MDG 5, HUMAN RIGHTS, AND MATERNAL HEALTH IN AFRICA
There is simply no reason courts cannot, in appropriate cases, restrict the
relief it grants petitioners within the narrow interpretive formula outlined
below. The concept of “basic health services”148 is encapsulated within the
minimum “core obligations” implicit in the right to health. The concept of
minimum core obligation refers to a threshold which must be met by
countries; otherwise a charge of violating the right to health could properly
arise.149 This is a non-derogable obligation and requires the provision of,
inter alia, access to health facilities, provision of essential drugs, equitable
distribution of health facilities and related goods and services, as well as
ensuring “reproductive, maternal (pre-natal as well as post-natal) and child
health—all of which are essential to attaining MDG 5.150 A few bright
spots in the region include Free Legal Assistance Group and Others v
Zaire,151 Media Rights Agenda and Ors v Nigeria,152 and Minister of Health
v Treatment Action Campaign No. 2 (“TAC”).153 These cases commend
themselves to courts throughout Africa.
IV. ROLE OF NON-STATE ACTORS
Given the complexity of the challenges besetting maternal health in
Africa, and the inability of the vast majority of the countries in the region to
develop and operationalize the kind of legal and political environment that
would propel them toward attaining MDG 5, it is becoming increasingly
evident that although governments and their institutions remain the primary
148. Id. Basic health services are an instance of “minimum subsistence rights for all”
mandated by the Principles.
149. Minimum core obligations were first adopted in 1990 but received further
elaboration in 2000. See U.N. Comm. on Econ., Soc. & Cultural Rights (CESCR), General
Comment No. 3, The Nature of States Parties’ Obligations, U.N. Doc. E/1991/23 (1990),
para. 10, reprinted in Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 6 at 14 (2003)
[hereinafter General Comment No. 3]; CESCR, General Comment No. 14, The Right to the
Highest Attainable Standard of Health, paras. 43–44, U.N. Doc. E/C.12/2000/4 (2000),
paras. 43-44, reprinted in Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 6 at 85 (2003)
[hereinafter General Comment No. 14].
150. General Comment No. 14, supra note 149, para. 44(a).
151. African Comm’n on Human & Peoples’ Rights, Comm. No. 25/89, 47/90, 56/91,
100/93 (1995) at para. 47 (holding that the failure on the part of the government to provide
basic services such as medicine constitutes a breach of the right to health).
152. African Comm’n on Human & Peoples’ Rights, Comm. No. 105/93, 128/94,
130/94 and 152/96 (1998), paras. 90–91 (holding that denial of access to physicians to a
detainee violates the right to health).
153. Treatment Action Campaign, supra note 90, paras. 98–99 (ordering a South Africa-wide expansion of access to nevirapine, a drug which protects children against intrapartum
transmission of HIV).