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The Committee expresses its grave concern regarding the decline of the standard of health in the Congo. The AIDS epidemic is taking a heavy toll on the country, while the ongoing financial crisis has resulted in a serious shortage of funds for public health services, and for improving the water and sanitation infrastructure in urban areas. The war has caused serious damage to health facilities in Brazzaville. According to joint study of the WHO and UNAIDS, some 100 000 Congolese, including over 5 000 children were affected by HIV at the begging of 1997. More than 80 000 people are thought to have died from AIDS, with 11 000 deaths reported in 1997 alone. Some 45 000 children are said to have lost either their mother or both parents as a result of the epidemic.
The Committee strongly urges the State Party to pay immediate attention to and take action with respect to the grave health situation in its territory, with a view to restoring the basic health services. In both urban and rural areas, and to preventing and combating HIV/AIDS and other communicable diseases such as cholera and diarrhea. The Committee also encourages the Government to work closely with WHO and UNAIDS, in its efforts to cope with these problems.
Guidance about the nature and content of treaty duties is found in General Recommendations, General Comments and other guidelines that are developed by the committees from time to time.116 Over and above clarifying the obligations of the state, General Comments also serve the purpose of promoting an understanding of human rights responses in the light of new challenges, such as the challenges posed by the AIDS pandemic. In this connection, for example, in 2003, the Committee on the Rights of the Child issued General Comments No 3 and No 4 which are ultimately aimed at promoting the realization of human rights of children in the context of HIV/AIDS and adolescent health respectively, as guaranteed under the Convention on the Rights of the Child. Decisions of treaty bodies in respect of those treaties where complaints procedures are available also assist in the clarification of state duties under the treaties.
It should generally be conceded that the efficacy of the international human rights framework for protecting rights concerning health largely depends on co-operation rather than coercion. The Committee on ESCR, for example, does not have complaints procedures and institutions for adjudicating individual violations. Notwithstanding these limitations, international human rights law has the capacity to play a significant role in the application and interpretation of domestic law concerning health. In this regard, as will be elaborated upon in the next section, Nigeria is a case in point.
Application to Nigeria of the Minimum Core Obligations of State Parties as Defined in General Comment 14
It is evident from the above analysis that it is possible to define minimum essential levels of the right to health that apply to all States Parties regardless of their economic development or social and political context?
Carefully targeted policies with modest costs can often make significant contributions toward realising specific human rights. A World Health Organisation (WHO) study, for example, identified a minimum package of cost-effective public health and clinical interventions appropriate for low-and middle – income countries. Properly delivered, it is estimated that this package would eliminate 21 to 38 per cent of the burden of premature mortality and disability in children under 15 years and 10 to 18 per cent of the disease burden in adults. The package outlined for low-income countries would have a per capita cost of 12 USdollars per year. The version of middle-income countries would entail about 22 USdollars per catipa. The minimum essential package of health services includes some of the interventions identified below as state obligations related to the right to health, such as an expanded programme of immunizations, tobacco and alcohol control, AIDS prevention, prenatal and delivery care, and family planning. It also incorporates clinical services that go beyond the recommendations of this paper.
It is important to note that there is not a direct correlation between societal resources and health outcomes or equity in access to health care. Costa Rica and Uruguay, two middle income South American countries have achieved near universal health care coverage while wealthier countries in the same region, Mexico for example, lag far behind. In 1997 the USA spent 3,925 dollars per capita on health, 13.5 per cent of gross domestic product, more than twice the median Organization for Economic Cooperation and Development country. Yet the USA had the lowest percentage of the population with health insurance; some 43 million persons, one sixth of the total population, lack insurance and as a consequence, access to reliable health care. Moreover, despite high levels of health spending, the USA generally compares unfavourably with other industrialized countries and occasionally even developing countries on many health out-come indicators.
While financial constraints have to be kept in mind, particularly in the poorest countries, Nigeria is not supposed to be among this group. Granted, Nigeria has many economic problems and a very uneven distribution of wealth as well as crisis in leadership. Nevertheless, Nigeria is the largest producer and exporter of petroleum oil in Africa, about sixth in the world. It has excellent climate for productive agriculture and is heavily endowed with living and non-living natural resources. Yet, Nigeria is classified as one of the poorest countries in the world, ranking 151 out of 177 countries on the human development index contained in the Human Development Report 2004 published by the UN Development Programme (UNDP). The issue in Nigeria is more of how scare resources will be allocated and prioritized, particularly between primary and tertiary health care and rural and urban areas, than the absence of funds.
Having ratified the International Covenant on Economic, Social and Cultural Right and is therefore bound, as a State party to it, by the General Comment 14. Therefore, many dimensions of the minimum core obligations set forth in General Comment 14, with some minor changes in wording, apply to Nigeria. These include the obligation: -
1. to ensure the right of access to health facilities, good and services on a non-discriminatory basis, especially for vulnerable or marginalized groups, disadvantaged by the distribution of health facilities for decades;
2. to assure the availability of essential drugs (related to Nigeria’s priority health needs at a reasonable cost);
3. to ensure (a more) equitable distribution of all health facilities, goods and services (by giving priority to investments that will raise the standards of the vulnerable and marginalized groups such as women, children, aged) etc;
4. to adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include mechanisms, such as right to health indicators and benchmarks by which progress can be clearly monitored; the process by which the strategy and plan of action is devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups;
5. to ensure (the availability of basic) reproductive, maternal (pre-natal and post natal) and child health care;
6. to provide immunization against the community’s major infectious diseases;
7. to take measures to prevent, treat and control epidemic and endemic diseases, (particularly HIV/AIDS);
8. to provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them;
9. to provide appropriate training for health personnel, including education on health and human rights;
10. to explicitly recognize the right to health and provide appropriate legal and administrative remedies should the right not be respected; and
11. to refrain from executing any laws, policies, or activities that will negatively affect realization of this right.
Violations of States Parties’ Obligations
The General Comment 14 further provides an illustrative list of possible violations by States Parties. These violations are formulated in respect of each of the State parties’ specific obligations.
So, for instance, violations relating to the obligations to respect the right to health care may result form unfair discrimination in access to health services, facilities or goods.
Examples of violation of the obligation to protect the right include: -
a) failure to prevent, stop or discourage medical or cultural practices that endanger health;
b) failure to discourage production, marketing, and consumption of cigarettes and prohibited drugs;
c) failure to protect women against violence or to prosecute perpetrators of such violence.
Examples of violations of the obligations to fulfil the right include failure to recognize and/or meaningfully implement a right to health or to health care and failure to adopt a gender-sensitive approach to health.
At this juncture it is necessary to review policies and laws that are relevant to the health sector, especially reproductive health in Nigeria.
Review Of Applicable International, Regional And Domestic Legal Norms Relevant To Hiv/Aids In Nigeria.
This part of the paper seeks to review the above legally binding and non-binding international and regional instruments/standards on Nigeria and domestic legal norms relevant to HIV/AIDS in Nigeria with a view to identifying possible gaps and making appropriate recommendations to that effect.
Legally Binding International Instruments on Nigeria.
Having signed and ratified the following multilateral treaties, Nigeria is bound legally to ensure the effective promotion and protection of the provisions and state obligations contained therein that are relevant to the right to health and HIV/AIDS.
These instruments relevant for our review are as follows: -
i. The Protocol on the Rights of Women in Africa: - ratified on 16-12-2004.
ii. The African Charter on Human and Peoples’ Rights: - ratified on 22-6-1983.
iii. The African Union Charter on the Rights and Welfare of the Child: - ratified on 23-7-2001.
iv. UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): - ratified on 13-6-1985.
v. UN Convention on the Rights of the Child (CRC): - ratified on 19-4-1991.
vi. UN Convention against Torture and other cruel, inhuman or degrading treatment or punishment (CAT): - ratified on 28-6-2001.
vii. International Covenant on Civil and Political Rights (ICCPR): - ratified on 29-7-1993.
viii. International Covenant on Economic, Social and Cultural Rights (ICESCR): - ratified on 29-7-1993.
ix. International Covenant on the Elimination of all forms of Racial Discrimination (ICERD): - ratified on 16-10-1967.
x. The Universal Declaration of Human Rights, December 10, 1948, though not a treaty, has nevertheless today acquired the character of binding nature as customary rules of international law and Jus cogens,124 especially the core provisions under review relevant to reproductive health and rights.