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2 Nnamuchi, O “Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria” (2008) 52/1 Journal of African Law 1CrossRefGoogle Scholar.

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5 Nnamuchi “Kleptocracy”, above at note 2; Oluwadayisi, AO “Economic and socio-cultural rights in the democratic governance of Nigeria: Enforcement mechanisms beyond justiciability” (2014) 5 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 105Google Scholar.

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7 C Campbell “Failures of Nigerian Health Insurance Scheme: The way forward” (18 January 2018) The Guardian (Nigeria), available at: <https://guardian.ng/features/science/failures-of-nigerian-health-insurance-scheme-the-way-forward/> (last accessed 9 July 2022).

8 Sec 14(2)(b) of the Nigerian 1999 Constitution (as amended). See sec 20 for environmental objectives. Sec 16(2)(d) enjoins the state to direct its policy to provide “suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled”.

9 [1981] 2 NCLR 350 ([1980] FNR 445). The court observed that while sec 13 of the Constitution makes it a duty and responsibility of the judiciary, among other organs of government, to conform to, observe and apply the provisions of cap II, sec 6(6)(c) makes it clear that no court has jurisdiction to pronounce on any decision as to whether any organ of government has acted or is acting in conformity with the FODPSP.

10 [1996] 8 NWLR (Pt 464), 15.

11 Adewole v Jakande [1981] 1 NCLR 152; in Uzoukwu v Ezeonu II [1991] 6 NWLR (pt 2000) 761, paras A–D, the courts, per Nasir PCA, reiterated the non-justiciability of cap II thus: “There are other rights which may pertain to a person which are neither fundamental nor justiciable in the Court. These may include rights given by the Constitution under the Fundamental Objectives and Directive Principles of State Policy under Chapter II of the Constitution.”

12 Committee on Economic, Social and Cultural Rights (CESCR) General comment no 14: The right to the highest attainable standard of health (art 12) (Document E/C 12/2000/4), para 8.

13 Allsop, G “Socio-economic rights” in Constitutional Law for Students: Part 2 (2020, UCT Libraries)Google Scholar; Ferreira, N “Feasibility constraints and the South African Bill of Rights: Fulfilling the Constitution's promise in conditions of scarce resources” (2012) 129/2 South African Law Journal 274 at 292–95Google Scholar; Alston, P and Quinn, G “The nature and scope of states parties’ obligations under the International Covenant on Economic, Social and Cultural Rights” (1987) 9/2 Human Rights Quarterly 159CrossRefGoogle Scholar.

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15 P Alston, Report of the Special Rapporteur on extreme poverty and human rights, HRC/29/31, 27 May 2015, para 50.

16 Wiles “Aspirational principles”, above at note 14 at 45–46; Allsop “Socio-economic rights”, above at note 13; Çamur, EG “Civil and political rights vs. social and economic rights: A brief overview” (2017) 6/1 Journal of Bitlis Eren University Institute of Social Sciences 205 at 206–208Google Scholar.

17 Shiman, D Economic and Social Justice: A Human Rights Perspective (1999, Human Rights Resource Center, University of Minnesota) at 3–4Google Scholar.

18 Ibid.

19 See generally Robertson, AH and Merrills, JG Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights (1996, Manchester University Press)Google Scholar.

20 British Library “English translation of Magna Carta” (28 July 2014), available at: <https://www.bl.uk/magna-carta/articles/magna-carta-english-translation> (last accessed 28 August 2022). The most famous clauses of the Magna Carta are clauses 39 (“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”) and 40 (“To no one will we sell, to no one will we refuse or delay, right or justice”).

21 Lewin, I The Jewish Community in Poland: Historical Essays (1985, Philosophical Library) at 19Google Scholar.

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24 International Committee of the Red Cross “History of the ICRC” (29 October 2016), available at: <https://www.icrc.org/en/document/history-icrc> (last accessed 18 June 2022).

25 UN Geneva “League of Nations”, available at: <https://www.ungeneva.org/en/league-of-nations> (last accessed 18 June 2022).

26 United Nations “United Nations Charter, Chapter I: Purposes and Principles”, available at: <https://www.un.org/en/about-us/un-charter/chapter-1> (last accessed 18 June 2022).

27 UN Geneva “League of Nations”, above at note 25.

28 International Labour Organization “About the ILO”, available at: <https://www.ilo.org/global/about-the-ilo/lang--en/index.htm> (last accessed 18 June 2022).

29 AO Oluwadayisi “Economic and socio-cultural rights”, above at note 5.

30 Craven, M The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (1995, Clarendon Press)Google Scholar; Leckie, S “Another step towards indivisibility: Violations of economic, social and cultural rights” (1998) 20/1 Human Rights Quarterly 81CrossRefGoogle Scholar.

31 CESCR General comment no 3: The nature of states parties’ obligations (art 2, para 1 of the Covenant).

32 CESCR General comment no 14, above at note 12, para 31.

33 UN General Assembly, International Covenant on Economic, Social and Cultural Rights (ICESCR), art 2.1 (United Nations Treaty Series vol 993), available at: <https://treaties.un.org/doc/treaties/1976/01/19760103%2009-57%20pm/ch_iv_03.pdf> (last accessed 4 April 2023); Dowell-Jones, M Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit (2004, Martinus Nijhoff) at 31–32CrossRefGoogle Scholar; Tobin, J The Right to Health in International Law (2012, Oxford University Press) at 194–95Google Scholar; Eide, A “Economic, social and cultural rights as human rights” in RP Claude and BH Weston (eds) Human Rights in the World Community: Issues and Action (2006, University of Pennsylvania Press) 170Google Scholar at 174–76. Guideline 6 of the Maastricht Guidelines also adopts a similar interpretation: “[t]he obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation”; International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (22–26 January 1997), available at: <https://www.refworld.org/docid/48abd5730.html> (last accessed 4 April 2023).

34 It is within this context that the CESCR expatiates that “[t]he obligation to fulfil requires States parties, inter alia, to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. For this purpose, also, States must ensure provision of health care”; CESCR General comment no 14, above at note 12, para 36. The framework of the legislation necessary for implementing the right to health at the national level is contained in id, paras 53–56.

35 Id, para 17.

36 See generally UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General recommendation no 24: Article 12 of the Convention (Women and Health), paras 13–17.

37 S Gruskin “Human rights and public health: An overview” (1999) Canadian HIV/AIDS Newsletter, available at: <http://hivinsite.ucsf.edu/InSite?page=kb-08-01-07> (last accessed 9 March 2022).

38 ESCR-Net – International Network for Economic, Social & Cultural Rights “Progressive realisation and non-regression”, available at: <https://www.escr-net.org/resources/progressive-realisation-and-non-regression> (last accessed 9 March 2022).

39 Nnamuchi “Kleptocracy”, above at note 2 at 9–10; Agbakoba, O and Mamah, W Towards a Peoples’ Constitution in Nigeria: A Civic Educational Manual for the Legal Community (2002, Human Rights Law Service) at 43Google Scholar.

40 Owasanoye, B and Ajomo, M Ayo, Individual Rights under the 1989 Constitution (1993, Nigerian Institute of Advanced Legal Studies) at 4Google Scholar.

41 As cited in R Ako, N Stewart and EO Ekhator “Overcoming the (non)justiciable conundrum: The doctrine of harmonious construction and the interpretation of the right to a healthy environment in Nigeria” in A Diver and J Miller (eds) Justiciability of Human Rights Law in Domestic Jurisdictions (2015, Springer) 123 at 127; M Craven The International Covenant, above at note 30 at 6.

42 Vanguard News Nigeria “Just in: Reps reject bill to make Chapter Two of 1999 Constitution enforceable” (24 November 2021) Vanguard News Nigeria, available at: <https://www.vanguardngr.com/2021/11/just-in-reps-reject-bill-to-make-chapter-two-of-1999-constitution-enforceable/> (last accessed 19 June 2022).

43 Ibid.

44 See the 2022 budget plan and proposal at Premium Times “Nigeria's full 2022 budget presented by Buhari to National Assembly” (12 October 2021) Premium Times, available at: <https://www.premiumtimesng.com/news/top-news/489467-download-nigerias-full-2022-budget-presented-by-buhari-to-national-assembly.html> (last accessed 19 June 2022).

45 Christiansen, EC “Adjudicating non-justiciable rights: Socio-economic rights and the South African Constitutional Court” (2007) 38 Columbia Human Rights Law Review 321 at 321–22Google Scholar; Nweze, CC “Justifiability or judicialization: Circumventing Armageddon through the enforcement of socio-economic rights” (2007) 15 African Yearbook of International Law 107Google Scholar.

46 Ibid.

47 A Nolan, B Porter and M Langford “The justiciability of social and economic rights: An updated appraisal” (2009, New York University Center for Human Rights and Global Justice), available at: <https://socialrightscura.ca/documents/publications/BP-justiciability-belfast.pdf> (last accessed 4 April 2023).

48 Hunt, P Reclaiming Social Rights: International and Comparative Perspectives (1996, Dartmouth Publishing) at xviiGoogle Scholar.

49 Christiansen “Adjudicating”, above at note 45 at 322.

50 PV Fay “Constitutionalising socio-economic rights in Ireland” (PhD dissertation, Queen's University Belfast, 30 April 2008) at 2.

51 Faga, HP, Aloh, F and Uguru, U “Is the non-justiciability of economic and socio-cultural rights in the Nigerian Constitution unassailable? Re-examining judicial bypass from the lens of South African and Indian experiences” (2020) 14/3 Fiat Justisia 203 at 209CrossRefGoogle Scholar.

52 Nolan, Porter and Langford “The justiciability”, above at note 47.

53 See Boland v Taoiseach [1974] IR 338 and The State (Quinn) v Ryan [1965] IR 70, where the courts alluded to the fact that courts are the arbiters of constitutionality.

54 M de Blacam “Children, constitutional rights, and the separation of powers” (2002) 37 Irish Jurist (New Series) 113 at 142.

55 Scott, C and Macklem, P “Constitutional ropes of sand or justiciable guarantees?” (1992) 141/1 University of Pennsylvania Law Review 1 at 35–36CrossRefGoogle Scholar.

56 Judicial activism is “the judicial vigour in enforcing constitutional limitations on the other branches of government and their readiness to veto those policies on the branches of government on constitutional grounds”; Imam, I “Judicial activism in Nigeria: Delineating the extend [sic] of legislative-judicial engagement in law making” (2015) 15/1 International and Comparative Law Review 109 at 114CrossRefGoogle Scholar. For a detailed discussion of judicial review with respect to ESCRs, see CR Garavito “Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America” (2011) 89/7 Texas Law Review 1669.

57 In Media Rights Agenda and Others v Nigeria [2000] AHRLR 200 (ACHPR 1998), paras 90–91, the Commission took the view that the denial of an incarcerated suspect's access to medical care while his health was deteriorating is a clear violation of the right to health under art 16 of the charter. Likewise, the Commission considered it a violation of the right to health under art 16 to deprive prisoners of food, blankets and adequate hygiene as it affected their general state of health. See African Commission on Human and Peoples’ Rights “Thirteenth annual activity report, 1999–2000” at 158. In Purohit and Another v The Gambia [2003] AHRLR 96, the African Commission held that the Gambia fell short of satisfying the requirements of arts 16 and 18(4) of the African Charter in guaranteeing the enjoyment of the right to health, which is crucial to the realization of other fundamental rights and freedoms.

58 See for example the Vienna Declaration and Programme of Action (1993), art 5, and the Proclamation of Tehran (1968), para 13.

59 F Menghistu “The satisfaction of survival requirements” in B Ramcharan (ed) The Right to Life in International Law (1985, Martinus Nijhoff) 67.

60 For example, in Okogie v Attorney General, above at note 9; although the courts held that the FODPSP were non-justiciable, at the same time the Court of Appeal held that the implementation of chapter II could not be done in such a way as to infringe on the fundamental rights enunciated in chapter IV of the Constitution (the freedom to hold opinion, receive and impart ideas under sec 36(1)). The court further found in favour of the plaintiffs on the basis that secs 16(1)(c) and 18 of the Constitution guarantee their rights to participate in the economy, and hindering them would amount to a violation of their fundamental rights under sec 36.

61 152 [2005] AHRLR 151 [NgHC 2005].

62 On the right to health provisions in the African Charter, the appellant argued that they have a right to “enjoy the best attainable state of physical and mental health as well as a right to a general satisfactory environment favourable to their development”; id, paras 3(b) and 4(2).

63 Id, para 5(6).

64 [2004] (6) SA 505 (CC) (S Afr), paras 40–41. It is worth noting that the right to health has been codified as a justiciable human right in sec 27 of the South African Constitution. The case law examples are used to illustrate the link between the right to health and other human rights.

65 [2001] (1) SA 46 (CC).

66 [1997] (File 5778-V-97), available at: <http://www.poderjudicial.go.cr/scij/index_pj.asp?url=busqueda/jurisprudencia/jur_ficha_completa_sentencia.asp?nBaseDatos=1&nSentencia=15980> (last accessed 16 June 2022).

67 Ibid, as interpreted and cited in HV Hogerzeil, M Samson and JV Casanova Ruling for Access: Leading Court Cases in Developing Countries on Access to Essential Medicines as Part of the Fulfilment of the Right to Health (2004, World Health Organization Department of Essential Drugs and Medicines Policy) at 27–28.

68 Treatment Action Campaign and Others v Minister of Health and Others, High Court of South Africa, Transvaal Provincial Div [2001] 21182/2001; Minister of Health and Others v Treatment Action Campaign and Others [2002] (CCT8/02) ZACC 15, paras 33, 34.

69 Ibid.

70 The criterion for reasonableness was also considered by the court in noting that “all that is possible, and all that can be expected of the State, is that it acts reasonably” to guarantee ESCRs; id, para 35.

71 Paschim Banga Khet Samity v State of West Bengal [1996] case no 169, judgment of 6 May 1996, writ petn (civil) no 796 of 1992 (SC Agrawal, GT Nanavati JJ). In this case, Samity fell off a train and suffered serious head injuries. The necessary health facilities (including a vacant bed) to treat him were not available in six hospitals. The Court held that “failure on the part of the government to provide timely medical care to a person in need of such treatment results in a violation of his right to life guaranteed in Article 21 of the Constitution”; see para 9 of the judgment. Similarly, in Gupta v Union of India [1981] 2 SCR 365 (India), the court held that civil and political rights are meaningless unless accompanied by economic and social rights.

72 Samity, ibid, paras 9, 15–16.

73 Id, para 16.

74 Application no 38812/97, judgment delivered on 29 April 2003, para 148.

75 It should be noted that Nigeria shares a similar constitutional law and legal system with India, hence the comparative study of the two countries. This suggestion is made not only because Nigeria and India share a similar constitutional provision with regards to healthcare, but more so that both countries share a comparable socio-economic condition and political landscape.

76 F. Hoffmann-La Roche Ltd and Another v Cipla Ltd 148 [2008] DLT 598, MIPR 2008 (2) 35, judgment delivered by J Ravindra Bhat; Patricia Asero Ochieng, Maurine Atieno, Joseph Munyi, and AIDS Law Project v Attorney General [2009] petition no 409, para 56. In the latter, the judge ruled that the rights to health, life and human dignity are inextricably bound; there can be no argument that “without health, the right to life is in jeopardy”. Note that art 43(1)(a) of the Constitution of Kenya codifies the “right to the highest attainable standard of health”, including reproductive rights, as a justiciable right.

77 [2012] UGSC 48.

78 The court ruled that maternal death due to non-availability of basic maternal health commodities in hospitals was a violation of women's constitutional rights to health and life as guaranteed under the Constitution.

79 Similar to Nigeria, there is no express stipulation of the right to health in Uganda's Constitution. Although the Constitution specifically guarantees the right to life and to a clean and healthy environment (a precondition to the right to health), there is no justiciable provision for the right to health; Centre for Human Rights and Development “Review of constitutional provisions on the right to health in Uganda: A case study report” (Regional Network for Equity in Health in East and Southern Africa case study, September 2018), available at: <https://equinetafrica.org/sites/default/files/uploads/documents/CEHURD%20Constitutional%20Review%20Sep2018.pdf> (last accessed 4 April 2023).

80 By virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, cap A9, Laws of the Federation of Nigeria, 2004.

81 Gani Fawehinmi v General Sani Abacha and Others [2000] 4 SCNJ 401 at 27. See also AG v Atiku Abubakar [2007] 32 NSCQR 1 at 85.

82 See Treatment Action Campaign, above at note 68; Ako, Stewart and Ekhator “Overcoming”, above at note 41 at 123.

83 [2001] Communication no 155/96 AHRLR 60 (ACHPR 2001), para 70.

84 [2009] ECW/CCJ/APP/0808. See also The Registered Trustees of the Socio-Economic Rights & Accountability Project (SERAP) v President of the Federal Republic of Nigeria and Others, suit no ECW/CCJ/APP/08/09.

85 SERAP v Federal Republic of Nigeria, ibid, paras 13–14.

86 Enabulele, AO “Sailing against the tide: Exhaustion of domestic remedies and the ECOWAS Community Court of Justice” (2012) 56/2 Journal of African Law 268CrossRefGoogle Scholar.

87 L Louw “Member states’ compliance with the recommendations of the African Commission on Human and Peoples’ Rights” in A Adeola (ed) Compliance with International Human Rights Law in Africa: Essays in Honour of Frans Viljoen (online ed, 2022, Oxford Academic) 149.

88 Murray, R and Mottershaw, E “Mechanisms for the implementation of decisions of the African Commission on Human and Peoples’ Rights” (2014) 36/2 Human Rights Quarterly 349CrossRefGoogle Scholar. See also Civil Liberties Organisation v Nigeria [2000] AHRLR 188 (ACHPR 1995).

89 See more discussion at Wachira, GM and Ayinla, A “Twenty years of elusive enforcement of the recommendations of the African Commission on Human and Peoples’ Rights: A possible remedy” (2006) 6/2 African Human Rights Law Journal 465Google Scholar.

90 Ibid.

91 Ibid.

92 Olafisoye v Federal Republic of Nigeria [2004] 4 NWLR (Pt 864) at 580.

93 Ibid. See also Federal Republic of Nigeria v Anache and 3 Others [2004] 17 NSCQR 140.

94 Obilade, AO et al (eds) Contemporary Issues in the Administration of Justice: Essays in Honour of Justice Atinuke Ige (2002, Treasure Hall Konsult) at 127Google Scholar.

95 In a related manner, in the 1999 Constitution, health is listed in schedule II, part II, item 17(a) of the concurrent list; however, the wording of the item indicates that the National Assembly is charged with the responsibility of making laws for the Federation or any part thereof with respect to matters relating to health: “[t]he health, safety and welfare of persons employed to work in factories, offices or other premises or in inter-State transportation and commerce including the training, supervision and qualification of such persons”. Under schedule IV, sec 2(c), one of the functions of a local government (municipal) authority is to facilitate “provision and maintenance of health services”.

96 Sec 4(2) provides that “the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution”.

97 [2002] 9 NWLR (Pt 772) at 222.

98 The plaintiffs challenged the constitutionality and validity of the Corrupt Practices and Other Related Offences Act, which established the Independent Corrupt Practices and Other Related Offences Commission to prosecute alleged offenders in relation to sec 15(5) (under cap II) on the federalism principle. One of the questions before the court was whether the National Assembly is constitutionally empowered to make laws with respect to “all corrupt practices and abuse of power” in sec 15(5) under item 60(a) of the Second Schedule to the Exclusive Legislative List.

99 Uwaifo S (JSC) 391, paras G–H.

100 [2013] Suit no FHC/ABJ/CS/591/09.

101 Above at note 93.

102 Nwabueze, RN “The legal protection and enforcement of the health rights in Nigeria” in CM Flood and A Gross (eds) The Right to Health at the Public/Private Divide: A Global Comparative Study (2014, Cambridge University Press) 382Google Scholar. See also Nigeria v Anache, above at note 93, where the court adopted the opinion that the phrase “save as otherwise provided by this Constitution” does not absolutely exclude from justiciability matters in cap II of the Constitution.

103 See for example the National Health Act, which recognizes a right to healthcare and services for Nigerians.

104 Sec 1(1)(e) of the National Health Act 2014. The act provides a framework for the regulation, development and management of a national health system and sets standards for rendering health services in the federation.

105 Id, sec 2(1)(i). This duty is vested in the Ministry of Justice.

106 Sec 4(1) of the Constitution provides that “[t]he legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives”. Under sec 4(4)(a), the National Assembly shall have power to make laws with respect to “any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto”. What this provision seems to suggest is that the National Assembly can make laws with regards to issues relating to health as stated in schedule II, part II, item 17(a). It can be argued that the National Assembly has exercised its right under the Constitution to make access to healthcare a matter of rights, as opposed to merely stating that healthcare is an aspirational objective and directive principle of the Nigerian government.