Lagos lawyer, Femi Falana has dragged the Federal Government to the Federal High Court in Ikeja over alleged failure to “ensure that there are adequate medical and health facilities for all persons in the country; and to take the necessary measures to protect the health of the people and ensure that they receive medical attention when they are sick.”
Lagos lawyer, Femi Falana has dragged the Federal Government to the Federal High Court in Ikeja over alleged failure to “ensure that there are adequate medical and health facilities for all persons in the country; and to take the necessary measures to protect the health of the people and ensure that they receive medical attention when they are sick.”
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In Suit Number FHC/IKJ/CS/M59/10 brought pursuant to Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 as preserved by Section 315 of the 1999 Constitution, and the inherent jurisdiction of the Court, the Applicant also claimed that, “only few public officers are allowed to receive medical treatment at public expense in foreign hospitals whenever they are sick. The public hospitals and health centres patronized by the majority of Nigerians are neither equipped nor staffed.”
“I am highly disturbed to know that most Nigerian citizens have no access to adequate medical care and attention. In 1991,the military President, General Ibrahim Babangida was taken to a hospital in Paris, France for the treatment of radiculopathy at huge public expense. Chief Mrs. Stella Obasanjo, the wife of former President Olusegun Obasanjo was treated in a hospital in Spain where she lost her life in 2005. Mrs. Maryam Babangida, the wife of the former military president, General Ibrahim Babangida passed away in a hospital in the United States in December 2009. President Umaru Musa Yar’adua who assumed office in May 2007 was taken abroad for medical treatment on several occasions at huge public expense until he died in May, 2010. The regular treatment of President Yaradua in foreign hospitals seriously exposed Nigeria to ridicule before the international community,” the Applicant also said.
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According to the Applicant, “Many other public officers are taken abroad for medical treatment at public expense from time to time. Top public officers and private citizens who can afford overseas medical attention now travel to the United Arab Emirates, Saudi Arabia and India for medical check up and treatment. Millions of poor Nigerian citizens die of preventable diseases in the local hospitals because they cannot afford the exorbitant costs of medical treatment in foreign hospitals. Several foreign hospitals patronized by privileged Nigerians are manned by Nigerians doctors, pharmacists and nurses who left the country due to the neglect of the health sector by the Defendant.”
The Applicant also said argued that, “Contrary to its obligations under the law and in spite of abundant resources of the country the Federal Government has refused to equip public hospitals and medical centres located in Lagos and other the various parts of the country. Many countries that are less endowed than Nigeria have well equipped hospitals with qualified specialists many of whom are Nigerians. The 469 members of the National Assembly have just demanded for increase in their salaries to 47 million per House of Representatives member and N60 million per Senator per quarter. In the 2010 Appropriation Act the Defendant has budgeted N57 billion for the entertainment and N27 billion for traveling by members of the National Assembly. The Federal Government has just budgeted N6.6 billion for the celebration of the 50th Independence Anniversary Celebration on October 1, 2010. “
“Owing to the neglect of the health sector millions of Nigerians would have died but for the intervention of the Jimmy Carte Centre, the Bill Gates Foundation, UNDP etc which have expended billions of dollars on the eradication of guinea worm, polio and other preventable diseases. I have recently lost many close family members and friends including the Late Chief Gani Fawehinmi SAN due to lack of adequate medical care in Nigeria. If I am seriously sick I may lose my life as there are no adequate medical facilities in Lagos and other parts of the Federation, the Applicant added.
Mr Falana is seeking the following reliefs:
A. 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.
Signed
Tayo Soyemi
Falana & Falana’s Chambers
29/7/2010
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT IKEJA
SUIT NO: FHC/IKJ/CS/M59/10
IN THE MATTER OF AN APPLICATION BY FEMI FALANA FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT TO PHYSICAL AND MENTAL HEALTH
BETWEEN:
FEMI FALANA )….. APPLICANT
AND
FEDERAL GOVERNMENT OF NIGERIA )……. RESPONDENT
MOTION ON NOTICE
Brought Pursuant to:
1. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 as preserved by Section 315 of the 1999 Constitution
2. Inherent Jurisdiction of the Honourable Court
TAKE NOTICE that the Federal High Court of the Federal Capital Territory will be moved on ………………day of July 2010 or so soon thereafter as Counsel may be heard on behalf of the Applicant for an order for the enforcement of his fundamental rights to physical and mental health in terms of the reliefs sought in the Statement accompanying the affidavit in support of the application.
AND TAKE NOTICE that on the hearing of this application the said Applicant will use the affidavit and the exhibits therein referred to.
Dated this……….day of July, 2010
……………………………………………………
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
APPLICANT’S SOLICITORS
25, ADEKUNLE FAJUYI WAY,
G.R.A IKEJA, LAGOS
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
C/O FEDERAL MINISTRY OF JUSTICE ANNEX,
BROAD STREET,
LAGOS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT IKEJA
SUIT NO: FHC/IKJ/CS/M59/10
IN THE MATTER OF AN APPLICATION BY FEMI FALANA FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT TO PHYSICAL AND MENTAL HEALTH
BETWEEN:
FEMI FALANA )….. APPLICANT
AND
FEDERAL GOVERNMENT OF NIGERIA )……. RESPONDENT
STATEMENT
1. NAME AND DESCRIPTION OF THE APPLICANT
The Applicant is a Legal Practitioner of No 25 Adekunle Fajuyi Way, GRA Ikeja, Lagos State.
2. RELIEFS SOUGHT BY THE APPLICANT
A. 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.
3. GROUNDS UPON WHICH RELIEFS ARE SOUGHT
1. By virtue of 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 “Every individual shall have the right to enjoy the best attainable state of physical and mental health in Nigeria.”
2. The Defendant has failed to observe and apply the provision of Section 17(3)(d) of the Constitution which has imposed a duty on it to direct it policy towards ensuring that “there are adequate medical and health facilities for all persons”.
3. The Defendant has failed to carry out its duty to take the necessary measures to protect the health of the people and 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.
4. In violation of Articles 3 and 13 of African Charter on Human and People Rights which has guaranteed equality before the law and right to equal access to public property and services, only few public officers are allowed to receive medical treatment at public expense in foreign hospitals whenever they are sick.
5. The public hospitals and health centres patronized by the majority of Nigerians are neither equipped nor staffed in breach of Article 16(2) of the African Charter on Human and Peoples’ Rights.
Dated this……………….day of July, 2010
…………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
APPLICANT’S COUNSEL
25 ADEKUNLE FAJUYI WAY,
G.R.A IKEJA,LAGOS
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
C/O FEDERAL MINISTRY OF JUSTICE ANNEX,
BROAD STREET,
LAGOS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT IKEJA
SUIT NO: FHC/IKJ/CS/M59/10
IN THE MATTER OF AN APPLICATION BY FEMI FALANA FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT TO PHYSICAL AND MENTAL HEALTH
BETWEEN:
FEMI FALANA )….. APPLICANT
AND
FEDERAL GOVERNMENT OF NIGERIA )……. RESPONDENT
AFFIDAVIT IN SUPPORT
I, FEMI FALANA, Male, Nigerian and Legal Practitioner of No 22 Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja do hereby make oath and state as follows:
1. I am the Applicant herein and as such I am familiar with the facts of this case.
2. The Federal Government of Nigeria ratified the African Charter on Human and Peoples’ Rights in 1981 and enacted the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act in 1983.
3 I am highly disturbed to know that most Nigerian citizens have no access to adequate medical care and attention.
4 In 1991,the military President, General Ibrahim Babangida was taken to a hospital in Paris, France for the treatment of radiculopathy at huge public expense.
5 Chief Mrs. Stella Obasanjo, the wife of former President Olusegun Obasanjo was treated in a hospital in Spain where she lost her life in 2005.
6 Mrs. Maryam Babangida, the wife of the former military president, General Ibrahim Babangida passed away in a hospital in the United States in December 2009.
7 President Umaru Musa Yar’adua who assumed office in May 2007 was taken abroad for medical treatment on several occasions at huge public expense until he died in May, 2010.
8. The regular treatment of President Yaradua in foreign hospitals seriously exposed Nigeria to ridicule before the international community.
9. Many other public officers are taken abroad for medical treatment at public expense from time to time.
10. Top public officers and private citizens who can afford overseas medical attention now travel to the United Arab Emirates, Saudi Arabia and India for medical check up and treatment.
11. Millions of poor Nigerian citizens die of preventable diseases in the local hospitals because they cannot afford the exorbitant costs of medical treatment in foreign hospitals.
12. Several foreign hospitals patronized by privileged Nigerians are manned by Nigerians doctors, pharmacists and nurses who left the country due to the neglect of the health sector by the Defendant.
13. Contrary to its obligations under the law and in spite of abundant resources of the country the Federal Government has refused to equip public hospitals and medical centres located in Lagos and other the various parts of the country.
14. Many countries that are less endowed than Nigeria have well equipped hospitals with qualified specialists many of whom are Nigerians.
15. The 469 members of the National Assembly have just demanded for increase in their salaries to 47 million per House of Representatives member and N60 million per Senator per quarter.
16. In the 2010 Appropriation Act the Defendant has budgeted N57 billion for the entertainment and N27 billion for traveling by members of the National Assembly.
17. The Federal Government has just budgeted N6.6 billion for the celebration of the 50th Independence Anniversary Celebration on October 1, 2010.
18. Owing to the neglect of the health sector millions of Nigerians would have died but for the intervention of the Jimmy Carte Centre, the Bill Gates Foundation, UNDP etc which have expended billions of dollars on the eradication of guinea worm, polio and other preventable diseases.
19. I have recently lost many close family members and friends including the Late Chief Gani Fawehinmi SAN due to lack of adequate medical care in Nigeria.
20. If I am seriously sick I may lose my life as there are no adequate medical facilities in Lagos and other parts of the Federation.
21. Unless the reliefs sought herein are granted, the Federal Government will continue to neglect the health sector to the detriment of majority of poor and disadvantaged Nigerians.
22. I make this declaration in good faith.
……………
DEPONENT
SWORN TO at the Federal
High Court Registry, Ikeja
This………….day of July, 2010
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT IKEJA
SUIT NO: FHC/IKJ/CS/M59/10
IN THE MATTER OF AN APPLICATION BY FEMI FALANA FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT TO PHYSICAL AND MENTAL HEALTH
BETWEEN:
FEMI FALANA )….. APPLICANT
AND
FEDERAL GOVERNMENT OF NIGERIA )……. RESPONDENT
WRITTEN ADDRESS IN SUPPORT OF THE APPLICANT’S MOTION ON NOTICE.
1.00 INTRODUCTION
1.01 The Motion on Notice is brought pursuant to Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules 2009 and Under the Inherent Jurisdiction of this Honourable Court to secure the enforcement of the fundamental right of Nigerians to life. By the aforesaid motion, the Applicant seeks from this Honourable Court, the following reliefs:
A. 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.
2.00 MATERIAL FACTS
2.01 The material facts leading to this application are as stated in the Applicant’s affidavit in support of this application. Briefly stated, the Applicant has alleged that there are no adequate medical facilities in Nigeria. It is the case of the Applicant that the Respondent has the resources but has refused to fund public health in Lagos and other parts of Nigeria.
2.02 Even though the health sector has been neglected a few public officers travel abroad at public expense for medical check up and treatment while other Nigerians are allowed to patronize the ill-equipped public hospitals in the country. Having lost many family members and friends the Plaintiff fears that he may die if he falls sick as they are no adequate medical facilities in Lagos and other parts of Nigeria.
3.00 ISSUES FOR DETERMINATION
1. WHETHER the failure of the Respondent to provide adequate medical facilities does not constitute a threat to the life of the Applicant guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria 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.
2. WHETHER the practice of having public officers treated at public expense in foreign hospitals is not illegal in view of the human right of other Nigerians to equality before the law and equal right of access to the public property and services as enshrined under Articles 3 and 13(2) and (3) of the African Charter on Human and Peoples’ Rights (Ratifications and Enforcement) Act (CAP A9) Laws of the Federation of Nigeria, 2004.
4.00 ARGUMENTS
4.01 ISSUE ONE: WHETHER the failure of the Respondent to provide adequate medical facilities does not constitute a threat to the life of the Applicant guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria 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.
4.02 The fundamental right to life enshrined in Section 33(1) of the 1999 Constitution which provides that “every person has a right to life, and no one shall be derived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”
4.03 The right to life has also been guaranteed by Article 2 of the African Charter on Human and Peoples’ Rights which states as follows:
“Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his person. No one may be arbitrarily deprived of this right”
4.04 In the affidavit in support of this application it has been shown by the Applicant that the public hospitals in Nigeria are ill-equipped due to utter neglect by the Respondent. Such neglect has led to the untimely deaths of many citizens. The Applicant fears that he may lose his life if he falls sick as the hospitals cannot attend to cases of serious ailment.
4.05 It is the case of the Applicant that the neglect of the public hospitals constitutes a threat to his life contrary to the provisions of Section 33 of the Constitution and Article 3 of the African Charter on Human and Peoples’ Rights.
4.06 In arguing this issue, reference shall be made to the provision of Article 16(1) and (2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004. Article 16(1) provides thus:
“Every individual shall have right to enjoy the best attainable state of physical and mental health”.
4.07 The Applicant’s case is further strengthened by Article 16(2) which provides as follows:
“States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick”.
4.08 A clear perusal of the above provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 leaves no one in doubt that this Honourable Court has the statutory power to grant the prayers sought in the application of the Applicant in this case.
4.09 In a number of cases Section 21 of the Constitution which guarantees the fundamental right of Indians has been interpreted by the Supreme Court of that country in the context of access to medical treatment. In Paschim Banga Khet Mazdover Samity v. State of West Bengel (1996) 4 SCC the Plaintiff complained of denial of medical aid in Government hospitals. The Supreme Court of India held that the primary function of the State was to secure the welfare of its people and that providing adequate medical facilities for them was a part of the obligation. The Court, in holding that there had been a violation of the right to life under Article 21 and awarding compensation, stated that the right to emergency medical care formed a core component of the right to health, which in turn was recognized as forming an integral part of the right to life.
4.10 Through judicial activism the courts in India have re-conceptualized the right to life as imposing a positive obligation on the State to safeguard the life of every person stating that preservation of human life was of utmost importance. The expansion of Article 21 has been critical in guaranteeing access to medical treatment. In Pt. Parmanand Katara vs. Union of India and Others AIR 1989 SC 2039 the Supreme Court held that Article 21 imposed obligations on the government to preserve human life and specifically that government hospitals and government doctors had duties to save lives through medical assistance. Furthermore, the Court held that the duty was of paramount importance, and that no State action, law, regulation, or procedure could delay or prevent government doctors from fulfilling their duty to preserve life.
4.11 In Consumer Education and Research Centres & Others v. Union of India (1955) 3 SCC 42 the Supreme Court of India held that the right to health and medical aid to protect the health is a fundamental right and that health implies more than an absence of sickness. The Supreme Court in another case reiterated that that the right to health is integral to right to life and the government has a constitutional obligation to provide health facilities.
4.12 In Permanent Secretary, Department of Welfare v. Ngxuza (2001) 4 SA 1184 (SCA) Cameron (J.A) of the Court of Appeal of South Africa held:
“It is precisely because so many in our country are in a ‘poor position to seek legal redress’ and because the technicalities of legal procedure, including joinder, may unduly complicate the attainment of justice that both the interim Constitution and the Constitution created the express provision that ‘anyone’ asserting a right in the Bill of Rights could litigate ‘as a member of, or the interest of a group or class of a persons.”
4.13 The African Commission on Human and Peoples’ Rights has had cause to interpret Article 16 of the African Charter on Human and Peoples’ Rights in Purohit & Anor. v. The Gambia (2003) AHLRA 96 at 108 when it held:
“Enjoyment of the human rights to health as it is widely known is vital to all aspects of a person’s life and well-being, and is crucial to the realization of all the other fundamental human rights and freedoms. This right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.”
4.14 In the Minister of Health & Ors. V. Treatment Action Campaign (2002) AHRLR 189 the Constitutional Court of South Africa ordered the government to make provision and adopt reasonable measures for counseling and testing pregnant women for HIV on the options open to them to reduce the risk of mother-to-child transmission of HIV, and make appropriate treatment available to them for such purposes.
4.15 We humbly commend to this Honourable Court the decision of the Federal High Court (Per Nwodo J.) in the case of Odafe & Ors. V. Attorney-General of the Federation & Ors. (2005) CHR 309 where it held:
“Article 16(2) places a duty on the state to take necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. All the Respondents are federal agents of this country and are under a duty to provide medical treatment for the Applicants”.
4.16 The learned trial judge proceeded to conclude as follows:
“The government of this country has incorporated the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 as part of the la of this country. The Court of Appeal in Ubani v. Director, SSS (1999) 11 NWLR (PT 129) held that the African Charter is applicable in this country. The Charter entrenched the socio-economic rights of person. The Court is enjoined to ensure the observation of these.
A dispute concerning socio-economic rights such as the right to adequate medical attention and care require court to evaluate State Policy and give judgment once it is consistent with the Constitution. We therefore appreciate the fact that the economic cost medical provision is quite high. However, the statutes have to be complied with and the state has a responsibility to Nigerians”.
4.17 With reference to the instant case, we submit that the Federal Government of Nigeria has not made adequate medical provision for equipping and maintaining public hospitals and medical centres in the country. The public hospitals available do not have adequate manpower to provide for diagnosis and treatment of Nigerian citizens. Hence, the plethora of cases of wrong diagnosis and treatment in the hospitals have continued to claim the lives of poor and disadvantage Nigerians.
4.18 No doubt, the economic cost of medical provision to 140 million Nigerians is quite high. But the Defendant cannot complain of lack of funds if it can vote N84 billion for emoluments of 469 members of the National Assembly and N6.6 billion for the 50th Independence celebration on October 1, 2010.
4.19 Having regard to the facts of this case and the state of the law issue one ought to be resolved in favour of the Plaintiff who has filed this action in the public interest.
5.00 ISSUE TWO: WHETHER the practice of having public officers 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 as enshrined under Articles 3 and 13(2) and (3) of the African Charter on Human and Peoples’ Right.
5.01 In the supporting affidavit the Plaintiff has averred that top government officials travel abroad, from time to time, for medical check up and treatment at public expense. However, the majority of poor and disadvantaged Nigerian citizens are not afforded the same opportunity of being sponsored abroad for medical check up and treatment by the Federal Government. In the circumstances, such Nigerians are forced to die of preventable diseases on a daily basis.
5.02 By paying for the medical check up and treatment of a few public officers abroad at public expense while the majority of Nigerians are consigned to premature death the Defendant has violated Articles 3 and 16 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 which provide as follows:
“Article 3
Every individual shall be equal before the law and every individual shall be entitled to equal protection of the law.”
”Article 16
1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.”
5.03 In Unity Dow v. Attorney-General of Botswana (1998) 1 HRLRA 1 Akinola Aguda JCA of blessed memory held inter alia:
“In this regard I am bound to accept the position that this country will not deliberately enact laws in contravention of its international undertakings and obligations under those regimes. Therefore the Court must interpret domestic statutory laws in a way as is compatible with the State’s responsibility not to be in breach of international law as laid down by law creating treaties, conventions, agreements and protocols within the United Nations Organization and the Organization of African Unity. ”
5.04 Article 13(2) and (3) of the African Charter on Human and People’s Rights provide as follows:
“(2) Every citizen shall have the right of access to the public service of his country” and
“(3) Every individual shall have the right to access to public property and services in strict equality of all persons before the law.”
5.05 We submit that the African Charter on Human and Peoples’ Rights has been ratified and enacted into municipal law. By virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 the provisions of the Charter are binding on all authorities and persons exercising powers in Nigeria. Specifically, section 1 of the Act provides as follows:
“As from the commencement of this Act, the provisions of the African Charter on Human and Peoples Rights which are set out in the Schedule to this Act shall, subject as hereunder provided , have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executives, and judicial powers in Nigeria”.
5.06 Thus, the domestic application of the African Charter by municipal courts in Nigeria has been confirmed in a plethora of cases. See Ogugua v. The State (1996) 9 NWLR (PT 366) 1; Nemi v. State (1994) 1 SCNJ 106; Comptroller General, Nigeria Prisons Service v. Dr. Femi Adekanya & Ors. (2002) 15 NWLR (PT 790) 362; Director, State Security Service v. Olisa Agbakoba (1998) NWLR (PT 595) 425; Nwangwu v. Duru (2002) 2 NWLR (PT 751) 265; Orok Anam Local Government v. Ikpa & Ors. (2003) 12 NWLR (PT 835) 558.
5.07 It is the case of the Applicant that the Federal Government has failed to carry out its obligation under the law to equip public hospitals and medical centres located across the various parts of the country. In the face of the utter neglect of public hospitals, many public officers have continued to travel abroad for medical treatment at public expense.
5.08 Having regard to the argument canvassed herein, with all the judicial authorities cited above, we humbly urge this Honourable Court to resolve issue two. Since the Respondent has the resources to equip public hospitals this application ought to be granted in the light of the obligation imposed by law on the Respondent.
6.00 CONCLUSION
6.01 The Applicant has proved that this action is well founded as he has the statutory right to promote public interest litigation in Nigeria. He has accused the Respondent of sending a few public officers abroad for medical check up and treatment at public expense while the majority of Nigerians are forced to patronize ill-equipped hospitals in Nigeria. As such discriminatory treatment of citizens cannot be justified the reliefs sought by the Applicant ought to be granted.
7.00 LIST OF AUTHORITIES
1. Paschim Banga Khet Mazdover Samity v. State of West Bengel (1996) 4 SCC
2. Pt. Parmanand Katara vs. Union of India and Others AIR 1989 SC 2039
3. Consumer Education and Research Centres & Others v. Union of India (1955) 3 SCC 42
4. Permanent Secretary, Department of Welfare v. Ngxuza (2001) 4 SA 1184 (SCA)
5. Purohit & Anor. v. The Gambia (2003) AHLRA 96 at 108
6. Minister of Health & Ors. V. Treatment Action Campaign (2002) AHRLR 189
7. Odafe & Ors. V. Attorney-General of the Federation & Ors. (2005) CHR 309;
8. Unity Dow v. Attorney-General of Botswana (1998) 1 HRLRA 1
9. Ogugua v. The State (1996) 9 NWLR (PT 366) 1
10. Nemi v. State (1994) 1 SCNJ 106
11. Comptroller General, Nigeria Prisons Service v. Dr. Femi Adekanya & Ors. (2002) 15 NWLR (PT 790) 362
12. Director, State Security Service v. Olisa Agbakoba (1998) NWLR (PT 595) 425
13. Nwangwu v. Duru (2002) 2 NWLR (PT 751) 265
14. Orok Anam Local Government v. Ikpa & Ors. (2003) 12 NWLR (PT 835) 558
Dated this……………….day of July, 2010
…………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
APPLICANT’S COUNSEL
25 ADEKUNLE FAJUYI WAY,
G.R.A IKEJA,
LAGOS
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
C/O FEDERAL MINISTRY OF JUSTICE ANNEX,
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