The African Commission and Access to Medicines and Human Rights in Africa

Karolina Lyznik
September 15, 2008

According to a 2006 report by the Special Rapporteur on the Right to Health, Paul Hunt, states have an obligation under the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) to respect, protect, and fulfill the right to health. As interpreted by the Committee on Economic, Social and Cultural Rights in General Comment 14, fulfillment of the right to health includes ensuring that all health services, goods, and facilities are:

  • Available,
  • Accessible
  • Acceptable,
  • And, of good quality

Particularly with respect to accessibility, goods and services must be available in all parts of the country (physical accessibility), must be affordable (economic accessibility), and must be administered without discrimination.

The majority of African states are parties to the ICESCR and Article 16 of the African Charter also enshrines the right to health, and yet this right, particularly with regards to accessibility, is severely neglected by African governments. Many governments cite IP restrictions as the source of the problem, claiming that they limit availability and thereby hinder accessibility, but in many cases these governments have neglected to incorporate the flexibilities provided in TRIPS (e.g. compulsory licensing, parallel importation, Least-Developed Country transition periods, etc.) into national legislation. Moreover, the ICESCR allows for progressive realization, meaning that in most categories of assistance, what is required is the highest attainable level of health for the country (i.e. the State should be better off today than it was five years ago), and compliance with ICESCR is dependent on resource availability, meaning that developed countries are held to a higher standard than developing countries. (However, progressive realization does not apply in two areas: discrimination and access to essential medicines. The availability and accessibility of essential medicines is subject to immediate realization under the ICESCR and health care must be provided to all in a state without discrimination.)

The African Commission on Human and People’s Rights (“the African Commission”) was created under the African Charter and given a promotional and protective mandate over human and people’s rights in Africa. Pursuant to these mandates, the African Commission may require States to report on their compliance with obligations under the African Charter, which include upholding the right to health as provided for in the African Charter. Furthermore, the African Commission can conduct its own fact-finding missions to determine if obligations are being met and may conduct on-site visits upon receiving complaints from other states or non-state actors.

Acting on the basis of these mandates, the HIV Clinical Group at Pretoria University, in conjunction with PIJIP and WCL clinic students, is working to prepare and garner widespread NGO support for a submission before the African Commission during its meeting in Abuja, Nigeria from the 10th to the 24th of November. This submission will call upon the African Commission to adopt an interpretation of the right to health under the African Charter, which mirrors the one provided by General Comment 14 to the ICESCR, specifically recognizing that access to medicines is a crucial component to the right to health. Furthermore, upon recognizing that the right to health includes the components of accessibility, availability, acceptability, and good quality of medicines, the submission will call upon the African Commission, in the future, to use these standards as a means to uniformly monitor state’s compliance with the right to health. For more information on this project and the right to health as it applies to access to medicines in general, see: Human Rights and Access to Medicine Legal Initiative.

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