1 USAID “Global health: Nigeria”, available at: <https://www.usaid.gov/nigeria/global-health> (last accessed 13 November 2020).

2 Ibid.

3 National Population Commission and the DHS Program “Nigeria demographic and health survey, 2018” at 163 and 178, available at: <https://dhsprogram.com/pubs/pdf/FR359/FR359.pdf> (last accessed 13 November 2020).

4 Ibid.

5 Ibid.

6 Ibid.

7 Id at 182.

8 The World Bank “Nigeria releases new report on poverty and inequality in country”, available at: <https://www.worldbank.org/en/programs/lsms/brief/nigeria-releases-new-report-on-poverty-and-inequality-in-country> (last accessed 13 November 2020).

9 RN Nwabueze “The legal protection and enforcement of health rights in Nigeria” in C Flood and A Gross (eds) The Right to Health at the Public / Private Divide: A Global Comparative Study (2014, Cambridge University Press) 371, available at: <https://www.cambridge.org/core/books/right-to-health-at-the-publicprivate-divide/legal-protection-and-enforcement-of-health-rights-in-nigeria/89F1254C207397DF8460AABA81415678> (last accessed 10 November 2022).

10 RW Emerson “Power”, available at: <https://emersoncentral.com/texts/the-conduct-of-life/power/> (last accessed 18 November 2022).

11 Primary healthcare clinics are usually found in local communities, and the personnel are responsible for the treatment of simple ailments like malaria, typhoid, headaches and other minor health challenges. They are usually operated by health technicians, nurses and other medical health workers in small hospitals. The secondary level has medical doctors, pharmacists, laboratory scientists and nurses, among others, and treatments are done based on medical examination; prescription medicines are also given by family doctors (general medical practitioners) after medical tests and other examinations have been done. The tertiary level of healthcare is referral-based when the services of specialist medical doctors and other practitioners are required. This is usually based on a referral from the secondary-care centres.

12 Scott-Emuakpor, A “The evolution of health care systems in Nigeria: Which way forward in the twenty-first century” (2010) 51/2 Nigerian Medical JournalGoogle Scholar, available at: <https://www.nigeriamedj.com/text.asp?2010/51/2/53/70997> (last accessed 13 January 2020).

13 Ibid.

14 RA Schram A History of the Nigerian Health Services (1971, Ibadan University Press), quoted in ibid.

15 Glendon, MA “The forgotten crucible: The Latin American influence on universal human rights idea” (2003) 16 Harvard Human Rights Journal 27Google Scholar, cited in J Tobin The Right to Health in International Law (2012, Oxford University Press) at 21–22.

16 M Bull “Medical services in Nigeria, 1954–55” (Oxford Development Project report), quoted in Scott-Emuakpor “The evolution”, above at note 12.

17 Ibid.

18 Schram A History, above at note 14, quoted in Nwabueze “The legal protection”, above at note 9 at 374.

19 National Population Commission “Nigeria demographic and health survey”, above at note 3 at 48.

20 Alubo, OS “Power and privileges in medical care: An analysis of medical services in post-colonial Nigeria” (1987) 24 Social Science and Medicine 453Google Scholar, quoted in Nwabueze “The legal protection”, above at note 9 at 374.

21 Scott-Emuakpor “The evolution”, above at note 12.

22 IO Orubuloye and JB Oni “Health transition research in Nigeria in the era of the Structural Adjustment Programme” (1996) supplement to 6 Health Transition Review 301 at 302, available at: < https://openresearch-repository.anu.edu.au/bitstream/1885/40194/2/Orubulo6.pdf> (last accessed 10 November 2022).

23 IO Orubuloye and JC Caldwell “The impact of public health services on mortality: A study of mortality differentials in a rural area of Nigeria” (1975) 29/2 Population Studies 259.

24 I Mohammed “Academics, epidemics & politics: An eventful career in public health” (2007) 42, quoted in Nwabueze “The legal protection”, above at note 9 at 375.

25 Ibid.

26 Orubuloye and Oni “Health transition research”, above at note 22 at 303.

27 Ibid.

28 IO Ogunbekun “Which direction for health care in Nigeria?” (1991) 6 Health Policy & Planning 254 at 255, quoted in Nwabueze “The legal protection”, above at note 9 at 375.

29 Ibid. See also I Ogunbekun, A Ogunbekun and N Orobaton “Private health care in Nigeria: Walking the tightrope” (1999) 14/2 Health Policy and Planning 174.

30 Ibid.

31 National Population Commission “Nigeria demographic and health survey”, above at note 3.

32 International Covenant on Economic, Social and Cultural Rights, art 12(1), resolution adopted by the UN General Assembly, 16 December 1966 (which came into force on 3 January 1976), res 2200A(XXI).

33 UN Committee on Economic, Social and Cultural Rights, General Comment no 14: The Right to the Highest Attainable Standard of Health (11 August 2000), UN doc E/C 12/2000/4, para 3, available at: <https://apps.who.int/disasters/repo/13849_files/o/UN_human_rights.htm> (last accessed 18 November 2022).

34 LO Gostin and BM Meier “The origins of human rights in global health” in BM Meier and LO Gostin (eds) Human Rights in Global Health: Rights-Based Governance for a Globalizing World (2018, Oxford University Press) 25.

35 LO Gostin and BM Meier Global Health Law (2014, Harvard University Press).

36 General Comment no 14, above at note 33.

37 Hunt, Paul “Interpreting the international right to health in a human rights-based approach to health” (2016) 18/2 Health and Human Rights JournalGoogle Scholar, available at: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5394996/pdf/hhr-18-109.pdf> (last accessed 4 May 2022).

38 T Murphy Health and Human Rights (2013, Hart Publishing).

39 Hunt “Interpreting”, above at note 37 at 117.

40 Ibid.

41 Gostin and Meier Global Health Law, above at note 35 at 21.

42 World Health Organization “The right to health” (fact sheet), available at: <https://www.ohchr.org/sites/default/files/Documents/Issues/ESCR/Health/RightToHealthWHOFS2.pdf> (last accessed 17 May 2022).

43 Otu, E “Geographical access to healthcare services in Nigeria – A review” (2018) 10/1 International Journal of Integrative Humanism 18Google Scholar, available at: <https://www.researchgate.net/publication/330263101> (last accessed 17 May 2022).

44 MN Onah and V Govender “Out-of-pocket payments, health care access and utilisation in south-eastern Nigeria: A gender perspective” (2014) 9/4 Plos ONE at 4 and 8, available at: <https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0093887&type=printable> (last accessed 18 November 2022).

45 AA Adefalu et al “Qualitative exploration of factors affecting uptake and demand for contraception and other family planning services in North-West Nigeria” (2019) African Journal of Reproductive Health 63 at 67–68, available at: <https://www.ajol.info/index.php/ajrh/article/view/193156> (last accessed 17 May 2022); Ghinai, I “Listening to the rumours: What the northern Nigeria polio vaccine boycott can tell us ten years on” (2013) 8/10 Global Public Health: An International Journal for Research, Policy and PracticeCrossRefGoogle Scholar, available at: <http://dx.doi.org/10.1080/17441692.2013.859720> (last accessed 17 May 2022).

46 Ibid.

47 This was done by promulgating the National Health Insurance Scheme Decree no 35 (1999), with the goal of ensuring that every Nigerian has access to quality healthcare at an affordable cost. See A Ibiwoye and IA Adeleke “Does national health insurance promote access to quality health care? Evidence from Nigeria” (2008) The Geneva Papers on Risk and Insurance – Issues and Practice 219, available at: <https://link.springer.com/content/pdf/10.1057/gpp.2008.6.pdf> (last accessed 18 May 2022).

48 GO Alawode and DA Adewole “Assessment of the design and implementation challenges of the National Health Insurance Scheme in Nigeria: A qualitative study among sub-national level actors, healthcare and insurance providers” (2021) 21/124 BMC Public Health 1, available at: <https://bmcpublichealth.biomedcentral.com/track/pdf/10.1186/s12889-020-10133-5.pdf> (last accessed 18 May 2022). See also YA Adebisi et al “Assessment of health budgetary allocation and expenditure toward achieving universal health coverage in Nigeria”, available at: <https://brieflands.com/articles/jhrt-102552.html> (last accessed 17 May 2022).

49 The Constitution of the WHO was adopted by the International Health Conference, New York, 19–22 June 1945 and opened for signature on 22 July 1946 by the representatives of 61 states; available at: <https://www.who.int/about/governance/constitution> (last accessed 18 November 2022).

50 AM Gross “The right to health in an era of privatisation and globalisation: National and international perspectives” in D Barak-Erez and AM Gross (eds) Exploring Social Rights: Between Theory and Practice (2007, Hart Publishing) 293.

51 Universal Declaration of Human Rights (1948), General Assembly res 217A(III), UN doc A/RES/3/217A.

52 ICESCR, above at note 32.

53 Ibid.

54 General Comment no 14, above at note 33.

55 OU Umozurike “The African Charter on Human and Peoples’ Rights” in G Alfredsson (ed) The Raoul Wallenberg Institute Human Rights Library (vol 2, 1997, Martinus Nijhoff Publishers) quoted in Nwabueze, “The legal protection”, above at note 9 at 383.

56 OAU doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), adopted 27 June 1981, entered into force 21 October 1986.

57 African Commission on Human and Peoples’ Rights, case no Achpr/Comm/A044/1 (27 May 2002).

58 Comm no 241/2001 (2003), available at: <https://www.globalhealthrights.org/wp-content/uploads/2014/09/Purohit-and-Moore-v.-The-Gambia.pdf> (last accessed 11 May 2022).

59 Id, para 85.

60 VO Ayeni “State compliance with and influence of reparation orders by regional and sub-regional human rights tribunals in five African states” (PhD dissertation, University of Pretoria, 2018) at 407, available at: <https://repository.up.ac.za/bitstream/handle/2263/68311/Ayeni_State_2018.pdf?sequence=1&isAllowed=y> (last accessed 11 May 2022).

61 Domesticated as African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, cap A9, Laws of the Federation of Nigeria, 2004.

62 Nagle, LE “How conflict and displacement fuel human trafficking and abuse of vulnerable groups: The case of Colombia and opportunities for real action and innovative solutions” (2013) 1/2 Groningen Journal of International Law 2CrossRefGoogle Scholar.

63 The French president, Emmanuel Macron, described it as “a war against the invisible enemy”. See “Addresse aux Français du président de la République Emmanuel Macron” (16 March 2020), quoted in Spadaro, A “COVID-19: Testing the limits of human rights” (2020) 11/2 European Journal of Risk Regulation 1CrossRefGoogle Scholar at footnote 1; M Gagnon and D Holmes “Governing masses: Routine HIV testing as a counteroffensive in the war against HIV-AIDS” (2008) Policy, Politics, & Nursing Practice, available at: < https://journals.sagepub.com/doi/abs/10.1177/1527154408323931> (last accessed 17 May 2022).

64 CEDAW was adopted in 1979 and came into effect in 1981. Nigeria became a signatory to it in 1985; see Federal Ministry of Women Affairs and Social Development “National Gender Policy Federal Republic of Nigeria: Situation Analysis/Framework, 2016”, available at: <https://nigerianwomentrustfund.org/wp-content/uploads/National-Gender-Policy-Situation-Analysis.pdf> (last accessed 10 May 2022).

65 Okongwu, OC “Are laws the appropriate solution: The need to adopt non-policy measures in aid of the implementation of sex discrimination laws in Nigeria” (2020) 21/1 International Journal of Discrimination and the Law 33Google Scholar, available at: <https://journals.sagepub.com/doi/pdf/10.1177/1358229120978915> (last accessed 10 May 2022).

66 Id at 34.

67 Adopted by the Second Session of the Ordinary Assembly of the Africa Union in Maputo, Mozambique on 11 July 2003 and entered into force in 2005, available at: <https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf> (last accessed 18 May 2022); LA Obiora and C Whalen “What is right with Africa: The promise of the protocol on women's rights in Africa” (2015) 2 Transnational Human Rights Review 153, available at: <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1017&context=thr> (last accessed 18 May 2022).

68 These include the right to control one's fertility; whether to have children or not; the number of children and their spacing; the choice of which contraception to use; protection against STIs, including HIV/AIDS; the right to be informed of one's health status and one's partner's; and family planning education. State parties have the duty to fulfil the rights by taking mandatory measures to provide affordable and accessible health services, including information, education and communication, especially to rural women; pre-, during, and post-pregnancy medical care; and authorizing medical abortion in rape, health-challenging situations, etc.

69 The Constitution of the Federal Republic of Nigeria 1999 (as amended), sec 12 makes domestication by the National Assembly mandatory for any international law ratified by Nigeria to have the effect of law in the country. See also the Supreme Court's decision in MHWUN v Minister of Health and Productivity and Others [2008] SC 201/2005 10.

70 Federal Ministry of Women Affairs “National Gender Policy”, above at note 64, para 1.1.

71 Id, para 4.3.9.

72 Child Rights Act 2003; UO Okoye “Knowledge and awareness of the child's rights act among residents of a university town in Enugu State, Nigeria” (2011) 2/10 Educational Research 1595, quoted in Okongwu “Are laws the appropriate solution”, above at note 65 at 30.

73 Id at 36.

74 Tobin, The Right to Health, above at note 15 at 1. Upendra Baxi has raised more areas that are usually deserving of consideration: all questions about human rights raise familiar concerns regarding their origins, authorship (the debate over human rights as gifts of “the West to the Rest”), reach (universality v cultural specificity), etc. See U Baxi “The place of the human right to health and contemporary approaches to global justice: Some impertinent interrogations” in J Harrington and M Stuttaford (eds) Global Health and Human Rights: Legal and Philosophical Perspectives (2010, Routledge) 12.

75 J Galtung and AH Wirak “On the relationship between human rights and human needs” (1977) 8/3 Bulletin of Peace Proposals 251, available at: <https://www.jstor.org/stable/44480606> (last accessed 13 October 2021).

76 Fidler, DP “Fighting the axis of illness: HIV/AIDS, human rights, and U.S. foreign policy” (2004) 17 Harvard Human Rights Journal 99Google Scholar; Mann, JM “Human rights and AIDS: The future of the pandemic” (1999) Health and Human Rights 216Google Scholar.

77 N Daniels Just Health Care (1985, Cambridge University Press) 56, quoted in Baxi “The place”, above at note 74 at 20.

78 Roger, J “Toward a theory of a right to health: Capability and incompletely theorized agreements” (2006) 18/2 Yale Journal of Law & the Humanities 273Google Scholar, available at: <https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1313&context=yjlh> (last accessed 9 October 2021).

79 Ibid.

80 Universal Declaration of Human Rights, above at note 51; ICESCR, above at note 32; International Convention on the Elimination of All Forms of Racial Discrimination, art 5(e)(iv), resolution adopted by the UN General Assembly, 1965, res 2106(XX); CEDAW, arts 11.1(f) and 12, resolution adopted by the UN General Assembly, 1979, res 34/180; Convention on the Rights of the Child 1989, art 24.

81 Art 16. To further emphasize its applicability as legislation that forms part of Nigerian law, the Court of Appeal, while relying on the Supreme Court's decision in Abacha v Fawehinmi, held that “[b]y the Act, the African Charter constitutes part of the laws of Nigeria which must be upheld by all courts in Nigeria. The African Charter is also given recognition by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as well as the Fundamental Rights (Enforcement Procedure) Rules enacted pursuant to section 46(3) of the Constitution which is one of the ways to enforce the right guaranteed by the African Charter and Chapter IV of the Constitution” ([2000] 6 NWLR (Pt 660) 228).

82 General Comment no 14, above at note 33.

83 Roger “Toward a theory”, above at note 78 at 274.

84 General Comment no 14, above at note 33.

85 Second-generation rights speak of social and economic rights, such as the right to healthcare, education, etc., while third-generation rights refer to collective claims, for instance, the right to a clean environment, sustainable development, and so on.

86 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna on 25 June 1993, available at: <https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx> (last accessed 8 October 2021).

87 [1997] 2 SCC 267.

88 Suit no FHC/B/CS/53/05 (14 November 2005).

89 L Munro “The human rights-based approach to programming: A contradiction in terms?” in S Hickey and D Mitlin (eds) Rights-Based Approaches to Development (2009, Kumarian Press) 187, cited in Tobin The Right to Health, above at note 15 at 5.

90 Constitution of the Federal Republic of Nigeria 1999 (as amended), sec 17(3).

91 [2002] 9 NWLR (pt 772) 222.

92 Suit no FHC/PH/CS/680/2003, judgment delivered by the Federal High Court in Port Harcourt, Nigeria in 2004, available at: <https://www.globalhealthrights.org/odafe-and-ors-v-attorney-general-and-ors/> (last accessed 17 May 2022).

93 Laws of the Federation of Nigeria, cap 10.

94 Suit no ID/1627/2000, judgment delivered by the Lagos State High Court on 27 September 2012, available at <https://www.escr-net.org/caselaw/2012/georgina-ahamefule-v-imperial-medical-centre-dr-alex-molokwu-suit-no-id16272000> (last accessed 17 May 2022).

95 National Health Act, Act no 8 of 2014, secs 1(1)(c) and 1(1)(e).

96 Art 16(1); emphasis mine.

97 ON Ogbu Human Rights Law and Practice in Nigeria (2nd ed, 2013, Snaap Press Ltd) at 26.

98 National Health Act, sec 3.

99 Id, sec 11.

100 The Consolidated Revenue Fund is an account provided for by the Constitution of the Federal Republic of Nigeria 1999 (as amended) into which all moneys accruing to the federal government are paid, except where required by any other law to be paid into another account of the government.

101 Id, sec 11(5).

102 Laws of the Federation of Nigeria 2004, National Health Insurance Scheme Act, cap N42.

103 Id, sec 1.

104 National Population Commission “Nigeria demographic and health survey”, above at note 3 at 48.

105 Ondo State, above at note 91; National Health Act.

106 Spadaro “COVID-19”, above at note 63.

107 Laws of the Federation of Nigeria 2004, African Charter on Human and Peoples’ Rights (Domestication and Enforcement) Act, cap A9.

108 Baxi “The place”, above at note 74 at 16.

109 Nwabueze “The legal protection”, above at note 9 at 372.

110 Suit no FHC/B/C/53/05, above at note 88, quoted in RAO Mmadu and A Adeniyi “Oil exploration and environmental degradation in the Niger Delta: Benchmarking the human rights issues involved” (2014) 4 Nigerian National Human Rights Commission Journal 137.

111 Baxi “The place”, above at note 74 at 16.

112 Gross “The right to health”, above at note 50 at 295.

113 Baxi “The place”, above at note 74 at 22.

114 Ibid.

115 Ibid.

116 A Mills “Health care systems in low- and middle-income countries” (2014) 370/6 The New England Journal of Medicine 553, available at: <https://www.nejm.org/doi/pdf/10.1056/NEJMra1110897?articleTools=true> (last accessed 21 October 2021).

117 Ibid.

118 Id at 553–54.

119 Baxi “The place”, above at note 74.

120 Odafe, above at note 92; Ahamefule, above at note 94.

121 “The right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (report of the United Nations Special Rapporteur Paul Hunt, 2006); UN ESCOR, Commission on Human Rights, 62nd session, agenda item 10, quoted in Baxi “The place”, above at note 74 at 14.