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.

Most of the constitutions in the region capture the right to life as one of the fundamental human rights. Some permit taking life when enforcing the death penalty. Most also permit the limitation of other rights to ensure protection of public health and safety. In fact, for some countries, this limitation of rights in the public interest was the primary mention of health in their Constitutions.

We suggest that countries in the region review how other ESA countries have crafted the provisions on the right to health in their constitutions and familiarise with the relevant international human rights instruments, to inform their constitutional reform processes. We suggest some ‘best practice’ examples below from the constitutions in the region as an input to constitutional review processes (see page 21 for full details):

• With regard to the right of access to health facilities, goods and services on a non-discriminatory basis, Article 116 of Mozambique's Constitution:
• On access to food that is nutritionally adequate and safe, and to ensure freedom from hunger to everyone, Uganda Constitution, Objective XXII
• The South African Constitution provides good provisions access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water. In Section 26
• Section 27 of the South African Constitution provides for health care, food, water and social security.
• In terms of equitable distribution of all health facilities, goods and services, Section 116(4) of the Constitution of Mozambique.
• Regarding the national public health strategy addressing the health concerns of the whole population, Article 13(c) of the Constitution of Malawi could be a reference point.
• Almost all constitutions have general provisions on prohibition of conduct injurious to health. There range from restricting other rights to the most extreme form in the death penalty.

This study reviewed the law as written. We thus recommend that further study be done in those countries that have express provisions on the right to health on how they have implemented and enforced this right, including how advocates of health rights have subjected constitutional provisions to court interpretation. We also recommend further review of how rights to health are being dealt with in countries where they are not explicitly provided for in the national constitutions.