Moses Mulumba, David Kabanda, Viola Nassuna Centre for Health, Human Rights and Development (CEHURD) in the Regional Network for Equity in Health in East and Southern africa (EQUINET) EQUINET DISCUSSION PAPER 81 April 2010
The extent to which health rights are neglected or promoted is a major factor in the
promotion of public health and health equity in Africa. As a result, health and human
rights have been incorporated in international and regional human rights treaties and in
national laws, policies and strategies. Central to the recognition of health rights is the
incorporation of the right to health in the national Constitutions. The national
constitutions are the supreme laws of the country and any law that is inconsistent with
the provisions of the constitution is, to the extent of the inconsistency, of no force or
effect. This means that observing a right as a constitutional right provides a bench mark
for the government obligations to respect, protect, fulfil and promote the right to health.
This report presents a desk review of the constitutional provisions on the right to health
in 14 countries in east and southern Africa (ESA) covered by EQUINET: Angola,
Botswana, Kenya, Lesotho, Madagascar, Malawi, Mozambique, Namibia, South Africa,
Swaziland, Tanzania, Uganda, Zimbabwe and Zambia, one other country Congo
Brazzaville. It does not cover two countries in the region covered by EQUINET, DRC
and Mauritius, due to difficulties with accessing information. The review was carried out
within the Regional Network for Equity in Health in East and Southern Africa (EQUINET)
by the Center for Health, Human Right and Development, and co-ordinated by Training
and Research Support Centre.
This paper used the six core obligations as spelt out in General Comment 14 to assess
the inclusion of the right to health in the constitutional provisions of the ESA countries:
• to ensure the right of access to health facilities, goods and services on a nondiscriminatory
basis, especially for vulnerable or marginalised groups;
• to ensure access to the minimum essential food which is nutritionally adequate and
safe, to ensure freedom from hunger to everyone;
• to ensure access to basic shelter, housing and sanitation, and an adequate supply of
safe and potable water;
• to provide essential drugs, as from time to time defined under the WHO Action
Programme on Essential Drugs;
• to ensure equitable distribution of all health facilities, goods and services; and
• to adopt and implement a national public health strategy and plan of action
In general, the analysis suggests that, although some Constitutions expressly provide for the
right to health, many do not and this right is rather inferred from other rights.. In some
countries the right to health is restricted to principles of State policy and objective and thus
excluded from enforcement by courts of law, as is the case with Lesotho. South Africa is a
unique case in the region, as its Constitution combines the right to health with other rights
critical for its realisation, such as the right to food, to water and to social security.
Some countries provide for the right to medical services and health care, rather than the
right to health, as in the Constitution of Mozambique. Madagascar’s constitution makes
reference to international human rights instruments that spell out the right to health. This
means that even if the Constitution is silent on the right to health, the provisions of these
international instruments can be invoked to remind the State of its obligations.