On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.12 n.1 Pretoria 2012
Obiajulu NnamuchiI; Simon OrtuanyaII
IAssistant Professor, Faculty of Law, University of Nigeria; President/Chief Counsel, Centre for Health, Bioethics and Human Rights, Enugu, Nigeria
IICommissioner for Education, Enugu State, Nigeria; previously Associate Dean, Faculty of Law, University of Nigeria
This article seeks to locate the right to health within the broader frameworks of socio-economic development and political governance. It identifies two critical factors as fundamentally responsible for the dismal state of health and well-being of Africans, despite a robust regional human rights regime that explicitly proclaims health as a human right. First, there is a lack of access to health services -the result of spiralling and crippling poverty amongst the general population. Second, governments in the region are either unwilling or unable to come to the aid of people in their jurisdictions. These unmet challenges ground the need for international intervention, an instance of which is the establishing of the Millennium Development Goals (MDGs). MDG 8 explicitly requires international co-operation and recognises that without enormous assistance, poor countries would be unable to attain the various benchmarks of the MDGs. However, although MDG 8 could have a transformative impact on health in Africa, given its potential to supply the missing link in the struggle toward improving population health (resources), there are structural and operational difficulties that could undermine this possibility. The article critically analyses these difficulties and offers suggestions on how to surmount them.
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* LLB (NAU, Nigeria), LLM (Notre Dame), MIL (Lund), LLM (Toronto), MA (Louisville, Kentucky), SJD (Loyola, Chicago); email@example.comfirstname.lastname@example.org
** LLB (Nigeria), LLM (Lagos), SJD (Loyola, Chicago); email@example.com. The authors thank Professors Mark A Rothstein, John D Blum and Nancy N Potter for an unquantifiable contribution to the successful completion of the first author's doctoral programme; numerous colleagues whose insights helped to refine many of the ideas espoused in this article; and AdaObi Nnamuchi for her assistance.
1 African [Banjul] Charter on Human and Peoples' Rights, OAU Doc CAB/LEG/67/3 Rev 5 (1981), entered into force 21 October 1986, reprinted in (1982) 21 International Legal Materials 58; C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 29.
2 Art 16(1).
3 Art 16(2).
4 UN The Millennium Development Goals Report 2011 25 http://www.un.org/millenniumgoals/11_MDG%20Report_EN.pdf (accessed 12 November 2011).
5 UN The Millennium Development Goals Report 2010 27 http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15%20-low%20res%2020100615%20-.pdf (accessed 12 November 2011).
6 UN The Millennium Development Goals Report 2009 http://www.un.org/millenniumgoals/pdf/MDG_Report_2009_ENG.pdf (accessed 12 November 2011).
7 As above.
8 WHO World Health Statistics 2010 (2010) 70.
9 WHO (n 8 above) 56.
10 To the list could be added a third factor, namely, socio-economic health determinants. Although we do not want to minimise their importance, space constraint militates against full elaboration.
11 See GA Res 55/2, UN GAOR, 55tg sess, Agenda Item 60(b), UN Doc A/RES/55/2 (2000).
12 The remaining MDGs are to: achieve universal primary education, promote gender equality and empower women, ensure environmental sustainability and develop a global partnership for development. See UN Statistics Division, Official List of MDG Indicators, http://unstats.un.org/unsd/mdg/Resources/Attach/Indicators/OfficialList2008.pdf (accessed 12 November 2011).
13 As above.
14 As above.
15 As above.
16 Several studies document the impact of user fees as less utilisation of services. See, eg, CD James et al 'To retain or remove user fees? Reflections on the current debate in low and middle income countries' (2006) 5 Applied Health Economics and Health Policy 137-153; S Russell & L Gilson 'User fee policies to promote health service access for the poor: A wolf in sheep's clothing?' (1997) 27 International journal of Health Services 359-379; EK Ansah et al 'Effect of removing direct payment for health care on utilisation and health outcomes in Ghanaian children: A randomised controlled trial' (2009) 6 PLoS Medicine 0048-0058.
17 C James et al 'Impact on child mortality of removing user fees: Simulation model' (2005) 331 British Medical journal 747-749.
18 WHO The World Health Report 2008: Primary health care now more than ever (2008) 24.
19 WHO (n 18 above) 26.
20 WHO Sustainable Health Financing, Universal Coverage and Social Health Insurance, 57th World Health Assembly, 25 May 2005, Agenda item 13.1, Resolution WHA 58.33.
21 WHO The World Health Report 2000: Health systems: Improving performance (2000) 35.
22 WHO (n 18 above).
23 DE Logie et al 'Innovations in Rwanda's health system: Looking to the future' (2008) 372 Lancet 258.
24 S Witter & B Garshong 'Something old or something new? Social health insurance in Ghana' (2009) 9 BMC International Health and Human Rights http://www.biomedcentral.com/1472-698X/9/20 (accessed 16 November 2011).
25 See The African Health Strategy: 2007 - 215, Third Session of the African Union Conference of Ministers of Health, Johannesburg, South Africa, 9-13 April 2007, CAMH/MIN/5(III), 11 http://www.africa-union.org/root/UA/Conferences/2007/avril/SA/9-13%20avr/doc/en/Health_Strategy_Min_Draft.pdf (accessed 16 November 2011).
26 n 25 above 11-12.
27 R Wilkinson & M Marmot (eds) Social determinants of health: The solid facts (2003) 7.
28 UNDP Human Development Report 2009: Overcoming barriers: Human mobility and development (2009) 176-178.
29 Witter & Garshong (n 24 above).
30 Logie et al (n 23 above) 259.
31 Rwanda, a small country of 9,5 million people, is categorised as a high-burden malaria nation. In 2008, the country recorded 3,2 million malaria cases. Malaria treatment costs $1,50 to $2,40 for adults and $0,40 to $0,90 for children. See WHO World Malaria Report 2008 (2008) 142.
32 For background information on SHI systems in Africa (using the experience of Nigeria), including challenges to uptake of coverage, see O Nnamuchi 'The Nigerian social health insurance system and the challenges of access to health care: An antidote or a white elephant?' (2009) 28 Medicine and Law Journal 125-166.
33 The corridors of power, produced by Ossy Okeke and directed by MacCollins Chidebe (Ossy Affason Production, Nigeria) 2005.
34 O Steeds 'Theft and corruption take malaria drugs away from Africa's poorest' The Independent 1 October 2010 http://www.independent.co.uk/news/world/africa/theft-and-corruption-take-malaria-drugs-away-from-africas-poorest-2094525.html (accessed 16 November 2011).
35 Transparency International Global Corruption Report 2006 (2006) xiii.
36 UN Office of Drugs and Crime (UNODC) Handbook on planning and action for crime prevention in Southern Africa and the Caribbean regions, UN Publication Sales E.09.IV.1 (2008) 111.
37 B Toebes 'The impact of acts of corruption on the enjoyment of the right to health' paper presented at the International Council on Human Rights, Review Meeting, Geneva, 28-29 July 2007.
38 African Development Bank 'Combating corruption in Africa' Proceedings of the Regional Learning Workshop on Combating Corruption in Africa, 27-30 January 2003 8, http://www.u4.no/helpdesk/helpdesk/queries/queryattach/q44Addisreport.pdf (accessed 17 November 2011).
39 Eg in 2001, African leaders pledged to 'work, both individually and collectively, to promote' the principles of democracy, good governance, human rights and so forth 'in their countries and subregions and on the continent'. See The New Partnership for Africa's Development (NEPAD), October 2001, para 71, http://www.nepad.org/system/files/framework_0.pdf (accessed 17 November 2011).
40 UN Statistics Division (n 12 above) MDG 8, Target 8.A.
41 UN Monterrey Consensus of the International Conference on Financing for Development, Monterrey, Mexico, 18-22 March 2002, Final Text of Agreement and Commitments, para 40 http://www.un.org/esa/ffd/monterrey/MonterreyConsensus.pdf (accessed 17 November 2011).
42 See 'President addresses United Nations high-level plenary meeting' 14 September 2005 http://merln.ndu.edu/archivepdf/nss/WH/20050914.pdf (accessed 17 November 2011). The Millennium Challenge Account is a mechanism through which the United States funds projects in countries meeting the following eligibility criteria: commitment to just and democratic governance, economic freedom and investment in its people.
43 World Bank 'China quick facts' http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT /CHINAEXTN/0.contentMDK:20680895~pagePK:1497618~piPK:217854 ~theSitePK:318950,00.html (accessed 17 November 2011).
44 K Annan We the peoples: The role of the United Nations in the 21st century (2000) 22.
45 Freedom House 'Countries at crossroad' http://www.freedomhouse.org/template.cfm?page=139&edition=9 (accessed 17 November 2011).
46 As above.
47 Transparency International 'Corruption Perceptions Index 2009' http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table (accessed 18 November 2011).
48 As above. Better performing African countries include (in descending order) Botswana, Mauritius, Cape Verde, Seychelles and South Africa.
49 Adopted by the 2nd ordinary session of the Assembly of the Union, Maputo, 11 July 2003, entered into force 4 August 2006 http://www.africa-union.org/root/au/Documents/Treaties/Text/Convention%20on%20Combating% 20Corruption.pdf (accessed 1 March 2012).
50 See, eg, Nigeria Public Accounts Committee 1966, Tanzania Permanent Commission of Enquiry 1966, Cóte d'Ivoire Anti-Corruption Law 1977, Ethiopia Special Anti-Corruption Squad 1977, cited in African Development Bank (n 38 above) 9.
51 Besides the regional framework and country-based legislation against corruption, sub-regional organisations have either adopted measures against corruption (Southern Africa Development Community (SADC) and the Economic Community of West African States (ECOWAS)) or working on one (East African Community (EAC)).
52 See the Preamble, African Union Convention on Preventing and Combating Corruption 2003 (n 50 above).
53 Currency converted at the exchange rate of £1 =$1,58, as of 1 October 2011.
54 J Clench 'African king buys jet' The Sun 8 July 2002, http://www.thesun.co.uk/sol/homepage/news/art.151480.ece (accessed 18 November 2011).
55 J Catsoulis 'An extravagant ruler of a modest kingdom' New York Times 25 April 2008, http://movies.nytimes.com/2008/04/25/movies/25king.html?ref=mswati_iii (accessed 18 November 2011).
56 'Swaziland: A leisurely pace in tackling corruption' Irin News 14 July 2006, http://www.irinnews.org/report.aspx?reportid=59657 (accessed 19 November 2011).
57 UNDP Human Development Report 2010: The real wealth of nations: Pathways to human development (2010) 162.
58 WHO World Health Statistics 2010 (2010) 32.
59 WHO (n 58 above) 95.
60 WE Williams Liberty versus the tyranny of socialism: Controversial essays ( 2008) 189.
61 N Ribadu 'Capital loss and corruption: The example of Nigeria' testimony before the US House Financial Services Committee, 19 May 2009 4, http://www.house.gov/apps/list/hearing/financialsvcs_dem/ribadu_testimony.pdf (accessed 19 November 2011).
62 For a comprehensive account of corruption in Kenya, see M Wrong It's our turn to eat: The story of a Kenyan whistle-blower (2009).
63 Wrong (n 62 above) 326.
64 W Easterly The white man's burden: Why the West's efforts to aid the rest have done so much ill and so little good (2006) 87-88 120.
65 Annan (n 44 above) 17.
66 UN (n 41 above) para 39.
67 Annan (n 44 above) 78.
68 UN (n 6 above) 3.
69 D Hulme 'Governing global poverty? Global ambivalence and the Millennium Development Goals' 6 May 2009 2, http://www.devstud.org.uk/downloads/4b9e9dd2c9394_Hulme_PAPER.pdf (accessed 19 November 2011).
70 This legal duty is enshrined in the United Nations Charter (art 1(3), which requires 'international co-operation' in solving global problems; arts 55 & 56); the Universal Declaration of Human Rights (arts 22 & 28); and the International Covenant on Economic, Social and Cultural Rights (ICESCR), art 2(1) which imposes an obligation to implement the provision of the treaty 'individually and through international assistance and co-operation', and art 23. For a comprehensive analysis of international development assistance as a legal obligation as well as a legal right, including a discussion as to who constitutes the right holders (aid receiving nations) and duty bearers (donor countries) see, generally, O Ferraz & J Mesquita 'The right to health and the Millennium Development Goals in developing countries: A right to international assistance and co-operation?' July 2006 (on file with author); S Skogly Beyond national borders: States' human rights obligations in international co-operation (2006); S Skogly & M Gibney 'Transnational human rights obligations' (2002) 24 Human Rights Quarterly 781; S Skogly 'The obligation of international assistance and co-operation in the International Covenant on Economic, Social and Cultural Rights' in M Bergsmo (ed) Human rights and criminal justice for the downtrodden: Essays in honour of Asbjorn Eide (2003) 403-420.
71 Third UN Conference on the Least Developed Countries, A/CONF.191/11, http://www.un-documents.net/ac191-11.htm (accessed 19 November 2011).
72 UN Report of the Global Conference on the Sustainable Development of Small Island Developing States, Bridgetown, Barbados, 25 April-6 May 1994 (UN Publication, Sales No E.94.I.18 and corrigenda), ch I, Resolution 1, annex II.
73 UN (n 41 above) para 42. See also UN Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August - 4 September 2002, A/ CONF.199/20 52.
74 UN Millennium Project 'The 0,7% target: An in-depth look' http://www.unmillenniumproject.org/press/07.htm (accessed 19 November 2011).
75 In addition to fraud-related concerns, another factor that might operate to hamper the remittance of ODA funds to resource-deficit nations is the ongoing global recession. Many members of the Organisation for Economic Co-operation and Development (OECD), the very countries which are expected to increase their ODA, are themselves facing serious internal financial difficulties. With skyrocketing unemployment, a rising budget deficit and a bleak economic future, some of these countries - Greece, Portugal, Spain, Italy, Ireland and so forth - are simply not in a position to give aid as in previous years.
76 P Engardio 'Bush balks at pact to fight poverty' Bloomberg Business Week 2 September 2005, http://www.businessweek.com/bwdaily/dnfiash/sep2005/nf2005092_5264_db039.htm (accessed 19 November 2011).
77 As above.
78 UN Millennium Project 'The G8 Gleneagles Summit: Doubling aid to Africa' http://www.unmillenniumproject.org/press/g8overview.htm (accessed 19 November 2011).
79 L Elliott 'Western countries fail to meet Gleneagles aid pledges' Guardian 6 April 2011, http://www.guardian.co.uk/global-development/2011/apr/06/g8-fails-to-meet-gleneagles-aid-pledges (accessed 20 November 2011).
80 As above.
81 T Ayodele et al 'African perspectives on aid: Foreign assistance will not pull Africa out of poverty' Cato Institute Economic Institute Development Bulletin No 2, 14 September 2005 1, http://www.cato.org/pubs/edb/edb2.pdf (accessed 20 November 2011).
82 D Moyo Dead aid: Why aid is not working and how there is a better way for Africa (2009) 48-68, marshalling evidence on the deleterious impact of aid on Africa; 71-97, suggesting an alternative framework to aid. See also Easterly (n 64 above) 42-44, arguing that poverty and slow growth in Africa are, undeniably, products of bad governance, not some exogenous factors.
83 Moyo (n 82 above) 48.
84 Moyo (n 82 above) 49. See also Easterly (n 64 above) 135-136; ML Tupy 'Poverty that defies aid' http://www.cato.org/pub_display.php?pub_id=3920 (accessed 20 November 2011), noting that despite massive aid receipt totaling more than $450 billion between 1960 and 2005, the GDP in Africa declined from $1,770 to $1,479 between 1975 and 2000, whereas South Asia, which received 21 per cent less in aid, had a GDP growth within the same period from $1,010 to $2,056.
85 J Sachs The end of poverty: Economic possibilities for our time (2005) 188.
86 As above.
87 Sachs (n 85 above) 190-191. For a concise rebuttal of this claim, see Easterly (n 65 above) 42-44 130-132.
88 Sachs (n 85 above) 191.
89 Moyo (n 82 above) 56-57.
90 Ayodele et al (n 81 above) 2.
91 UN General Assembly 'Keeping the promise: United to achieve the Millennium Development Goals' (Draft Resolution), 17 September 2010, 65th session Agenda Items 13 & 115, A/65/L.1 8, http://www.un.org/en/mdg/summit2010/pdf/mdg%20outcome%20document.pdf (accessed 20 November 2011).
92 Millennium Challenge Act of 2003, Pub L No 108-199 (codified at 22 USC 7701 et seq).
93 22 USC 7706(b).
94 C Tarnoff 'Millennium Challenge Corporation' 16 November 2010 Congressional Research Service 7-5700, RL32427 2, http://www.mcc.gov/documents/guidance/mcc-policy-fraudandcorruption.pdf (accessed 20 November 2011).
95 As above.
96 DB Gootnick & JM Franzel 'Millennium Challenge Corporation: Progress made on key challenges in first year of operations' testimony before the Committee on International Relations, House of Representatives, United States Government Accountability Office, 27 April 2005, GAO-05-625T 5, http://www.gao.gov/new.items/d05625t.pdf (accessed 20 November 2011).
97 C Neubauer & M Cella 'US aid meant to reward reforms goes to countries listed as corrupt' Washington Times 22 August 2010, http://www.washingtontimes.com/news/2010/aug/22/countries-on-us-lists-for-corruption-aid/?page=1 (accessed 20 November 2011).
98 As above. This is consistent with the discretionary component of the process the MCC uses for determining eligibility of countries which allows it to approve funding based on (i) whether countries deficient on any of the indicators are taking measures to improve the deficiency; (ii) supplemental information that sufficiently addresses gaps or weaknesses in previous data; and (iii) any other material information. See Gootnick & Franzel (n 96 above) 7.
99 Millennium Challenge Corporation 'Fighting Corruption' http://www.mcc.gov/pages/activities/activity/fighting-corruption (accessed 20 November 2011).
100 Neubauer & Cella (n 97 above).
101 J Tavares 'Does foreign aid corrupt?' (2003) 79 Economic Letters 104. For opposing views, see Easterly (n 64 above) 135-136; S Knack 'Aid dependence and the quality of governance: Cross-country empirical tests' (2001) 68 Southern Economic Journal 310-329; S Djankov et al 'The curse of aid' The World Bank, April 2005, http://www.econ.upf.edu/docs/papers/downloads/870.pdf (accessed 20 November 2011), noting that aid does not advance democracy.
102 The accountability mechanism imbedded in MDG 8 is noticeably one-sided. This is not inadvertent. Instead, it is a reflection of the widespread assumption that responsibility for the economic woes in the Global South rests squarely on the shoulders of its leaders. It has become increasingly routine to heap blames on mismanagement and inefficient use of resources - in other words, if only aid receiving nations could be better managers of resources flowing into their national treasuries, their situations will be different. But this assumption is wrong. Aside from its imperialistic undertone, the idea presupposes that industrialised countries would always deliver on their promises. This is clearly not borne out by the reality on the ground, as evidenced by the preceding analysis on shortfalls in ODA remittances by these countries. This raises the need for a viable framework to compel desired action on the part of affluent nations. The following accountability mechanisms have been suggested: human rights monitoring bodies such as the Committee on Economic, Social and Cultural Rights via examination of the state's periodic report; shadow reports by civil society organisations; Special Rapporteurs (on the right to health, eg) during formal country visits; peer review process, eg, of the Development Co-operation Directive (DAC) and the OECD; and so forth. See Ferraz & Mesquita (n 70 above) 19-23.