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THE RIGHT TO DEVELOPMENT(HEALTH AND SANITATION)

ABOUT

The health project is an innovative, community-based human rights initiative in urban Ghana. In the project, the Harvard School of Public Health's François-Xavier Bagnoud Center for Health and Human Rights, along with Harvard and Ghanaian Law faculty and students, work with the Ghana Legal Resources Centre (LRC) and its constituency of very low income Ghanaian citizens to assert their legal rights regarding decent health care and sanitation in the context of a broad human right to development.

The Ghana Legal Resources Centre is a non-governmental organization based in Nima, a sprawling enclave of very low income rural migrants near the center of Accra. The LRC works with Nima residents on legal and human rights issues, using human rights education, leadership development, and community organizing in conjunction with traditional legal strategies.

OVERVIEW OF THE PROJECT

The project is an aspect of the LRC's overall plan of working with low income communities in Ghana for the realization of their civil, political, economic, social, and cultural rights.

The health project grows out of a partnership between the LRC and Harvard which began in June of 2000, when Harvard Law School Professor Lucie White received a Fulbright Fellowship to enlist Ghanaian and US law students to work with the LRC on human rights issues. One of the LRC's two founders, Raymond Atuguba, began doctoral studies at the Harvard Law School the following fall.

Work commenced in Ghana in January, 2001, when eighteen US and Ghanaian law students convened workshops among Ghanaian academics, policy advocates, jurists, and Nima residents about the intersections between economic policy, social rights, and democratic participation. Based on these workshops, the group decided to partner with the LRC on a project to promote low-income Ghanaians' right to health.

In the spring of 2001, the FXB Center for Health and Human rights joined the project, by linking the LRC's health initiative into a larger, six-nation project on the right to development, which it had launched with the United Nations Independent Expert on the Right to Development, Dr. Arjun Sengupta. As part of this project, the FXB Center has commissioned a study of human rights in the development process in Ghana. This study is being administered by the Legal Resources Centre. The current proposal would support the operational component of that project through support for a concrete and carefully-studied application of the rule of law to the realization of the right to health in the context of Ghana's development.

The project seeks to implement and reform Ghana's health care policies to conform those policies more closely to the rule of law, in accordance with internationally recognized human rights norms.

LEGAL AND POLITICAL CONTEXT OF THE PROJECT

Contemporary Ghana presents a unique opportunity for this project, which uses the right to health as an entry-point for a wider effort to promote the social, economic, and political rights of all Ghanaians in a way that builds the capacities of both citizens and institutions for sustainable democratic governance. This is the case for several reasons.

First, a broad right to health care is arguably incorporated into language of the 1992 Ghanaian constitution, although the courts have not yet issued any decisions interpreting the scope or meaning of that language. Thus, the broad idea that the Ghanaian state has some affirmative responsibilities to its citizens in the health domain, though not legally actionable within the country in some mechanistic way, is not outside the mainstream of Ghanaian political discourse.

Second, the recent trend of democratization has reinvigorated domestic Ghanaian political institutions, particularly Parliament, the courts, the executive agencies, and local government. This trend toward democratization has combined with international human rights networking to place pressure on International Financial Institutions (IFIs) to rethink the scope of their influence on developing nations' internal state policies. Thus, new space has opened for health policy debate inside Ghana.

Third, debt relief initiatives, tax reform, and increased economic activity related to new technologies may give the Ghanaian government new sources of public revenue to use for health care in the foreseeable future. The favorable position in principle taken by the President of the World Bank, James Wolfensohn, on many of these issues makes this an opportune time to use litigation and legislative strategy to accommodate the public health needs of the population with structural adjustment objectives of the Bank.

Finally, over the last decade, extensive research has been conducted on the negative distributional impact of health policies, such as user fees, which were imposed by IFIs on the Ghanaian government in the mid-1980s. This research, along with domestic political pressures, have led the newly elected Ghanaian president to call for a major overhaul of its health-care financing system.

One backdrop for this proposal is the extensively documented impact of structural-adjustment related health policies on Ghana's primary health care infrastructure. The introduction of user fees, in particular, remains a controversial legacy of the structural adjustment era on Ghanaian health policy. While the World Bank and most governments justify user fees as a means of improving the quality of health care, numerous studies cast doubt on whether the policy can actually have this effect.

In Ghana, user-fees are criticized for having several negative effects. Even though exemption schemes exist in principle, their under-enforcement denies health-care access to many poor people.[1] User fees have a high cost-revenue ratio; they are unlikely in most cases to cover more than ten percent of the cost of service. User fees are less progressive than other forms of taxation and have failed to bring about quality improvements or self-financing insurance schemes, as predicted. And many of the institutional and behavioral effects of user fees, particularly in very low-income Ghanaian communities, are simply unknown.

Both the current government and the World Bank have recently taken the position that health insurance schemes, rather than post-hoc user fees, is the optimal policy for cross-subsidizing health care costs across middle and upper income groups. Yet both the Ghanaian government and donors acknowledge a clear, fully-enforced scheme of health-fee exemptions must be a fundamental feature of any health financing system that complies with basic human rights norms. Thus, promoting the full and equitable enforcement of user-fee exemptions will help to ensure the right to health for all Ghanaians in the future.

PROJECT GOALS

The proposed project has a simple objective, and that is to use familiar lawyering strategies to vindicate and enhance the rights of low-income Ghanaians under their country's domestic laws. At the same time, however, those strategies will be planned, sequenced, and implemented so as to seek three larger goals.

The first of these larger goals is for low-income Ghanaians, by claiming legally actionable rights to health care, to become more conscious about fundamental human rights norms about health, democratic participation, and human development.

The second of these larger goals is for advocacy around low-income Ghanaians' health rights to catalyze reform in Ghana's domestic legal institutions -- its courts, legislature, executive agencies, Human Rights Commission so as to bring rule-of-law principles and human rights norms more fully into their routine institutional practices.

The third of these larger goals is for the project to further an emerging conception of human rights practice in which building the capacities of institutions and citizens for democratic governance and realizing substantive human rights guarantees are understood as inseparable endeavors.


PROJECT ACTION PLAN

In order to identify community priorities, the legal team surveyed 161 Nima/Mamobi households and convened fifteen grassroots workshops. Based on this process, two priorities were identified: (1) affordable health services, particularly through the full enforcement of statutory exemptions to health care user fees; and (2) adequate sanitation services and infrastructure, including toilets, waste-water drainage, and garbage disposal. .

The following steps were then taken to address each issue.

I. On the health financing issue:

First, the issue was researched and evidence was gathered about widespread violations of the user-fee exemption law. In September of 2001, a lawsuit was filed in the Ghana High Court contesting the government's failure to enforce the exemption law as a violation of the right to health.

Second, health providers were brought together to discuss steps that health facilities could take to ensure the enforcement of user-fee exemptions. Based on these discussions, the group agreed on eight administrative practices that all health facilities should follow. It then presented this list of practices at a public hearing and community workshops.

Third, community-based "mothers' groups" were educated about their right to user-fee exemptions. These groups then devised plans to monitor the government health clinics' compliance with the user-fee law.

Fourth, a memorandum was sent to the World Bank in Washington, D.C., to contest the Bank's most recent report on the implementation of Ghana's exemption law and to recommend that the Bank take a stronger position on exemption enforcement in the context of monitoring its loans to Ghana's health sector.

Fifth, strategic discussions were held with members of the Ghanaian Parliament's standing Committee on Health about strategies for ensuring that the government fully fund and equitably administer the user-fee exemption statute.

II. On the sanitation issue:

First, testimony was gathered from community residents about the multiple health impacts of living without adequate toilet, garbage, or waste-water drainage.

Second, meetings were held with community opinion-leaders to devise strategies for addressing the local government's failure to meet its sanitation-related obligations.

Third, the local government's legal obligations around sanitation and the framework for funding sanitation infrastructure were researched and a potential litigation strategy was developed.

Fourth, based on these meetings, community-based organizations were mobilized to monitor the local government's compliance with its statutory duties to provide toilets, garbage collection, and sanitation services.

Fifth, a letter was sent to the Accra Metropolitan Assembly demanding that it comply with its statutory duties regarding environmental health and sanitation.

At the end of January, 2002, the Legal Resources Centre convened a community-wide public hearing to set forth the results of its action on both the health-financing and sanitation issues, and to invite community members to take active roles in the on-going campaign. Approximately four hundred Nima/Mamobi residents attended the hearing. Representatives from Ghanaian and donor governments were also present. A number of community residents gave public testimony, both about violations of their right to health and about on-going health campaign activities.

CURRENT AND FUTURE ACTIVITIES

On Health Financing:

First, the litigation of Saudatu Sumaila v. Attorney General and Ministry of Health through trial, appeal, and enforcement. Saudatu is the lawsuit filed by the Legal Resources Centre in September of 2001 to contest the Ghanaian government's failure to enforce its user-fee exemption law.

Second, continued work with health providers and clinic administrators to publicize and enact the community's eight-point policy for implementing user-fee exemptions.

Third, advocacy with Parliament and the Ministry of Health in the context of the Saudatu litigation in order to require the MOH to promulgate sound administrative regulations for the implementation and funding of user-fee exemptions.

Fourth, continued work with Mothers' Clubs and other community-based organizations of Nima/Mamobi residents to educate them to promote the right to health in their community and secure their right to user-fee exemptions.

Fifth, research and consultation with Nima/Mamobi opinion leaders about strategies for ensuring community members' participation in health insurance program planning and their full inclusion in any resulting health insurance schemes.

Sixth, the submission of reports to the African Commission on Human and People's Rights and the World Bank's Inspection Panel on Ghana's failure adequately to promote its low-income citizens' right to health.

On sanitation:

First, continued community monitoring of local government's failure to meet its statutory obligations regarding public toilets, waste-water drainage, and garbage disposal.

Second, negotiations with the Accra Metropolitan Assembly about its failure to meet its sanitation-related legal obligations, followed, if necessary, by litigation.

Third, work with the Accra Metropolitan Environmental Health Initiative (AMEHI) and community-based organizations in West Mamobi to build their capacity to promote a healthty environment and enforce their sanitation-related legal rights.

Fourth, research and consultation with the World Bank and donor development agencies on strategies for improving sanitation infrastructure and increasing the participation of community members in long-term urban environmental planning and management.

At the end of August, 2002, the campaign will conclude with a major public hearing, before local, national, and international officials, that reports on the community's findings and activities and sets forth specific actions that each level of government should take in order to comply with their legal and treaty obligations to promote Ghanaian citizens' rights to health and sanitation.

From September to December, 2002, the programme of the health campaign will be evaluated through a combination of surveys, key-informant interviews, focus groups, and the narrative documentation of all aspects of campaign activities. The evaluation report will also address the relevance of the health campaign to the long-term plans of the Legal Resources Centre to promote all social and economic rights of Ghanaians, especially health, education, food security, housing, and decent work.

The People's Decade for Human Rights Education and the United Nations Development Programme, have designated Nima/Mamobi as the ninth city in their World Human Rights Cities Project. The Legal Resources Centre, which has been designated the anchor non-governmental organization in this initiative, envisions the right to health campaign as a template for campaigns that it will launch around the other basic social and economic rights in conjunction with the Human Rights Cities project.

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[1] The Ghanaian user-fee statute provides for several categories of exemptions, including indigence, communicable diseases, and pre- and post-natal care. However, numerous studies have shown that these exemptions are rarely if ever granted.

 

The Legal Resources Centre(LRC) runs various programmes to enhanse the rights of the Ghanaian citizenery.

Programmes currently run are

 

Programmes on hold for lack of funding