Constitutional Provisions on the right to Health
A Right to Health is necessary for the realisation of fundamental human rights. Without health, it would be impossible to fulfil the rights to life and human dignity. And without some guaranteed, recognised entitlement to health that requires a standard of wellbeing for all human beings, it would be impossible to fulfil the right to non-discrimination. The International Covenant on Economic, Social and Cultural Rights makes provision for that right, recognizing “…the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
States parties to the ICESCR (international treaty in which Right to Health is ensconced)
The Universal Declaration of Human Rights is organised into two very important Covenants: the ICESCR and the ICCPR. When a State ratifies the Covenant on Economic, Social and Cultural Rights (ICESCR), it adopts legally binding obligations to provide for and protect the rights of its citizens to, amongst others, decent Work; to an adequate standard of living, including adequate food, clothing, and housing (the right to live somewhere in security, peace, and dignity) with “continuous improvement of living conditions”.
States Parties to the ICESCR are also obligated to make provision for the Right to Health, including to primary healthcare, by satisfying minimum essential requirements: access to health facilities, goods and services; access to minimum essential food to ensure freedom from hunger; access to basic shelter, housing and sanitation; provision of 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 based on epidemiological evidence that addresses the health concerns of the whole population, periodically reviewed in a participatory and transparent process.
Constitutional Provisions on The Right to Health
The Right to Health is a fundamental human right that has been incorporated into treaties at international and regional levels – making health a matter of international law, not only of policy – and domesticated into national laws, policies, and strategies throughout Africa. Significantly, the majority of Constitutions do not expressly provide for the Right to Health. Instead, the Right to Health must be inferred from other directly expressed rights. In these cases, the international human rights treaties are critically important as legally binding reminders to States parties of the obligations they have undertaken.
Constitutional Provisions on Access to Reproductive Health and Reproductive Choice
Many States have adopted obligations around non-discrimination, the right to health and the right to bodily integrity. Many States have ratified international and regional conventions and treaties relating to women’s sexual and reproductive health and rights, including CEDAW and the Maputo Protocol. Few States, however, make explicit constitutional provisions for women’s access to reproductive health and, specifically, to reproductive choice as a factor central to the health, social and economic development of women.
Right to Bodily Integrity
States whose Constitutions confirm the right to bodily integrity or bodily autonomy are obligated to respect the intrinsic dignity of human beings, including their rights to be self-determining and self-governing of their physical bodies. Respect for bodily integrity might include, for example, respecting a woman’s right to make reproductive choices that include termination of pregnancy; protection from involuntary HIV-testing, or the humiliation and violation of forced anal testing for suspected gay and bisexual men, or involuntary sterilisation; equal protections and benefits for transgender persons. The prominence of the Right to Bodily Integrity varies across Constitutions: it is explicitly expressed in a few countries; indirectly inferred or differently described in others and, concerningly, entirely absent in others.