Duty without liability: The impact of article 12 of the International Covenant on Economic, Social and Cultural Rights on the right to health care in Nigeria

Abstract

The right to health care under article 12 of ICESCR is an instrumental right because it bears vital linkages to the realisation of other rights. For the many Nigerians living in poverty, their health may be the only asset on which they can rely for the exercise of other rights, such as the right to work or the right to adequate housing. Conversely, ill-health can be a liability to the many people living in poverty in Nigeria, even more so in the absence of equal access to affordable and essential healthcare services. This article aims to review the implication of article 12 of ICESCR on some of the existing initiatives for achieving the right to health care in Nigeria, especially in respect of human rights law and policy. The article argues that for Nigeria to meet its international obligations under the right to health care, it must commit to adequate funding of healthcare services and engage with regional and international partners to ensure compliance with article 12 of ICESCR. Given that the right to health care presently is not justiciable in Nigeria because of the ouster clause contained in section 6(6)(c) of the Nigerian Constitution, the article calls for an attitudinal change in the judicial perception of economic and social rights that come before the courts. It urges Nigerian courts to adopt the principle of the interdependency and indivisibility of rights, whereby judicial measures to enforce the right are given effect through the formally-enforceable civil and political rights contained in chapter four of the Nigerian Constitution. The Indian Supreme Court is reputable for taking this approach to the interpretation and enforcement of economic and social rights because the enjoyment of civil and political rights is linked to the satisfaction of economic and social rights, such as the right to health care. Finally, because of the importance of health care to a life of dignity, the article calls for Nigerian courts to adopt a progressive and broader approach when dealing with economic and social rights because of the evident connection between, for example, the right to health care and the right to life.