AN EXAMINATION OF THE PROTECTION OF WOMEN’S RIGHT TO HEALTH UNDER INTERNATIONAL LAW: A CASE STUDY OF NIGERIA
Abstract:
Every individual is entitled to the full protection of their rights because they are human beings. Men and women also experience health challenges but because women go through some biological and social processes that carry health risks like pregnancy and child birth they require adequate health care to be able to fulfil these roles. The research aimed to examine women’s right to health as a neglected issue that leads to maternal and infant mortality; to examine women’s right to health as a fundamental human right whose importance is such that no derogation should be encouraged and also to explain how socio-cultural practises contribute to abuse of women’s right to health. The main objective of the research is to show that the Nigerian legal system has not been able to capture the extent of women’s right to health under several international Conventions that Nigeria is a party to. In line with these aims and objectives, questionnaire and interview survey was administered on health professionals and women, hospitals were also visited in order to determine how lack of healthcare facilities and personnel affect the status of women’s health in Nigeria. The methodology used in the research is both empirical and doctrinal. The research observed that there is a plethora of international and national laws and instruments that aim at protecting women’s right to health but lack of political will on the part of government and cultural beliefs hinder the enforcement of some of these laws. An analysis was made of the international and domestic legal framework for the protection of women’s right to health in Nigeria, the challenges militating against the protection of these rights were discussed and recommendations were proffered that Nigeria should be willing to perform its obligations under the international convention to which she is a party including the Protocol to the African Charter on Human and Peoples’ Rights in Africa also known as the Maputo Protocol, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Convention on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC) et cetera. Judicial Activism should be encouraged in Nigeria. The right to health should be treated as an extension of the right to life as has been done in India. This is because the provisions of Chapter 11 of the Indian Constitution are pari materia with Chapter 11 of the Nigerian Constitution on Fundamental Objectives and Directive Principles of State Policy.
CHAPTER ONE
GENERAL INTRODUCTION
Background to the Study
Men and Women are entitled to the full protection of their rights because they are human beings.1 At its most basic level, “human rights” are safeguarded prerogative granted because a person is alive.2 This means that all human beings have rights by virtue of human species membership. A right, therefore is a claim to something (by the right holder) that can be exercised and enforced under a set of grounds or justifications without interference from others. The subject of right can be an individual or a group, and the object is that which is being laid claim to as a right.3 Human rights are, therefore, those rights that every human being possesses and is entitled to enjoy by virtue of being a human being.
Health has been defined by World Health Organization (WHO) “as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity”.4 The preamble to the Constitution of the World Health Organization also proclaims that “the enjoyment of the highest attainable standard of living is one of the fundamental rights of every human being without distinction of races, religion, and political belief, economic or social conditions”.5
1Okagbue, I. (1996) Women’s Rights are Human Rights. Nigerian Institute of Advanced Legal Studies, Lagos p.1.
2 Oyedele, O.S (2006) ,Women‟s Rights in Africa: Myth or Reality, University of Benin Law Journal, Vol. 9(1) p.28.
3 Ibid.
4 World Health Organization, Preamble to the Constitution the World Health Organization (1948) adopted by the International Health Conference on July 1946. Opened for signature on July 22 1946, and entered
into force on 7th April, 1948.
5 Ibid.
Right to health as a fundamental human right was declared by the Universal Declaration of Human Rights (UDHR)6. Women‟s right to health has been declared as human right at Beijing, China.7 At the Conference, delegates from 189 countries committed themselves to upholding the equal rights and inherent dignity of women through the adoption of the Beijing Declaration. The Declaration called on governments to implement measures to eliminate discrimination and violence against women and girls, recognize women‟s rights as human rights; and within this context, control all aspects of their health and fulfil their responsibilities to respect women‟s human rights and humanitarian law.8
Women and men share many similar health challenges, but the differences are such that women deserve particular attention. They experience conditions that have negative impact on their wellbeing. Some of these are pregnancy and childbirth which are not diseases, but are biological and social processes that carry health risks and require health care. Throughout human history, pregnancy and child bearing have been major contributors to the health problem and disability among women. Maternal Mortality (the death of women during pregnancy, delivery or the post partum period) is a key indicator of women‟s health status.9 This indicator is very high in Nigeria, as it has been observed that over the past three and half decades, Nigeria has progressively shown one of the most abysmally poor reproductive health indexes in the world.10 Women‟s health should not be a problem only to women themselves. It is crucial to the health of the children they bear and their fitness for their roles both in the home and in public life. This underscores
6 United Nations, Universal Declaration of Human Rights (1948), Art. 25.
7 United Nations, (1995) , Fourth World Conference on Women in Beijing-China, September, 4-15.
8 Amnesty International, (2005) Stop Violence Against Women, Amnesty International Secretariat, London, p.22.
9 World Health Organization (2009), Today’s Women and Health Evidence, Tomorrow’s Agenda, WHO Press, Geneva, p.40.
10 Ladan, M.T (2007), Law and Policy on Health ,HIV-AIDS, Maternal Mortality and Reproductive Rights in Nigeria, Faith Printers and Publishers, Zaria, p.89.
the importance of providing sound healthcare for women as an investment not just for the present but also for the continuity of future generation. From the above, it is crucial that the underlying social and economic determinants of women‟s health, including education and employment, are important for the survival, growth and development of children.
Culture in Nigeria is a major culprit that adversely affects women‟s health. This manifests in various forms ranging from Female Genital Mutilation, early/child marriages, forced marriages, widowhood practices, unsafe traditional delivery practices, the preference of male children to female children, violence against women, et cetera. They contribute to the poor health index of the Nigerian women. The preference of male children to female children has direct impact on the psychological state of such female children as can be seen in this folksong: “why did you come oh girl? When we wished for a boy? Take a jar and fill it from the sea, may you fall into it and drown”11The song shows the resentment of the girl child in some parts of Africa and Nigeria. The resentment places a heavy burden on the socio-economic and psychological well being of women in Nigeria.
Notwithstanding all these, there are many International and National legislation and safeguards on women‟s right to health. In Nigeria, the Constitution12 did not make express provisions for ensuring the right to health but under Chapter II, it provides for the social objectives of government. Chapter IV13 on Fundamental Rights also provides for the right to life and right to the dignity of human person. The Labour Act14and the Criminal Code15 also make provisions to guarantee women‟s right to health.
There are several international instruments on Women‟s right to health, urging state parties to ensure the provision of such rights in their National Laws and to uphold
11 Oyelade, O.S,. op. cit. p.1.
12 Constitution of the Federal Republic of Nigeria, (CFRN) 1999 ( as amended).
13 Ibid, S.33 and 34.
14 Labour Act Cap L1, Laws of the Federation of Nigeria, 2004, S.54.
15 Criminal Code Act Cap C38 LFN, 2004. Chapter21 and part V.
the observance and protection of such rights. Some of these instruments include, but not limited to, the United Nations Universal Declaration of Human Rights (UDHR)16, United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)17, African Charter on Human and Peoples Rights,18 which has been ratified and domesticated by Nigeria; International Covenant on Economic, Social and Cultural Rights,19 Maputo Protocol on the Rights of Women in Africa20. All these are considered in details in the course of the work.
STATEMENT OF THE RESEARCH PROBLEM
Women suffer many health challenges especially during their reproductive years. Some of these challenges are not diseases but biological and social processes that carry health risks and require healthcare. Culture-based practices lead to poor health condition of women example, female genital mutilation, unhealthy widowhood practices, violence against women, early child marriage, certain traditional beliefs, et cetera. Lack of health care facilities and personnel at the grassroots, dearth of modern medical equipment and procedure is another problem militating against the actualization of women of right to health. There are National and International legislation that aim at protecting and safeguarding women‟s right to health, but the problem lies in implementation and lack of political will on the part of government to pursue policies and programmes advancing women‟s rights to their logical conclusion.
This thesis, therefore, is a research into the question, whether or not the non domestication of international conventions relating to women‟s right to health to which
16 United Nations, Universal Declaration of Human Rights (1948).
17 United Nations Convention on the Elimination of all Forms of Discrimination against Women (1979).
18 African Charter on Human and Peoples‟ Rights (Ratification and Enforcement) Act, Cap. A9 Laws of the Federation of Nigeria, 2004.
19 1966.
20 A protocol to ACHPR adopted in Maputo, Mozambique on 11th July, 2003 and came into force, 2005.
Nigeria is signatory is a major cause or contributory to the non existence of the right to health for women in Nigeria.
EMPIRICAL RESEARCH QUESTIONS
Do women suffer from health challenges during their reproductive years that are not necessarily disease based but biological and social processes that carry health risks and require health care?
Are there culture based practices that contribute to the poor health status of women in Nigeria?
How does lack of health care facilities and personnel especially at the grass roots affect the status of women‟s health in Nigeria?
What are the components of women‟s right to health and how do they affect maternal mortality in Nigeria?
AIMS AND OBJECTIVES OF THE RESEARCH
Main objective
To show that the Nigerian legal system has not been able to capture the extent of women‟s right to health under several international Conventions that Nigeria is a party to.
SPECIFIC OBJECTIVES
To study the extent to which Nigeria has been able to measure up to international standards in terms of domestication of International Conventions on women‟s right to health to which Nigeria is
To explain how socio-cultural practises contribute to the abuse of women‟s right to
To show that non-domestication of International Conventions on women‟s right to health and non-provision of punitive measures against the abuse of these rights in Nigerian National Laws is a major reason for the persistent practise of harmful cultural practises in Nigeria against
SCOPE AND LIMITATION OF THE RESEARCH
This research focuses on the applicability of International Conventions on women‟s right to health in Nigeria. It examines the effect of non-domestication of International Conventions on women‟s right to health in Nigeria. It further examines the effect of negative socio-cultural practises on women‟s right to health by gathering information from experienced experts in the field of women‟s health. It seeks to find out the extent to which International Conventions on women‟s right to health have been able to protect women in Nigeria.
The limitation faced in the course of this research is insecurity. The researcher could not travel to many parts of the country to carry out the empirical research because of insecurity problems prevalent in the country. Another limitation is lack of funds to travel extensively in order to gather information and materials for the work.
JUSTIFICATION
Nigeria is a party to numerous International Convections that protect women‟s right to health like the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)21 International Convention on Civil and
21 United Nations CEDAW (1979) adopted by United Nations GENERAL Assembly in 1979.
Political Rights (ICCPR),22 International Convention on Economic, Social and Cultural Rights (ICESCR),23 Convention on the Rights of the Child (CRC),24 African Charter on Human and Peoples‟ Rights (ACHPR),25 The Protocol to the African Charter on Human and Peoples‟ Rights26 among others, but only the ACHPR have been domesticated. The Protocol to the African Charter on Human and Peoples‟ Rights which make very specific provisions on women‟s right to health in Article 14 has not been domesticated. The non- domestication of these International Conventions to make them applicable in Nigeria as part of our National Laws as provided by section 12 of the constitution 27 have made them ineffective in the protection of women‟s right to health in Nigeria.
Following from these lack of protection, many women die in pregnancy and child birth in Nigeria as indicated by the maternal mortality ratio which is 576 to every hundred thousand live birth 28These deaths are preventable if government live up to their responsibilities towards its citizens by providing healthcare and putting adequate legislation in place to punish those that abuse women‟s right to health. This research is also necessary to show that socio-cultural practises like female genital mutilation, child/early marriages, negative widowhood practises as problems that violate women‟s right and, therefore, women need protection by application, enforcement and implementation of legislation and policies on the issue.
22 ICCPR adopted by United Nations General Assembly in 1966 and entered into force in 1976. 23 ICESCR adopted by United Nations General Assembly in 1966 and entered into force in 1976. 24 CRC adopted by United Nations General Assembly in 1989 and entered into force in 1990.
25 African Charter on Human and Peoples‟ Rights (Ratification and Enforcement) Act, Cap. A9 Laws of the Federation of Nigeria, 2004.
26 This Protocol was adopted in Maputo Mozambique in 2003 and entered into force in 2005.
27 Constitution of the Federal Republic of Nigeria, 1999 (as amended).
28 National Population Commission (NPC) [Nigeria] and ICF International (2014) Nigeria Demographic and Health Survey 2013. Abuja, Nigeria and Rockville Mary Land USA, NPC and ICF International.
RESEARCH METHODOLOGY
The methodology for this research is both doctrinal and empirical. Primary and secondary sources of information are used in the research. The primary sources of doctrinal research include International Conventions, the Nigerian Constitution, the Penal Code, the Criminal Code, the Labour Act, the Marriage Act, the Child Rights Act. The secondary sources include books, journals, articles and the internet. For the empirical research method, questionnaire and interview survey was administered on health experts like doctors, nurses, midwives and female patients and women generally.
LITERATURE REVIEW
There are many writings on human rights generally and on women‟s rights in particular.
Rebecca Cook, Bernard Dickens and Mahmoud Fathalla29 are of the view that, the right to health is an inclusive right which contains both freedoms and entitlements. The freedoms includes the right to control one‟s health and body including sexual and reproductive freedoms, and the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest level of health. The health care system has obligations to people‟s right to health. It has the obligations to respect, protect and fulfil the right to health. It has to respect and protect the freedoms and fulfil the entitlements embodied in the human right to health. According to them,30 reproductive health is special, maternity is not a disease, it means the propagation of our species. It is a risky business which women undertake. Women
9 Rebecca Cook et al (2006) Reproductive health and human Rights integrating medicine, ethics and law,
Oxford University Press, New York, p.37.
30 Ibid p. 57.
have a right to be protected when they go through risks for survival of our species. They are of the view that reproductive and sexual ill-health do not occur in a vacuum, but are conditioned by combine laws and values31
Some other writers have advocated that socio-cultural factors contribute to the denial of women‟s right to health. According to Eze32 in spite of Article 18(3) of the African Charter which provides that states should ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child stipulated in International Declarations and Conventions, women are still being discriminated against in social, political, economic and cultural fields. From the view of Adebayo33, there are certain age long socio-cultural practices that hinder women from fully enjoying their rights. He identifies these as cultural practices and attitudes passed from one generation to another which have been powerful obstacles to women‟s enjoyment of their human rights.
Enemuo34 identifies another practice which infringes on women‟s right as early girl/child marriage which also denies her opportunity to acquire education and sellable skills that will have direct impact on her economic status, and will ultimately limit her ability to take care of her health. In the words of Rebecca Cook,35 women‟s health is often compromised not by lack of medical knowledge, but by infringements on women‟s human rights. These take the form of female genital mutilation, rape, lack of access to family planning and reproductive health education, etc
1 Ibid p. 4.
32 .Eze, O. (1984) Human Rights in Africa: Some Selected Problems, Nigeria Institute of International Affairs, Lagos, p.149.
33.Adebayo, A. (1989) African Women in Development, Selected Speeches, United Nations Economic Commission for Africa, Addis Ababa, p.44.
34 Enemuo, F.C (1999), Gender and Women Empowerment, in Remi Anifowose and Francis (ed), Elements of Politics, Lagos, Malt house, Lagos, p.227.
35 Cook, R J and Fathalla M.F (1996), Advancing Reproductive Rights Beyond Cairo and Beijing,
International Family Planning Perspective, 22, p 115.
According to Bogecho, D36 for a woman to die from pregnancy and childbirth is a social injustice, such deaths are rooted in women‟s powerlessness and unequal access to finances, education basic health care, employment and other resources. Today, after decades of struggle, the right to health has finally been articulated in international treaties and is slowly being implemented as a human right in few countries.
Omoyemen Odigie Emmanuel37 is of the view that adequate maternity leave is important to enable the Woman‟s body to recover after delivery but a study of the Nigerian Workplace has revealed that “a gap is identified between law and practice with wide patterns of protection resulting in some women enjoying good benefits, while others are wholly or partly unprotected within the Nigeria workplace.” According to him, by virtue of the Protocol to the African Charter on Human and people‟s Rights, Nigeria women are guaranteed the right to health including sexual and reproductive rights among other rights, and the obligation of the Nigerian government having ratified the protocol includes enactment of appropriate legislation to protect women‟s rights to health. He mentioned the patriarchal structure of the Nigerian society and failure of government to domesticate this protocol as serious hindrance to the realization of Women‟s Rights in Nigeria.
Asikia Ige38 is of the view that the health status of the Nigerian Women has been affected by a general lack of access to qualified personnel and adequate health facilities especially in rural areas. According to him, the Situation Analysis on Children and Women carried out by the United Nations Children‟s Fund (UNICEF) and the Federal
36 Bogecho , D (2004) Putting it to Good use : The International Covenant on Civil and Political Rights and Women‟s Right to Reproductive Health, Law, Social Justice and Global Development Journal (LGD) (1) p,3.
37 Omoyemen Odigie-Emmanuel (2010) “Assessing Women‟s Rights in Nigeria Washington, DC Foreign
Policy in Focus, retrieved from http://www.FPIF.org/articles/assessing – Women‟s -Rights-in-Nigeria assessed on 14th February, 2013.
38 Asikia , I. (2012) Women and the Right to Health in Nigeria: The Intersections, British Journal of Arts and Sciences. British Journal Publishing inc retrieved from http://www.bjournal.co.uk/BJASS.aspx.
Government of Nigeria shows disparity between Urban and Rural dwellers. For example, trained hospital personnel assist in delivering only 60% of urban babies and 29% of rural babies while traditional birth attendants (TBAS) delivered 46% of rural and 22% of urban children. The report identifies inadequate pre-natal care whereby pregnancies that are at risk are not quickly identified, thus, mothers in the rural towns are at higher risk of maternal death.39
According to Okagbue,40 the issue of women‟s rights has not been given serious consideration under international human rights instruments. He is of the view that some of the myopia on the human rights instruments on women no doubt stem from the overwhelming male composition of the structure of the international legal order, therefore “women‟s Concern” are relegated to a limited category because men generally are not the victims of sex discrimination, domestic violence and sexual denigration as well as negative cultural practices that affect women‟s health.
ORGANISATIONAL LAYOUT
This Thesis comprises of six chapters. Chapter one deals with general introduction of the work and consists of background to the study, statement of the research problem, Aim and objectives scope and limitation of the research, justification for the research, research methodology and literature review. Chapter two deals with conceptual clarification of key terms like health, human rights, right to health, maternal health and women‟s right to health. Chapter three is an analysis of international and domestic legal frame work for the protection of women‟s right to health.
39 Aina, O.I (2003) General Overview of the Status of Women in Nigeria in Abiola A.O (ed) Women Advocates Research and Documentation Centre Lagos.
40.Okagbue, I. op. cit p.1
Chapter four is a presentation and analysis of empirical data collected in the course of the research. Chapter five discusses the challenges to the protection of women‟s right to health in Nigeria. While chapter six presents the summary, finding/observation and recommendations made.
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