Annals of Health Law - Vol 23 Issue 1

MDG 5, HUMAN RIGHTS, AND MATERNAL HEALTH IN AFRICA African record is abysmal.

At the conclusion of the African Summit on HIV/AIDS, TB and Other Related Infectious Diseases in April 2001, African leaders adopted the now-famous Abuja Declaration, pledging to allocate at least fifteen percent of their annual budgets to the health sector.141 But the rhetoric has not been matched with action. As of 2008 only eight countries—Botswana, Burkina Faso, Democratic Republic of Congo, Djibouti, Liberia, Rwanda, Tanzania, and Zambia—have met the target, out of the fifty-three (now fifty-four) nations that make up the region.142 Even Nigeria, the host of the Summit, remains far from the target, at 6. 4 percent.143

It is very tempting to blame this budgetary gap on a resource deficit, as is usually canvassed by government officials. Nonetheless, since the pledge relates to proportionality of spending, specifically the percentage of national budgets allocated to health versus other sectors, not dollar amount, the temptation must be resisted. Thus, one may conclude, and rightly so, that the failure of most African countries to comply with the Abuja Declaration is simply evidentiary of lack of commitment to the needs of the population – one of many in a long list of manifestations of bad governance that stands in need of remedy at polling booths.

I. Judicial Passivity
Although the court system offers a potent route for remediating the
unacceptably high rate of morbidities and mortalities resulting from
pregnancy in Africa, judicial passivity or timidity effectively forecloses this
avenue. Judicial reticence, even in the face of injustice, is not new.

If you read the great cases of Ashby v. White, Pasley v. Freeman, and Donoghue v. Stevenson you will find that in each of them the judges were divided in opinion. On the one side there were the timorous souls who were fearful of allowing a new cause of action. On the other side there were the bold spirits who were ready to allow it if justice so required. It was fortunate for the common law that the progressive view prevailed.144

141. Organisation of Afr. Unity (OAU), Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases, para. 26, Apr. 24-27, 2001, OAU/SPS/ABUJA/3. This pledge was reaffirmed at the Gaborone Declaration and the Maputo Plan of Action. See Afr. Union (AU), The Maputo Declaration on Malaria, HIV/AIDS, Tuberculosis and Other Related Diseases, para. 2, July 12, 2003, Assembly/AU/Decl. 6(II) 2; AU, The 2nd Ordinary Session of the Conference of the African Ministers of Health, Oct. 10-14, 2005, CAMH/MIN/Draft/Decl. (II).