A Case for the Justiciability of Reproductive Rights of Women in Nigeria

CONTRIBUTED OBIORA IFEDIORA

INTRODUCTION

The exercise of rights in relation to reproductive health has been a matter of international concern over the years. The International Conference on Population and Development (ICPD) held in Cairo in 1994 marked the acceptance of a new paradigm in addressing human reproduction and health^[1] and emphasised the importance of meeting the needs of individuals in improving their quality of life. Notwithstanding the age-long international recognition of reproductive rights, reproductive rights of women in Nigeria is rather a novel phenomenon due to reasons which shall be seen in the body of this work. This discussion poses and answers questions such as: what do reproductive rights entail? What is the constitutional guarantee of these rights? Is such a guarantee by the constitution justiciable? What are the relevant frameworks which promote the reproductive rights of women in Nigeria? What are the impediments which hinder the free exercise of reproductive rights?

Meaning and Scope of Reproductive Rights of Women

Simply put, reproductive health refers to the overall well-being and maintenance of the reproductive system, including physical, mental, and social aspects, to ensure individuals can have safe and satisfying sexual experiences, make informed decisions about their reproductive choices, and have access to appropriate healthcare services.^[2] It is not merely the absence of disease and infirmity but a state of complete physical, mental and social well-being, in all matters relating to the reproductive system and its functions and processes.^[3] It encompasses access to voluntary, comprehensive and sexual health information, education and services.^[4] Importantly, reproductive rights cover a wide range of services. These services as outlined in the ICPD Programme of Action, include family planning counselling, information, education, communication and services. Additionally, they encompass education and services for antenatal care, safe delivery and post-natal care, prevention and treatment of infertility, sexually transmitted diseases including HIV/AIDS, and active discouragement of harmful practices like genital mutilation,^[5] among others.

The Nigerian Constitution and the Reproductive Health Rights of Women

Health is an issue of central concern to all countries and societies as it is a crucial cornerstone for socio-economic development and progress.^[6] It has been viewed as a fundamental right which should accrue to citizens of a country because of its importance. To reflect the importance of health, the International Conference on Primary Health Care (Alma Ata) 1978, affirmed that health is a fundamental human right and that the attainment of the highest possible level of health is a most important worldwide social goal, the realization of which requires the action of many other social and economic sectors in addition to health sector.^[7]

Need it be pointed out that notwithstanding that the right to health is recognised by most international instruments and conventions as a fundamental right, the Nigerian constitution did not include the right to health as a fundamental right under Chapter IV, even though the right to health is necessary to enjoy right to life.

However, the health provision is covered under Chapter II of the constitution. In a bid to promote its social objectives, the CFRN 1999 provides that the state shall direct its policy towards ensuring that the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;^[8] and that there are adequate medical and health facilities for all persons.^[9]

The CFRN 1999 (as amended) did not specifically provide for the reproductive rights of women but made a broader provision that there should be health facilities which should be accessible to all persons. Since there is no specific provision in the CFRN 1999 (as amended) for rights to reproductive health, the resort is rather made to these broader provisions which cover the health of the people, including reproductive health.

However, though the CFRN 1999 (as amended) has made provisions which could cover the reproductive health rights of women, the said provisions are non-justiciable, ab initio. The provisions of Chapter II of the CFRN 1999 (as amended) have been precluded from adjudication by the Nigerian courts. Thus, no breach, howsoever, can arise from the non-compliance with the said provision by the government and no action can be made against the government for non-compliance with Chapter II of the CFRN.

The CFRN made a provision to the effect that the judicial powers of the court shall not, except otherwise provided by the CFRN, extend to any issue or question as to whether any act or omission by any person conforms with the objectives and policies set out in Chapter II of the Constitution.^[10]

Nigerian Courts have also severally made declarations on the import of section 6(6)(c) of the CFRN 1999. In the University of Illorin v Adesina,^[11] the court declared that the constitution by the provision of section 6 (6)(c) divests the courts of their adjudicatory powers on any issue set out in Chapter II of the CFRN. This entails that no person can bring an action against the government for failure to ensure that access to reproductive health is granted and that reproductive rights are not breached.

Other Legal Instruments Which Promote the Reproductive Rights of Women

Notwithstanding the foregoing, the right to reproductive health has been recognized in other legal instruments which are geared towards ensuring that these rights are guaranteed and protected.

The Nigerian Labour Act provides that a woman in her place of work shall have the right to leave her work if she produces a medical certificate given to her by a registered medical practitioner stating that her confinement will probably take place within six weeks.^[12] Within this period following her confinement, the law provides that she is not to be permitted to work.^[13] This provision promotes the reproductive rights of women as it gives them ample time to plan for antenatal care and post-natal care. It also prioritizes their health and well-being during the final weeks of pregnancy.

The Universal Declaration of Human Rights (UDHR) 1948 recognizes the right to reproductive health by affirming that everyone has the right to a standard of living adequate for the health of himself and his family including food, clothing, housing, medical care and necessary social services.^[14] It also upholds principles of non-discrimination and equality,^[15] ensuring that individuals have the right to make decisions about their reproductive health free from coercion, discrimination, or violence.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 provides that state parties should recognize the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health.^[16] Reproductive health rights are encompassed within the broader framework of the right to health, which includes access to reproductive healthcare services, family planning information and services, and the right to make decisions regarding reproduction, to mention but a few.

The ICPD Programme of Action, as noted earlier in this work, specifically provided for reproductive health rights. Given the definition of reproductive health rights, it is understood that reproductive health encompasses specific human rights which are already recognized in natural laws. In furtherance, these rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children, along with access to necessary information and resources to exercise this control, and the entitlement to achieve the highest standard of sexual and reproductive health.

Barriers Obstructing the Fulfilment of Reproductive Health Rights in Nigeria

One fact which must be pointed out before delving into discussions under this head is that there is no law enacted in Nigeria specifically for the reproductive health rights of women. No such provision was made in Chapter IV of the constitution, and Chapter II of the constitution, which broadly provided for health rights generally, is made non-justiciable by the constitution.

Some reasons for the impediments to the full realization of reproductive health rights in Nigeria include:

The non-justiciability of social and economic objectives and policies of the constitution. The constitution which made provisions for the duty of the government in ensuring that good health and access to health facilities are promoted turned around to take away this duty from the government by making Chapter II of the constitution non-justiciable. By this act, the responsibility of the government to promote health rights including reproductive health rights becomes more theoretical than practical.

Secondly, some Nigerian culture and practices hinder the full realization of reproductive health rights in Nigeria. Some practices like female genital mutilation (FMG) which is still practiced in some parts of Nigeria^[17] hinder the full realization of reproductive health rights.

Furthermore, religion is another factor hindering the full realization of reproductive health rights. Religion in Nigeria influences the government. For example, one issue which has developed a serious debate is the issue of abortion and reproductive rights. The Criminal Code provides that any person who procures the miscarriage of a woman whether or not she is with a child is guilty of a felony and liable to fourteen years imprisonment.^[18] Similarly, a woman who procures her own miscarriage is guilty of a felony and liable to imprisonment of seven years.^[19] It is believed in Nigeria that termination of pregnancy no matter the stage of the pregnancy is an interference with the right to life. However, it is as though the rights of women who may be victims of unwanted pregnancies, like rape victims, are neglected. They are prohibited by that provision to decide what to do with the pregnancy which they never wished to have in the first place.

Finally, the lack of access to comprehensive sexual education. Sex education is still a reserved topic in Nigeria, therefore making a lot of people ignorant of their rights to reproductive health. It seems to be a taboo in some cultures in Nigeria to educate children who are of age about sex education and their rights to reproductive health. This makes children, adolescents and youths generally prone to the abuse of their reproductive health rights.

CONCLUSION

In conclusion, the case for the non-justiciability of reproductive rights in Nigeria underscores a complex interplay of cultural, religious, and legal factors. While acknowledging the importance of reproductive rights in promoting individual autonomy and well-being, it is evident that the current legal and societal landscape in Nigeria presents significant challenges to their effective enforcement through judicial means.

Therefore, it is recommended that Chapter II of the Constitution should be made justiciable to allow the full realization of reproductive health rights. Furthermore, considering the importance of reproductive health rights, there should be an inclusion of reproductive health rights as a fundamental right of citizens. Finally, sex education should be encouraged to make youths and citizens generally, aware of their rights to reproductive health. This can help them make decisions regarding their reproductive health.

1. Sharlev C, ‘Rights to Sexual and Reproductive Health – the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women’, <https://www.un.org/womenwatch/daw/csw/shalev.htm> accessed 23^rd March, 2024 ↑
2. Principle 7.2, ICPD ↑
3. Ibid ↑
4. Imasogie, MO., ‘Reproductive Rights as Human Rights’, Essay in Human Rights Law (2004), Department of Commercial and Industrial Law, Faculty of Law, Ebonyi State University, (pp 98-123) ↑
5. Ayanleye, OA, ‘Women and Reproductive Health Rights in Nigeria’, <https://staff.oouagoiwoye.edu.ng/uploads/359_COURSES_Women_and_Reproductive_Health_Rights_in_Nigeria__11444.pdf> accessed 23^rd March, 2024 ↑
6. Ibid ↑
7. Declaration II, Alma-Ata 1978 ↑
8. Section 17(3)(c), CFRN 1999 ↑
9. Section 17(3)(d), Ibid ↑
10. Section 6(6)(c), CFRN 1999 as amended ↑
11. (2008) LPELR-CA/IL/54/2006 ↑
12. Section 54(1)(a), Labour Act 19711 ↑
13. Section 54(1)(b), Ibid ↑
14. Article 25(1), UDHR 1948 ↑
15. Article 2, Ibid ↑
16. Article 12(1), ICESCR 1966 ↑
17. Ayanleye, OA, ‘Women and Reproductive Health Rights in Nigeria’, <https://staff.oouagoiwoye.edu.ng/uploads/359_COURSES_Women_and_Reproductive_Health_Rights_in_Nigeria__11444.pdf> accessed 23^rd March, 2024 ↑
18. Section 228, Criminal Code ↑
19. Section 229, ibid ↑