Right to Health in Africa
Strategic Litigation of the Right to Health in Africa, Ghana, April 2013
INTERIGHTS, the International Centre for the Legal Protection of Human Rights, hosted a four-day litigation surgery from 23 – 26 April 2013 in Accra, Ghana. The litigation surgery centred on discussions of cases, particularly on how to use international human rights law to successfully litigate right to health issues in the region. Lawyers were selected from organisations in Cameroon, Ghana, Kenya, Lesotho, Malawi and Nigeria. Resource persons at the event were INTERIGHTS lawyers Judy Oder and Susie Talbot.
Background
The litigation surgery followed a consultative meeting on litigation of the right to health in Africa, held in Nairobi, Kenya from 15 – 17 May 2012. Experts participating in the consultative meeting recognised that the right to health is an area with great potential for successful strategic litigation in Africa. Despite the several regional and international instruments detailing the right to health, debates surrounding the existence and content of state obligations abound. While several constitutions in the region do not include health as a right, progressive decisions from India, from which lessons can be drawn, have established the right to health as a component of civil and political rights, particularly the right to life and freedom from cruel, inhuman and degrading treatment.
Despite these developments, the litigation of right to health issues across the region remains complex. It is subject to debates surrounding limited state resources and the practical difficulties of taking cases. While many States are parties to regional and international human rights instruments with economic and social rights, the place of the right to health in national legal frameworks remains precarious.
Furthermore, participants at the consultative meeting felt that the complexities of tracking expenditure and weak monitoring systems fail to protect the 15 per cent of state budgets allocated to health goals by the Abuja Declaration. Issues pertaining to corruption and the allocation of resources, which have implications on the enjoyment of the right to health, are challenging to litigate. This makes it difficult to address the misuse of funds earmarked to implement the right to health.
The litigation of some issues deliberated upon at the Nairobi consultative meeting were explored at the Accra litigation surgery.
The Accra Litigation Surgery
Over four days, lawyers presented cases focusing on various contemporary issues surrounding the right to health. They addressed issues posed by the HIV/AIDS pandemic, including the availability of antiviral drugs, the discrimination faced by persons living with HIV/AIDS and the non-consensual sterilisation of HIV-positive women. Other thematic issues discussed included addressing drug shortages, barriers to accessing health care and the funding of primary health care. Cases pertaining to sexual violence, access to maternal health care services and access to emergency health care were thematic issues discussed at the meeting.
An important recommendation that emerged from the seminar is the need to seek specific litigation outcomes which would contribute to a wider implementation plan. Implementation should consider the challenges to ensuring access to the right to health, particularly the claims of vulnerable groups.
It was felt that there are several right to health issues that could be litigated but the question is, what does one start with? Litigation of health issues related to equality and non-discrimination could be a way of gradually developing health rights litigation before moving on to litigating substantive aspects of the right. Where a matter raises multiple or intersectional discrimination, applicants should endeavour to break this down to the court so it can affirm the State’s obligations to protect the right to health of vulnerable groups.
The seminar recognised the need for capacity building and the mobilisation of other strategies, including employing the media, community groups and lobbying for extensive legal, social and structural reform. It was acknowledged that protecting the right to health will in certain instances involve working with communities, through consultation and education for example to change cultural attitudes with respect to the elimination of harmful, traditional practices.
Participants at the surgery also stressed the need to build the capacity of judicial officers, rights bearers and relevant stakeholders who would take on the implementation of judgments.
Human rights cases are filed against the State whose duty it is to regulate the activities of third parties. In developing arguments and drafting briefs, it is important to separate human rights issues from negligence ones. In jurisdictions where both issues can form the content of a brief, they should be placed in separate sections and arguments made to that effect.
INTERIGHTS continues to work with lawyers in the region on right to health cases. The litigation surgery signals INTERIGHTS' continuing support and strong partnerships with international, national and regional stakeholders.
Participants’ comments after the litigation surgery
'I am well empowered and I understand better how to bring out the human rights angle and tie the relevant authorities to being accountable.'
'It will enhance my public interest litigation skill and advance my work as a lawyer.'
‘It will be very useful in work, especially in litigating at the regional and international level.’
‘We are able to give the best representation to our clients.’
Litigation Surgery on Violations Arising in Healthcare Settings in Africa, Kenya, August 2011
INTERIGHTS hosted a three-day litigation surgery on using strategic litigation to address abuses in healthcare systems in Mombasa, Kenya from 10 to 12 August 2011. The meeting was attended by 14 participants from Kenya, Nigeria, South Africa, Uganda, Malawi, and Zimbabwe, all of whom are practising lawyers in private practice or NGOs involved in public interest litigation. In addition to INTERIGHTS staff, participants were also able to benefit from the expertise of three representatives from Amnesty International, the Centre for Reproductive Rights and Harvard School of Public Health.
The objectives of the litigation surgery were to use the law to provide effective remedies for victims of abuses committed in public healthcare systems and, in so doing, to develop health rights jurisprudence in Africa and beyond. The event also aimed, through case presentations and interactive discussions, to build the capacity of participants to use international and regional human rights law in the enforcement of health rights, and to build a network of lawyers and NGOs working on these issues.
Following presentations by INTERIGHTS staff on strategic litigation, relevant international and comparative standards and using the African regional system, a wide range of cases were discussed. These included lack of access to emergency treatment, denial of access to essential medicines for HIV positive persons including prisoners, responsibility for health provision in a post conflict situation, FGM committed by medical staff, high levels of maternal and child mortality, failure to provide specialist care and treatment to vulnerable groups, treatment of mental illness and forcible treatment for TB patients. Cross cutting issues included making the link between healthcare failings and abuses and torture, cruel, inhuman or degrading treatment, adjudication of resource allocation, public health concerns versus individual rights and determining whether some cases are better framed as medical malpractice suits or public interest claims.
A high level of interaction between participants ensured the meeting achieved its goal of both sharing experiences, enhancing knowledge and deciding on potential litigation strategies. INTERIGHTS will continue to follow up and offer assistance to participants as the cases are developed and participants are strongly encouraged to continue discussions on a list-serve to ensure that the networking continues.
The meeting was funded by the Open Society Foundation’s Law and Health Initiative as part of a project grant to INTERIGHTS to conduct and support strategic litigation on protecting human rights in patient care by utilising guarantees against torture, cruel, inhuman or degrading treatment.
For more information, please contact Judy Oder