Nigeria Must Fix Health Sector Now By Femi Falana (SAN)

Section 17 (3) (d) of the constitution has imposed a duty of the state to ensure  that “there are adequate medical and health facilities for all persons”.But the section is not justiciable like other provisions of the Fundamental Objectives and Directive Principles State Policy enshrined in Chapter II thereof. Hence, successive governments have failed to provide medical care  for the Nigerian people. Having abandoned public hospitals and reduced them to mortuaries, top governments functionaries have continued to travel abroad for medical treatment at public expense. But since Article 16 (2) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 state parties to the present charter has imposed a legal obligation on the state to take the necessary measures to protect the health of the people and to ensure that they receive medical attention when they are sick, I decided to sue the federal government at the federal high court on July 25, 2007 to provide for the health of the Nigerian people. 

Thus, in Suit HMB No FHC/IKJ/CS M59/10, I sought the following reliefs:

“1. A declaration that Nigerians are entitled to the best attainable state of physical and mental health guaranteed by Article 16(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A9) Laws of the Federation of Nigeria, 2004.

B. A declaration that the failure or refusal to repair and equip public hospitals and medical centres in Nigeria constitutes a violation of the duty of the Defendant to protect the health of Nigerians and to ensure that they receive medical attention when they are sick as required by Article 16(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A9) Laws of the Federation of Nigeria, 2004.

C. A declaration that the failure of the respondent to save lives through the provision of adequate medical facilities is illegal and unconstitutional as it constitutes a threat to the applicants fundamental right to life guaranteed by Section 33 of the 1999 constitution and Article 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A9) Laws of the Federation of Nigeria, 2004.

D. A declaration that the practice of having public officials treated at public expense in foreign hospitals is illegal as it violates the right of other Nigerians to equality before the law and equal right of access to the public property and services guaranteed by Articles 3 and 13 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A9) Laws of the Federation of Nigeria, 2004.

E. An order of perpetual injunction restraining the defendant from taking any public officer to foreign hospitals for medical check up and/or treatment in any manner whatsoever and howsoever.

F.  An order directing the defendant to repair and equip Federal Government owned hospitals and medical centres to ensure that Nigerians receive adequate medical attention when they are sick forthwith.”

Since it had no defence to the case the federal government filed a preliminary objection which challenged the jurisdiction of the court for want of  locus standi on my part. In a terse ruling the federal high court upheld the preliminary objection and struck out the suit. Even though my appeal against the decision of the federal high court is pending at the Court of Appeal the federal government ought to review the reliefs sought in the suit in view of the ravaging coronavirus pandemic. More so, that the members of the ruling class who are COVID-19 positive and others who are currently suffering from terminal diseases have been barred from jetting out of Nigeria for urgent medical attention in well equipped hospitals in foreign countries. Since every citizen is entitled to the fundamental right to health the federal,  state and local governments must jointly contribute towards revitalising the health sector and build well equipped medical centres for the Nigerian people. 

Accordingly, the economic stimulus being packaged by the federal government to address the coronavirus pandemic should include the  allocation of not less than N200m to equip the abandoned primary health care centres in each of the 774 local governments in the country. In addition, the National Health Insurance Scheme should be reorganised and made compulsory for all citizens in the private and public sectors.

Nigeria must learn from the example of the leading capitalist countries whose privatised health care delivery system has proved incapable of combating the coronavirus disease. Even the richest among them are paying dearly for abandoning the health of the health of the people to market forces. In a way, the multi-dimensional crisis triggered by COVID-19 globally has put to test the social content and relevance of the respective national health policies of countries.

With the success recorded in combating Ebola and Coronavirus around the world, Cuba has demonstrated that a nation that invests in the health of its people can always combat any disease. It is high time Nigeria took decisive steps to rethink the underlying philosophy of its national health policy in the spirit of the 1999 constitution.

 

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