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

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The Right to Health

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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.

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Notes

  1. 1.

    Amnesty International Report 2009: The State of World’s Human Rights (hereinafter Amnesty International Report 2009, available at www.amnesty.org last accessed 27 June 2013), p. 9.

  2. 2.

    See the World Health Report 2000: Health Systems: Improving Performance, World Health Organization, Geneva (hereinafter World Health Report 2000, available at www.who.int/whr/2000/en/whr00_en.pdf last accessed 24 March 2013), Tables 2.2 and 2.3, pp. 29–30. In addition to those cited here and below, documents cited at footnote 48, 59, 88, 70 and 97 also provide interesting facts and figures confirming this assertion.

  3. 3.

    See Health Situation Analysis in the African Region: Atlas of Health Statistics 2011, World Health Organization Regional Office for Africa (hereinafter Atlas of Health Statistics 2011, available through www.afro.who.int/en/clusters-a-programmes/ard/research-publications-and-library-services.html last accessed 24 March 2013), pp. x–xi.

  4. 4.

    See the World Health Report 2010: Health Systems Financing: the Path to Universal Coverage, the World Health Organization, Geneva (hereinafter World Health Report 2010, available at www.who.int/whr/2010/10_summary_en.pdf last accessed 24 March 2013), Executive Summary, pp. x–xi.

  5. 5.

    Ibid.

  6. 6.

    See MDG Report 2012: Assessing Progress in Africa towards the Millennium Development Goals: Emerging Perspectives from Africa on the post-2015 Development Agenda, Economic Commission for Africa et al. (hereinafter MDG Report 2012: Assessing Africa’s Progress, available at www.undp.org/dam/undp/library/MDG/english/MDGRegionalReports/Africa/MDGReport2012_ENG.pdf(final).pdf last accessed 25 August 2013), pp. 56–64.

  7. 7.

    Ibid.

  8. 8.

    Ibid., p. 59. ‘The four main global killers of children under-five are pneumonia (18 per cent), diarrhoeal diseases (15 per cent), pre-term birth complications (12 per cent) and birth asphyxia (9 per cent). Malnutrition is an underlying cause in more than a third of under-five deaths. Malaria is still a major cause of child mortality in Africa (excluding North Africa), causing about 16 per cent of under-five deaths.’ Ibid.

  9. 9.

    Ibid., p. 65. In the report, Malaria, HIV/AIDS, TB were mentioned as among major driving factors behind MMR in the continent.

  10. 10.

    See Africa Human Development Report 2012: Towards a Food Secure Future, UNDP (hereinafter Africa Human Development Report 2012, available at www.undp.org/content/dam/undp/library/corporate/HDR/Africa HDR/UNDP-Africa HDR-2012-EN.pdf#page = 10&zoom = auto,0,243 last accessed 25 August 2013), p. 1.

  11. 11.

    Africa’s average total expenditure on health was only for 6.2 % of GDP in 2007 (global average by then was 9.7). See Atlas of Health Statistics 2011.

  12. 12.

    See Abuja Declaration on HIV/AIDS, Tuberculosis and Other Infectious Diseases 2001, Abuja, Nigeria, Doc. OAU/SPS/ABUJA/3 (hereinafter Abuja Declaration, available at http://www.un.org/ga/aids/pdf/abuja_declaration.pdf last accessed 30 April 2013), para 26.

  13. 13.

    See ‘State of Health Financing in the African Region, Discussion Paper for the Interministerial Conference: Achieving Results and Value for Money in Health, 4–5 July 2012, Tunis, Tunisia’, WHO Regional Office for Africa (hereinafter WHO 2012: State of Health Financing in Africa, available at http://www.hha-online.org/hso/system/files/health_financing_in_africa_edited_03_july_-_copy.pdf last accessed 30 April 2013), p. 7.

  14. 14.

    These include the Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC), Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), African Charter on Human and Peoples’ Rights (African Charter or the Banjul Charter), African Charter on the Rights and Welfare of Child, the Protocol to the African Charter on the Rights of Women in Africa (Protocol on Rights of Women in Africa). See also footnote 52.

  15. 15.

    See Sect. 2.3.3.

  16. 16.

    For the objectives and purposes of the AU, see Preamble cum Articles 3 and 4 of the Constitutive Act of the AU (AU Constitutive Act) adopted 11 July 2000 entered into force 26 May 2001 (available through www.au.int/en/treaties last accessed 10 May 2013). See also, mutatis mutandis, the responsibility of the AU enshrined in the Banjul Charter especially at Part II (concerning measures of safeguard) and in the ACRWC at Part II; Article 46 Statute ACtJHR and Articles 30 and 31 Protocol ACtHPR (both instruments cited at footnote 107). See generally Viljoen 2012, p. 156f, Yusuf and Ouguergouz 2012, Doumbé-Billé 2012.

  17. 17.

    From the outset it should be stated that the theoretical idea and significance of human dignity has been debated generally and in relation to the right to health but here the sole focus is on its importance for the practical understanding of the normative essence and implications of the right to health as enshrined under international human rights law. For a general discussion on human dignity, see Klein and Kretzmer 2002, Rosen 2012, Dworkin 2011, Riley 2011, Kateb 2011, Spijkers 2011, Malpas 2010, Malpas and Lickiss 2010, Waldron 2007, Dworkin 2006, 1997, Weinrib 2005, Carozza 2003, Feldman 1999, 2000, Meyer and Parent 1992, Schacter 1983. In the context of the right to health, see generally Kaufmann et al. 2011, Malpas and Lickiss 2010, Aasen et al. 2009, Andorno 2009, Schroeder 2010, Eibach 2008, Chan and Pang 2007, Chochinov 2007, Häyry 2004, Harris and Sulston 2004, Brownsword 2003, Gentzler 2003.

  18. 18.

    In this discussion the notion of ‘norm’ and ‘principle’ should be understood in the sense they are used in Alexy 2010a, b. According to Alexy, there are three essential aspects to deontic norms: command, prohibition and permission which he also analysed in the context of constitutional rights theory (see Alexy 2010b, pp. 114–138); on his theory of principle see ibid., at Chap. 3.

  19. 19.

    This is the normative statements enshrined in the preambles of the United Nations Charter (UN Charter) and almost all of the international human rights treaties. For instance, the Preamble to UDHR provides, ‘recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, peace and justice in the world… the disregard and contempt of the same has been the source of all forms of indignity and injustice…’. The Preambles to the twin Covenants, International Covenant on Civil and Political Rights (ICCPR) and ICESCR, repeat this saying, ‘The States Parties to the present Covenant … [recognize] that [the equal and inalienable rights of all members of human family declared in UDHR] drive from the inherent dignity of the human person’. The Preamble to the Banjul Charter also states, ‘[the States Parties recognize] on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their international protection and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights’….

  20. 20.

    See footnote 17.

  21. 21.

    See Rosen 2012, pp. 19–31 (discussing Kant’s usage of the concept of dignity), Parfit 201l, Chap. 10 at Sections 34 and 35, (also discussing Kant’s notion of value and dignity), Sulmasy 2010, pp. 13–17, Malpas 2010, pp. 19–20, Parent 1992, pp. 62–63. This does not mean that there is a universal conception on the idea and function of human dignity both generally and in human rights law. For more on this see the exchange between Carozza 2003, 2008, MCCrudden 2008, Riley 2010, at Sect. 1.2 (providing a very helpful intervention in the debates between the former two and several others); M’Honey 2012a, b and White 2012. See also Henry 2011, Rao 2011. There are also authors who reject the relevance of the notion of human dignity in the current human rights discourse altogether. See particularly Macklin 2003, Fyfe 2007, Hennette-Vauchez 2011.

  22. 22.

    Usually the discussion on dignity concentrates on the moral aspects of being a human person and it rarely expresses the fact that the value of dignity equally pertains to the biological aspect of being human. For the purpose here we can say that by the natural fact of being born as free biological and moral beings, all human beings have equal dignity and, on this very basis, have the right to enjoy equally those basic biological and moral human needs inherent to their dignity.

  23. 23.

    For more on the practical construction of the idea of human dignity see Nussbaum 2006, p. 69ff. (referring to the idea of life in dignity in its intuitive sense), Spijkers 2011 (discussing the sense in which the practical concept of human dignity has over the years been consistently employed in the legislative practices of the UN General Assembly); Henkin 1992, Parent 1992. The following authors have attempted to apply the principle of human dignity to the practical context of right to health and health care: Lickiss 2010, Malpas 2010, Sulmasy 2010 and in some of the essays in Aasenet et al. 2009, Kaufmann et al. 2011.

  24. 24.

    In the Oxford Advanced Learner’s Dictionary the word ‘inviolable’ is defined as ‘that must be respected and not attacked or destroyed’. See also Articles 4 and 5 ACHPR, Article 1 Charter of Fundamental Rights of the European Union (EUCFR). Article 1 of EUCFR states, ‘Human dignity is inviolable. It must be respected and protected’. For commentary on this provision, see Olivetti 2010. See Rosen 2012, pp. 57–58 (discussing the notion of respect-as-observance and respect-as-respectfulness, Parent 1992, p. 63 (discussing the idea of dignity as moral inviolability), Chaskalson 2002, pp. 134–135, Frowein 2002, pp. 121–124, Riley 2010, p. 133f, Klein 2002, p. 146ff, Kretzmer 2002, p. 167ff, Harris and Sulston 2004, p. 799ff, Dworkin 1997, pp. 198–199, 2006, pp. 9–21, Andorno 2009, Schacter 1983. See also Parfit 201l, Chap. 10, Sections 33 through 35.

  25. 25.

    See Riley 2010, especially at Sect. 2.5; Parent 1992, p. 61ff.

  26. 26.

    See footnote 17 & 24. This principle is referred to as the principle of respect for human dignity, the principle of human dignity or, in short, human dignity throughout this discussion.

  27. 27.

    See generally Tobin 2012, Backman 2012, Toebes et al. 2012, and Toebes 1999. See also UN Doc. E/CN.4/2003/58, at Section I (Paul Hunt, discussing sources, contours and contents of right to health).

  28. 28.

    This is just one of the many vital imports of the capability approach developed by Nussbaum and Sen. See Nussbaum 2000, 2006, 2011, and Sen 1999, 2004, 2009.

  29. 29.

    Nussbaum 2006, p. 71 (referring to the idea of ‘threshold level’ beneath which each central human capability need should not fall so as to ensure ‘a truly human functioning’).

  30. 30.

    Ibid., pp. 76–78 (listing the ten central human capabilities need which, as she argues, is worked out from ‘an intuitive idea of a life that is worthy of the dignity of the human being’; this is also discussed earlier in Nussbaum 2000 and more recently in Nussbaum 2011). See Shue 1996, at Chap. 1, Chaskalson 2002, p. 142 (stating that there can be little dignity in living under the conditions socioeconomic deprivations).

  31. 31.

    See also Sect. 2.3.

  32. 32.

    Compare this generally with the views of the Committee on Economic Social and Cultural Rights (CESCR) in, inter alia, General comment No. 3: The nature of States parties’ obligations (Article 2, para 1) (Annex III), UN Doc. E/1991/23(SUPP) (hereinafter General Comment 3); General comment No. 14(2000): The right to the highest attainable standard of health (Article 12 of the International Covenant on economic, social and cultural rights), UN Doc. E/C.12/2000/4 (hereinafter General Comment 14).

  33. 33.

    But we should not, however, see the argument from social justice as a new addition to this discussion. As it is to be seen in the subsequent paragraphs, the obligation of the State to ensure basic social justice flows directly from the fundamental principle of human dignity described above. In fact, to the extent social justice concerns the realization of those basic and indispensable material conditions of human life, it can be regarded as a sub-normative principle of human dignity. See generally Shue 1996, pp. 22–29 and 55–64 (discussing the notion of subsistence rights and the generic obligations flowing therefrom).

  34. 34.

    Note that by socioeconomic rights regime I am referring to all those international legal norms (treaties) providing for the rights of individuals to have access to basic material goods and services available within their countries or systems.

  35. 35.

    For commentaries on these provisions see several essays in Eide et al. 1992, Morsink 1999, especially at Chap. 6. See also Oraá 2009, pp. 197–203.

  36. 36.

    See particularly Articles 22, 23, 25 and 26. See Morsink 1999 ibid, Eide et al. 1992 ibid.

  37. 37.

    See Article 21 (3) which partly reads, ‘The will of the people shall be the basis of the authority of the government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage …’; for commentary on this provision see Rosas 1992.

  38. 38.

    Article 21(1) and (2).

  39. 39.

    See also Dworkin 1997, pp. 180–182 (critiquing the underlying assumption behind Rawls’ contractual theory of justice. For Dworkin ‘individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them’ and that this is ‘a natural right of all men and women’ in the sense that it is ‘a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice’) (emphasis added).

  40. 40.

    According to Gould, this right is justified on the basis of what she calls the principle of equal positive freedom, which she also considers as the foundation of (social) justice and democracy. See Gould 2004, pp. 37–39 and 71–74.

  41. 41.

    See generally Fredman 2008, at Chaps. 1 and 2.

  42. 42.

    Note that in referring to the principle of solidarity here I am specifically concerned with the legal obligation of the state to towards those vulnerable members of the society who are or might be, for reasons beyond their control, unable to cater for themselves and their dependents those basic material conditions of life. See General Comment 3, para 12; General Comment 14, especially at para 18 through 27 cum para 52); ‘Principles and Guidelines on Implementation of Economic Social and Cultural Rights in the African Charter’ adopted by the African Commission on its 50th Ordinary Session, 24 October 2011, (available at http://www.achpr.org/files/instruments/economic-social-cultural/achpr_instr_guide_draft_esc_rights_eng.pdf last accessed 20 March 2013) (hereinafter Principles and Guidelines), where the African Commission specifically underscores this obligation of the States with respect each of the socioeconomic rights guaranteed under the African Charter. See also Shue 1996, pp. 29–34. For some theoretical discussions on the idea of solidarity see generally Lotito 2010, p. 171, Hestermeyer 2012, pp. 46–51, Koroma 2012, Rangel 2012, Nussbaum 2006, pp. 36–39, 41–45 and 85–86 (discussing the Grotian, Aristotelian, Lockian and Marxian account of society and sociability), Fredman 2008, pp. 25–30.

  43. 43.

    See also Articles 11(1) and 9 ICESCR; Article 18(3) ACHPR (compare this with Article 29(4) of the same on the duties of individuals towards their community).

  44. 44.

    See generally General Comment 16(2005): The equal rights of men and women to the enjoyment of all economic, social and cultural rights (Article 3 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2005/4; General Comment 20: Non-Discrimination in economic, social and cultural rights (Article 2, para 2, of the International Covenant on Economic, Social and Cultural Rights) UN Doc. E/C.12/GC/20. See also ‘Report of the United Nations High Commissioner for Human Rights’, UN Doc. E/2008/76 discussing the role of the twin principle of equality and non-discrimination in the protection of women’s socioeconomic rights.

  45. 45.

    On this see series of reports by Paul Hunt, the former UN Special Rapporteur on the Rights of everyone to the Highest Attainable Standard of Physical and Mental Health, between 2002 and 2008, available through UNOHCHR website http://www.ohchr.org/EN/Issues/Health/Pages/AnnualReports.aspx last accessed 15 April 2013). See also his Report to UN Human Rights Council (UN Doc. A/HRC/7/11, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/105/03/PDF/G0810503.pdf?OpenElement last accessed 15 April 2013) and to UN General Assembly (UN Doc. A/63/263).

  46. 46.

    Clapham 2007, p. 128 (citing Paul Hunt).

  47. 47.

    See generally Hunt and Backman 2008, Backman 2010.

  48. 48.

    ‘Closing the gap in a generation: health equity through action on the social determinants of health’, Final Report of the Commission on Social Determinants of Health, Geneva, World Health Organization (hereinafter, Final Report CSDH 2008, available at http://whqlibdoc.who.int/publications/2008/9789241563703_eng.pdf last accessed 28 March 2013), p. 1.

  49. 49.

    Final Report CSDH 2008, ibid. See Toebes 2012, p. 112ff. (referring to this same report in her discussion of the social determinants of the right to health). See also Rio Political Declaration on Social Determinants of Health, adopted at World Conference on Social Determinants of Health, Rio De Jeneiro, Brazil, 19–21 October 2011 (hereinafter Rio Political Declaration, available at http://www.who.int/social_determinants/en/ last accessed on 20th March 2013), paras 1–13; Alma-Ata Declaration, para V. See generally Filho 2008 (discussing, especially drawing on the experiences from Latin America, the role of human right-based approach to health policies and programmes for the realization of social justice).

  50. 50.

    Gauri and Brinks 2008, p. 1.

  51. 51.

    For the recent update concerning the status of ratifications of African countries of international human rights law, see Viljoen 2012, pp. 143–145 at Table 3.2 and pp. 285–287. Thus, at UN level more than 90 % of African Countries (calculated at the exclusion of the new South Sudan) have ratified ICESCR; ICCPR; CERD; CRC; CEDAW; at continental level it stands that out of 53 countries (excluding South Sudan) ACHPR is ratified by all countries; ACRWC by 46; Protocol on the Rights of Women in Africa by 30 countries. As Nnamuchi and Ortuanya 2012 notes, all 53 member countries had ratified African Charter as of 15 March 1999 (at p. 179).

  52. 52.

    The following treaties recognize the rights of every person to the highest attainable standard of physical and mental health for every person. Article 25 UDHR, Article 12 ICESCR and Article 16 ACHPR. The protections enshrined in these treaties are further heightened by numerous thematic treaties aimed at safeguarding the interests of persons or group of persons who are or may be more vulnerable to discrimination, marginalization or exclusion in a society because of different background factors impairing, in one way or another, the equal and full enjoyment of their human rights. The following are major thematic treaties providing also for the protection of the right to health in Africa: CRC; CERD; CEDAW; Convention on the Rights of Persons with Disabilities (CRPWD); ACRWC; Protocol on Rights of Women in Africa. Hence, by subscribing to these binding legal instruments, States Parties have specifically undertaken to address those background factors as minority (childhood), gender, race, ageing, disability and other prohibited grounds of discriminations impairing the fullest enjoyment of the human right to health with utmost priority and urgency. In accordance with Articles 60 and 61 ACHPR, Article 31 Protocol AfCtJHR (footnote 107) and Article 7 Protocol AfCtHPR (footnote 107), all of these treaties are directly enforceable before the Commission and the Human Rights Court to the extent they are ratified by the State Party concerned. Further, the right to health is also enshrined in national constitutions as well. See Heyns and Kaguongo 2006, noting that the right health has been recognized ‘in various formulations, in the constitutions of 39 African countries’ (see at p. 706 and the accompanying footnote 246). See generally Marks and Clapham 2005, p. 199 (noting that right to health has been recognized in one way or another in more than a hundred national constitutions). For more on the right to health in the African Human Rights Systems, see for instance Yeshanew 2011, pp. 244–249; Viljoen 2012.

  53. 53.

    This, in turn, is to contrast the characterization of the right to health as implying some sort of discretionary or programmatic policy measures. If the realization of the right to health is to be seen as constituting the discretionary policy choices of the State, then, it is up to the State concerned to take whatever steps it deems fit or not to take any actions at all—in either ways the State is under no obligation whatsoever (see generally Alexy 2010b, pp. 334–337). However, such a characterization is basically incompatible with the core demands of the principle of human dignity from which the normativity of the right to health directly flows.

  54. 54.

    See for instance Article 16(1) ACHPR; Article 12(1) ICESCR.

  55. 55.

    For the specific treatment of immediate and progressive State obligation, see Sepulveda 2003, at Chaps. 5 and 7, Fredman 2008, at Chap. 3. See also Arambulo 1999, Langford 2008.

  56. 56.

    Hence, it is accordingly suggested here that the Committee’s distinction between the immediate and progressive realization of the State under ICESCR as expressed first, in General Comment 3, then, in other subsequent general comments should be understood in this sense. See also Sepulveda 2003, at Chap. 5 (Sect. 2.3) and 7, Fredman 2008, pp. 70–87.

  57. 57.

    See generally General Comment 14.

  58. 58.

    See Hunt and Beckman 2008, p. 82 (making a helpful analogy between the implications of the protection of the right to fair trail and right to health, in which they argued that as right to fair trial implies the establishment of court systems, the right to health also implies the establishment of health systems (the paper is available at http://www.hhrjournal.org/index.php/hhr/article/view/22/106 last accessed on 1 March 2013). See also Backman 2012, p. 113ff.

  59. 59.

    In this sense it can be said that the following documents generally recognize the systemic nature of the right to health: General Comment 14; Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978 ((hereinafter Alma-Ata Declaration, available at http://www.who.int/publications/almaata_declaration_en.pdf last accessed in February 2013); Rio Political Declaration, Social Policy Framework for Africa adopted at the First Session of the AU Conference of Ministers in Charge of Social Development’, Windhoek, Namibia, 27–31 October, CAMSD/EXP/4(I) (hereinafter AU Social Policy Framework 2008, available at http://sa.au.int/en/content/social-policy-framework-africa (last accessed on 24 March 2013).

  60. 60.

    See generally General Comment 14, para 8 where the CESCR stated, ‘The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’ (emphasis added).

  61. 61.

    For a recent critical review of the typologies of State obligations see particularly Koch 2009, especially at Chap. 2.

  62. 62.

    See General Comment 14, para 12, where the CESCR stated that the right to health in all its forms and at all levels contains the following interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State Party: availability, accessibility, acceptability and quality of health facilities, goods and services. See also Tobin 2012, at Chap. 4.

  63. 63.

    For the sake of clarity, it can therefore be stated that when we speak of the State Party obligations vis-à-vis the right to health under international law, we are essentially concerned with the obligation to respect, protect, promote, facilitate and fulfil the right to freedom of choice, the right to basic health entitlements and the right to effective justice for everyone within its jurisdiction.

  64. 64.

    See General Comment 14, para 8; Principles and Guidelines, paras 5 and 65; Tobin 2012, at Chap. 4 (III); Jayawickrama 2002, p. 883.

  65. 65.

    See Articles 3, 4, 5 and 14 Protocol on Rights of Women in Africa; Article 12 CEDAW. See also Yeshanew 2011, pp. 248–249; Tobin 2012 ibid.; Toebes 1999, pp. 52–55; Jayawickrama 2002, pp. 886–887.

  66. 66.

    Tobin 2012 assesses some of the issues the right to freedom of health involves particularly in the context of reproductive health, adolescence sexuality and related risks thereof (such as HIV/AIDS and other sexually transmitted diseases), medical treatment and medical experimentation (see at pp. 132–158).

  67. 67.

    See General Comment 14, paras 30–37.

  68. 68.

    See General Comment 14, para 8; Jayawickrama 2002, pp. 883–884. See also generally the Final Report CSDH 2008, the Rio Political Declaration; Alma-Ata Declaration, paras VI–VII. For the treatment of the idea of entitlements in general see Alexy 2010b, at Chap. 9.

  69. 69.

    See for instance Article 25 UDHR; Articles 11 and 12 ICESCR; Article 16 African Charter. See also General Comment 14, paras 11–13; Principles and Guidelines, para 61ff; Alma-Ata Declaration, paras V–VII; the Rio Political Declaration; the Ottawa Charter for Health Promotion, First International Conference on Health Promotion, Ottawa, 21 November 1986 (available at http://www.who.int/healthpromotion/conferences/previous/ottawa/en/ last accessed on 10 May 2013) (hereinafter the Ottawa Charter). See generally Toebes 2012, pp. 112–118; Toebes 1999, at Chap. V; Jayawickrama 2002, pp. 871–880 and 888–889, Tobin 2012, Alexy 2010b, Chap. 9, at Sect. IV.

  70. 70.

    Report of the International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978, World Health Organisation (hereinafter Background Report to Alma-Ata Conference 1978, available at http://whqlibdoc.who.int/publications/9241800011.pdf last accessed 24 March 2013). See generally AU Social Policy Framework 2008; the ‘Africa Health Strategy 2007–2015: Strengthening of Health Systems for Equity and Development in Africa’, CAMH/MIN/5(III), adopted at the Third Session of the AU Conference of Ministers of Health, Johannesburg, South Africa, 9–13 (hereinafter Africa Health Strategy 2007–2015, available at http://www.nepad.org/system/files/AFRICA_HEALTH_STRATEGY%28health%29.pdf (last accessed 25 March 2013).

  71. 71.

    This is generally part and parcel of general justiciability debate on ESCR. On this see generally essays in the following publications: Auweraert et al. 2002, Ghai and Cottrell 2004, Coomans 2006, Baderin and Mccorquodale 2007, Langford 2008. See also Fredman 2008, Yeshanew 2011, Viljoen 2012.

  72. 72.

    This does not suggest that there is a universal consensus to that effect. See Tobin 2012, pp. 1–6 (providing a concise overview of the current state of debate on right to health). But seeing particularly in the light of the substantive contents of the international human rights law, it clearly seems to me a contra legem to say that the right to health does not provide for the right to have basic entitlements. Especially since the 1978 Alma-Ata Conference the underlying conditions of health have, at least theoretically, become the dominant part of the discussions on the right to health. In this regard, the works of the CESCR (especially in General Comment 14) and Paul Hunt, in his capacity as the former UN Special Rapporteur on the Rights of everyone to the Highest Attainable Standard of Physical and Mental Health from 2002 to 2008 (cited at n. 45 above) have been very pivotal in expounding the practical understanding of the contents of the right to health and State obligations thereof.

  73. 73.

    For the view of the CESCR see General Comment 14, para 30ff; General Comment 3, para 9. See generally Sepulveda 2003, Fredman 2008.

  74. 74.

    See for instance footnote 71.

  75. 75.

    For an interesting report on the role of the right of access to justice for the realization of socioeconomic rights see Inter-American Commission on Human Rights (IACoHR), Access to Justice as a Guarantee of Economic, Social, and Cultural Rights. A Review of the Standards Adopted by the Inter-American System of Human Rights, OEA/SER.L/V/II.129, Doc. 4, 7 September 2007 (also available through www.oas.org/en/iachr/reports/thematic.asp last visited 25 May 2013). See also IACoHR, the Work, Education and Resources of Women: the Road to Equality in Guaranteeing Economic, Social and Cultural Rights, OEA/SER.L/V/II.143, Doc. 59, 3 November 2011; IACoHR, Access to Justice for Women Victims of Sexual Violence: Education and Health, OEA/SER.L/V/II. Doc 65, 28 December 2011 (both documents available through the link mentioned hereinbefore).

  76. 76.

    In making this distinction I generally follow the approach of Wildhaber and Greer who discussed the merits of such an approach in the context of the European Court of Human Rights (ECtHR). See Wildhaber 2002, 2006, 2007, Greer 2006. See also Mowbray 2010.

  77. 77.

    See Greer 2006, pp. 165–169. See generally Shelton 2005; Francioni 2007.

  78. 78.

    See citations at footnote 76.

  79. 79.

    In this regard individual justice proceeding may also have some element of proactive dimension, at least in theory. But in practice, this is in fact not the case: there is simply little evidence that ensuring individual justice would also and necessarily result in constitutional justice for all. See generally Brinks and Gauri 2008, Landau 2012.

  80. 80.

    To my knowledge a more structured discussion on the notion of constitutional justice dimension of right to access to justice began by former judge of the ECtHR, Wildhaber followed by the extensive treatment of the subject by Greer and more recently by Mowbray, all cited at footnote 76. With respect to the practices at national level such notions as ‘writ action’, ‘actio popularis’, ‘public interest litigation’, ‘class action’, ‘amparo action’ can be seen as approximating the ideal of constitutional justice mentioned in this discussion.

  81. 81.

    See Hunt and Backman 2008; Backman 2012 (both discussing health systems in the light of the values enshrined in the Alma-Ata Declaration); Nnamuchi and Ortuanya 2012, p. 187 (discussing certain elements of governance that should be in place to meet the promises of human right to health through Millennium Development Goals (MDGs). See also World Health Report 2000, ‘Health Systems: Improving Performance’, World Health Organization (hereinafter World Health Report 2000, available at http://www.who.int/whr/2000/en/whr00_en.pdf last accessed 24 March 2013); the Report of Special Rapporteur on Right to Health, Paul Hunt, UN Doc. A/HRC/7/11 (available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/105/03/PDF/G0810503.pdf?OpenElement last accessed 15 April 2013).

  82. 82.

    See generally Francioni 2007, IACoHR (footnote 75).

  83. 83.

    Hunt and Backman 2008, Potts, Accountability (footnote 84), pp. 17–18; Amnesty International Report 2009, pp. 8–9. See particularly UN Docs. A/63/263 at Section III, and A/59/422, paras 36–45 (Paul Hunt articulating the special significance of accountability in ensuring the effective realization of the right to health and health-related MDGs).

  84. 84.

    See Potts 2008, Accountability and the Right to the Highest Attainable Standard of Health, Human Rights Centre, University of Essex (hereinafter, Potts, Accountability, available at http://www.essex.ac.uk/hrc/research/projects/rth/docs/HRC_Accountability_Mar08.pdf last accessed 21 February 2013).

  85. 85.

    Ibid., p. 13. Interestingly, it has ‘both prospective and retrospective’ dimensions. In the former sense, ‘it draws attention to its potential to improve performance: to identify what works, so it can be repeated, and what does not, so it can be revised’; in the latter sense, ‘it draws attention to the remedies that should be available when there has been failure on the part of government to fulfil its obligations’. Ibid. This shows that Potts notion of accountability incorporates both aspects of the right to access to justice—the right to individual justice and constitutional justice thus described in this discussion.

  86. 86.

    UN Doc. A/63/263, para 8 (referring also to the work of Potts cited at footnote 84).

  87. 87.

    See footnote 2–13.

  88. 88.

    See Background Report to Alma-Ata Conference 1978, pp. 37–38. See also the Final Report CSDH 2008; World Health Report 2007: Everybody business: strengthening health systems to improve health outcomes: WHO’s framework for action, World Health Organization, Geneva (hereinafter World Health Report 2007, available at http://www.who.int/whr/2007/en/index.html last accessed 10 February 2013); World Health Report 2008: Primary Health Care (Now More Than Ever), World Health Organization, Geneva (hereinafter World Health Report 2008, available at http://www.who.int/whr/2008/en/index.html last accessed 15 April 2013).

  89. 89.

    See AU Social Policy Framework 2008, at Sect. 1.1; Africa Health Strategy 2007–2015, at in this chapter See Abuja Declaration, para 26; WHO 2012: State of Health Financing in Africa.

  90. 90.

    See AU Social Policy Framework 2008 at Executive Summary and Section 1; Africa Health Strategy 2007–2015 at in this chapter. See also citations at footnote 2–13 and 88. The AU Social Policy Framework 2008, Africa Health Strategy 2007–2015 and the Rio Political Declaration also mention problems relating to the global economic order affecting in one way or another the African national health systems but this will not be discussed here. On the role of international cooperation for the realization of right to health in Africa, see Nnamuchi and Ortuanya 2012. See generally A/59/422, paras 32–35 and 42–46; Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Right, adopted on 28 September 2011, Maastricht, The Netherlands (available at http://www.rtfn-watch.org/uploads/media/Maastricht_ETO_Principles__EN.pdf last accessed 20 April 2013).

  91. 91.

    See also (footnote 78) above.

  92. 92.

    Acemoglu and Robinson 2012, p. 70ff. See the reports cited at footnote 2–13 and 88; Amnesty International Report 2009, footnote 1.

  93. 93.

    See AU Social Policy Framework 2008, at Sect. 2.2.18. See also Africa Health Strategy 2007–2015, at Sect. 4.1.1, para 31ff.

  94. 94.

    See particularly Viljoen 2012, p. 544. In its 2009 report, footnote 1, Amnesty International also indicated that ‘Millions across the region continued to be deprived of their basic needs in spite of the sustained economic growth in many countries in Africa during past years. People faced enormous challenges in securing a daily livelihood, often aggravated by marginalization or political repression, attempts to muffle their voices and render them powerless’ (at p. 1).

  95. 95.

    See footnote 10 at p. 2ff.

  96. 96.

    Amnesty International Report 2009, footnote 1, pp. 8–9 (describing the problem of accountability and prevalence of impunity in the region).

  97. 97.

    See particularly World Health Report 2010; Africa Human Development Report 2012; MDG Report 2012: Assessing Africa’s Progress). See also Durojaye 2010, Alao 2010, Nnamuchi and Ortuanya 2012, p. 184ff, Viljoen 2012, p. 272ff. Since its first launch in 1995, African countries have been consistently in the category of low Corruption Perception Index of the Transparency International with the score of well below average (it is not more than one or two countries that approach the average 5/10 or 50/100 scale). For its recent report, see Corruption Perceptions Index 2012 (available at http://cpi.transparency.org/cpi2012/results/ last accessed 10 May 2013). Similarly, the Ibrahim Index of Africa Governance (IIAG) also provides us with the detailed account of governance crisis in the continent by breaking down into specific thematic issues as safety and rule of law (which covers rule of law, accountability, personal and national security) and participation and human rights (which covers participation, human rights and gender). Looking at its key findings of the 2012 index, it only shows a fragmented and unsustainable nature of any record of progress in each area since 2006. The 2012 IIAG can be found at http://www.moibrahimfoundation.org/iiag/ last accessed 10 May 2013).

  98. 98.

    These are population and development, labour and employment, social protection, health (including HIV/AIDS, TB, malaria and other infectious diseases), migration, education, agriculture, food and nutrition, the family, children, adolescents and youth, ageing, disability, gender equality and women’s empowerment, culture, urban development, environmental sustainability, the impact of globalization and trade liberalization in Africa and good governance, anti-corruption and rule of law. And there are also four additional areas of special concern: drug and substance abuse and crime prevention; sport; civil strife and conflict situations; and foreign debt (see at Executive Summary and Section 2).

  99. 99.

    Ibid. at Sect. 1.1, paras 1–2.

  100. 100.

    It should be mentioned that the AU Social Policy Framework 2008 envisages some kind of political accountability mechanisms. Among other things, the AU Commission is tasked with the monitoring of the actual implementation of the policy recommendation by receiving and reviewing of biennial progress reports from each Member State. It is also responsible to produce the overall status of social development in the continent every 2 years highlighting particularly the emerging issues and continuing challenges as well as to issue a comprehensive evaluation report on the implementation of the social policy framework every 5 years’ (see at Sect. 3.2.3). Nonetheless, this mechanism is immaterial for the States can still refuse to cooperate with its specific recommendations and still face no legal consequence whatsoever; it may even be very doubtful if failure to implement those recommendations would be met with any sort of political consequences both from the Commission and other political institutions of the Union as such. This actually means that this mechanism has a limited role, if any, in addressing the kind of systemic injustices and failures I have been stressing in this discussion.

  101. 101.

    See footnote 1 above citing Amnesty International Report 2009, p. 9.

  102. 102.

    See Article 2 Protocol ACtHPR; para 6 of Preamble to Protocol ACtJHR (see footnote 107).

  103. 103.

    See Article 3 Protocol ACtHPR; Article 28 Statute of ACtJHR (see footnote 107).

  104. 104.

    See Articles 30 cum 45 (2), 48, 55 and 62 African Charter. The protective function of the Commission, which is quite broader than the protective function of the Court, concerns the power to examine periodic State reporting and individual communications and to conduct on-site investigations.

  105. 105.

    See Article 30 cum (1) (a–c), (3), (4) 45 African Charter. Hence, as part of its promotional mandate, the Commission is tasked with broad range of activities as studying, researching and documenting human rights problems in the continent and organizing seminars, symposiums and conferences as well as providing trainings for particularly national institutions, issuing guiding principles and rules for the national legislations and practices relating to fundamental human and peoples’ rights.

  106. 106.

    According to the Banjul Charter, after consideration of communications (interstate or individual), the Commission shall prepare reports indicating its findings and recommendations thereof. See at Articles 52, 53, 58 and 59. This means that it does not have a legal power to make a binding judgment. It seems from the wording and spirit of the Charter that the findings and recommendations of the Commission would become binding and hence compelling on the State concerned if and when adopted accordingly by the Assembly of OAU/AU.

  107. 107.

    The establishment and full operationalization of the African continental judicial organ is complicated with various institutional hurdles and fragmentations. The first instrument, the Protocol to the African Charter on Human and Peoples’ Rights, was adopted on 9 June 1998 and entered into force on 2 January 2004 (available at http://www.au.int/en/sites/default/files/PROTOCOL_AFRICAN_CHARTER_HUMAN_PEOPLES_RIGHTS_ESTABLISHMENT_AFRICAN_COURT_HUMAN_PEOPLES_RIGHTS_1.pdf, last accessed 10 May 2013) (hereinafter Protocol ACtHPR). As it stands now this Protocol has only 26 ratifications of which only five countries have accepted the individual complaint mechanisms (the status of ratification can be accessed through http://www.au.int/en/sites/default/files/achpr.pdf, last visited on 13th May 2013). In parallel, there was also an initiative to establish the Court of Justice of the Union and the protocol to that effect was adopted on 11th July 2003 and entered into force on 11th February 2009 (available at http://www.au.int/en/sites/default/files/PROTOCOL_COURT_OF_JUSTICE_OF_THE_AFRICAN_UNION.pdf, last accessed 10 May 2013) (hereinafter Protocol CJAU). This protocol has only 16 ratifications (see at http://www.au.int/en/sites/default/files/Court%20of%20Justice.pdf , last visited 13 May 2013). To further complicate the matter (or one would say, to solve the problem before it gets worse), it was decided to merge the two judicial organs into one judicial organ which will have dual jurisdictional functions and henceforth be known as the African Court of Justice and Human Rights. The ‘merger’ protocol was adopted on 1 July 2008 (available at http://www.au.int/en/sites/default/files/PROTOCOL_STATUTE_AFRICAN_COURT_JUSTICE_AND_HUMAN_RIGHTS.pdf, last accessed 10 May 2013) (hereinafter Protocol ACtJHR and its Statute as Statute ACtJHR). This Protocol has so far only five ratifications (it will need 10 more to enter into force) (see at http://www.au.int/en/sites/default/files/Protocol%20on%20Statute%20of%20the%20African%20Court%20of%20Justice%20and%20HR.pdflast visited 13 May 2013).

  108. 108.

    See AU Social Policy Framework 2008, at Sect. 3.2.4.

  109. 109.

    See Article 46 Protocol ACtJHR.

  110. 110.

    But one should note that because of what is just said above (footnote 106) the term ‘legal enforcement’ is employed here only in its loose sense to express its decisions would become enforceable if and when approved by the Assembly of the AU.

  111. 111.

    The Commission was officially inaugurated on 2 November 1987 (note that the Banjul Charter entered into force on 21 October 1986).

  112. 112.

    For the discussion on the practices of the Commission vis-à-vis the protection of socioeconomic rights, see for instance Yeshanew 2011, Viljoen 2012, Ssenyonjo 2011, 2012.

  113. 113.

    Communication 276/03 , Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois Welfare Council)/Kenya (hereinafter Endorois case, decided on merits, 46th Ordinary Session (November 2009), Communication 157/96, Association pour la sauvegarde de la paix au Burundi/Kenya et al. (hereinafter ASP-Burundi), decided on merits, 33rd Ordinary Session (May 2003), Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group et al./DRC (joined) (hereinafter Free Legal Assistance), decided on merits, 18th Ordinary Session (October 1995).

  114. 114.

    This can be seen from the following decisions of the Commission: Communication 241/01, Purhoit and Moore/The Gambia (hereinafter Purhoit), decided on merits, 33rd Ordinary Session (May 2003); Communications 105/93-128/94-130/94-152/96, Media Rights Agenda et al./Nigeria (joined) (hereinafter Media Rights Agenda et al.), decided on merits, 24th Ordinary Session (31 October 1998); Communications 137/94-139/94-154/96-161/97, International PEN et al. /Nigeria (hereinafter International PEN et al.) (joined), decided on merits, 24th Ordinary Session (31 October 1998); Communications 54/91-61/91-96/93-98/93-164/97-196/97-210/98, Malawi Africa Association et al./Mauritania (joined) (hereinafter Malawi Africa Association et al.), decision on merits, 27th Ordinary Session (11 May 2000); Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS/Arab Republic of Egypt (hereinafter EIPR/INTERIGHTS), decided on merits, 9th Extraordinary Session (01 March 2011). For very helpful discussion on the normative function of human dignity in the detention situation see generally Riley 2011.

  115. 115.

    Purhoit, paras 4–8.

  116. 116.

    Ibid., para 80.

  117. 117.

    Ibid., paras 81–85.

  118. 118.

    Ibid., para 61.

  119. 119.

    Ibid., paras 50–54 and 70–72.

  120. 120.

    The relevant decisions of the Commission in this regard are the following: Media Rights Agenda et al. , International PEN et al., Malawi Africa Association et al. and EIPR/INTERIGHTS (all cited at footnote 114).

  121. 121.

    See Media Rights Agenda et al. at para 91; International PEN et al. at para 112, Malawi Africa Association et al. at paras 120 and 122. See also Purhoit at para 61.

  122. 122.

    The Commission discussed this in detail in relation to EIPR/INTERIGHTS.

  123. 123.

    See at paras 163–190 and 209–232.

  124. 124.

    Ibid., at para 172 (stating that right to medical services should be provided promptly and regularly), paras 180–81 (stating that the link between effective prevention of torture and other inhuman treatments, and right to have access to prompt and regular access to lawyer has been established in the works of international human rights bodies).

  125. 125.

    Ibid., at para 212ff.

  126. 126.

    This in turn, may be due to either a ‘constitutional’ crisis or armed conflicts of both internal and international character. For the purpose here, constitutional crisis essentially refers to the gross violations of basic human rights through the direct actions or involvement of State machineries (usually police, military, security and secret service agents). This may be manifested through massive and arbitrary detentions, tortures, summary and extrajudicial killings. Internal armed conflicts on the other hand concern a fighting between a government and other groups (rebellions, insurgents, etc.) and hence does not, at least theoretically, involve civilian populations.

  127. 127.

    This is particularly the case in Malawi Africa Association et al. (footnote 114); Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR)/Nigeria (hereinafter SERAC), decided on merits, 30th Ordinary Session (27 October 2001); Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE)/Sudan (joined) (hereinafter Darfur case), decided on merits, 45th Ordinary Session (27 May 2009); Communication 27/99, Democratic Republic of Congo/Burundi, Rwanda, Uganda (hereinafter DRC case), decided on merits, 33rd Ordinary Session (03 May 2003).

  128. 128.

    See paras 115–122 (describing in part some of the situations that took place in detention places). See also its overall holdings in which it ‘Declare[d] that, during the period 1989–1992, there were grave or massive violations of human rights as proclaimed in the African Charter; and in particular of Articles 2, 4, 5 (constituting cruel, inhuman and degrading treatments), 6, 7(1)(a), 7(1)(b), 7(1)(c) and 7(2)(d), 9(2), 10(1), 11, 12(1), 14, 16(1), 18(1) and 26’, basically finding violations of, for all intents and purposes, the entire substantive provisions of the African Charter.

  129. 129.

    Which reads, ‘Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his person. No one may be arbitrary deprived of this right’.

  130. 130.

    This provision reads as follows, ‘1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. State parties … shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick’.

  131. 131.

    See this also with para 89 of the same stating, ‘Part III of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949, particularly in Article 27 provides for the humane treatment of protected persons at all times and for protection against all acts of violence or threats and against insults and public curiosity. Further, it provides for the protection of women against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Article 4 of the Convention defines a protected person as those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’.

  132. 132.

    See paras 1–9 (describing background reasons leading to the violations in the case). These allegations were admitted by the (new civilian) Government of Nigeria in its Note Verbale ref. 27/2000 addressed to the Commission saying that ‘there is no denying the fact that a lot of atrocities were and are still being committed by the oil companies in Ogoni Land and indeed in the Niger Delta area’ (ibid., at para 42).

  133. 133.

    See Ibid., together with paras 51–54 and 67.

  134. 134.

    Ibid., at paras 55 and 61–67.

  135. 135.

    Accordingly, the Commission declared violation of, inter alia, right to inviolability of human life and wellbeing, health (which embraces right to food, shelter and water) and health environment all by the direct actions of the state and by sponsoring of or tolerating other non-state actors. In essence therefore, the Government has failed in terms of its elementary duty to respect and ensure respect (protect) for the basic rights and freedoms of the Nigerians living in Ogoniland (see ibid., at paras 54, 55, 58, 62–67).

  136. 136.

    See for instance at paras 145–68. It concluded that by not acting diligently to protect the population concerned against violations perpetrated by its forces and other agents, the State Party violated Articles 4 and 5 of the African Charter (see at paras 205–216).

  137. 137.

    Ibid., para 164.

  138. 138.

    Ibid., para 112 (see also at paras 206–11 making reference to General Comment 14 as well).

  139. 139.

    Article 22 states, ‘1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually and collectively, to ensure the exercise of the right to development’.

  140. 140.

    Ibid., at para 224. Similarly, it also found violation of the right to property under Article 14 (para 205), right of the family under Article 18 (para 216).

  141. 141.

    This is supported by Article 58 of the Banjul Charter which refers to communications concerning a ‘special case’ expressing ‘series of serious or massive violations of human and peoples’ rights’.

  142. 142.

    The list of the special mechanisms is available through http://www.achpr.org/mechanisms/ (last visited 9 May 2013). For an interesting discussion the types, possible legal basis, function and effectiveness of the Commission’s Special Mechanisms, see Viljoen 2012, pp. 369–378.

  143. 143.

    Thus, it can be said that the Committee on the Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV or risking HIV/AIDS; the Working Group on Rights of Older Persons and People with Disabilities, the working Group on Extractive Industries, Environment and Human Rights Violations; the Working Group on Indigenous Populations/Communities, the Working Group Economic Social and Cultural Rights (ESCR); the Special Rapporteur on Refugees and Internally Displaced Persons; and the Special Rapporteur on the Rights of Women deal as part of their mandate with the socioeconomic dimensions of right to health whereas Special Rapporteur on Prisons and Conditions of Detention, Committee for the Prevention of Torture, Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings can address some of the issues pertaining to the promotion and protection of right to health as well.

  144. 144.

    Also referred to as Tunis Reporting Guidelines, adopted on 24 November 2011 (available at http://www.achpr.org/instruments/economic-social-cultural-guidelines/ last accessed 22 December 2012).

  145. 145.

    One apparent reason may be that which is mentioned by Viljoen 2012, p. 297 that ‘to a large extent, the Commission has performed its activities in splendid isolation from the rest of the continent, including the AU organs’.

  146. 146.

    See Principles and Guidelines, at para 60 ff (concerning Right to Health under Article 16 of the African Charter).

  147. 147.

    On the recent assessment of the effectiveness of the Commission’s functions see Viljoen 2012, particularly pp. 295–299, Yeshanew 2011, particularly pp. 210–215; Chirwa 2008, pp. 334–336

    See also Ssenyonjo 2011 (reviewing Commission’s 30 years of jurisprudence, Ssenyonjo certainly sees its jurisprudence especially since 2001 as positive development. Okafor 2010 also sees the Commission as institution of collective human security struggle with important positive contribution to that vision but the Commission is yet to live up to that expectation and I am afraid the following assessments does not seem to be as positive as that of Okafor and Ssenyonjo. I should say that both authors discuss the Commission’s work in terms of the ideal normative developments it has brought to the field but they are also quite aware of the ineffectiveness of those decisions as well. Okafor, whose argument is basically more of the constitutional and institutional design of the Commission than its current practical functioning (at p. 317), clearly notes that the Commission’s engagement with socioeconomic rights is minimal (at p. 332). For Ssenyonjo, it is up to the States Parties and other relevant actors as CSOs/NGOs to support the Commission’s decisions by practically implementing those norms developed by the Commission (at pp. 395–397). To this extent there may not be disagreements between their arguments and what is to be said in the following. However, the following assessment is basically about the effectiveness of the Commission’s works in fact not just in theory vis-à-vis its (actual and potential) ability to bring strong legal accountability regime required to address those background injustices and inequities, i.e. systemic problems, impeding the effective realization of basic social justice in the continent (the collective human security that Okafor is also concerned with). In this regard, a normative development on the right to health, if any, is important but insufficient to give the Commission’s office a positive assessment. Its methods, areas of concentrations, creativeness, practical outcomes and relevance (especially to the continent’s urgent needs), authoritativeness, legitimacy, ability to influence grassroots level decision-making must also be part of that assessment as well.

  148. 148.

    As Viljoen 2012 (at p. 297 and 299), 2009 (at pp. 512–513) and Murray 2010 (at p. 356ff.) observe, the Commission’s activities (agenda) are essentially drawn by and in the interest of NGOs/CSOs and has nothing to do with its readiness to critically engage with the continent’s major social issues.

  149. 149.

    Viljoen is also critical about their effectiveness and efficiency as follows. ‘While these mechanisms are important promotional tools, they confront States with allegations of specific violations only to a limited extent. Time, energy and resources devoted to these mechanisms have detracted from the Commission’s core protective function. Again, delays and the failure to adopt reports by these mechanisms, their omission from the Commission’s Activity Reports, and the lack of dissemination of these reports are major impediments to their effectiveness and impact’. See Viljoen 2012, at p. 297.

  150. 150.

    Viljoen 2012, p. 296ff, Yeshanew 2011, p. 210ff; Ssenyonjo 2011, p. 395.

  151. 151.

    For instance, the Malawi Africa Association et al. (cited at footnote 114) was decided nearly 10 years after the receipt of the first communication. The first communication against Mauritania (No. 54/91) was filed by Malawi Africa Association on 16 July 1991 and decided (joined communications) on 11 May 2000. The SERAC case (cited at footnote 127) was decided after five and half years after the receipt of the communication (on 14 March 1996 and decided at its 30th Ordinary Session held between 13 and 27 October 2001). The Darfur case (cited at footnote 127) was decided 6 years after the complaint by Sudan Human Rights Organization was received on 18 September 2003 and it was decided at the 45th Ordinary Session held between 13 and 27 May 2009. The case of EIPR/INTERIGHTS (cited at footnote 114) which concerned about situation of death penalty, was decided in nearly 5 years (to be precise, 4 years and nine months) after the communication was received at its 40th Ordinary Session held between 15 and 29 November 2006 and it was decided at its 9th Extraordinary Session held from 23 February to 3 March 2011.

  152. 152.

    See Viljoen 2012, p. 296.

  153. 153.

    See at paras 44–47 (in fact, it is almost a common practice of the Commission to rely on jurisprudences drawn from elsewhere without providing the due justification need in a given case).

  154. 154.

    See Yeshanew 2011, p. 210 n 340 (citing, inter alia, Umozurike 1988); Viljoen 2012, p. 299; Ssenonjo 2011, pp. 366–385 (analysing its practices on ESCR by dissecting into two periods: pre-2001 of scanty decisions and activities and post-2001 of increased engagement).

  155. 155.

    See Article 59 (1) Banjul Charter.

  156. 156.

    See Viljoen 2012, p. 297, 2009, p. 512, Viljoen and Louw 2007, Chirwa 2008, p. 333, Yeshanew 2011, p. 211, Okafor 2010, p. 335.

  157. 157.

    See Murray 2010, p. 344ff; Viljoen 2009, pp. 512–513; Viljoen 2012, p. 297.

  158. 158.

    Viljoen 2009 ibid.

  159. 159.

    See at footnote 157.

  160. 160.

    See generally Landau 2012; Brinks and Gauri 2010.

  161. 161.

    Following Okafor, we can say that the Commission is the institution that can only persuade but not compel (Okafor 2010, p. 335).

  162. 162.

    See also Viljoen 2012, p. 299.

  163. 163.

    Chirwa 2008, p. 335.

  164. 164.

    Ibid., at footnote 113 (citing Udombana 2000).

  165. 165.

    See footnote 105–106.

  166. 166.

    See generally Mbondenyi 2009.

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  1. Department of International and Constitutional Law, University of Groningen, Groningen, The Netherlands

    Getahun A. Mosissa

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  1. Faculty of Law, Constitutional and International Law, University of Groningen, Groningen, The Netherlands

    Brigit Toebes

  2. Law, Irish Centre for Human Rights, Galway, Galway, Ireland

    Rhonda Ferguson

  3. Institute of Social Sciences, Belgrade, Serbia,Institute of International Law, Graz, Austria

    Milan M. Markovic

  4. Faculty of Law, Dept of Public and Private Law, University of Nigeria, Enugu Campus, Enugu, Nigeria

    Obiajulu Nnamuchi

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Mosissa, G.A. (2014). Ensuring the Realization of the Right to Health Through the African Union (AU) System: A Review of Its Normative, Policy and Institutional Frameworks. In: Toebes, B., Ferguson, R., Markovic, M., Nnamuchi, O. (eds) The Right to Health. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-014-5_2

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