Book Review: Litigating the Right to Health in Africa: Challenges and Prospects
By Ciara O’Connell
The judicialization of the right to health has been lauded and critiqued as both a positive and negative in bringing justice to health care. Litigating the Right to Health in Africa*, a volume edited by Ebenezer Durojaye, begins with the premise that litigation is an important tool for achieving societal change. The chapters explore how health rights litigation plays out in a number of African and regional contexts, and to what extent such litigation is a viable and effective means of fulfilling the right to health. The range of contributors—human rights lawyers, academics and researchers, members of civil society—provides a nuanced and comprehensive overview of how, and to what extent, African states protect, promote, and fulfill the right to health. The volume succeeds in introducing and confronting the challenges African countries face in developing a tradition of health rights litigation.
Litigating the Right to Health in Africa provides a deep look into the right to health as it is understood in the African context. While most analyses of socioeconomic rights in Africa rely on litigation emerging from South Africa, this collection covers nearly all the sub-regions of the continent. The case studies are drawn from Uganda, Malawi, Kenya, South Africa, Mozambique, Nigeria, and Mauritius. The themes include, among others, sexual and reproductive health rights, dualist and monist approaches to international human rights law, positive state obligations, the role of stakeholders and civil society, and human rights education and training. The format of each of the case study chapters is relatively consistent; each begins with an overview of the healthcare situation for people in the country, then introduces the national and international legal framework around the right to health, judicial constraints hindering the development of health rights litigation, in some cases exploring case law, and finally suggests a “way forward.”
The regional case studies introduce the African and Inter-American regional human rights systems and provide an overview of the development of a legal and human rights framework on the right to health. Much like the other literature in this area, such as Litigating Health Rights Can Courts Bring More Justice to Health? (A.E. Yamin and S. Gloppen, eds., 2011) and Courting Social Justice (V. Gauri and D.M. Brinks, eds., 2010), the focus in this volume is on emphasizing the advancement of social and economic rights through legal systems in conjunction with other efforts such as social mobilization and development initiatives. This book will appeal to human rights litigators, especially those working in the sphere of economic, social, and cultural rights; professionals engaged in health rights activism and litigation within civil society organizations; policymakers; educators and human rights students; as well as members of international, regional, and national judiciaries.
The contributors identify various factors which hamper the progress of health rights litigation in Africa, including limited resources, which are mentioned in a number of the chapters. But the primary focus of this text lies in identifying potential opportunities to change current approaches to litigation. Significantly, the following themes emerge through the case study chapters: (i) the limited role of civil society in health rights litigation, which results in a low quantity of health rights cases, as well as impedes monitoring and implementation of health rights; (ii) the concern that stakeholders working on health rights have little knowledge of the international norms and treaties on economic and social rights, and their indivisibility from civil and political rights; and (iii) conservative judiciaries hinder the fulfillment of ESC rights, relying instead on “progressive realization” to fulfill these rights over time.
Salima Namusobya’s chapter, “Litigating the Right to Health in Uganda,” and Amar Roopanand Mahadew’s “The Right to Health in Mauritius,” explore the limited role of civil society in health rights litigation. They determine that there is a responsibility on the part of civil society to become more knowledgeable in human rights in order to better develop, monitor, and document health rights cases. Namusobya explains there is a need to expand upon coalition building in the region, so that academics/researchers, organizers, and activists engage in case-design, especially through the amicus curiae mechanism, in order to develop comprehensive health rights cases. Roopanand Mahadew argues that public interest litigation must include extensive NGO involvement to ease the individual financial burden victims face when bringing a claim before the courts and raise the profile of health rights cases with far-reaching effects.
A number of authors commented on a lack of understanding by judges, lawyers, and civil society about international human rights treaties, which results in a failure to frame health rights violations within international law contexts. Enoch MacDonnell Chilemba notes in reference to Malawi that because there is no constitutionally protected right to health, the “domestication” of international treaties such as the ICESCR is essential for national-level health rights litigation. However, actors engaged in litigation have little knowledge of these treaties, or their potential applicability in Malawi. Josephine Odikpo and Durojaye concur in their chapter entitled “Litigating Health Rights Issues: The Nigerian Experience,” and note that a lack of knowledge about human rights issues on the parts of lawyers and judges serves as a barrier to health rights litigation in itself. Judy Oder’s regional case study chapter, “Keeping Promises,” reiterates this concern; stakeholders have limited knowledge of the treaty bodies and how they work.
Emma Broster has observed that while the ICESCR requires states to “progressively realize” the minimum core obligations of economic, social, and cultural rights, judges at the national level have been reluctant to determine what constitutes that minimum level. As she points out in “Litigating the Right to Health Care in South Africa,” the South African Constitutional Court has rejected the minimum core approach because it does not want to infringe on the government’s duty to investigate social conditions in relation to rights. These themes are just some of the those raised in the collection others include: the indivisibility of rights; health rights particular to women, children and other vulnerable groups; enforcement of the right to health; health and the environment; and the right to health and development.
This emphasis on case studies has enormous practical utility, especially in that each chapter introduces national level legal frameworks on the right to health, and identifies shortcomings as well as avenues for potential progress. However, the comparative regional chapters lack cohesion with the collection’s case study design. Calling the final section “comparative,” is a little misleading as the two regional articles provide introductions to the African and Inter-American regional systems of human rights, and share lessons for future litigation efforts, rather than compare the regional approaches. It would have been useful to include a chapter on health rights litigation in the European human rights system, and compared this with the African region. There have been a number of sexual and reproductive rights cases before the European Court that could have provided a regional perspective on some of the arguments made within the national case study chapters.
Finally, because of this volume’s function in part as a training tool for actors involved in health rights litigation, it may have been beneficial to include a summary chapter. This could have identified the cross-cutting issues, reflected on recommendations made throughout the contributions, and provided a clear synopsis of the potential strategies for advancing health rights litigation.
Litigating the Right to Health in Africa provides an essential analysis of the right to health as is exists across the African region. Not only does the edited collection examine current trends in how socioeconomic rights are protected through national courts, but it also serves as a guidebook for future litigation efforts. Overall, Durojaye’s compilation will be of significant utility to those actors engaged in the work of advancing strategic health rights litigation in Africa and beyond.
Ciara O’Connell is a PhD candidate, University of Sussex, UK.
* Litigating the Right to Health in Africa: Challenges and Prospects (Ashgate, 2015) E. Durojaye, ed. ($144.95, ISBN 9781472468673) 302 pages.