CONSTITUTIONAL RIGHT TO HEALTH IN NAMIBIA

Jaime Smith 200203045

UNAM LECTURER: N HORN CONSTITUTIONAL LAW BJURIS (PART-TIME) 5/28/2012

1. INTRODUCTION Health and human rights have been incorporated in international and regional human rights treaties and in national laws, policies and strategies throughout Africa. Central to the recognition of health rights is the incorporation of the right to health in national Constitutions. The Namibian Constitutions is the supreme law of the country1 that entails that any law that is inconsistent with the provisions of the Constitution is of no force or effect in respect of the area of inconsistency. Observing health as a constitutional right provides a bench mark for government's obligations to respect, protect, fulfill and promote the right to health.2 As with other economic, social and cultural rights, the right to health may be incorporated in a Constitution either as a positive right or as a directive principle of government policies. When the right to health is recognized as a positive right, it can be enforced in a court of law, as in the case of civil and political rights.3 In contrast, when it is a directive principle, the right cannot be enforced by the courts and constitutes rather a socio-economic objective to guide the government's actions. It is important to determine how the relevant constitutional provisions in east and southern African (ESA) countries have been drafted so that we may understand how they have protected the right to health and whether they are enforceable.4 Two-thirds of Constitutions in the world have a provision addressing health or health care and, in almost all of these Constitutions, the provisions regarding health and health care are universal, rather than limited to particular groups5. While some countries in the east and southern African region have incorporated the right to health in their national Constitutions, activists in other countries, such as Kenya and Zimbabwe6, are still lobbying to influence their governments to incorporate the right to health. Where the right to health is not incorporated in a country's constitution, activists and courts of law have referred to provisions in regional and international human rights instruments to advance the right to health. The International Covenant on
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Namibian Constitution Article 1(6) M Mulumba, D Kabanda, V Nassuna, 2010 Constitutional provisions for the right to health in east and southern Africa Centre for Health, Human Rights and Development (CEHURD) EQUINET DISCUSSION PAPER 81 3 Ibid 4 Ibid 5 Kinney ED and Clark BA (2004) 'Provisions for health and health care in the constitutions of the countries of the world', Cornell International Law Journal 2004(37):285. 6 M Mulumba, D Kabanda, V Nassuna, 2010 Constitutional provisions for the right to health in east and southern Africa Centre for Health, Human Rights and Development (CEHURD) EQUINET DISCUSSION PAPER 81

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Economic and Social Rights (ICESR) is one example of such an international human rights instrument. The ICESR Committee noted that state parties are obliged to satisfy minimum essential levels of each of the rights enunciated in the ICESR, including to primary health care.7 2. RIGHT TO HEALTH OF NAMIBIA There is no express provision on the right to health in the Constitution of Namibia. Article 95 of the Namibian Constitution, however, makes a general provision on the promotion of the welfare of the people of Namibia and it requires the State to actively promote and maintain their welfare by enacting laws that ensure that the health and strength of workers, men, women and children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age and strength.8 This Article requires the State to ensure consistent planning to raise and maintain an acceptable level of nutrition and standard of living for all Namibians, as well as to improve public health.9 The Constitution has provisions on rights of specific groups of people where it makes mention of their right to health. The Constitution has provisions on rights of specific groups of people where it makes mention of their right to health. For instance, under Article 15,10 children are entitled to be protected from economic exploitation and should not be employed in or required to perform work that is likely to be hazardous or to interfere with their health or physical, mental, spiritual, moral or social development. In contrast, Article 9811 provides that the economic order of Namibia shall be based on the principles of a mixed economy with the objective of securing economic growth, prosperity and a life of human dignity for all Namibians. The Article recommends that Namibian economy should be based on a number of forms of ownership, including public, private, joint public-private, co-operative, coownership and small-scale family ownership. It may be inferred that health is included under the requirement of ensuring the right to human dignity and that the forms of ownership listed above are conducive to developing and maintaining an adequate health system.

M Mulumba, D Kabanda, V Nassuna, 2010 Constitutional provisions for the right to health in east and southern Africa Centre for Health, Human Rights and Development (CEHURD) EQUINET DISCUSSION PAPER 81
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Naldi 1994 Constitutional Right in Namibia 71 Naldi 1994 Constitutional Right in Namibia 71 10 The Constitution of Namibia Article 15 11 The Constitution of Namibia Article 98

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The Namibia Constitution also makes provision for the protection of the right to life. Article 6 requires that the right to life should be respected and protected, and prohibits the death penalty.12 Government has initiated a National Policy on HIV/AIDS and Patient Charter 13 among others to gratify this part of the Constitution. At the same time Article 144 of the Namibian Constitution states that the general rules of public international law and international agreements binding upon Namibia form part of the law of Namibia.14 This means that all the international agreements that Namibia signed become part of the judiciary system of Namibia. These laws and/or agreements are; The African Charter on Peoples and Human, The African Charter on Peoples and Human Rights, which states that every individual shall have the right to enjoy the best attainable state of physical and mental health and that state 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.15 In the Namibian context, this means that the government will have to ensure that well equipped hospitals with fully qualified doctors be put into place to ensure that anyone who falls sick has access to professional medical treatment. The Namibian government also signed the International Covenant on Economic, Social and Cultural Rights (ICESCR) 12 (1),16 which provides that the States Parties to the present Covenant recognizing the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. It notes that health is a fundamental human right that is inextricably linked to the realisation of other human rights, including the right to food, housing, work, education, human dignity, life, non-discrimination, equality, privacy, access to information and freedom of association, assembly and movement, as well as a prohibition against torture. 17 Steps for realising this right include measures by the Government of Namibia for the prevention and treatment of diseases; and the creation of conditions, which would ensure that all those people who are sick receive medical attention.18

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Namibian Constitution , Article 6 Right to Health Legal Assistance Centre 14 The Namibian Constitution Article 144 15 Right to Health Legal Assistance Centre
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Right to Health Legal Assistance Centre International Covenant on Economic, Social and Cultural Rights (ICESCR) 12 18 International Covenant on Economic, Social and Cultural Rights (ICESCR) 12 (1)

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The right to health does not only constitute the physical or mental well-being of a person but also various other aspects that encompasses a healthy life. The most authoritative interpretation of the right to health is outlined in Article 12 of the International Covenant on Economic, Social & Cultural Rights (ICESCR) and has been ratified by Namibia and many other countries.19 In May 2000, the Committee on Economic, Social and Cultural Rights, which monitors the Covenant, adopted a General Comment on the right to health. This recognized the fact that the right to health is closely related to and dependent on the realisation of other human rights, such as the right to housing, access to sufficient health care (medical, preventative, and mental), nutrition, sanitation, non-discrimination, clean water and air, access to information, job-related health, consequences such as never-ending injuries and diseases, resulting from unhealthy and dangerous working conditions.20 3. THE HUMAN RIGHTS IN THE CONTEXT OF HEALTH The right to the highest possible standard of physical health (referred to as the right to health is a claim to a set of social arrangements (norms, laws, an enabling environment) that can best secure the enjoyment of this right as well as access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.21 The right covers mental health, reproductive health and sexual health. The right to adequate standard of living and housing comprises, inter alia, three rights that are relevant to the environment context namely: the right to adequate food, the right to adequate water and the right to adequate housing. The right to equal distribution of food does not mean that government will be responsible for providing the governed with food, rather it means that government has a duty to facilitate the efforts to meet food needs by creating an economic, political, and social environment that will allow the people to achieve food security and safety. Only when a person does not have the capacity to meet the food needs for reasons beyond the persons control e.g. disaster, famine, age and handicap, does the right to food imply that government physically providing food.

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Right to Health Legal Assistance Centre International Covenant on Economic, Social and Cultural Rights (ICESCR) 21 M Mulumba, D Kabanda, V Nassuna, 2010 Constitutional provisions for the right to health in east and southern Africa Centre for Health, Human Rights and Development (CEHURD) EQUINET DISCUSSION PAPER 81

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The right to access safe drinking water and sanitation requires that everyone has access to adequate amounts of clean water. The water must be available in sufficient amounts, safe to use, and accessible to all who require it. The human right to water only applies to basic needs for drinking, cooking and fundamental domestic use. It does not mean that people have a right to an unlimited amount of water. The right of equal access to health care regardless of sex, race, or other status indicates that everyone should be able to easily get to the health facility, should be treated without any form of discrimination, should be able to get health information without any difficulty and should be able to afford paying for the treatment received. With regards to the right to a safe and healthy environment, the government has a duty to take necessary steps for improvement of all aspects of environmental and industrial hygiene. Environmental hygiene covers all environmental factors that may affect any persons health such as pollution of water sources that limit access to clean water, unsafe disposal of human excrete, sewage and other refuse, global warming and its effects on human health causing skin disorder and eye damage, exposure of the environment to chemical or toxin waist and radiation. The right to a safe and healthy workplace, and proper protection for pregnant women in work that can be harmful to them should therefore ensure that pregnant womens work environment does not constitute a health risk to the mother or the unborn baby. The right to freedom from discrimination and discriminatory social practices that includes female circumcision, the choosing of the sex of a baby before birth and the killing of female fetuses all encompasses under this right. Patients suffering from mental illness or people living with HIV and AIDS are often vulnerable to discrimination. This impact negatively on their ability to access proper treatment and care and the stigma associated with mental illness results in their experiencing discrimination in other aspects of their lives such as their rights to employment, adequate housing, and education. The right to information on health, sexual and reproductive health ensures that everyone has a right to access health-related education and information on sexual and reproductive health. Examples of such information include but are not limited to contraceptives and family planning, abortions and the health risks of using abortion as a method of birth control. Reproductive health Page 5 of 11

rights of people living with HIV and AIDS are not to be subjected to forced sterilisation but to have the right to choose whether or not to have children provided that they receive sufficient information on the implications of doing so. 4. REQUIREMENTS ANTICIPATED FROM THE GOVERNMENT IN REGARDS TO RIGHT OF HEALTH To help States to implement the ICESR and fulfill their reporting obligations, General Comment 14 of the Covenant highlights the core obligations with regard to the right to health. It notes that these core obligations should include22; access to health facilities, goods and services on a nondiscriminatory basis, especially for vulnerable or marginalized groups; access to the minimum essential food that is nutritionally adequate and safe, to ensure freedom from hunger to everyone; access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; provision of essential drugs, as defined according to the World Health Organization's Action Program on Essential Drugs; equitable distribution of all health facilities, goods and services; and adoption and implementation of a national public health strategy and plan of action that is based on epidemiological evidence, that addresses the health concerns of the whole population, and that shall be devised, and periodically reviewed, in a participatory and transparent process23. The first aspect is the availability of the provisions and facilities as enshrined by the Constitution. Therefore the Government must ensure that enough functioning hospitals, clinics and nursing homes are available to the public.24 This also includes clean drinking water, sanitation facilities which are enough, essential drugs and trained medical and support staff receiving relatively good salaries, an ambulance and laboratory service among others. The second aspect that is expected from the Government is the accessibility to these provisions and facilities.25 Everybody should be able to access health facilities, goods and services. Health care must be easy to obtainable for everyone without discrimination.

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International Covenant on Economic, Social and Cultural Rights (ICESCR) 14 United Nations (2000) General Comment No 14: The Right to the Highest Attainable Standard of Health Committee on Economic, Social, and Cultural Rights Twenty-second Session, 25 April-12 May 2000, Geneva. United Nations: Switzerland. 24 A Bsl and J Diescho 2009 Human Rights in Africa Legal Perspectives on their Protection and Promotion Konrad Adenauer Stiftung, Windhoek 25 Ibid

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Accessibility has four overlapping dimensions that ensure the integrity of the aspect.26 4.1 NON-DISCRIMINATION ATTENTION Any person should be able to see a doctor, be examined, and get medication without being discriminated against on the basis of race, gender, religion, age, sex, social standing, or other status. The young and old, both of who have special needs are especially vulnerable to the effects of poor health care. They are often unable to recognise or protest when their rights to care are violated. Without family support, they may not receive care from the government. Discrimination and stigma against people living with HIV and AIDS is also a major contributing cause to people not seeking healthcare services.27 4.2 PHYSICAL ACCESSIBILITY WHEN SEEKING OR OBTAINING MEDICAL

Hospitals, clinics, doctors and medicines among others must be within safe physical reach for anyone who is feeling sick. This is especially so for weak or marginalized people such as, ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities, persons with HIV/AIDS, persons in the rural areas, and the treatment should also be economically affordable. Getting treatment from a doctor or nurse from a hospital or clinic, and thereafter buying the medication must not be so expensive that you cannot afford it. Right to health also means that health-care services whether privately or publicly provided, should be affordable for all. In many countries, the poor are often denied health care because they cannot afford it.28 4.3 INFORMATION ACCESSIBILITY

The government has a duty to provide the public with education on current health problems and emphasise health promotional activities. Anyone should be able to seek, receive and pass on

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Right to Health Legal Assistance Centre Right to Health Legal Assistance Centre 28 A Bsl and J Diescho 2009 Human Rights in Africa Legal Perspectives on their Protection and Promotion Konrad Adenauer Stiftung, Windhoek

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information and ideas about health matters. However, this does not mean that individual personal health information is not treated with confidentiality. 4.4 ACCEPTABILITY

All hospitals, doctors and nurses must be respectful of medical moral values and culture. For people to have an acceptable image of health services, health care workers have to be professional in that they must treat patients with integrity and dignity, respect and courtesy, ensure privacy and confidentiality, and provide detailed information on treatment and intervention options29. The quality of hospital equipment must be suitable and of good quality. The doctors and nurses must be highly skilled. The medication must be approved, appropriate and not expired. There should also be enough food and proper sanitation within the hospital or clinic. 5. CONSTITUTIONAL OBLIGATIONS OF THE GOVERNMENT TO THE GOVERNED As with every human right, the right to health entails certain obligations on the government to ensure, protect and enforce the legislation and other measurements implemented by the government with regards to right of health. A government obligation is a duty or responsibility that the government owes the governed. The following are governments obligations with respect to health rights:30 5.1 RESPECT

Government must not act directly counter to the human rights standard. It must avoid doing anything which can interfere with the enjoyment of the right to health.31 For example, government cannot introduce a policy or law, which will interfere with the enjoyment of the right

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Right to Health Legal Assistance Centre A Bsl and J Diescho 2009 Human Rights in Africa Legal Perspectives on their Protection and Promotion Konrad Adenauer Stiftung, Windhoek 31 International Covenant on Economic, Social and Cultural Rights (ICESCR)

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to health. The Government should honor the rights of every human as well as the agreement that was signed by them with international treaties.32 5.2 PROTECT

Comment 14 notes the obligation of the government to protect the right to health.33Government must act to stop others from violating the human rights standard by enforcing the law and coverts that was put in place to ensure the right of a healthy life to every person by ensuring equal access to health care and health related services provided by third parties. The legislation, coverts, treaties should not be mere nice to have promises on a piece of paper, but should be implemented and protected by all and any means possible by the Government. Legislation that has been enacted in Namibia to maintain these essential human rights associated with the right of life includes Water Resource Act 24 of 2004, Environmental Management Act 7 of 2007, Namibia Water Corporation Act 1997-12 and the Water Act 54 of 1956 and the Labor Act 11 of 2007 and the Promulgation of Racial Discrimination Prohibition Act, 1991 (Act 26 of 1991)34 have been vested to ensure that these principle be protected and enforced. 5.3 FULFILL

Government has an affirmative duty to take appropriate measures to ensure that the right to health of everyone is realized and enjoyed by every person by ways of legislation and recognition to the right of health in the Constitution.35 The extent to which government can fulfill this obligation will depend on available resources. It should also be stated that the Government also has a duty to assure and allocate funds appropriately in order to for fill their obligations to the people.

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A Bsl and J Diescho 2009 Human Rights in Africa Legal Perspectives on their Protection and Promotion Konrad Adenauer Stiftung, Windhoek
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Ibid Racial Discrimination Prohibition Act, 1991 (Act 26 of 1991), 35 International Covenant on Economic, Social and Cultural Rights (ICESCR)

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6. CONCLUSION Law is not stationary and evolves and changes as time, people and societies progress, and hence so too should the ultimate Constitution be of a country. The Constitution should be revised and enhanced by incorporating aspects to ensure a healthy society, socially and economically. This can be done by incorporating supplementary features of other countries that have proven to be beneficial to their society, thus keeping the tried and tested methods of the world and mold other ways to suite the uniqueness of Namibia. To protect the inviolability of human dignity worldwide is the ultimate objective of the concept of human rights. Human rights are considered and officially accepted as universal regardless of their genesis or cultural manifestation. History and experience show, however, that respect for the dignity and rights of human beings cannot be taken for granted: they must be constantly nurtured and vigorously guarded by the powers of the state. For if the sick, helpless and needy who is mostly affected by these infringements of right to health, cannot rely on the Government to fight for them and provide the necessary protection, then who will be in theire corner in the ongoing battle for humanity, dignity and a healthy life and what does the Namibian Constitution then represent if not to fight for the those who cannot help themselves by investing in the society to empower themselves.

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REFERENCE 1. A Bsl and J Diescho 2009 Human Rights in Africa Legal Perspectives on their Protection and Promotion Konrad Adenauer Stiftung, Windhoek 2. International Covenant on Economic, Social and Cultural Rights (ICESCR) 3. Kinney ED and Clark BA (2004) 'Provisions for health and health care in the constitutions of the countries of the world', Cornell International Law Journal 2004(37):285. 4. M Mulumba, D Kabanda, V Nassuna, 2010 Constitutional provisions for the right to health in east and southern Africa Centre for Health, Human Rights and Development (CEHURD) EQUINET DISCUSSION PAPER 81 5. Naldi 1994 Constitutional Right in Namibia Konrad Adenauer Stiftung, Windhoek 6. Racial Discrimination Prohibition Act, 1991 (Act 26 of 1991), 7. Right to Health Legal Assistance Centre 8. The Namibian Constitution 9. United Nations (2000) General Comment No 14: The Right to the Highest Attainable Standard of Health Committee on Economic, Social, and Cultural Rights Twenty-second Session, 25 April-12 May 2000, Geneva. United Nations: Switzerland.

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