While the Elephants dance: Reflections on Nigeria’s National Health Act

1. While the Elephants dance: Reflections on Nigeria’s National Health Act BabafemiOdunsi, LL.M (Toronto), Ph.D (Ife), B.L Associate Prof., Faculty of Law, ObafemiAwolowo University, Ile-Ife, Nigeria; McArthur Fellow, Faculty of Law, University of Toronto, Toronto, Canada Formerly: Research Associate, Faculty of Law, University of Pretoria, Pretoria, South Africa, Research Fellow, Faculty of Law, University of the Free State, Bloemfontein, South Africa.

2. Prelude “Papa explains the war like this: “When elephants dance, the chickens must be careful.” The great beasts, as they circle one another, shaking the trees and trumpeting loudly…We are the small chickens. I think of the baby chicks I can hold in the palm of my hand, flapping wings that are not yet grown, and I am frightened.” - Tess UrizaHolthe, When the Elephants Dance (p.3)

3. Nigerian Medical Association and Health of the People • “The Nigerian Medical Association is concerned about the health of Nigerian citizenry but worried that our leaders appear not to take it very seriously.”- KayodeObembe , NMA president(2015).

4. Introduction • over the years, due to poor funding, corruption, ineffective management etc.Nigeria’s healthcare system at all its levels has been in a troubling state of decadence. • Public health institutions, where they exist, are not really how they should be. • Just like the health care providing institutions, health training institutions have also faced challenges of inadequate facilitiesand related issues.

5. Outlook of Nigeria’s Healthcare system • “As the most populous country in Africa…providing universal health care is no easy task. But even allowing for the difficulties posed by providing health care to a large population, the country still underperforms. Life expectancy at birth averages just 54 years for both sexes. Maternal mortality is 608 per 100 000 livebirths, and the mortality rate for children younger than 5 years is more than double the global average at 157 per 1000 livebirths. Nigeria is the only country in the African continent to have never eradicated poliomyelitis, and only 3% of HIV-positive mothers receive antiretrovirals. Just 6% of the country’s gross domestic product (GDP) is spent on health and there are enormous inequalities in its allocation”. – Lancet 2011

6. Side effects of the Unwholesome Health system • Incessant industrial actions by health workers and other stakeholders to improve working conditions. • many highly skilled health workers, especially doctors and nurses abandon the country to take up jobs in more conducive work environments abroad. “there are as many Nigerian doctors working in the USA [alone] as there are in the public health-care sector of Nigeria.” – Lancet.

7. Side effects (Contd) • Nigeria, with a doctor:patientratio of about 1:6000, is far from the WHO recommendation of 1:600 – KayodeObembe (President NMA), 2015. • Preferences of urban dwellinglargely deprive the rural areas of medical and related health personnel

8. Overview of Nigeria’s public health care system • Generally there is lack of confidence in Nigeria’s public health care system • Ironically, the lack of confidence is affirmed and advertised by Nigerian political leaders and government officials who run abroad with their families for medical attention instead of patronising the health system they run.(Ref. section 46 NHA)

9. Overview (contd) • Invariably, the helpless and poor masses are the ones burdened with the sad fate of ‘enjoying’ the largely dreadful services offered by Nigeria’s public healthcare system. • Due to the inadequacies of Nigeria’s public health care system many are constrained to resort to private health care providers – a venture that is also beset with some problems.

10. People and Desperate search for healthcare • Because of financial constraints, many people cannot patronisethe high-brow comparatively well-equipped health care providers. • They tend to patronize the relatively affordable providers, which may be staffed with anything from people without the requisite professional training to outright quacks and fraudsters.

11. People and search for healthcare (contd) • To be profitable, the “affordable” private health care may be inclined to acquire and dispense cheap and, probably, fake or expired drugs with attendant serious effects on the patients. • In some cases, some people may not even be able afford the “affordable” healthcare providers. Such people tend to resort to self-treatment by patronizing patent medicine stores and itinerant drug hawkers carrying on business on the streets, motor parks, markets and other venues. • Related to the above has been the emergence and activities of unorthodox “trado-medical” practitioners of various shades and coloursalong with mobile“traditional pharmacies /clinics” who mostly focus on sexual and reproductive medicines.

12. People and search for healthcare (contd) • In some cases, Nigerians are constrained to turn to “spiritual healers”. Crowds at crusades, revivals, etc. illustrate this. In extreme cases, this option can even result in tragic consequences, as the Botswana case of State v MotlogelwaMotlogelwaillustrates. • Generally this is the possibility of exploitation by charlatans: “The economic downturn in the country has also reflected itself in the upspring of various religious sects in which so-called men of God exploit the fears of the people to foist on them "cure all" miracles instantly, of course, at a price. Just as some fake missionaries have taken to the tube and airwaves with great success, trado-medical practitioners have a paradigm to emulate. The entire society is being preyed upon by all kinds of impostors, some in the mosques, some in the churches and others in the shrines of traditional African religions...” - JideOsuntokun.

13. The National Health Act as another Reform • The National Health Act can be described as another attempt at reforming Nigeria’s Health system. • Generally, from pre-colonial times up to 2004 or thereabout, “[t]he Nigerian health care system can be said to have experienced five past reforms (or attempts thereof, conscious or otherwise)…” - M.C. Asuzu, ‘The Necessity for a Health systems reform in Nigeria’ • “The reason that we have needed health systems reforms all along is because the systems we had prior to that time were not working or producing the optimal health status possible and deserved by the people. The 2000 World Health Report ranked Nigeria as the 187th of the 191 member nations for its health systems performance. That speaks a whole lot about the fact that our health system is not working.” - M.C. Asuzu

14. Promises of the National Health Act • Collectively, the National Health Act promises an overhauling and tranformation of Nigeria’s problematic public health system through effective regulation and robust funding: • Along this line the Act provides for a National Health System which shall define and provide a framework for standards and regulation of health services without prejudice to extant professional regulatory laws (Section 1(i)) • Inter alia,The National Health System: • a. shall encompass public and private health care providers in the country. (Section 1(i) a.) • b. promote a spirit of cooperation and shared responsibility among all providers of health services in the federation n and any part thereof

15. CONTD. • c. provide for persons living in Nigeria the best possible services within the limit of available resources (Section 1(i) c.) (See also section 3(3)) • d. Set out the rights and obligations of heath care providers, health workers, health establishments and users. (Section 1(i) d.) • e. protect, promote and fulfill the rights of the people of Nigeria to have access to health care services. (Section 1(i) e.)

16. Realising the aims of the National Health System • For realising the aspirations of the National Health System, the National Health Act makes copious provisions on procedure, administrative and substantive matters. See generally Parts I –VII of the Act. The aspect of funding which is central to my topic is further examined below.

17. Funding the National Health system • The source of funding the system is the Basic Health Care Provision Fund to be financed/sourced from: • A. Federal Government of not less than one per cent of its Consolidated Revenue Fund • B. Grants by International donor partners and • C. Money from any other source (Section 11 (1&2)

18. Use of the Basic Health Care Provision Fund • Section 11(3) of the Act provides for use of the fund with subsection b,c,d being particularly germane for basic health services. (b. provides 20% of the fund provision of essential drugs, vaccines and consumables for eligible primary health care facilities and c. provides 15% for provision and maintenance of facilities, laboratory, equipment and transport for eligible primary health care facilities; d. provides 10% for development of human resources for primary health care.) • The National Primary Health Care Development Agency is to disburse funds for items b,cand d. (Section 11(4)

19. Commentary on the funding provision • in providing a funding platform for basic health care, the National Health Act offers a vibrant hope of deliverance for the Nigerian health care system. • However, there is need to address some concerns.

20. The concern • The concern is that section 11(6) provides that any state or local government which fails to contribute its 25% counterpart/commitment as provided for in Section 11(5) shall not receive money from the fund. • With reference to the financial situation of many states and local governments in Nigeria, section 11(6) would sound rather ominous – many states presently struggle with to pay workers’ salaries. Ultimately, if a state or local government fails to perform its side it would not get funding – the people would ultimately bear the brunt.

21. Funding and the National Health system: Reflections • Funding is crucial for the success of the National Health System and, by same token, access of Nigerians to basic health services and enjoyment of right to health as promised by the National Health Act. • Arguably, Nigeria can afford to give its citizens access to meaningful basic health services. Rather over the years, it has been the case that successive governments have not shown the commitment.

22. “The Nigerian Medical Association is concerned about the health of Nigerian citizenry but worried that our leaders appear not to take it very seriously.”- KayodeObembe , NMA president(2015). • Along similar lines the Lancet in 2011 observed, “On May 29[2011], many Nigerians celebrated again as DrGoodluck Jonathan was inaugurated as President for the next 4 years…This is an exciting time for the country: it has a leader with a clear mandate, its economy is flourishing (it is predicted to have the highest average GDP growth of any country over the next 40 years)…However, until now, health has been lamentably absent from Jonathan’s declared priorities.” [emphasis mine]

23. Suppose the lack of commitment pervades? • From a legal perspective, suppose the government fails to fund the National Health system, what legal measures can stakeholders take? Put differently, has the National Health Act transformed right to health to a justiciable right in Nigeria? • Until we have the opportunity of judicial intervention this issue remains debatable. • The Act is essentially a legislation which remains subordinate to the supremacy of the Constitution which up till now has not made health a justiciable right.

24. Jurisprudential stand of the National Health Act • Till now the Constitution remains supreme and right of access to health is not among the justiciable human rights. Listed in Chapter IV. • Health only finds expression in the constitution as a non-justiciable ‘fundamental objective and directive principle of state policy’ in Chapter II, section 17(3) c&dof the 1999 Constitution. • The trite legal position remains that in case of inconsistency between the Constitution and any law, the Constitution shall prevail .

25. So, if an unwilling government wishes to resort to legalism the National Health Act’s promise of ‘universal access to basic health services may as well be another step and style in the dances of the elephants. • The concern is further heightened by the fact that Nigeria for long has had a vibrant legal framework to make the people enjoy meaningful basic health services(if the commitment has existed). • For example, Nigeria has been a party to the International Covenant on Economic, Social and Cultural Rights article 12 of which provides for access to health by citizens.

26. More remarkably, African Charter on Human and People’s Rights Act Cap. A9 Laws of the Federation of Nigeria 2004) which domesticated the African Charter provides in Article 6 provides, “1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.2. 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.”

27. It is important to note that legally the African Charter is on a higher/superior level to the National Health Act (see the cases of Abaribe v Abia state House of Assembly [2000] 9 W.R.N 1 together with Abacha v Fawehinmi2 SCQR 489). • In this light, if these prior legal structures did not propel the government to act on provision of basic health services, we just have to hope that a change of heart would propel a positive spirit to make the National Health Act realise the hope of access to basic health by Nigerians.

28. The issue of funding should not dampen our excitement over the emergence of the National Health Act. • The Act in its regulatory form has good provisions on the health of citizens.- emergency treatment, confidentiality, ceritificate of standards etc are good provisions to safeguard the wellbeing of the people. • National Research ethics committee good, however there is an opening for needless controversy in the constitution where membership limited to only Muslim or Christian. Adherents of other religions may raise issue of religious discrimination . (section 33(2i))

29. In all intent and purposes, the National Health Act stands as an expression of intent to improve the health condition of Nigerians. • I share the dream that this time by the grace of God all will be well. • Particularly, we have cause to hope well. It was the military government of President Buhari that declared in 1983 that our hospitals were mere consulting clinics. By stroke of providence it has become his duty to implement the provisions of the National Health Act. We are in the season for ‘change’and we can hope that this government will bring about the desired change.

30. Conclusion • Recently the Federal Ministry of Health celebrated the one year of the commencement of the National Health Act. I see this as a celebration of hope - hope that the promises of the Act will come to reality. In this respect of this, only time will tell.