlying obstacles behind lack of systemic justice and therefore could be seen as a strong legal accountability mechanism of the AU System. This question may need further exploration in itself but remaining within the scope of this discussion it is possible to make the following observations.¹⁴⁷

It could be said that there are some achievements that the Commission has been able to accomplish in its nearly 30 years of existence. Among these are the establishment of the Special Mechanisms and the examination of the individual communications (although it has decided very few cases compared to the number of years it has been in operation). There are, however, several reasons to doubt the viability and effectiveness of these mechanisms in addressing the problem of structural accountability deficits—i.e. the lack of constitutional justice—in the continent. As far as the Special Mechanisms are concerned, the Commission may be criticized for being too late in establishing mechanisms aimed at addressing issues of socioeconomic rights and for being driven more by ‘pressures from interest groups’ than by its own ‘careful and proactive’ considerations and rationalization of its functions and the goals enshrined in the Banjul Charter.¹⁴⁸ What is even more disappointing is that, in the context of this discussion, there has been no practically meaningful outcome that could be hailed wholeheartedly (one should note that I have already stated my reservations as regards the Principles and Guidelines just mentioned above).¹⁴⁹

In relation to the examination of the individual communications, there is an abundance of reasons to criticize the practices of the Commission. To begin with, its decisions mostly come far too late to constitute an effective remedy.¹⁵⁰ So, restating the old saying, ‘justice delayed, justice denied’, one may say here that judgment delayed is remedy denied. For instance, even though almost all of the communications discussed above concern very grave situations of human rights violations, the time taken by the Commission to render its final decisions do not, by any standard, reflect that sense of urgency and gravity.¹⁵¹ This, in turn, has very serious negative implications for the capacity of the Commission in bringing accountability for violations of human rights. This is so because there would not be any meaningful point in rendering a decision on a particular communication after factors responsible for a particular human rights violation had disappeared. For instance, when the Commission delivered its findings in Malawi Africa Association and SERAC (which represent the worst forms of human rights violations) the regimes responsible for the said violations were no longer in place. As such the decisions of the Commission therein can hardly be regarded as constituting effective remedy for the complainants and, more generally, such is also not in line with the kind of accountability that international human rights law seeks to ensure. Of course it is possible that some of the reasons for the delays may be attributable to the conducts of the parties themselves but not all of them; in fact, the Commission is to blame for most of the postponements, which it can also not justify on the ground that its office functions on a part-time basis.

Besides this, the decisions of the Commission are usually muddled in incoherence, redundancy and inconsistency¹⁵² such that the reasoning therein is generally unable to establish an authoritative normative standard in relation to the issues raised in the communication. As an example, the SERAC case was seen by some as a ‘landmark’ decision concerning socioeconomic rights but looking closely at its reasoning, this is hardly the case. I have argued above that SERAC concerns the violation of socioeconomic rights only on its surface while, deep inside, the facts therein indicate a major constitutional crisis resulting from the direct actions of the military junta in the Niger Delta: as the facts clearly show, the police, military and other State machineries (including secret agents sponsored by the regime) directly carried out widespread, systematic and gross violation of the livelihood of the Ogoni people as whole. Leaving this aside, while the standards the Commission employed in deciding SERAC was borrowed from the UN CESCR’s General Comment 14¹⁵³, it did not provide us with any clear justification regarding the particular relevance of those standards especially given the background situations and nature of violations involved in the communication. There is nothing major that the decision added to the already existing jurisprudence of socioeconomic rights that could make SERAC a jurisprudentially landmark decision. Of course for those of us who were eager to see the Commission saying something about socioeconomic rights (because it openly refused to do so during the first season of its existence), the decision may be seen as landmark; even then it is only because it somehow shows a change to its own institutional perspective on socioeconomic rights rather than any jurisprudential advancement thereof.¹⁵⁴

These are all issues that could be resolved by the Commission but there also remain other fundamental problems undermining the effectiveness of the Commission in addressing the accountability deficit in the continent. The decision of the Commission is legally non-binding for it only has the power to make non-binding recommendations, which it cannot make public without the approval of the AU Executive Council.¹⁵⁵ In this regard, there are incidents where the latter refused to approve its findings, perhaps indirectly accusing the Commission of being biased. And, in practice, the Member States also did not show any sign of compliance with its decisions as such.¹⁵⁶ One may immediately say that these are not the problems for which the Commission should be responsible. However, the truth is that the Commission has a longstanding legitimacy crisis in the eyes of the AU Member States. In particular, it is seen as being used by NGOs/CSO as a tool to embarrass the States appearing before it and not as an objective human rights institution, a fact we should see in the light of the influence they have in the works of the Commission both practically and financially.¹⁵⁷ As Viljoen, pioneer in African human rights law, observes, its meetings (Sessions) are usually dominated by the activities and statements of CSO/NGOs.¹⁵⁸ It also appears from the discussion by Murray, who has also written a lot on the works of the Commission, that the programmes and activities of the Commission are basically organized around or even designed to serve the interests of CSO/NGOs.¹⁵⁹ It is therefore of little surprise that States are particularly sceptical about anything that comes out of its office.

Further, and even more fundamental, the methods through which the Commission conduct its business are hardly rationalized to the practical contexts and needs of the African continent. The Commission still remains unknown to the overwhelming number of populations who are most in need of the processes and outcomes of its functions. Even if it is theoretically known to some of the ordinary Africans, there are major practical reasons preventing them from approaching its office, among which are illiteracy, poverty, remoteness and the utter ineffectiveness of its decisions. It is also hardly the case that the Commission is even known to the ordinary public servants in the continent. This is mainly because of the fact that, for the last three decades or so, it has been focusing largely on the old-style methods of human rights promotion and protection—conducting litigation, issuing resolutions and organizing elite-driven seminars. So far, conducting litigations (and issuing of resolutions) seems to be the major outcome of the activities of the Commission but soon to be ignored by the Member States they are mainly addressed to. Other authors have already pointed at some of the limitations of litigation-based strategies for ensuring social justice for the poor.¹⁶⁰ For human rights institution like the Commission, which only has the power to make non-binding recommendations,¹⁶¹ I do not think litigation can even be considered as an ideal strategy in the first place. This should be seen especially in the light of the fact that only a very negligible number of individuals may be able to practically access its office and that it receives a very low level of cooperation from the Member States. In addition to litigation, the Commission also organizes, as part of its promotional mandate, some elite-driven seminars. In fact, it is fair to say that, for most part of its existence, the Commission has been preoccupied with organizing seminars only to be attended by few professional elites and NGOs/CSO and that its commissioners are often busy with giving lectures and presentations, again, to few professional elite groups including those living overseas.

We have already seen that the jurisprudence of the Commission on poverty-related violations of the right to health is thin. This is because none of the communications discussed above alleged that the State has violated its positive obligation to ensure access to health care and its underlying determinants. So there is little that we could say as regards the Commission’s view regarding the obligations of the Member States towards the socioeconomically vulnerable parts of the society. Of course the Commission has indicated that, drawing on the UN CESCR, it would analyse State Party’s obligations in the light of the general obligation to respect, protect, promote and fulfil. But what these actually entail in the context of the continent where the great majority of the populations are rural residents and are living under chronic poverty still remains unexplained. Perhaps to one’s surprise, even though the Commission operates in the continent where poverty is chronic; ill-health, maternal and child mortality is rampant (one of the highest in the world); corruption is endemic; and democratic accountability is in deficit for so long, it is, to my knowledge, yet to make any systematic or country-specific study; concrete policy recommendations; or establish a special mechanism on any one of these. One should recall that corruption and lack of structural accountability are underscored in this contribution as the major underlying impediments to the effective realization of the right to health care and basic social justice in continent.¹⁶²

Therefore, by looking into its past approaches and practices, it is unfortunately very difficult to conclude that the Commission has been acting in such a way as to respond to the structural injustices and accountability deficits prevailing in the continent. There is simply no evidence that could warrant that conclusion. Instead, the Commission is described by some as ‘the least effective human rights institution of the three regions’¹⁶³ or as a ‘toothless bulldog’.¹⁶⁴ In my opinion, even such characterizations may not fully express the extent to which the Commission has failed, particularly in relation to the promotion and protection of socioeconomic rights in Africa. In this regard, we should note that the African Charter did not conceive the office of the Commission as a ‘toothless bulldog’. By vesting it with such robust promotional and fairly protective mandates, the Charter envisages the Commission as a continental institution that can engage actively and critically with local institutions and be a vehicle of change by constructively guiding the Member States through in-depth research, training and providing them with articulate, practical and alternative policy recommendations aimed at addressing concrete human rights problems.¹⁶⁵

In the area of the right to health, for instance, the Commission could have contributed significantly by drawing key crosscutting issues from the wealth of reports of the Member States; launching its own thematic and county-specific investigations into national systems and practices; publishing its own robust reports and recommendations; and by using effectively its findings and experiences in its grassroots level promotional and training activities. This would, in turn, not only play a significant role in enhancing the protection of human rights but also in establishing its authority and legitimacy as an objective voice of human rights and basic social justice in the continent. But this would clearly require the Commission to make some critical programmatic and methodological choices. Thus, it should particularly focus on practical and robust promotional, training and research activities pertinent to the continent’s dire needs. Such activities should not repeat its past failures or ineffectiveness. It should adopt methods well-rationalized into the contexts of individuals in need of its protective functions; it should actively and critically engage with local actors; I should aid governments through concrete and practical human rights protective guidelines. In this way, it is very possible that the Commission can contribute substantially to the quest for legal accountability in the area of the realization of basic social justice in Africa.

5 Conclusion

Health is an integral component of the very essence of human life in dignity and, hence, the right to health is all about ensuring respect for the inherent dignity of the human being. The right to health secures human dignity by guaranteeing to everyone the right to have those basic biological and moral health needs inherent in and indispensable for his or her dignified living and, to this extent, by imposing a compelling obligation on the State Party to realize the same in strict accordance with the basic principles of social justice such as equality (non-discrimination) and solidarity. It is, therefore, utterly impossible for the State to respect the inherent dignity of a human being without first ensuring the right to health of all persons within its jurisdiction. In particular, we have seen that the right to health as recognized in human rights law incorporates the right to have freedom of choice, the right to have access to basic health entitlements and the right to have access to justice. However, the discussion has shown that neither of these is in fact ensured by governments in Africa. The empirical facts with which I have started this discussion shockingly indicate the dire and persistent shortage of access to health care and its underlying determinants; and the decisions of the African Commission also establish very serious violations of the right to health in the continent, particularly in the context of detention and humanitarian crisis. So, whether it is seen through the solid empirical facts or the decisions of the Commission, it is clear that the governments in Africa have failed miserably in ensuring the right to health and, hence, the dignity of most Africans.

Nevertheless, the chronic failure has hardly anything to do with a lack of resources (scarcity) as such. In fact, it emerges from the analysis in this contribution that States Parties cannot, under any circumstances, justify their failure to ensure the right to freedom of choice and access to justice on account of resource constraints. It is equally unacceptable that the State justifies its failure to ensure the right to health care and the underlying determinants of health for the vulnerable members of society on the ground of a lack of material resources. On the contrary, it is argued that the general problem of systemic, structural accountability persisting in the continent can best explain why the continent has been and continues to be at the heart of a global public health crisis for an unacceptably long period of time. Rather disappointingly also, the principal remedial institutions currently available at the AU level, the Court and the Commission, were unable to play meaningful roles in dealing with this underlying systemic problem. It might be encouraging to note that the AU has now integrated the question of the right to health into issues of basic social justice in the continent. But again there is no mechanism to ensure that such discretionary policy recommendations would result in some practical effects at the grassroots level. Ensuring the realization of the right to health through the AU system requires the existence of a strong legal accountability mechanism. Accordingly, it is imperative that the AU and its Member States work, as a matter of priority, towards revitalizing and rationalizing¹⁶⁶ these remedial institutions. Without this, the claim of the AU and its Members as being concerned with the protection and promotion of human dignity, human rights and social justice is simply nothing more than empty political rhetoric.