The court of appeal sitting in Lagos has rejected Femi Falana’s request to ban public officers from seeking medical treatment abroad.
A three-member panel of the
appellate court delivered the unanimous judgment on January 30.
Polycarp Terna Kwahar, who read
the lead judgment on behalf of the panel said: “It will be an infringement or
breach on the fundamental right of Nigerians be they public officers or not to
prevent them from seeking medical attention outside Nigeria when the need
arises, and it will therefore be draconian to grant the request.”
Falana, a senior advocate of
Nigeria (SAN) and human rights lawyer, filed a suit against the federal
government before the trial court, seeking, among other things, a declaration
that Nigerians are entitled to the best attainable state of physical and mental
health as guaranteed by law.
He argued that the failure of the
government to repair and equip public hospitals and medical centres in Nigeria
constitutes a violation of the right to protect the health of Nigerians and to
ensure that they receive medical attention when they are sick.
He sought a court order directing
the government to repair and equip the hospitals and another restraining public
officers from accessing medical checkups in any foreign hospital and being
treated at public expense in such hospitals.
However, the trial court struck
out the suit on the ground that the provision of adequate medical and health
facilities is “not justiciable” by virtue of section 6 (6) (C) of the 199
Constitution.
Dissatisfied with the judgment,
Falana appealed the ruling in 2021.
But the appellate court agreed
with the verdict of the federal high court.
The judgment reads in part, “…how
would the matter of public officers’ treatment outside Nigeria be an issue that
is linked with the fundamental right of the appellant? The question to ask is,
what does fundamental right mean?”
“A fundamental right is a right
guaranteed in the Constitution. Fundamental rights mean any of the fundamental
rights provided for in Chapter IV of the Constitution and include any of the
rights stipulated in the African Charter on Human and Peoples’ Rights
(Ratification and Enforcement) Act 2004.
“Merely entrenching a right in
the 1999 Constitution does not automatically make such a right a ‘fundamental
right’.
“Of all the cases referred to by
the appellant, none of them has any link with our jurisprudence. They are all
from India, and this court is not bound to follow them. Persuasive as they are,
I refuse to follow those cases as highlighted below:
“(a) Paschin Banga Kher Mazdouer
Samity V. State of West Bengal (1996) 4 SCL.
“(b) Pt Parmanand Katara V. Union
of India & Ors (1989) CS 2039.
“(c) Consumer Education and
Research Centres & Ors V. Union of India.
“On the contrary, it will be an
infringement or breach on the fundamental right of Nigerians, be they public
officers or not, to prevent them from seeking medical attention outside Nigeria
when the need arises; this court will therefore be draconian to grant the
prayers.
“Although the averments of the
applicant/appellant were not controverted at the trial court by the respondent,
this court, being a court of justice, looked at the affidavit of the appellant
at the lower court, and the facts therein do not fly with the extant laws on
fundamental rights, so they cannot be swept under the carpet, since doing
otherwise will be going against judicial precedent and against the settled
principle of stare decisis.
“This application brought by the
appellant seeks to import into Chapter IV what was not and is not provided for;
granting the prayers in this appeal will be a travesty of justice. The lower
court did a very perfect constitutional law analysis and rightly too, by
explaining the difference between economic, social, and cultural rights since
these human rights fall under Chapter II of the 1999 Constitution and not under
Chapter IV of the 1999 Constitution.” I find no merit in this appeal; I dismiss
the appeal and affirm the ruling delivered by the Federal High Court, Ikeja, on
the 10th of January, 2011.”
Reacting to the judgment in a
statement on Sunday, Falana said, “The court of appeal failed to appreciate that
it is discriminatory to allow a few public officers to seek medical treatment
abroad while the millions of poor citizens are allowed to die in ill-equipped
local hospitals.”
“The court equally failed to
realise that the fundamental right to life is incomplete without the protection
of the right to health by the federal, state, and local governments in
Nigeria,” he added.
“I will certainly challenge the
erroneous judgment of the court of appeal at the supreme court on account of
the constitutional guarantee of the right to life and equality before the law.”
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