INTERIGHTS Bulletin

170
INTERIGHTS Bulletin
Volume 16 Number 4 2011
distribution of all health resources and
the adoption and implementation of a
national public health strategy and
plan of action addressing the health
concerns of the population. 70
An institution as complex and
important as a health system requires a
range of effective, transparent,
accessible and independent
accountability mechanisms. There are
many options in this regard, including
health commissioners, democratically
elected local health councils, public
hearings, patients’ committees, impact
assessments and judicial proceedings.
The media and civil society
organisations also have a crucial role to
play regarding accountability. Crucially,
the requirement of human rights
accountability extends to both the
public and private health sectors, and
also extends to international actors
working on health-related issues. 71
Conclusion
Violations arising in healthcare
settings continue to have far-reaching
repercussions on victims and their
families. Deaths, denial of emergency
medical care and detention of poor
patients all point to the weak health
institutions across Africa. These
situations also indicate the lack of
accountability processes – a key feature
of health structures across the
continent.
For African states to address these
violations, they need to prioritise
systematic and structural reform of
their health systems. Experts argue
that governments and donor agencies
tend to focus on specific themes, such
as HIV infection, malaria and
tuberculosis, while failing to address
the general state of Africa’s healthcare
systems. Strengthening health services
generally would be very important for
all these programmes. Given that a
country cannot develop without a
minimal health system, what is needed
is long-term investment. However, this
is not being done. 72
While specific violations arising in
healthcare settings need to be
appropriately addressed, an
assessment of a country’s entire health
system, involving looking at the
shortcomings and devising and
implementing solutions, is critical for
fundamental change. Ad hoc
interventions will not permanently
create stronger and more effective
health structures.
A country’s difficult financial situation
does not absolve it from having to take
action to realise the right to health.
When considering implementation of
this right in a particular state, the
availability of resources and the
development context are taken into
account. Nonetheless, no state can
justify a failure to respect its
obligations because of a lack of
resources. States must guarantee the
right to health to the maximum of their
available resources, even if these are
tight. While steps may depend on the
specific context, all states must move
towards meeting their obligations to
respect, protect and fulfil. 73
Accountability mechanisms are
urgently needed for all those actors –
public, private, national and
international – working on healthrelated
issues. The design of
appropriate,
independent
accountability mechanisms demands
creativity and imagination. 74 Creating
these mechanisms or, in countries
where they exist, ensuring that they
adequately respond to violations,
would assure individuals of the
commitment of their governments to
addressing human rights violations in
the health sector.
Judy Oder is a lawyer at INTERIGHTS;
she is grateful for the research
assistance provided by Mariam Uberi.
1 Report of the Special Rapporteur on the Right of
Everyone to the Enjoyment of the Highest Attainable
Standard of Physical and Mental Health, Anan Grover:
‘Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including
the right to development,’ April, 2011, available at
.
2 Ibid, para.65.
3 Ibid, para.105.
4 Ibid, para.106.
5 National: Article 16, African Charter on Human and
Peoples’ Rights CAB/LEG/67/3 rev.5. Regional: Angola:
Article 47, Congo Brazzavile Article 34, Kenya: Article
43, Madagascar: Article 19, Mozambique: Article 89,
South Africa: Article 27.
6 Ibid, Article 2, African Charter.
7 Ibid, Article 5, African Charter.
8 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, The
African Charter on the Rights and Welfare of the Child,
AU Convention for the Protection and Assistance of
Internally Displaced Persons in Africa.
9 Covenant on Economic, Social and Cultural Rights,
Convention on the Elimination of Discrimination
against Women, Convention against Torture.
10 FIDA Kenya and Center for Reproductive Rights,
‘Failure to deliver: Violations of women’s rights in
Kenyan health facilities,’ 2007, available at
.
11 ‘A high price to pay: Detention of poor patients in hospitals,’
available at
(accessed 20 November 2011), p.5.
12 Center for Reproductive Rights, ‘Broken promises:
Human rights, accountability and maternal death in
Nigeria,’ available at
(accessed 24 November 2011).
13 ‘A high price to pay,’ supra, note 11, p.41.
14 International Covenant on Civil and Political Rights,
Article 9, available at
.
15 Ibid, Article 11.
16 Ibid, Article 10.
17 Supra,note 11, A high price to pay, p.71.
18 ‘No Healing Here: Violence, Discrimination and
Barriers to Health for Migrants in South Africa,’ pp.3 &
63, available at
(accessed 24 November 2011).
19 Ibid, p.77.
20 OHCHR & WHO, ‘The Right to Health: Fact Sheet
No.31,’ available at
(accessed 23 November 2011).
21 Vienna Convention on the Law of Treaties 1969,
United Nations, Treaty Series, vol.1155, p.331, entered into
force on January 27, 1980, art.18.
22 South African Constitution Article 27(1)(a) & (3),
available
at
(accessed 1 December
2011).
23 Government of the Republic of South Africa & Ors v
Grootboom & Ors, para.26, quoting The State v
Makwanyane & Anor, para 35, 1995 (3) SA 391 (CC) 1995
(6), BCLR 665 (CC).
24 International Covenant on Economic, Social and
Cultural Rights (ICESCR), adopted December 16 1966,
G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
49, U.N. Doc. A/6316 (1966) 993 U.N.T.S. 3, entered
into force January 3, 1976, art.12.
25 Letter to the Nigerian Senate, ‘No Police Report, No
Treatment,’ available at
(accessed 24 November 2011).
26 A. Obomanu, ‘Pass the Emergency Treatment Bill,’
10 August 2010, available at
(accessed on 24 November 2011).
27 UN Economic & Social Council, ‘General Comment
14: The right to the highest attainable standard of
health,’ available at