By Yohannes Eneyew Ayalew, LLM candidate International Human Rights Law, University of Groningen,  eneyewyohannes gmail.com

By and large, international health law is taken as a nascent branch of  public international law and is still in the making.[1] These days, the issue of public health draws global spotlight and the response of the international community seemed promising though it requires concerted and cooperative solutions. As part of this process, regional organisations have played a pivotal role in the making or unmaking of norms. For instance, courts or commissions established internationally or regionally—have developed some concepts and made interesting pronouncements about the right to health.

This piece focuses on how the right to health is addressed in the jurisprudence of the African Commission on Humans and Peoples’ Right (herein after ‘ACmHPR/Commission’) by assessing cases decided before it, and noting the valuable contribution made by the Commission to international health law. Though the Commission’s work on the right to health as part of socioeconomic rights is significant, such contributions are either underappreciated or neglected even in the international health law jurisprudence.

Before delving into matters adjudicated before the Commission, it is worth glancing at how the Commission is constituted. The African Commission is established by the Banjul Charter[2] with a quasi-judicial body of eleven independent experts[3] tasked with promoting, protecting and interpreting the rights in the Charter.[4] The Commission was inaugurated in 1987 and is seated in Banjul, The Gambia. Commissioners are elected by the Organisation of African Unity (OAU) now African Union (AU).[5]

The competences of the Commission are stipulated under the Banjul charter. Thus, the Commission is mandated to perform five basic functions.[6] These are: promotion,[7] reception of State reports [8], protection [9], interpretation [10] and other tasks assigned to the Commission.[11] The Commission can receive both individual and interstate communications under its protective functions. Most importantly, what makes the Commission unique as compared to other regional  human rights monitoring bodies is its flexibility in drawing inspirations from international law such as—the Bill of International Human Rights and international humanitarian laws.[12]

When  turning to the legal framework governing—right to health under the African Charter, it is clearly deduced from the reading of Article 16 of the Charter, which entitles every individual to the right to physical and mental health. This is actually narrower protection than that provided for by the World Health Organization(WHO) Constitution,—which widens the horizon of health to cover social well-being as well. However, in the Protocol to the African Charter on Human and Peoples’ Rights on The Rights of Women in Africa  also called the Maputo Protocol—Article 14  contains one of the most wide-ranging provisions on the right to health and reproductive health under international human rights law. Other provisions of the African Charter deal with peoples’ rights also had a bearing on social well-being. Otherwise,one can argue on the basis of Article 60 of the Banjul Charter, which gives the Commission the power to draw inspiration from international law on human and peoples’ rights, that the Commission could use the WHO Constitution or any other international treaty applicable to State Parties as interpretative tools to fill the legal lacunae.

In relation to health rights adjudication, the Commission has ruled on a plethora of cases involving the right to health.

The first landmark individual communication regarding the right to health before the Commission was the  Free Legal Aid Assistance Group and others v. Zaire case, in 1989, in which the Commission ruled that the failure of the government to provide basic services such as safe drinking water, electricity and medicines constitutes a violation of the right to enjoy the best state of physical and mental health (Article 16).[13] Though outside the scope of this blog post, this decision could be analysed and discussed from the lens of the obligation to fulfill, minimum core obligations and accessibility of health as articulated by  the Committee on Economic, Social and Cultural Rights(CESCR) in its—General Comment 14 on the right to health.[14]

Moving on to  International Pen and Others v. Nigeria  case, the Commission held that prison—detainees  have the right to health. Although in the circumstance of inmate Ken Saro-Wiwa, request for hospital treatment were made by qualified prison doctor, these were denied and hence caused his health to suffer to the point where his life was endangered. The Commission found this to be a violation of Article 16.[15] The African Commission had also taken similar communications about health rights of detained persons in number of cases such as— Media Rights Agenda and Others v. Nigeria (2000) ,  Malawi African Association and Others v. Mauritania (2000)  and  Huri-Laws v. Nigeria  (2000).

Moreover, The ACmHPR eloquently pronounced a right to clean and healthy environment in the (https://caselaw.ihrda.org/doc/155.96/view/en/#merits) Ogoni case . The Commission found oil extraction in the Ogoni area to be in violation of the right to health.[16] As the right to food and shelter are also implicit from the right to health, so in this case; the Commission took the stance that the right to health is the broadest right to encompass socia well-being too.

Most importantly, in the   Democratic republic of Congo v. Burundi, Rwanda and Uganda case, which was the first inter-State communication before the ACmHPR  dealing with the right to health, the Commission addressed the alleged right while discussing the effects of territorial occupation. Specifically, the complainant State alleged grave and massive violations of human and peoples’ rights committed by the armed forces of the respondent States, including—right to health which is provided under article 16 of the Banjul Charter. The African Commission said:

“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 16 of the African Charter, which provide for the right to health”.[17]

This case illustrated how the right to health is significant, even during international armed conflict or occupation.

In  Purohit v. The Gambia , The African Commission heralded the right of mentally ill persons to vote.[18] The ACmHPR noted that “enjoyment of the human right to health as it is widely known is vital to all aspects of a person’s life and well-being, 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." Thus, the Purohit case is a clear instance in which  the right to health encompasses—mental well-being.

Similarly, in the (http://caselaw.ihrda.org/doc/279.03-296.05/view/en/#2143644) Darfur case, the Commission reaffirmed that the destruction of homes, livestock and farms as well as the poisoning of water sources by Janjaweed militias were tantamount to a violation of the right to health, since the relevant victims were exposed to serious health risks as a result of the militias’ actions.[19] This case again reminds us how governments have a duty to protect the peoples’ right to health from the actions of third parties, since the rights of the Darfur people were restricted by the Janjaweed militias rather than State actors.

Very recently in the  Nubian Community v. Kenya case, the Commission found that the discriminatory practice in the form of denial of identity cards and citizenship to Nubians living in Kenya violates the right to health.[20] This is because having an identity card or being a citizen of a certain State is fundamental to accessing health services.

Is the African Commission jurisprudence on health rights a ‘neglected stepchild’ of  international health law?

The body of the Commission’s caselaw that directly or indirectly discusses the right to health under the African system is significant and promising in terms of substance. However, the Commission’s potential for jurisprudential influence in this field has been overshadowed by ignorance or absence of compelling publication.[21]References to this caselaw in the literature are limited to Ogoni or Purohit. Overall, the Banjul jurisprudence is hitherto given little attention.

Gordian Knot and the way ahead

International health law is an emerging branch of international law.[22] Of course, the above cases are not without criticism as well as defects in terms of quality, content and analysis. However, the above cases are entirely relevant for the development of international health law jurisprudence, since regional bodies have played a significant role in the process of developing a body of  international law applicable to health.  To conclude, I submit that the repeated neglect and absence in the literature of the Commission’s jurisprudence makes the problem quite complicated. To put differently, the African Commission’s contribution in the field of health law is not given much credit. Finally, the existing discourse should take notice of and lessons from such thought-provoking developments in Africa regarding the right to health.

[1] Jennifer P.Ruger, ‘Normative Foundations of Global Health Law’, The Georgetown Law Journal, Vol. 96:423(2008) 424

[2]  African (Banjul) Charter On Human And Peoples’ Rights(Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986), Art 30

[3]  Ibid, Art 31

[4] Ibid, Art 45

[5] Ibid, Art 33-38

[6] Rachel Murray, The African Commission on Human And Peoples’ Rights and International Law, (Hart Publishing, 2000), 14-27

[7] Ibid, Art 45(1) See also general comments of ACmHPR on the right to health  discussed at Ebenezer Durojaye, ‘The approaches of the African Commission to the right to health under the African Charter’, Law, Democracy & Development, Vol.17(2013), 412-414

[8]   Ibid, Art 62

[9]   bid, Art 47-59

[10] Ibid, Art 60-61

[11] Ibid, Art 45(4)

[12] Ibid, Art 60

[13] Free Legal Assistance Group and Others v. Zaire, African Commission on Human and Peoples’ Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995).para.47

[14] UN CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000, Paras 12,17,36-43

[15] International Pen and Others v. Nigeria, African Commission on Human and Peoples’ Rights, Comm. Nos. 137/94, 139/94, 154/96 and 161/97 (1998),Para 112

[16] Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v  Nigeria, 155/96, paras, 50,52-62

[17] Democratic Republic of Congo v.Burundi,Rwanda, Uganda, Communication 227/99, para 88 available at ACmHPR Website< http://www.achpr.org/communications/decision/227.99/ > Last accessed 9 November 2017

[18]  Purohit and Moore v Gambia (The), 241/01 Paras 76-81

[19] Sudan Human Rights Organisation & other v Sudan, 279/03-296/05, paras 206-212

[20] The Nubian Community in Kenya v The Republic of Kenya, Communication 317 / 2006, para 109,167-170

[21] See generally, Rachel Murray, ‘International Human Rights: Neglect of Perspectives From African Institutions.’ International and Comparative Law Quarterly, 55(2006), 193-204, 203

[22] Brigit Toebes, ‘International health law: an emerging field of public international law’, Indian Journal of International Law (2015) 55(3):299–328,300