Is extant legal framework protecting the sexual and reproductive rights of the Nigerian woman? YEJIDE GBENGA-OGUNDARE in this piece explore factors that answer the concerns on the attainment of reproductive health rights, lack of specific legislation, and the seeming unwillingness to domesticate international protocols that Nigeria co-signed.
The issue of reproductive and sexual health rights has not always been an open discussion in the African society, repressed mainly by cultural beliefs, including in Nigeria, despite the prevalence of maternal mortality and morbidity. According to statistics in the OIDA International Journal of Sustainable Development, every day, Nigeria loses 145 women of childbearing age from complications of child birth leading to more focus on health issues and the right to health. But while the right to health has been recognised globally since reproductive health rights gained formal acceptance in 1993, the need for women to have access to quality reproductive health services such as medical care, planned family, safe pregnancy, delivery care and treatment and prevention of sexually-transmitted infections, while gaining recognition, cannot be said to have been given its due pride of place.
Nigeria, currently, ranks high amongst countries with the highest maternal mortality and morbidity rate. UNICEF statistics indicated that Nigeria is the second largest contributor to the under–five and maternal mortality rate in the world. And in spite of the global recognition of the right to health as a human right, Nigeria is yet to embrace the concept as there is no specific legislation on the right to health or specific laws on sexual reproductive rights, while discourse on reproductive health rights is still relatively novel in Nigeria.
This is contrary to the international agreement on sexual rights which Nigeria took part in; at the International Conference on Population and Development (ICPD) in Cairo in 1994, where the need to meet the reproductive health needs of individuals and couples as a key approach to improving quality of lives of people and stabilising the world population was highlighted. On record, Nigeria was part of nations that approved the historic Programme of Action that emanated from the ICPD and committed herself to the implementation of the Reproductive Health concept.
Worrying statistics
Reproductive rights and justice are considered globally to be critical components of human rights that address the autonomy and well-being of individuals in making decisions about their reproductive health, family planning, and parenthood. The three core values of reproductive justice, are the right to have a child, the right not to have a child, and the right to parent a child or children in safe and healthy environments, based on the belief that all human rights, including reproductive rights, are God-given; as such, no one should be deprived of these rights.
The concept of reproductive justice is on the ground that it is important for people to control their reproductive health care and the right to control the size of their families especially in countries like Nigeria which has the highest maternal mortalities with a large figure coming from unsafe abortion; an estimated 61,000 women die annually in Nigeria from unsafe abortion or complications.
In 2012, an estimated 1.25 million induced-abortions reportedly occurred in Nigeria. This is equivalent to a rate of 33 abortions per 1,000 women aged 15 to 49 with an estimated unintended pregnancy rate of 59 per 1,000 women, aged 15 to 49; 56 percent of unintended pregnancies were resolved by abortion and about 212,000 women were treated for complications of unsafe abortion, representing a treatment rate of 5.6 per 1,000 women of reproductive age and an additional 285,000 experienced serious health consequences but did not receive the needed treatment.
These figures are not unexpected because the laws in Nigeria restrict and criminalise abortion, except if it is done to save the mother’s life and there are no specific laws on sexual rights. These legal constraints contrast the provisions of the Maputo Protocol on the Rights of Women in Africa, which calls for comprehensive sexual and reproductive rights for women, including safe abortion access in certain circumstances. And it is of note that Nigeria is a signatory to the Maputo Protocol but its provisions on reproductive rights are yet to be implemented and the concept of Sexual and Reproductive Health and Rights (SRHR) still seems alien.
Reproductive health as fundamental right
The importance of being healthy and getting good healthcare for all is the focus of the Alma Ata declaration of 1978 which states that health is a fundamental human right and its attainment is a most important social goal worldwide. The International Conference on Population and Development (ICPD) meeting of 1994 with 179 governments adopting a revolutionary Programme of Action, called for women’s reproductive health and rights to take centre stage in national and global development efforts. At the gathering, reproductive health was described as a state of complete physical, mental and social wellbeing and not just the absence of disease or infirmity. ICPD takes good health to include a satisfying and safe sex-life capacity to reproduce and freedom to determine if, when and how to reproduce and how often to do so.
Sexual and reproductive health and rights are fundamental human rights that are related to sexuality and reproduction. These rights allow people to make informed and meaningful decisions about their own sexual wellbeing, such as their sexual orientation, relationships, sexual activity, family planning or their bodies.
Human rights are rights that every single human being on earth is born with and these are written in the Universal Declaration of Human Rights which was signed by 192 countries and sexual and reproductive health and rights are in particular important to young people and women because it is their right to have access to the correct information and services to positively influence their sexual health and future lives.
Nigeria has a number of policies in the health sector that are relevant to reproductive health; they include the National Health Policy and Strategy 1988 and 1998, with a number of provisions. There is also the National Policy on Population for Development, Unity, Progress and Self Reliance, Maternal and Child Health Policy, National Adolescent Health Policy, National Policy on HIV/AIDS/STIs Control, National Policy on the Elimination of Female Genital Mutilation and Breastfeeding Policy.
The reproductive health policy upholds primary health care as the key to health development in Nigeria and recognises that the implementation of reproductive health should be in the context of primary health care, as stated at the ICPD.
The Nigerian policy statement on reproductive health includes protection of reproductive rights through the creation of an enabling legal environment, by the amendment and repeal of all laws contradicting reproductive rights principles and the enactment of appropriate legislation. This is to protect the rights of all people to make and act on decisions about their own reproductive health, free from coercion or violence and based on full information within the framework of acceptable ethical standards. It is also meant for the formulation and enforcement of legal instruments to support activities, aimed at eliminating the practice of female genital mutilation and other forms of harmful practices such as gender-based violence especially sexual violence and rape, including the removal of all forms of barriers that limit access to comprehensive, integrated and qualitative reproductive health care.
The policy also aims to serve as an effective national platform for strengthening reproductive health activities in Nigeria and facilitating the achievement of relevant global and regional goals in the interest of improved health, well-being and overall quality of lives of all people in Nigeria.
However, while the provisions of many of these policies are relevant to promotion of reproductive health, the existing relevant laws do not support some of the principles enunciated in these policies
Legal frameworks
While the right to health is fundamental and indispensable for the enjoyment of other human rights, there is no specific legislation on the right to health in Nigeria. An Assistant Professor at the College of Law, Bowen University, David T. Eyongndi, stated in his paper on an overview of the legal framework on sexual and reproductive rights in Nigeria that “while there may not be subject specific laws on sexual and reproductive rights, there are aspects of the constitution that cover it.”
Laws that can be used to treat issues of reproductive rights in Nigeria include; Sections 4, 17 and Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, Sections 9 (3), 12, 404, 415 and 466 of the Administration of Criminal Justice Act 2015, Sections 1, 9, 10, 11 and 12 of the Violence Against Persons Prohibition Act, 2015, Section 54 of the Labour Act 1976, African Charter on Human and Peoples Rightd 1981, the Additional Protocol on Women’s Rights to the African Charter 2003 and the Convention on the Elimination of all Forms of Discrimination Against Women.
There are international instruments to which Nigeria is a State party, which include; Article 25(1) of the Universal Declaration of Human Rights (UDHR) International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination of 1965, Articles 11(1) (f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979 and in article 24 of the Convention on the Rights of the Child of 1989.
Indeed, CEDAW devotes a major attention to women’s reproductive rights as it states in its preamble that “the role of women in procreation should not be a basis for discrimination”.
The Maputo Protocol, titled “the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa”, is an international legal instrument adopted by the African Union in 2003. Its scope encompasses a comprehensive recognition of diverse facets of women’s rights, including their reproductive rights. These rights are to ensure women’s entitlement to accessible and sufficient healthcare services, encompassing sexual and reproductive health provisions, affirming the right of women to regulate their fertility and make decisions pertaining to reproduction, including determining the number of children they wish to have as well as recognising women’s right to access secure abortion services in cases involving sexual assault, rape, incest, or instances where continuing the pregnancy jeopardises the woman’s physical or mental well-being among others.
Militating factors
Apart from the laws, societal perspectives, religious convictions, and limited knowledge, among other factors, can be said to be the leading contributors to the mortality rate in Nigeria. The provisions of Chapter II of the Constitution have been excluded from adjudication by the courts, thus, no right of action can ensue from the breach of the provisions of the said chapter by the government. In a plethora of cases, the courts have upheld the non-justiciability of the provisions of the chapter. Examples of such are Okogie v. A.G. Lagos State [1981] 2 NCLR, 337 and Ehimare v. Governor of Lagos State [1981] 2, NCLR, 166).
The traditional African values and societal norms view reproduction and sexual practices as private issues not meant for public discussion, making it unacceptable to advocate for sexual rights and reproductive choices. Also, there are statutory, cultural and religious factors militating against women’s reproductive health rights and they have been a major cause of women’s continued oppression.
Aside from the cultural forms of discrimination, there are also several discriminatory legislations against women’s reproductive health rights. A good example of this is the Nigeria Police Regulation which provides that the qualification which must be possessed by a woman in order to be eligible for enlistment in the Nigerian Police Force as a recruit Constable in subsection (g) is that the woman must be unmarried. Also, Section 127 of the regulation provides that an unmarried woman police who becomes pregnant shall be discharged from the force and shall not be re-enlisted except with the approval of the Inspector General of Police and a police woman that wants to marry must apply to the Commissioner of Police for the State Command in which she is serving, requesting to marry and also supply the name, address and occupation of the spouse to be.
But no similar provision is applicable to the male counterpart.
Also in the Criminal Code, Section 353 says any person who unlawfully and indecently assaults any male person is guilty of a felony and is liable to imprisonment for three years but Section 360 states that any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.
Though the right to reproductive health in Nigeria seems to be a mirage as a result of inadequacy or lack of implementation of laws and policies as well as the fact that the concept of reproductive rights and justice remains entangled with culture, religion, socio-economic status and gender issues, this is not due to lack of efforts by stakeholders.
In spite of substantial hurdles, there have been continuous efforts by several groups to fight for legal and legislative reforms over the decades. The Nigerian Medical Association (NMA) and the National Population Council (NPC) in 1972 and 1975, respectively tried to reform the laws but got no support. Also in 1981, the Society of Obstetricians and Gynecologists in Nigeria (SOGON) sent a Bill to the House of Representatives on the termination of pregnancy but the bill didn’t make it beyond the first reading as it met with a lot of hostility and resistance from various religious groups and the National Council of Women’s Societies because they believed it would promote gross immorality.
In 1991, the Campaign Against Unwanted Pregnancy (CUAP) was formed, with the primary mission to defend women’s sexual and reproductive rights and eliminate unsafe abortion by reviewing abortion legislation but it also met with stiff opposition.
Stakeholders speak
Professor Eyongndi, reasoned in his paper that “under the constitution of the Federal Republic of Nigeria 1999, Section 12 provides that for any international treaty that Nigeria is a signatory to, for it to become binding in Nigeria, the national assembly must domesticate it and make it a local law for it to take effect. So merely being a signatory member to it is not enough, although under international parlance, it makes Nigeria to have an obligation which they cannot just absolve themselves from, but its enforcement will just be a matter of respect and fidelity to it because there is nothing that will compel the country to use it and individuals cannot use the law except they are domesticated
“Unless these laws like the CEDAW and Maputo convention are domesticated in Nigeria, there is little or nothing that stakeholders that fight this menace can do. We are hoping the government will domesticate these conventions so Nigerians can seek enforcement and go to court to fight for their rights,” he added.
Olusola Olayinka Sulayman, the Oyo State FIDA chairperson while speaking on reproductive rights and available rights women have in terms of their reproductive health and issues of rape, said “there aren’t much laws protecting women in terms of reproductive health and it is very difficult to prosecute rape cases due to reason like unwillingness of victims to give evidence during the trials due to pressure from families, friends and community leaders of the accused person.
“Also, we have non availability of investigative police officers, lack of seriousness of prosecutors, manipulation from different quarters and pressure on the raped person and the unprofessional approach of interrogating rape victims by police officers and asking questions that make victims feel harassed and demoralised. So it is always difficult for women to fight for reproductive rights or get justice in rape cases.”
Bibi Onasanya, an advocate stated that “the state of access to reproductive health in Nigeria is still below internationally acceptable standards and government efforts aimed at improving same is noncommittal.
“It is imperative that Nigeria moves beyond doctrinal debates and become a society that cares about the health, safety, and welfare of all women including women who for whatever possible reasons opt out of childbirth. The sooner the government and indeed the citizens accepts that the laws and social constructs we currently have in place are not just failing to stop women from getting abortions, but are actually directly putting women in harm’s way, and simultaneously draining our health and economic sectors, the better for us all.”
On her part, Oluwabunmi Fola-Bolumole said, “because of the far-reaching consequences of unintended pregnancy, there is need for the implementation of programs that emphasise the importance of pregnancy planning, free sexual education, accessible medical services and provision of support for mothers who are already varying an unintended pregnancy to term.”
