….Vows to appeal to the Supreme Court

The Court of Appeal sitting in Lagos has held that “the right to adequate medical facilities in Nigeria is part of the Fundamental Objective and Directive Principles of State Policy,” and therefore “non justiciable”.

The court said, “It will be an infringement or breach on the Fundamental Right of Nigerians be they Public Officers or not to prevent them from seeking medical attention outside Nigeria when the need arises, this Court will therefore be draconian to grant the prayers.” According to the Court, “The issue of inadequate medical facilities in the country, worrisome as it is, the law must take its course. It is an issue that is scheduled under Chapter II of the 1999 Constitution, which is non justiciable.”

The judgment followed an appeal against the ruling of the Federal High Court, Ikeja which was delivered on the 10th of January 2011 in suit number FHC/IKJ/CS/M59/10, Femi Falana vs Federal Government of Nigeria. The Court of Appeal said that, “It is very obvious that the right to adequate medical facilities does not come under Chapter IV of the 1999 Constitution [as amended]. It will therefore be anachronistic to leapfrog this human right into fundamental right.”

However, the court also said that, “Mr Falana while before the trial Court demonstrated the ill-equipped nature of public hospitals in Nigeria and the resultant effect of the untimely deaths emanating from this lackadaisical disposition of Government. Mr Falana therefore posited that he could lose his life if he fell sick since the hospitals in Nigeria cannot attend to serious health ailment or challenges.”

The judgment by Justice Polycarp Terna Kwahar read in part:“Notwithstanding, there are cases where the right to life is expanded to include the right to food and shelter. However, since the issue before me is on medical or health matters, I shall not go on frolic to analyse the issue of right to food and shelter in this appeal. How would the matter of Public Officers treatment outside Nigeria be an issue that is linked with the fundamental right of the Appellant!” The question to ask is what does fundamental right means?

The Court said that “A fundamental right is a right guaranteed in the Constitution. Fundamental rights’ means any of the fundamental rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004.”

“Merely entrenching a right in the 1999 Constitution does not automatically make such a right ‘fundamental right’. All the cases referred to by Appellant, none of them has any link with our jurisprudence. They are all from India and this court is not bound to follow them, persuasive as they are, I refuse to follow those cases as highlighted.”

“On the contrary, it will be an infringement or breach on the Fundamental Right of Nigerians be they Public Officers or not to prevent them from seeking medical attention outside Nigeria when the need arises, this Court will therefore be draconian to grant the prayers.” “Although the averment of the Applicant/Appellant were not controverted at the trial court by the Respondent, this court been a court of justice, looked at the affidavit of the Appellant at the lower court and the facts therein do not fly with the extant laws on fundamental right so cannot be swept under the carpet, since doing otherwise will be going against judicial precedent and against the settled principle of stare decisis.”

“This application brought by the appellant seeks to import into Chapter IV what was not and is not provided for, granting the prayers in this appeal will be a travesty of justice. The lower Court did a very perfect Constitutional Law analysis and rightly too, by explaining the difference between economic, social and cultural rights since these Human Rights fall under Chapter II of the 1999 Constitution and not under Chapter IV of the 1999 Constitution.” I find no merit in this appeal, I dismiss the appeal and affirm the Ruling delivered by the Federal High Court, Ikeja.”

Mr Femi Falana, SAN had argued 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 2004.”

Falana’s main arguments in the Federal High Court Ikeja, and Court of Appeal Lagos, read in part: “The failure or refusal to repair and equip public hospitals and medical centers in Nigeria constitutes a violation of the Defendant’s obligation to protect the health of Nigerians and to ensure that they receive medical attention when they are sick.”

“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 Applicant’s fundamental right to life guaranteed by section 33 of the 1999 Constitution of Nigeria [as amended] and article 2 of the African Charter on Human and Peoples’ Rights [Ratification and Enforcement] Act 2004.)

“The practice of having public officials treated at public expense in foreign hospitals is illegal as it violates the right of other Nigerans to equality before the law and equal right of access to public property and services guaranteed by articles 3 and 13 of the African Charter on Human and Peoples’ Rights.”

“Every citizen has a right to life and no one shall be deprived intentionally of his right except if such person is found guilty of a criminal offence by a court of competent jurisdiction as provided for under section 33(1) of the Nigerian Constitution and article 2 of the African Charter on Human and Peoples’ Rights.”

“Many Nigerians have untimely lost their lives due to lack of adequate medical facilities and I may also lose mine if I fall sick as the hospitals cannot attend to cases of serious ailment.”

“Even though the right to adequate medical facilities is part of the Fundamental Objectives and Directive Principles of State policy which is not justiciable, it is also a socio-economic right which is justiciable by virtue of article 16 of the African Charter on Human and Peoples’ Rights. See the position of ECOWAS Court of Justice in Socio-Economic Rights and Accountability Project (2009) AHRLR, pp 331 at 335.”

“The fact that the right to health is not justiciable under section 17 of the Nigerian Constitution does not mean the same right guaranteed by article 16 of the African Charter is non justifiable. Since the breach of the oath of office to ‘preserve the Fundamental Objectives and Directive Principles of State Policy can be challenged in court, it is submitted that any public officer who fails to preserve the fundamental objectives and directive principles may be taken up for violating the Constitution through an action filed at the appropriate High Court.”

“By virtue of the African Charter on Human and Peoples’ Rights, every Nigerian is entitled to access to good medical treatment in Nigeria. See Purohit and anor v The Gambia (2003) AHLRA 96 at 108. The fundamental objectives and directive principles of state policy were copied from the Constitution of India.” In interpreting the provisions of Chapter 4 of the Nigerian Constitution, judges hardly advert their minds to this fact.”

“Leaving the underprivileged Nigerians to die due to the failure of the Respondent to repair and equip public hospitals and medical centres while public officers go abroad at public expense is discriminatory, illegal and unconstitutional and a violation of articles 3 and 13(2)(3) of the African Charter on Human and Peoples’ Rights.”

“The domestic application of the African Charter by domestic courts in Nigeria has been confirmed in a plethora of cases. Any exclusion or restriction or any differential or preferential treatment accorded to persons of a political class amounts to discrimination and it highly contravenes section 42 of the Nigerian Constitution.”

“The state of medical facilities in Nigeria is so deplorable that Nigerian citizens cannot access adequate and proper health care which is only available to a few top public officers who travel abroad for medical treatment at the huge expense.”

“Even though courts in this country have taken judicial notice of the fact that certain ailments cannot be treated in Nigeria, the trial court ruled in this case that medical facilities cannot be made available to Nigerians to safeguard their right to life on the ground that they are mere social rights provided for in Chapter II of the Nigerian Constitution.”

“The Fundamental Rights [Enforcement Procedure] Rules 2009 amplify the principle of law enumerated in a plethora of cases to the effect that constitutional provisions should be given expansive and purposeful interpretation.”

The Nigerian government, on the other hand, had argued that, “the only rights enforceable under the Constitution are those enshrined under Chapter IV of the 1999 Constitution [as amended]. There is no law forbidding a citizen of Nigerian to seek medical treatment abroad.”

In his reaction to the judgment, Falana said that “the Court of Appeal failed to appreciate that it is discriminatory to allow a few public officers to seek medical treatment abroad while the millions of poor citizens are allowed to die in ill-equipped local hospitals.”

Falana further said, “The Court equally failed to realise that the fundamental right to life is incomplete without the protection of the right to health by the federal, state, and local governments in Nigeria. I will certainly challenge the erroneous judgment of the Court of Appeal at the Supreme Court on account of the constitutional guarantee of right to life and equality before the law.”

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