Dr. Cheluchi Onyemelukwe is the executive director of Centre For Health Ethics Law and Development.
Onyemelukwe, a lawyer with expertise in Health Law and Policy, in this interview, tackles a broad range of issues from the challenges of making health a human rights issue to domestic violence and victims’ care and support.
I’m sure some people would usually express surprise when you talk about health law in Nigeria because to many of them it would appear we don’t have any.
Many people tend to be surprised. Years ago, when I decided to undertake a postgraduate degree in Law, having received several scholarships from universities in England and Canada, many expressed surprise at my choice of health law instead of other more traditional areas of. I remember people telling me that there were no career prospects in that area of law and that Nigeria was not ripe for that. They had good reason for saying so. In general, health has not often been at the forefront of political efforts in development. Its significance appears lost even while we focus on individual issues such as HIV or Malaria or immunization. This is illustrated by how little we budget for health, how much patient safety remains a backburner issue, the high levels of medical tourism, and the lack of universal health coverage.
For lawyers, and even non-lawyers, medical negligence is the first thing that comes to mind. It is not often considered the best paying branch of law either. Health law has traditionally not been taught in universities, although aspects of health law were taught in other courses , for example, medical negligence law could be touched on within the law of torts, euthanasia and assisted dying could be taught in jurisprudence, sexual and reproductive health could be taught in gender law etc. In the past only medical and nursing practitioners were required to have a medical jurisprudence course. So, to some degree, health law is a relatively new area of study, though this is changing quite rapidly in the past few years.
Yet, we do have quite a body of health legislation – from the well-known NAFDAC laws and regulations to the health regulatory professions laws like the Medical and Dental Practitioners Act and the Pharmacy Council of Nigeria Act, health financing legislation like the National Health Insurance Act, to the recent National Health Act, to outdated public health legislation such as the Quarantine Act, the Mental Health Act, and the Public Health Act, to other health-relevant legislation like the Child Rights Act, and the Consumer Protection Act, there are many pieces of health legislation. And I am just mentioning federal law. Which means in fact there is much that one can study should they focus only on health legislation.
As many push for health to become more topical, the advocacy for universal health coverage, and with new developments in health legislation, I think we will find health law more of an area of interest to all.
But do Nigerians really have the right to health?
This is an interesting question and one that has been the subject of debate. The right to health is as intrinsic as the right to life. All opportunities and all development are predicated on a healthy life. Whether we can enforce this right or not (that is to compel the government to ensure that we enjoy this right) depends on how we have addressed this right in our legal framework. Morally speaking, all Nigerians ought to have an enforceable right to health. But legally speaking, there could be arguments on both sides – for and against the existence of an enforceable right to health. Our Constitution does not guarantee right to health. It only includes a directive principle in Chapter Two requiring the government to provide medical facilities. However, how does one enjoy the constitutionally guaranteed right to life without the right to health? Further, we have also signed on to and domesticated the African Charter which provides a right to medical facilities. We are also signatory to the International Convention on Economic, Social and Cultural Rights which provides a right to health. Beyond this, we have precedents for right to health in other legislation such as the Child Rights Act, even the right to a basic minimum package of health services in the National Health Act. We should amend our Constitution to include an enforceable right to health. But as we move in that direction, a key stop on the way is to ensure universal health coverage for everyone – the right to basic health services without undue financial hardship.
Section 3(4) of the National Health Act says, “all Nigerians shall be entitled to a guaranteed minimum package of services.” Is this possible?
It is indeed possible. Recall that it states a “minimum” package of services. One of the ways we can ensure that this entitlement is received by all is through ensuring effective implementation of the Basic Health Care Provision Fund requirements under section 11 of the Act and the Guidelines made thereunder. Implementation has started in three pilot states and hopefully will soon be extended to other states. But we have to move beyond this provide more funding for health in general. At the moment, much of what is budgeted is taken up by recurrent expenditures. Effective use of the private sector is also important.
So, why has it been so difficult to make it a reality?
The short answer is that health care has been a backburner issue for many years. Health care is obviously not as visible as other issues. Politicians do not view health care as viable as road construction for example. The budgets for health at both federal and state levels is abysmal. Corruption is also key factor at all levels.
Inequality is suffered on different issues, but is more felt in the area of health. Health insurance would be helpful to inject monies into the system and hopefully improve quality. At the moment, health insurance which should ideally be entrenched in the system, where those who can afford contribute, and those who cannot are subsidized, is still very much at a rudimentary stage. The National Health Insurance Scheme covers less than five per cent of Nigeria’s estimated 190 million people. Those who can afford it (medical expenses) visit private clinics while those who cannot either choose the complementary medicine route, go for miracles, or die. This is obviously a situation that needs to change. There is a move towards state health insurance schemes, on which I have done legal and policy work. One waits in hope
Outside of public health care, a stimulation of the private health sector is also important. This includes promoting public private partnerships in all aspects of health – provisioning, quality improvement, equipment financing and maintenance, education of health personnel etc. This also includes, addressing bottlenecks such as taxation on health care businesses. We need to begin to think of harnessing the funds that move outside this country, an estimated billion dollars each year, to provide care within the country. And that means getting the private sector to invest in health. This will obviously need feasibility studies, some of which have been done already, paying close attention to quality, and a willingness to play the long game and support the understanding that health care can be profitable, while not losing sight of the vulnerable. The countries that benefit from our medical tourism prove this. We need to begin to think of ways to tap into those funds that go into medical tourism to subsidise public health care too.
Since we started witnessing a spike in the suicide rate, especially in the last couple of years, there seems to be some discussions on mental health issues in Nigeria but do you think we are doing enough?
By no means. We are hardly scratching the surface. I will say that mental health is receiving a little more attention in the era of social media but there is such a long way to go. We have very few neuropsychiatric facilities. We lack trained mental health experts. We have no mental health legislation. Stigma is still a huge issue. Lack of information on what mental health is, how it can be managed, where it can be managed, the rights of the mentally ill, are all lacking. And yet we have a significant number of us living with mental health challenges from the really serious (think schizophrenia, bipolar disorder, major depression) to others (think, stress). I consider it one of the saddest things about health in Nigeria. So no, we are nowhere near doing enough. Suicides, substance abuse issues shock us, but they are only an indication of the pressure cooker that we have been sitting on.
Did the government need the recent BBC documentary on drug abuse by young people in Northern Nigeria to realise that the matter had become an epidemic?
Well, substance abuse has been an ongoing problem for a while. More recently, the media, the local media, had begun to report on it. I have followed many reports on tramadol and codeine long before the BBC documentary and the links to such stories are easily found online. Even outside the media, we have begun to come into contact with more and more people with this problem. Substance abuse is much more rampant amongst our undergraduates than it was back in my days as an undergraduate. We hear of security guards and okada riders who are addicted to substances. In some cases, one knows of family members in middleclass homes. Long gone are the days when Nigeria was referred to as “only a transit” point for drugs and became a destination for drugs. I am aware that the government had been taking action, including policy development with the support of organisations such as the UNODC. But it seemed very little in comparison with the extent of the scourge. It is unfortunate that the BBC documentary was what got the government to take action in a public, arguably knee-jerk way, lending credence to the belief that we pander more to the outside world and put little stock in our own understanding of our problems. Having said that, if that BBC report gets us developing coherent, effective solutions to this horrific problem, then it is all to the good.
How would you rate the government’s ongoing response to this mental health hazard?
I had said earlier that the government’s response indicates what I referred to earlier as a “knee-jerk” response. In other words, it appears reactive rather than proactive – banning codeine, for instance, is addressing only one of the drugs in question, and even then can only be a temporary measure because we know that what happens in such cases is a growth of an underground, grey market.
Having said that, let me also reiterate that the government has been involved in efforts to address this issue. For instance, last year the Federal Ministry of Health launched the National Policy on Controlled Medicines and Implementation Strategies which addresses the rational use of controlled substances such as tramadol and codeine and other potentially addictive substances. A number of strategies were outlined in the Policy. One of the goals of the Policy is to ensure that controlled medicines are available for medically necessary uses and it identifies several strategies for ensuring the achievement of these goals including adequate importation, manufacture, supply and distribution of these medicines. Following from this, one could ask whether the government’s reaction to the documentary fits into the goals and strategies of its stated policy. From a legal perspective, the Policy observed that some of our laws on controlled substances require updating. That is obviously a continuing gap at this time.
A certain level of urgency now needs to be a part of a long-term response. It is not clear that this has been the case before now. But, as I stated before, this may be the opportunity to galvanise efforts. Supporting rehabilitation efforts, and clear steps towards de-stigmatisation are also key to encourage help-seeking. We must be careful in our steps not to adopt a “‘we-the-saints versus ‘others’ the drug addicts” approach.
Why has the passing of the mental health bill been stalled since 2003 when it was first introduced in the National Assembly?
If health has been on the backburner, mental health has not even been in the kitchen. This is obviously an unfortunate state of affairs given our significant mental health needs in Nigeria as indicated by baseline surveys done by the WHO and other bodies. The importance of addressing mental health, including through legislation is emphasized by our rising cases (and awareness) of suicide cases, substance abuse problems and even less talked about cases like the impact of domestic violence on mental health. So, the short answer is that mental health has not been a concern for our legislature and we have very few champions pushing for mental health, and even less champions who understand the need for new legislation and are advocating for it. Hopefully, this will change sooner rather than later.
For a long time most of us have focused on violence against women; however, it seems the tide has turned. In the last few years we have seen more and more cases of women physically abusing or even killing their spouses/partners. Do you think it’s a case the men getting served what they have been dishing out for ages like some people have insinuated or it’s been there all along and just coming to light, perhaps because of the social media effect?
Let me correct something: the tide has not turned. Women are still predominantly the victims of domestic violence. About 30 per cent of all women aged 15-49 (NDHS, 2013) have experienced violence, including domestic violence. Men have also in the past experienced domestic violence, but it is now coming to light. As someone who has worked in this area for a while, I can tell you that our organization has received calls by and on behalf of men in the past so such violence is by no means new. There are abusive men. There are also abusive women. Certainly, social media is helping bring that to light. While patriarchal leanings have helped provide a solid base for all kinds of violence against women, it has also helped to keep the lid over situations where men suffer violence in intimate relations because of the attached stigma. Having said that, I think that violence is increasing generally. No matter who the victim is, domestic violence remains a human rights violation, a public health problem, and a social menace that we must seek to eradicate.
What do you think is responsible for the rise in domestic violence?
I could speculate on the reasons in the Nigerian context, but ideally we need some solid data and evidence. Some of the reasons are well known – patriarchy is a factor, with an “ownership” mentality in relationships and marriage, and a culture of male domination that teaches men and women that one sex is superior to the other, inability to manage a person’s temper, substance abuse, psychopathology which may be reflected in personality or psychological disorders etc. It also has roots in dysfunctional upbringing, my experience – and research bears it out – is that domestic violence can be an intergenerational curse, indicating that it can be a learned behavior. Where it is present, other factors may exacerbate it – low self-esteem, a lack of income on the part of the victim, poverty (which is a risk factor, although domestic violence is by no means restricted to the poor), stigmatization from within and without, impunity, ineffective laws/lack of enforcement of laws, and lack of avenues to seek help etc. Regardless of the causes of domestic violence, it is an unjustifiable act of violation, a human rights infringement and a criminal offence.
What’s usually your first response in helping a domestic violence victim?
My first response is usually ensuring that the victim knows that it is not their fault that they are going through this. It may surprise you to know that many survivors blame themselves on a certain level for what they are experiencing. This often inhibits help-seeking and a willingness to consider accepting the options for management, including leaving the relationship.
How can we make our laws work better in assisting victims of DV, especially in getting justice or do you think we need new/different laws?
I have just had a journal article published on this very question titled “How Well Does the Law Protect Women at Home? An Analysis of Nigeria's Domestic Violence Legislation” in the International Journal of Law and Management:https://www.emeraldinsight.com/doi/pdfplus/10.1108/IJLMA-05-2017-0111 As I note in that article, the current legislation operative in several states – Ekiti, Ebonyi, Jigawa, Lagos and in the FCT are helpful but are currently lacking in several areas. Some have no criminal sanctions, and where there are, they are insufficient. Jigawa’s law allows for men to “correct” women, including in a physical manner. As I note in the article, “it elevates the personal law of a man, which may be his religious law, (and for most people in Jigawa, this would be Islamic law) above the laws of the state.” Others define “domestic violence” really narrowly. Several of the laws do not provide for the obligations of the State to provide support for survivors of domestic violence.
And this is for the states that do have legislation in place. More than twenty states do not have any laws in place outside of the general criminal legislation which tends to be really narrow, not being developed to address domestic violence specifically.
So the short answer is that we do not have all the law we need: law reform is necessary across the country. Implementation is also lacking and uneven. Leaving to Live is an option which many people, especially women in abusive relationships usually balk at taking; what do you think we can do to make it easier for such women to take that life-saving decision?
We need to make access to information about where to obtain help easier. Women (and men) who are in trouble often have no idea where to seek help. This was a problem my non-profit, the Centre for Health Ethics Law and Development (CHELD) identified years ago and we established an online resource for providing such information – www.domesticviolence.com.ng. We also put together The Red Diary, a resource to provide information to survivors and those who care about them on tips to manage domestic violence, as well as a directory of supportive organisations around the country. Lagos State has also in recent years made significant advances in this direction through the Domestic Violence Sexual Assault Response Team (DVSRT) which has a significant social media presence and an informative website.
Secondly, we need shelters. It is easy to say “leave, just leave.” But leave to where? Many women who we have supported have no support from their families for varying reasons, meaning they cannot return to their family. Others have been prevented from working by their abusers and so have no income to rent a home or even go to a hotel temporarily. A few organisations have shelters. A few states as well like Lagos State. But even those are overwhelmed. So shelters are a really big gap in our support for domestic violence survivors.
We also lack a fund for domestic violence. The Ekiti State law on gender-based violence provides for such a fund, but many other legislation, including the most recent Violence Against Persons (Prohibition) Act, 2015 which applies in the Federal Capital Territory, do not provide for such a fund. What this means is that there are limited funds to support survivors of domestic violence who are brave enough to leave. It is left to non-governmental organisations like CHELD, amongst others to raise funds to provide this support. This often means that one can only support very few survivors.
We also need to address divorce and custody issues. Many women balk at leaving because they are worried that their children will be taken from them. In many of such homes, the woman is the primary care giver and yet in a situation of domestic abuse, one of the threats that is often held over her head is that she will lose the children. We need funds towards legal aid for organisations that support these women. We need the judiciary to understand that the emotional needs of children is also a factor in considering their best interests, and to be willing to order child support rather than looking only at which of parties, husband or wife, has more financial means. We need welfare officials to be less corrupt and to put the best interests of the children first. We need welfare officers to be trained on domestic violence. We need police officers to be trained and to apply their training to support survivors when they receive reports.
You can tell that I can spend the whole interview discussing this. But, essentially, we must take action to provide effective support for domestic violence survivors to enable more survivors consider “leaving to live,” (many thanks to Olubunmi Ajai Layode (Olu Bunmi), for popularizing this phrase).
Can you tell us three things one should never tell or ask a domestic violence victim?
“What did you do to cause this?”
“What did you say and how did you say it?”
“How can you let them do this to you?”
There are other questions which are also a no-no. But I have chosen those that tend to blame the survivors. Blaming the survivor is not only not right, it is unhelpful. It is more helpful to support them to figure out that they deserve to be treated better.
Tell me, did you always want to be a lawyer or it just happened?
In many ways, it just happened! Which will surprise those who know me well, because I have planned out dreams and ambitions. I wanted to study Economics like my Dad, but Maths was not my strongest suit. I have always loved words and loved literature, so I gravitated to the next best thing – Law. Apparently, this is a common thing amongst those of us who read Law. Now as a lawyer, who has a doctorate degree in law, and has been involved in many aspects of law – consulting, academia, solicitor-type work – I would say I find it extremely interesting and engaging as well as an avenue to do impactful and meaningful work.
With so much interest in health, why didn’t become a medical doctor?
My mother wanted me to be a doctor, but it never really called to me when I was younger. I was also academically stronger in, and inclined to the arts and humanities, so that moved me away from medicine. Having said that, as a health lawyer, I have a keen interest in medicine and I admire the work that doctors do. When I speak to them, they often imagine that I am a medical doctor myself. The human body is extremely fascinating. Organizing a health system that caters effectively to the health of humans is just as captivating to me. All aspects of health from health financing to health care quality to clinical trials interest me. Applying law to them is especially interesting to me, for example, how can the law contribute to preventing what happened with the Pfizer scandal – experimentation with children (and adults) without adequate safeguards? In this regard, my forthcoming book from Routledge UK explores the regulation of health research in African countries - https://www.routledge.com/Health-Research-Governance-in-Africa-Law-Ethics-and-Regulation/Onyemelukwe-Onuobia/p/book/9781138036772
You are also a writer; how do you find time for all these activities?
It is tough to try to accomplish all that I would like to do, to be honest. I try to focus on what I would like to accomplish rather than the obstacles. And because I want to achieve excellence, I also try to be present in whatever I am doing – be a lawyer when I am lawyering, a teacher when I am teaching, a writer when I am writing. While I am not always hundred per cent successful in juggling, I take advantage of the support that I do have. I am grateful for the support that makes it possible for me to do all I do: from an incredibly supportive husband, from other members of my family, from those who help me with managing responsibilities at home and at work.
What inspires your writing?
In a word: life. Living life at this time in the world, and in Nigeria in particular, gives me so much to think about. Because I have always loved fiction and reading, that thinking comes out in writing. Whether we are talking gender, our politics, how we live with each other inside and outside families, how we fail, how we triumph, our individual, family and collective histories, all of that inspire my writing. Academic writing helps me process solutions in a systematic, analytical way – with arguments and counterargument. Fiction helps me process what I may not be able to engage with in a scientific, academic or legal way, but which hits one at the core. My first novel is forthcoming from Penguin Random House South Africa in the coming year, which is exciting!