The rights to life, health and development: The Ebola virus and Nigeria

2.1 Meaning, scope and legal liability of Nigeria in relation to the right to life in the context of public health

Among the rights guaranteed by human rights norms and standards, the right to life occupies pride of place. It is agreed that the right has become part of the corpus of customary international law. The reason for this assertion is simple: The right to life, by popular consensus of states, first provided for in article 3 of the Universal Declaration of Human Rights (Universal Declaration) appears to have become part of some provisions of the Declaration that have been incorporated into the corpus of customary international law binding on all states.6 This can be gathered from the fact that the right has become an important feature, even if on paper, of international,7 regional8 and domestic bills of rights of most civilised states.9 Although the right to life is provided for in many international, regional and domestic bills of rights, as mentioned above, only the provisions of the Universal Declaration, the International Covenant on Civil and Political Rights (ICCPR), the African Charter and the CFRN in relation to the right to life will be examined in the article. The reason for this is that only these instruments have either been ratified and/or domesticated.10 Having made this preliminary point, we below proceed to examine the particular content of the right to life and the obligation on Nigeria within the context of the outbreak of epidemics and infectious diseases.

As stated earlier, the Universal Declaration is the first international human rights instrument which provides for the right to life. Article 3 of the Universal Declaration affirms ‘the right of everyone to life, liberty and security of the person’. Article 6(1) of the ICCPR echoes this provision of the Universal Declaration and provides that ‘[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ The right to life is a right which appertains to every person as a result of being human. It has, therefore, been argued correctly that a reference to the right to life as an inherent right in the ICCPR suggests that the right exists quite apart from any recognition in positive law.11

In its interpretation of article 6 of the ICCPR, the United Nations (UN) Human Rights Committee (HRC), the quasi-judicial body responsible for the interpretation and enforcement of the ICCPR, explains that the right to life is a supreme right which cannot be derogated from even in times of a life-threatening public emergency.12 In addition, the right is said to have assumed the status of peremptory norms of international law, the arbitrary deprivation of which is prohibited by the international law rule of jus cogens.13 In the view of the HRC, state parties have the supreme obligation to prevent all acts which may cause the arbitrary deprivation of life and, broadly interpreted, the right to life includes the obligation of states in the public health setting to adopt positive measures to increase life expectancy through the prevention and elimination of epidemics.14

The African Commission on Human and Peoples’ Rights (African Commission), the quasi-judicial body mandated with the interpretation and enforcement of the African Charter, echoed this interpretation of the right to life by the HRC above. In the recent case of Sudan Human Rights Organisation & Another v Sudan,15 the Commission explains that the right to life in article 4 of the African Charter16 is a basic and supreme right of human beings without which all other rights are meaningless. According to the African Commission, this right in its broad interpretation includes a positive obligation on state parties to take positive and proactive steps to protect citizens from outbreaks of infectious diseases.17 Thus, where the state has not been proactive or has failed to exercise sufficient care and due diligence to prevent events and circumstances that may occasion the loss of life of persons within its jurisdiction, this may generate a responsibility for the state notwithstanding the fact that the violating act(s) is not directly imputable to the state, as is the case with the importation of EVD into Nigeria by Patrick Sawyer. The state is also obliged to provide reparations to victims of violations.

With regard to the CFRN, the right to life is guaranteed under section 33. Section 33(1) guarantees to every person the right not to be intentionally deprived of life except with respect to carrying out the sentence of a court for a criminal offence of which a person has been found guilty in Nigeria. Section 33(2) of the CFRN, however, provides seven different limitations of the right to life guaranteed under section 33(1). According to the provisions of section 33(2), a person shall not be deemed to have been deprived of his life in contravention of section 33(1), if such person dies from (i) force reasonably necessary to protect any person from unlawful violence; (ii) force reasonably necessary to defend property;18 (iii) force reasonably necessary to effect a lawful arrest; (iv) force reasonably necessary to prevent the escape of a person who is lawfully detained;19 (v) force reasonably necessary to suppress a riot; (vi) insurrection; or (vii) mutiny.20 Thus, if a person dies from the application of reasonable and proportionate force in furtherance of any of the seven purposes or objectives outlined above, such death is not regarded as the deprivation of life within the meaning of section 33 of the CFRN.

Section 33 of the CFRN consequently has been rightly criticised as the very negation of the religious concept of the right to life which presupposes that life and the accompanying right to it is God-given and can, therefore, be taken only by God.21

However, it is suggested that despite the numerous exceptions to the right to life under the CFRN outlined above, the obligation on states under international human rights standards and norms identified earlier in the article to act with due diligence to increase life expectancy through the elimination of epidemics in the public health setting are equally applicable to Nigeria by virtue of its subscription to, ratification and domestication of the human rights instruments examined here.

Having identified and discussed the Nigerian government’s legal liability in relation to the right to life above, we proceed to examine the Nigerian government’s liability in relation to the right to health.

2.2 Meaning, scope and legal liability of the Nigerian government in relation to the right to health in the context of public health

The right to health is an essential right without which other rights may be meaningless.22 A person who is critically ill with no access to appropriate and adequate healthcare is unlikely to appreciate, much less exercise, the rights to personal liberty, freedom of movement, religion, expression, shelter, privacy, among others. Such a person is also most likely to have his or her dignity and autonomy, values central to human rights norms, impacted in significant ways. Thus, although the right to health may not yet have attained the notoriety in recognition nearing that of the right to life, the right is nevertheless also an important feature of international23 and regional24 instruments and an emerging feature of domestic bills of rights.25

The right to health has two components. The first relates to the availability of timely and appropriate healthcare, while the second relates to the protection of public health through measures such as the provision of potable water and health-related education and information.26 It is important to note here that the public health dimension of the right to health through the prevention of diseases and the safeguarding of the health of the general populace is much more important in the African context than the availability and provision of health care for individuals because of the issue of resource constraints in poor countries.27

However, the use of the term ‘right to health’ is not without objection. Some scholars have argued that ‘the right to healthcare’ and ‘the right to health protection’ are a more apt description of the legal guarantee of the right to health because health itself cannot be guaranteed.28 It has, however, been argued that the legal guarantee of the right to health goes beyond the mere provision of healthcare and health protection; that the term ‘right to health’, therefore, is more inclusive and a better reflection of the different components and entitlements under the rubrics of the right to health as provided for in international, regional and some domestic human rights instruments.29 In addition to this, Ngwena and Cook argue that there is necessarily no real conflict between the different terms since the ultimate objective of the different nomenclatures is the ‘realisation of highest attainable standard of health’.30 Consequently, the term ‘right to health’ will continue to be used in the article to refer to the right under examination in this subsection, except where the texts or provisions of an instrument examined dictate otherwise.

Although the right to health is guaranteed under other international and regional human rights instruments, some of which Nigeria is a party to,31 dealing with the thematic issues of women, children and other minority and vulnerable groups within the context of the present discussion, however, only the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the African Charter and the CFRN will be considered as they are relevant because of their ratification and/or domestication.32

When the right to health under international law is mentioned, article 12 of the ICESCR generally is regarded as the most comprehensive reference point. According to article 12(1) of the ICESCR, state parties to the Convention ‘recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. As to the meaning of the right to health, the Preamble to the Constitution of the WHO has defined it as the ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.33 This meaning of the right to health, however, was rejected by the Committee on Economic, Social and Cultural Rights (ESCR Committee), the quasi-judicial body responsible for the exposition and enforcement of the ICESCR. 34

According to the ESCR Committee, the right to health is not a right to be healthy, but rather is composed of certain freedoms and entitlements.35 These freedoms include the freedom to have charge and dominion over one’s health and body and the freedom to be free from undue intrusion and coerced medical experimentation and treatment, while entitlements include a system of health protection which guarantees equal opportunities for people to enjoy the highest possible standard of health. The ESCR Committee reiterates that the notion of ‘highest attainable standard of health’ is to be understood only as the entitlement of a person to the enjoyment of requisite facilities, conditions, goods and services that make the realisation of the highest attainable standard of health possible.36

Five different obligations of states are deduced by the ESCR Committee from the exposition of article 12 of the ICESCR, namely, the general obligation of states; the specific obligation of states; the international obligation of states; the core obligation of states; and the obligation of states to provide reparations and remedies for violations of the Covenant.37

In the context of public health, the focus of the present discussion, the fourth obligation, namely, the core obligation of states, is the most germane.38 This obligation mandates states to ensure access to health facilities, goods and services, especially for vulnerable groups without discrimination; to ensure everyone’s freedom from hunger by ensuring access to a minimum essential supply of nutritionally-adequate and safe food; to ensure access to basic shelter and sanitation and an adequate supply of potable water; the provision of essential drugs; and equitable distribution of health facilities, goods and services.39 More importantly for the present discourse, this obligation also entails the provision of immunisation against major infectious diseases in the community; the prevention, treatment and control of epidemic and endemic diseases; the provision of education and information about the main health problems in the community, including methods of prevention and control; and the provision of appropriate training for health personnel.40

According to the ESCR Committee, the core obligation of states identified above is non-derogable under any circumstances whatsoever.41 Thus, unlike other obligations of states which may be subject to the availability of resources in furtherance of article 2(1) of the ICESCR, states cannot use the non-availability of resources as an excuse for not complying with their core obligation under article 12 of the ICESCR. This stance marks a departure from the earlier position of the ESCR Committee in General Comment 3 where the Committee appeared to be of the view that the non-availability of resources may excuse states from discharging its minimum core obligation to realise socio-economic rights.42

In addition to the stated obligations above, states are also obliged to provide remedies and reparation to victims of violations of the right to health.43 Reparations and remedies may be in form of restitution, compensation, satisfaction or assurances of non-repetition.44

According to the ESCR Committee, therefore, the prevention, control and treatment of epidemics and endemic diseases are one of the core obligations of state parties to the ICESCR for which no derogation is permitted.

The meaning and scope of the right to health and obligations imposed, as espoused by the ESCR Committee above, have been echoed by the African Commission with respect to article 16 of the African Charter.45 Although the Commission did not define the right to health, it concedes that it is not a right to be healthy.46 In addition, the African Commission sets out the components of the right to health as an inclusive right which consists of both health care and underlying preconditions of health as described by the ESCR Committee above; access to requisite health-related information and education; the right to be free from unwarranted intrusion; coerced medical treatment and experimentation; and freedom from compelled sterilisation and inhuman and degrading treatment.47

The obligations of state parties under article 16 of the African Charter also include a minimum core obligation in terms similar to that espoused by the ESCR Committee.48 These include the formulation of national plans, policies and systems; cross-cutting obligations to respect and protect the right to health; and disease-specific obligations which, in relation to endemic and epidemic diseases, include the obligation of state parties to establish a national mechanism for the prevention and treatment of such diseases;49 and the provision of effective domestic remedies for victims of violations.50

With regard to the provisions of the CFRN, the right to health is provided for in section 17(3)(d). According to the provisions of this sub-section, ‘the state shall direct its policy towards ensuring that ... there are adequate medical and health facilities for all persons’. The nature and scope of Nigeria’s socio-economic rights regime, of which the right to health is a part, have been discussed more adequately elsewhere.51 We, therefore, think that no useful purpose will be served in repeating the same here. However, suffice it to say here that the right to health, like other socio-economic rights contained in the Fundamental Objectives and Directive Principles of State Policy Chapter (Chapter II) of the CFRN, cannot be enforced before any court of law in Nigeria.

The above conclusion notwithstanding, that is not to say that the interpretation or argument for the non-justiciability of socio-economic rights in Nigeria in principle is correct. There are at least three reasons for this contention. First, it is a clear rule of international law that a state cannot rely on the provisions of its domestic law to violate its international law obligations. This conclusion finds support in the decision of the Economic Community of West African States (ECOWAS) Court of Justice in Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v Nigeria,52 where the Court held that Nigeria could not rely on the provisions of its domestic law to violate its obligations under an international treaty, in this case the African Charter.

Second, Nigeria has a separate obligation under international law to take legislative and other measures to transform socio-economic rights into subjective rights in Chapter II of the CFRN.53 This Nigeria appears to have done through the domestication of the African Charter and the enactment of other socio-economic rights-related statutes in Nigeria.

Third, there is also a separate obligation incumbent upon the Nigerian judiciary to interpret, as far as possible, domestic laws in conformity with the state’s obligations under international law.54 At least two cases from the Nigerian High Courts have, in apparent furtherance of the latter principle, affirmed the right to health in article 16 of the African Charter. In the first, Odafe & Others v Attorney-General & Others,55 the court read the torture and non-discrimination provisions of the CFRN and the African Charter together to find a violation of the right to health of HIV-positive prisoners who were denied the requisite medical treatment. In the second, Gbemre v Shell Petroleum Development Company Nigeria Limited & Others,56 the court read the right to life and dignity provisions of the CFRN and the African Charter together with the right to health to find a violation of the right to a healthy environment of the people of the Nigerian Niger Delta whose environment and health were being negatively impacted by the gas-flaring activities of the first respondent. These cases clearly show that some civil and political rights in the CFRN and the African Charter can be interpreted to protect important aspects of the right to health.

The foregoing suggests that notwithstanding the claim of non-justiciability of socio-economic rights under the CFRN, Nigeria is bound by and has the various obligations espoused above in relation to the right to health in Nigeria.

However, having said that, it is pertinent to point out that a close connection exists between the full realisation of other human rights and the right to development.57 As rightly noted by Uchegbu, for instance, the right to life in modern time must now be related to the quality of life.58 According to him, it is useless for the law to guarantee the mere right to exist without also guaranteeing the availability of basic facilities such as food, health, shelter and education, which will make such existence and life meaningful and worthwhile.59 The ESCR Committee has rightly observed that socio-economic rights are significantly related to the right to development.60 Thus, the rights to life and health are related to other rights and significantly connected to the right to development. The impact of the EVD in Liberia, Sierra Leone and Guinea, three countries with significantly less-developed economies and health care systems than Nigeria, where the virus killed thousands of people as opposed to about nine who lost their lives to the disease in Nigeria, drives this point home very strongly. Related to this are the immense resources needed to ensure the adequate and ongoing presence of requisite mechanisms and facilities needed to secure and fully realise the rights under discussion. There, therefore, is no doubt that the rights to life and health in the context of the EVD importation into and outbreak in Nigeria are rights which are unrealisable in the general environment of extreme poverty and under-development obtainable in most countries in sub-Saharan Africa, including Nigeria. The foregoing scenario directly implicates and calls into being the right of Nigerian citizens to development. We consequently turn to an examination and analysis of the scope and contours of the right to development.

3.1 Right to development under the African regional framework

In 1981, the African Charter was adopted by all African states to promote and protect the human rights and basic freedoms of Africans across the continent. Article 22 of the African Charter confers a legally-binding right to development on African people.61 This is currently the only explicit article dedicated solely to the right to development.62 However, the conversion of this right into justiciable law under national constitutions of African countries has been limited, as demonstrated by the Nigerian Constitution. Based on the wording of the African Charter and the duties imposed by it on states as well as individuals, at least on paper, the African system became an example of a human rights regime that is duty-oriented, particularly duties on individuals, than the universal human rights system.63 Significantly, the African Charter went further than the universal human rights framework of the day and the European and American regional human rights systems with the introduction of the first legally-binding article expressly conferring an individual and collective right to development.64

Article 22(1) of the African Charter provides:

All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

Article 22(2) complements this position by presenting the duty of states, individually or collectively, to ensure the exercise of the right to development.65 In article 22, the drafters of the African Charter appear to draw from both article 22 of the Universal Declaration66 and Article 1(1) of the ICESCR67 in an attempt to convey a comprehensive right, with an attendant duty.

However, although the PRTD has been called for by African human rights activists since the 1960 and 1970s, the volume of advocacy on article 22 of the African Charter has been far less than expected. Out of over 220 communications submitted to the African Commission since its inauguration in 1987,68 only seven have expressly relied on article 22 in their claims. The first of these claims was submitted in 1994 against the government of Zimbabwe, but was later withdrawn.69 Furthermore, of these seven communications, only four were decided on the basis of the merits of the case.70

As a result, the African Commission has had only a handful of opportunities to make pronouncements on the PRTD. Unfortunately, the Commission was deprived of an important opportunity to make an express pronouncement on article 22 in its landmark decision involving the Nigerian government in 2001, Social and Economic Rights Action Centre (SERAC) v Nigeria,71 when it made a number of important development-related pronouncements on the African Charter. In that case, SERAC alleged that the (then) military government of Nigeria had been involved directly in oil production through the state-owned oil company, the Nigerian National Petroleum Company (NNPC), and as the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people of Southern Nigeria. The Commission went on to state that, inter alia, the last layer of the government’s obligation requires the state to fulfil the rights and freedoms it willingly undertook under the various human rights regimes by actively deploying the state’s machinery towards the practical realisation of such rights.72

The situation has since been remedied partly by the African Commission’s landmark decision in the Endorois case.73 In this case, the complainants alleged violations of the PRTD resulting from the displacement of the Endorois community, an indigenous community in Kenya, from their ancestral lands without adequate consultation or compensation for their loss of property, the disruption of the community’s pastoral enterprise or the right to practise their religion and culture as the Endorois people.74 According to the Endorois, by creating a game reserve on their land over 30 years ago, the Kenyan government had disregarded national law, Kenyan constitutional provisions and, most importantly, numerous articles of the African Charter, including the right to development.75 Citing the African Commission’s reasoning in SERAC above, the Endorois community noted the importance of choice to the rights holders’ well-being and the ‘liberty of their action’, which is tantamount to the choice embodied in the right to development and must, therefore, be respected by the Kenyan government. In pronouncing their findings of a violation of the complainants’ PRTD by the respondents, the African Commission stated: 76

The African Commission is of the view that the right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end. A violation of either the procedural or substantive element constitutes a violation of the right to development. Fulfilling only one of the two prongs will not satisfy the right to development.

In finding against the respondent state, The African Commission noted that the Endorois community had suffered a violation of article 22 of the Charter,77 and went on to enumerate the duties of the Kenyan government, stating that it ‘bears the burden for creating conditions favourable to a peoples’ development’. The respondent state is obligated to ensure that the Endorois are not left out of the development process or benefits.

While the jurisprudence from the Endorois case is extremely helpful, the PRTD is still being considered from the position of the state’s internal obligations to its own citizens.78 What remains untested is the external duty of an African state to any group of African people. In the current analysis of the Ebola case study, apart from the direct analogy regarding the duty of the Nigerian government to peoples on Nigerian territory in the area of due diligence and care, as well as the provision of adequate healthcare systems, this situation credibly raises the question of the liability of the government of Liberia to the Nigerian people with respect to the entry of the EVD into Nigeria from Liberia.

3.2 Right to development under international law

Milestones in the evolution of the universal right to development, and later rights-based development, are well demarcated in the literature.79 Generally, the International Bill of Rights, comprising the Universal Declaration, the ICCPR and the ICESCR, is the precursor to the RTD.80 Although none of these international instruments expressly mentions the RTD, article 22 of the Universal Declaration states as follows:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

The RTD also echoes article 28 of the Universal Declaration in seeking international co-operation among states.81 It recognises that ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’. Salomon has noted that the RTD derives its ‘intellectual origins and legal claims’82 jointly from articles 28, 55 and 56 of the United Nations Charter. It is upon this foundation that the building blocks of the United Nations Declaration on the Right to Development and the RTD that it proclaims have their origin.

Originally perceived as a ‘third generation’ or ‘solidarity’ right,83 which was generally propagated by developing countries, the RTD was universally established by article 1(1) of the UNDRTD, which states:

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

Furthermore, articles 2(3) and 3(3) declare a duty on states to formulate appropriate national development policies, and to co-operate with each other in ensuring development and eliminating obstacles to development respectively. 84

It is now generally accepted that these provisions allude to both an individual and a collective right, and that the actual holders of this collective right are ‘the people’, with obligations resting on national governments as well as a duty of international co-operation amongst governments.85

Although the UNDRTD is a declaratory statement of the UN General Assembly, elements of the RTD have subsequently been echoed in various treaties,86 and arguments have been made that the UNDRTD has attained the status of customary international law.87 In the 1990s the United Nations Development Programme (UNDP), with the launch of its Human Development Reports, shifted the focus of the international community onto human well-being, and not economic growth, as the purpose and end of development.88 Nevertheless, unresolved issues around the conceptualisation, legality and justiciability of the RTD still persist.89

In the 1990s a renewed focus on the RTD took the form of instituting a follow-up mechanism by the appointment of an Independent Expert in 1998 (and later a High Level Task Force), as well as the establishment of an Open-Ended Working Group on the RTD (WG) by the UN Economic and Social Council on the recommendation of the Commission on Human Rights.90 The High Level Task Force (HLTF), supporting the WG, articulated the ‘core norms’ of the RTD as91

the right of peoples and individuals to the constant improvement of their well-being and to a national and global environment conducive to just, equitable, participatory and human-centred development respectful of all human rights.

This definition of the RTD as going beyond mere economic development to encompass the constant improvement of the well-being of persons in an environment conducive to equitable, participatory and human-centred development which is respectful of all human rights is the one adopted here.

Prior to this, the Independent Expert on the RTD at the time, prominent Indian economist Arjun Sengupta, further articulated the RTD in his reports.92 He stipulated four key components of the RTD, stating that ‘[t]he human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realised’.93 He stated that the RTD requires both negative (prevention) and positive (promotion or protection) actions from states.94

In applying the RTD to the present case, the problems of non-justiciability and poorly-defined state liability make it difficult to hold the Nigerian government accountable for a breach of a duty under the RTD. However, an interesting discussion, which falls outside the purview of the current article, is the level of accountability which can be imputed to the global community of states and international organisations to ensure that Ebola, whenever it again appears in West Africa or elsewhere, receives prompt and adequate assistance under the duty of ‘international co-operation’ highlighted in several universal human rights declarations and conventions, including those mentioned above. The response of the international community to the crisis in West Africa was delayed, with unfortunate results.