Author: Oyeniyi Abe
Research Fellow, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town, South Africa.
The surge in susceptibility to pandemics is a threat to the existence of not only the global order but a nation state bedeviled by weak health care system and non-existent guarantees of socio-economic rights. The socio-economic impact of the COVID-19 global pandemic, has resulted into a decline in demand for the sole product of Nigeria’s exports – oil and gas, affecting Nigeria in disproportionate ways, and causing serious consequences as a result of systemic deficiencies and lack of quality health care systems. This article considers that this is an opportune time for the government to consider constitutional and realistic guarantees of socio-economic rights, amongst other things, as veritable shields against the threat of a pandemic.
The realization dilemma
The realization of socio-economic rights places fundamental responsibilities on the State to respect, protect and fulfil human rights. The responsibility to fulfil these rights exceed a state’s obligation of non-interference with the enjoyment of these rights. Hence, states are not only obliged to make the services available, but also affordable, accessible and of good quality, if there is to be any meaningful claim to having fulfilled the right. The lack of resources is not an excuse for the state’s inaction. States must show targeted and progressive commitment to ensure the realization of these rights.
Constitutionally, right to health (and other socio-economic rights) are not guaranteed in Nigeria. While some jurisdictions have acknowledged the symbiotic relationship between first and second generational rights, Nigeria is yet to realize this despite the provisions of the International Bill of Rights, and article 16 of the African Charter, which Nigeria is a signatory to. The dilemma in realizing these rights, coupled with weak healthcare system, has created an apathetic stance on the part of the state to focus on strengthening the health sector.
Avoiding right to health quandary in a post-pandemic Nigeria
Since COVID-19 will not be the last epidemic in coming years, I highlight three fundamental considerations for the Nigerian state, to guarantee its preparedness, preventing an outbreak and ability to speedily mitigate its effect should it occur, through rights realization. Approaches such as disease prevention, detection, and provision of permanent isolation centers, alone, without guaranteeing right to healthcare will be illusionary. For example, permanent isolation centers will serve as a constant reminder of the precarious situation of healthcare system in Nigeria. What is therefore important is Nigeria’s preparedness for a new health order or measures to cushion the effects of a pandemic?
First, Nigeria must devote at least ten percentage of its GDP, towards a resilient healthcare system capable of early detection and managing outbreaks of epidemics. While an healthy nation produces a wealthy nation, good healthcare system acts as a radar screen to detect outbreaks of diseases and an effective system for executing efficient response. Functional healthcare, which are essential anchors to public health systems, can effectively deal with emerging disease prevention and treatment. This position was well articulated in the Ouagadougou Declaration on Primary Health Care and Health Systems in Africa, which emphasized key areas for prioritizing healthcare. Most important amongst these areas is the strengthening of leadership and governance for healthcare. Sadly, Nigeria’s healthcare system is faced with grim leadership, governance and management challenges, including weak legal protection and enforcement capabilities for healthcare services. Akin to this sad reality is the lack of well-equipped laboratories furnished with adequate staff and supplies. Outbreaks such as Ebola, and COVID-19 continue to expose the precarious position and failure of Nigeria’s public health care, especially with regards to early detection of diseases, surveillance, tracking and tracing. Furthermore, lack of proper health information systems impedes coordinated response time. Information on detection and tracing about COVID-19 must be based on data and science. Thus, where reliable health information systems are not available, the systems may not work effectively to deliver results, as critical health information may be buried under bureaucratic bottlenecks.
Second, the lack of social security safeguards has exposed the vulnerability of millions of Nigerians to unemployment and despair during the pandemic. This form of social safety net ensures that government provides monetary assistance to people with inadequate or no income. While the public health measures taken appears haphazard, the economic response has been less than encouraging, compared to neighbouring countries: Ghana, Kenya, Rwanda, South Africa, that have introduced or adapted social protection programmes for citizens and institutions impacted by the pandemic. Understandably, this form of assistance only guarantees lessening poverty, not sustained pandemic relief. However, not only is the sustained provision of economic stimulus important and necessary in Nigeria where there is high unemployment rate, it is a fundamental human right. Part of social safety nets are programmes aimed at support mechanisms for the welfare of the populace, such as provision of food, shelter and healthcare for the vulnerable members of the society. Simply put, Nigeria must guarantee pecuniary security for its citizens at all times, not only when faced with certain risks, such as the pandemic.
In a country where the gini coefficient, extreme poverty, and astronomical unemployment rates are amongst the highest, it is pertinent that government provide one form of social assistance or another to forestall protests against restrictive orders designed to slow the spread of diseases. During this period, financial guarantees should be given to vulnerable or less advantaged people who are sick, under quarantine or forced to stay at home due to various restrictive orders imposed by the state. This incentive should also extend to workers who have been furloughed or who are taking care of a family member sick as a result of COVID-19. While there is no real, ascertainable monitoring data to ensure loss of work, a social security scheme will activate the unemployment system so that citizens who lose their jobs or face reduced hours as a result of the pandemic can obtain government benefits. This initiative should extend to businesses facing financial hardship due to the pandemic, and create an opportunity to access government financing, either through loans or grants.
Third, the absence of enforceable socio-economic rights impedes the maximum enjoyment of the foregoing guarantees when disease outbreaks occur. The transformations experienced as a result of the pandemic gives us an opportunity to reconstruct a post COVID-19 era that advances human lives. Citizen compliance with stated restrictive guidelines are epileptic. This is expected as poverty and unemployment run rampant in Nigerian cities. Besides, most citizens are eager to get back to work for fear of losing their jobs. Afterall, there is little or no moratorium available to credit holders who may have their jobs impeded by the stay at home orders. The current experience shows that the lasting damage to Nigeria’s economy, mental health and general wellbeing of citizens far outweighs the risks of leaving the economy open. To ensure preparedness for any eventuality, Nigeria must ensure the right to health is justiciable. The government must also periodically revise and modernize its national health policies. Furthermore, these policies must be strengthened to further the objectives of Goals 1, 3 and 10 of the UN Sustainable Development Goals.
The realization of socio-economic rights is a public health issue, not only an individual right issue. The obligation of the Nigerian state can no longer be an aspirational goal but an enforceable right to minimise the effects of future pandemics. A communitarian approach to the right to health, with enforceable justifications will ensure the enjoyment of the highest attainable standard of health, especially in the face of states excuse to limited resources. Furthermore, social security mechanisms must be put in place to cushion the effects of emergencies, such as pandemics. Nigeria must not only guarantee social security safeguards, and the right to health, it must progressively fund the healthcare sector to safeguard a rights fulfilment and sustainably developed nation.
About the Author:
Oyeniyi Abe is a law teacher, author, and policy consultant, with expertise in business and human rights, sustainable development, natural resources law, and environmental law. He has written about the scruffiness and injustices of adaptation and resilience planning as applicable to Nigeria’s Niger-Delta. He has also published extensively on oil and gas law, and the intersections of business, human rights and environment, as well as provided expert advice and opinion on extractive industries law in Africa. He is currently investigating how constitutional and governance organization can create transformative change for the people.
A prolific researcher and speaker, he sits on the Executive Council of the International Law Association, Nigerian Branch and is a member of the Nigerian Association of Law Teachers, International Bar Association, Nigerian Bar Association and Association of Professional Negotiators and Mediators. He is a Member of the Editorial Board of the Pretoria University Law Press (PULP), University of Pretoria, South Africa. Oyeniyi has studied in Nigeria, Hungary, South Africa, and the United States, where he spent time as a Fulbright Scholar at Loyola University, Chicago.
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