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REVIEW OF EXISTING REPRODUCTIVE HEALTH POLICIES AND LEGISLATIONS IN NIGERIA

BY

DR MUHAMMED TAWFIQ LADAN

(PRESIDENTIAL COMMISSIONER ON THE REFORM OF ADMINISTRATION OF JUSTICE IN NIGERIA)

DEPARTMENT OF PUBLIC LAW, FACULTY OF LAW,

AHMADU BELLO UNIVERSITY, ZARIA, NIGERIA

A PAPER PRESENTED AT A ONE - DAY STAKEHOLDERS’ FORUM ON REPRODUCTIVE HEALTH IN NIGERIA.

ORGANIZED BY:

THE INDEPENDENT POLICY GROUP, ABUJA.

DATE: - 20^TH APRIL 2006

VENUE: - TAHIR GUEST PALACE HOTEL, KANO – NIGERIA.

This paper seeks to realize the following objectives: -

1.                             To identify the nature and scope of sources of reproductive health policies and legislations in Nigeria: - domestic and international in character;

2.                             To review domestic policies and legislations relevant to reproductive health;

3.                             To identify gaps and level of implementation in Nigeria and;

4.                             To conclude with some recommendations.

1.0     nature and scope of sources of reproductive health policies and legislations in Nigeria.

          The term “sources” relevant for our discussion here means: - a) the methods by which those rules of law or principles and declarations of policy are created; b) and, the way in which those rules and principles and the specific rights or obligations they stipulate can be identified.¹

          In terms of scope, there are two broad sources of reproductive health instruments namely, domestic and international.

          Both domestic and international instruments relevant to reproductive health and applicable to Nigeria contain State obligations and specific actions required to be undertaken by governments and other stakeholders in order to ensure the progressive realization of the components of reproductive health and rights.

          Domestically, the 1999 Nigeria Constitution being the supreme law of the land contains provisions under sections 17 and 33 to 45 that are relevant for the promotion and protection of reproductive health and rights in Nigeria.

          In addition, section 54 of the Nigerian labour Law, Chapter 21 and Part 5 of the Criminal Code, and sections 18 of the Marriage Act as well as 3 of the Matrimonial Causes Act, contain relevant but controversial provisions relating to reproductive health and rights.

          Further, there are equally relevant State legislations on the prohibition of various forms of discrimination and violence against women and the girl-child.

          Furthermore, the provisions of the National Reproductive Health Policy and Strategy of 2001, the National policy on HIV/AIDS, 2003, the National Policy Health Policy and Strategy, 1998 and 2004, National Policy on Women, 2000 and 2004, National Policy on the Elimination of Female Genital Mutilation, 1998 and 2002, the National Adolescent Health Policy, 1995, National Policy on Maternal and Child Health, 1994, and the National Policy on Population for Development, Unity,  Progress and Self-reliance, 1988 and 2004, constitute the key policy  frameworks that seek to achieve quality reproductive and sexual health for all Nigerians.

          Moreover, there are two broad components of the sources of international instruments relevant to reproductive health and rights. These are: - a) Legally binding instruments and, b) non-binding standards/instruments on Nigeria.

a)       LEGALLY BINDING INTERNATIONAL INSTRUMENTS ON NIGERIA.

          Having signed and ratified the following multilateral treaties, Nigeria is bound legally to ensure the effective promotion and protection of the provisions and state obligations contained therein that are relevant to reproductive health and rights.

          These instruments relevant for our review are as follows: -

i.                                                       The Protocol on the Rights of Women in Africa: - ratified on 16-12-2004.

ii.                                                     The African Charter on Human and Peoples’ Rights: - ratified on 22-6-1983.

iii.                                                  The African Union Charter on the Rights and Welfare of the Child: - ratified on 23-7-2001.

iv.                                                   UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): - ratified on 13-6-1985.

v.                                                      UN Convention on the Rights of the Child (CRC): - ratified on 19-4-1991.

vi.                                                   UN Convention against Torture and other cruel, inhuman or degrading treatment or punishment (CAT): - ratified on 28-6-2001.

vii.                                                 International Covenant on Civil and Political Rights (ICCPR): - ratified on 29-7-1993.

viii.                                              International Covenant on Economic, Social and Cultural Rights (ICESCR): - ratified on 29-7-1993.

ix.                                                   International Covenant on the Elimination of all forms of Racial Discrimination (ICERD): - ratified on 16-10-1967.

x.                                                      The Universal Declaration of Human Rights, December 10, 1948, though not a treaty, has nevertheless today acquired the character of binding nature as customary rules of international law and Jus cogens,² especially the core provisions under review relevant to reproductive health and rights.

b)                                                     NON-BINDING INSTRUMENTS/STANDARDS

The non-binding instruments/standards relevant to reproductive health and rights that are applicable to Nigeria are as follows: -

i.                                                                               The 1993 Vienna Declaration and Programme of Action.

ii.                                                                             The Programme of Action of the 1993 UN International Conference on Population and Development (ICPD).

iii.                                                                          The 1995 Beijing Declaration and Platform for Action, UN Fourth World Conference on Women.

1.1     REVIEW OF DOMESTIC LEGISLATIONS

1.1.1  CONSTITUTIONAL LAW

Is there a basic right to health under the Nigerian Constitution?

An important starting point of a review of domestic legislation on reproductive health in Nigeria is to risk the question whether the right to health is recognized under the law as a basic human right. The 1999 Constitution of the Federal Republic of Nigeria does not recognize the right to health directly though some provisions of the Constitution allude to the right and when one reads all such provisions making allusions to the right, it may not be wrong for one to infer recognition of the right to health as a basic constitutional right. Section 14 of the Constitution for example, recognizes that the security and welfare of the people shall be the primary purpose of government. Section 17 dealing with the social objectives of the Nigerian State obligates government to direct its policies to ensure adequate medical and health facilities for all persons; ensure that the health, safety and welfare of all persons in employment are not endangered or abused. Further, it provides that children, young persons and the aged shall be protected against exploitation, and against moral or material neglect; that provision is made for public assistance in deserving cases or other conditions of need; and the evolution and promotion of family life is encouraged. The constitutional provisions clearly recognized that the right to life, sanctity of the human person and human dignity (provided for in sections 17, 33 and 35) are clearly connected to physical and mental health of persons. Clearly, constitutional provision that conditions of work be just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life [section 17(3)(b)] is one, which if properly implemented will work to promote women’s health generally. The prohibition of sex-discrimination (section 42) also means that women and children are entitled to good health and a decent environment as men.

          Section 33(1) of the Constitution provides for the right to life thus:

Every person has a right to life and no-one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

The emergent trend in international law is that governments, in protecting the right to life have to take positive measures that will include provision of adequate health facilities for all, especially women and children. Thus, a situation wherein women and children die of preventable disease is a clear violation of their right to life. It is therefore submitted that the constitutional provision that guarantee the right to life may be construed as guaranteeing also the right to health, which includes the provision of adequate health facilities accessible by all.

          Under the Constitution of the Federal Republic of Nigeria, human rights of persons living with HIV/AIDS can be discussed under the following:

(a)      FREEDOM FROM DISCRIMINATION

S.42 (1) of the Constitution provides as follows:

A citizen of Nigeria of a particular community, ethnic group, place of origin, sex religion or political opinion shall not, by reason only that he is such a person:

a)                              be subjected either expressly by, or in the  practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic group, places of origin, sex, religions or political opinions are not made subject to; or

b)                              be accorded expressly by; or in the practical application to any law in force in Nigeria, or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic group, places or origin, sex, religions or political opinion.

Further, S. 42(2) provides:

          No citizen of Nigeria shall be subjected to any disability or deprivation of merely by reason of the circumstances of his birth.

          In the Nigerian case of J.A. Adewale and Others v. Lateeef Jakande of Lagos State and Others,³ it was held by the court that a proposal of government…which tended to make citizens of Nigeria in Lagos State to be subject to disabilities not available in other States of Nigeria is unconstitutional.

          In the context of HIV/AIDS discrimination is the greater problem faced by persons living with HIV/AIDS. Discrimination occurs when a distinction is made against a person that results in his or her being treated unfairly and is unjustified on the basis of their belonging, or being perceived to belong to a particular group. Hospital or prison staff may deny health services to a person living with HIV/AIDS. Employers may terminate a worker’s employment on the ground of his or her actual or presumed HIV positive status. Families or communities may reject, and ostracised those living, or believed to be living, with HIV/AIDS. Such acts constitute discrimination based on presumed, or actual HIV-positive status, and violated human rights. Discrimination, or any of the grounds mentioned, under S.42 is not only wrong in itself, but also sustains conditions leading  to societal vulnerability to infections caused by HIV/AIDS, in particular resulting in lack of access to an enabling environment, that will promote behavioural change and enable people to cope with HIV/AIDS.

(b)      RIGHT TO DIGNITY OF HUMAN PERSON

          The constitution provides for right to dignity of the human person, that no person shall be subjected to torture, or inhuman, or degrading treatment, no person shall be held in slavery or servitude, and that no person shall be required to perform forced or compulsory labour.⁴

          And in a Nigerian case of Uzoukwu v. Ezeonu,⁵ an Enugu  Court of Appeal defines “torture” to include mental harassment, as well as physical brutalization, while inhuman treatment characterizes any act “without feeling for the suffering of the other”. Degrading treatment was seen as “the element of lowering the societal status, character, value or position of a person”. From the perspective of HIV/AIDS it means that segregation and stigmatization of person living with HIV/AIDS because of their sero-positive status violates their right to dignity.

(c)      RIGHT TO PERSONAL LIBERTY

          The constitution also provides for a right to personal liberty, and that no person shall be deprived of his liberty except in certain circumstances. One such circumstances is “in the case of persons suffering from infectious or contagious disease as HIV.⁶

          It needs to be pointed out that the above provision has eroded the rights protected under the constitutional section discussed. Thus, within the context of HIV/AIDS, person infected, or affected by AIDS, can be deprived of their liberty, autonomy and privacy interests. The above provision is anachronistic and retrogressive. It is contrary to the trends in civil liberties and human rights law being espoused by most democratic nations of the world and under international law. Arguably, it can be said that the provision is to protect the healthy population from harm, and it is of substantial governmental interest to ensure that its population is healthy. Certainly, the early history of infectious disease where quarantine and isolation were routinely employed demonstrates state’s disregard for human rights as can be seen in China’s recent conduct in the case of Service Acute Respiratory Syndrome (SARS) 754. In the 21^st century, it is hardly defensible that persons suffering from infectious diseases where partway of transmission are understood should be deprived of their liberty and autonomy.

          The right to liberty should, therefore, never be arbitrarily interfered with merely on HIV status, by using measures such as quarantine, detention in special colonies or isolation. There is no public health justification for such deprivation of liberty. Indeed it has been shown that public health interests are served by integrating people living with HIV/AIDS within communities and benefiting from their participation in economic and public life.

          Compulsory HIV testing can constitute a deprivation of liberty, and a violation of the right to security of the person. This coercive measure is often utilized with regard to groups least able to protect themselves, because they are within the ambit of government institutions or criminal law, e.g. soldiers, prisoners, sex workers, injecting drug users and men who have sex with men. There are limited public health justification for such compulsory HIV testing and when it does occur, positive result should be followed by counselling and treatment. Respect for the right to physical integrity requires that testing, in most circumstances, be voluntary, and that no testing be carried out without informed consent.

(d)      RIGHT TO LIFE⁷

          The Constitution provides for a right to life, and stipulates that every  person has a right to life, and that no one shall be deprived intentionally of his life, save in execution of the sentence of  a court in respect to a criminal offence of which the person has been found guilty in Nigeria.

          The Constitution also mentions certain exceptions to the above provisions, under which an individual’s life may be deprived: for instance, for the defence of any person from unlawful violence, or for the defence of property, in order to effect a lawful arrest, or to prevent the escape of a person lawfully detained, or for the purpose of suppression a riot, insurrection or mutiny.

          In the context of HIV/AIDS, the central idea of the human rights provision is the protection of life. Government has a sacred duty to protect the life of its citizens. In this connection, government must ensure that treatment such as anti-retroviral drugs are available to persons living with HIV/AIDS. Government should be expected to provide treatments, particularly drugs and to make treatment as accessible to the ordinary people living with HIV/AIDS as possible. The prices of HIV/AIDS drugs and other medication and treatment are often beyond the reach of most citizens. It is important for government not only to subsidize HIV drugs and treatment, but also to facilitate a healthcare infrastructure that makes service access viable nationwide.

(e)      RIGHT TO PRIVATE AND FAMILY LIFE⁸

          The Constitution provides that the privacy of citizens, their homes correspondences, telephone conversations and telegraphic communications is hereby guaranteed and protected.

          The right to privacy involves obligation to respect physical privacy, including the obligation to seek informed consent to HIV testing and to safeguard privacy of information, including the need to respect confidentiality of all information relating to a person’s HIV status. The individual’s interest in his/her privacy is particularly compelling in the context of HIV/AIDS, firstly, in view of the invasive character of a mandatory HIV testing and, secondly, by reason of the stigma  and discrimination attached to the loss of privacy ad confidentiality if HIV status is disclosed. The community has an interest in maintaining privacy, so that people will feel safe and comfortable in using public health measures, such as HIV/AIDS prevention and treatment services.

          The right to privacy, and family life, also includes the right to marry, and to have a family in a protected manner. Therefore, the right of people living with HIV/AIDS is infringed by mandatory pre-marital testing, and/or the requirement of AIDS-free certificate, as a precondition for the grant of a marriage licences by the church. Secondly, forced abortions or sterilization of HIV infected women violates the human rights of a family, as well as the right to liberty, and integrity of the person. Women should be provided with accurate information about the risk of prenatal transmission to support them in making voluntary informed choice about reproduction. Also measures to ensure the equal rights of women within the family are necessary to enable women to negotiate safe sex with their husbands/partners.

(f)      RIGHT TO FREEDOM OF EXPRESSION AND THE PRESS.⁹

          The Constitution provides under S.39 that:

“Everyone shall be entitled to freedom of expression including freedom to hold opinion and to receive and impart ideas and information without interference.”

            This right includes the right to seek, receive, and impart HIV-related prevention and care information. Thus, the Nigerian Government is obliged to ensure that appropriate and effective information on methods to prevent HIV transmission be developed, and disseminated for use by the entire population. The media should be respectful of human rights and dignity, especially the right of privacy and use appropriate language when reporting on HIV/AIDS. Media reporting on HIV/AIDS should be accurate, factual, sensitive, and avoid stereotyping and stigmatization.

(g)      RIGHT OF PEACEFUL ASSEMBLY AND ASSOCIATION¹⁰

          The Constitution also guarantees that:

“Everyone shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union, or any other association for the protection of his interest.”

          The Universal Declaration of Human Rights also provides that, “Everyone has the right to freedom of peaceful assembly and association”. In the context of HIV/AIDS, the freedom of assembly and association with others is essential to the formation of HIV-related advocacy, lobbying and creation of self-help group affected by HIV/AIDS, including PLHAs. Public health, and an effective response to HIV/AIDS, is undermined by obstructing interaction, and dialogue with, and among such groups, other social actors, civil society and government. Furthermore, persons living with HIV/AIDS should be protected against direct or indirect discrimination based on HIV status in their admission to organisations of employers or trade unions, as well as continuation as members and participants. At the same time, workers’ and employers’ organisations can be important factors in raising awareness on issues connected with HIV/AIDS and in dealing with its consequences in the workplace.

(h)      RIGHT TO FREEDOM OF MOVEMENT¹¹

          The Constitution stipulates that every citizen of Nigeria is entitled to move freely throughout Nigeria, and to reside in any part of the country, and no citizen of Nigeria shall be expelled from Nigeria, or refused entry.

          There is no public health rationale for restricting liberty of movement, or choice of residence on the grounds of HIV status. According to current international health regulations, the only disease which requires a Certificate for international travel is Yellow Fever.¹² Therefore, any restriction on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, is discriminatory, and cannot be justified by public health concerns. It is, therefore, contrary to the rights of Persons Living with HIV/AIDS (PLWHAS), to restrict their movement throughout the Federal Republic of Nigeria.

          Other fundamental rights guaranteed under the Constitution include the right to freedom of thought, conscience and religion,¹³ the right to a fair-hearing,¹⁴ and the right to acquire and own immovable property, anywhere in Nigeria.¹⁵

          It is important to point out that the Constitution makes exception to the fundamental rights provision. It provides that a law can be made to derogate from fundamental rights “in the interest of defense, public safety, public order, public morality or PUBLIC HEALTH,¹⁷ or for the purpose of protecting the rights and freedom of other persons.¹⁸ The above provision provides a general cover for all the public health regulations including isolation, quarantine or other forms of restriction. But as we have stated elsewhere the pendulum has actually swung in favour of individual rights globally.

1.1.2  LABOUR LAW

Section 54 of the Labour Act provides as follows:

1)                                                     In any public or private industrial or commercial undertaking or in any branch thereof, a woman –

a)                                                     Shall have the right to leave her work if  she produces a medical certificate given by a registered medical practitioner that her confinement will  probably take place within six weeks;

b)                                                     Shall not be permitted to work during the six weeks following her confinement;

c)                                                      If she is absent from her work in pursuance of paragraph (a) or (b) of this subsection and been continuously employed by her then employer for a period of six months or more immediately prior to her absence, shall be paid not less than fifty percent of the wages she would have earned if she had not been absent; and

d)                                                     Shall in any case, if she is nursing her child, be allowed half an hour twice a day during her working hours for that purpose.

2)                                                     Subsection (1) (C) shall have effect notwithstanding any law relating to the fixing and payment of a minimum wage.

3)                                                     No employer shall be liable, in his capacity as employer, to pay any medical expenses incurred by a woman during or on account of her pregnancy or confinement.

4)                                                     Where a woman-

a)                                                     is absent form her work in pursuance of subsection (1) (a) or (b) of this section; or

b)                                                     remains absent from her work for a longer period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy or confinement and to render unfit for work, then until her absence has exceeded such a period (if any) as may be prescribed, no employer shall give her notice of dismissal during her absence expiring during her absence.

5)                                                     In subsection (1) (d) of this section, “child” includes both a legitimate and an illegitimate child.

1.1.3  COMMENTARY ON CONSTITUTION AND LABOUR LAW

1.       The provisions of this Section arguably are the most explicit statements of law in any status on the women’s reproductive rights. The provisions stated above have been framed by both welfare considerations for maternal and child health as they have been by economic considerations. The law tries to balance the interests of pregnant women, motherhood and child survival against the interests of employers who are investors in the employee with an eye on high-yield performance of the employee. It is doubtful that the law succeeds in this objective especially when it is considered that special/protective legislation as this was the result of an attempt to accommodate women’s needs in a male-dominated environment. Against the backdrop of an engendered world in which women’s natural environment was defined as the home, there was only limited toleration of “rebellious women”. Thus, the provisions are not far-reaching enough in protecting women’s reproductive rights as understood in contemporary times and especially under international human rights law.

          Even though the  word right is used least once, it is difficult to argue that the provisions view the right(s) recognized therein as deriving from human  rights perspective.

a)                             Subsection (1) (a) above affirms the rights of pregnant women to maternity leave from work from about six weeks from the Expected Delivery Date (EDD). This provision specifically uses the word “right” which means that breach of the provisions is actionable before the courts. It is unclear, however what remedies may be claimed. Given that the right guaranteed by this provision can only be breached when there is just about 12 weeks left to go in the pregnancy, the chances that litigation related thereto can only be effectively disposed by the remedies of compensation and/or damages.

b)                              Although the provision affirms the right of all women whether or not employed within the public service (that is, government service), many women employed in the private sector do not enjoy the right. It appears that the State has been able to enforce the protection of this right for women only in the sector it has direct control over, that is, the public service. This may not necessarily exculpate it from responsibility for the violation of women’s rights in this regard. There is increasing support for the view that there is need to break down the  private/public divide which has made states perceive in the face of violation of human rights of its citizens. The view argues that a state has a duty to act to secure the rights of it citizens and where it does not act, its passive attitude might be considered as consent, acquiescence and/or tacit approval for which reason it should bear liability.

c)                              Subsection (2) by creating a prohibitive obligation on the part of the employer not to “permit her to work during the six weeks following her confinement” indirectly creates a right in the sense that a woman may hold her employer to his obligation under the law.

d)                             The provisions of Subsections (2) and (3) entitle the woman to at lest 12 weeks maternity leave. In more recent practice however, few women take the leave as ordered by the provisions. Instead, they take the 12 week leave post-natal. The practice is now given official approval by virtue of a written policy emanating from Ministry of Establishments or Labour and Productivity.

Arguably, there are two mutually reinforcing reasons for this development in practice. The position of the law appears to have been advised of medical knowledge about both pregnancy-advised and pregnancy-induced slow-down of the woman as she approaches delivery. However, it appears that in recent times, there are strong, differing views within medical circles of how much slow-down is required by pregnant women generally and by individual pregnant women so that the adoption of a protective legislative mandate is necessitated. Consequently, as many women get the clean bill of health from their doctors to carry on with work, they feel less inclined to utilize the six weeks leave prior. They feel more inclined/compelled to accumulate the 12 weeks for post-natal maternity leave because they regard the legally reserved 6 weeks as very inadequate.

The recent child survival campaigns, which advocate exclusive breastfeeding for the child for six months reinforce the position that the 6 weeks post-natal maternity leave legally reserved is inadequate and incapable of providing legislative support to the campaign.

e)                              Also, a woman who by reason of illness arising from pregnancy is away from her work is protected against immediate termination of her employment on their basis of her absence to work as well as against.

3)                             This legislation through the provisions of section 54(3) reflects the traditional perception regards women’s obstetric requirements as women-specific and as such no employer should be made to bear the costs because it is not illness properly so called (that is illness that can be suffered both by men and women). This provision which exempts employers from liability pre and post-natal care expenses is not in consonance with emergent gender-favourable standards which recognize maternity as a social function and one which encourages states to be more responsible for providing pre and post natal care and services.

4)                             The labour legislation through Section 54 (1)(c) exhibits that market considerations were given more priority than female reproductive rights in the delineation of its scope. A woman who is on maternity leave has the guarantee of no more than 50% of the wages she would have been entitled to if she were at work. It needs to be emphasized that an employer has no obligation specified in law to a woman who has not been continuously employed by her then employer a period of six month or more immediately prior to her absence. It is not clear whether provisions of section 54 (4) can be read as guaranteeing a woman a right against the termination of her employment on grounds pertaining to pregnancy; for example prolonged absence from work, demonstrated  incompetence, below expectations performance. Section 54(4) (a) guarantee a right against such termination only for women who are already on maternity leave as prescribed and recognized by section 54(1) (a) and (b).

Section 54(4) (b) is also not so clear. The phrase “remains absent from her work for a long period” suggests that a woman who is not qualified for, and has proceeded on maternity leave guaranteed by sections 54(1) (a) and (b) is not covered. The word “longer” safeguards on against absence necessary beyond the 12 weeks maternity leave. Thus, it is not unusual to find pregnant women dismissed from employment for no other reason than pregnancy. Some women have been known to abort pregnancies coming while they are yet unprotected statutorily. The alternative is to quit the job or decline the offer.

5)                             Section 54 (5), which provides that “child” within the contemplation of sub-section (1) (d) include both a legitimate an illegitimate child. In other words, the rights affirmed and protected by section 54 generally extend to both married and unmarried women. It is however curious that some other statutes expressly discriminate against unmarried pregnant women. It is important to note that some legislation depart from the Labour Act is prescribing the scope of reproductive rights for women in Nigeria.  For example, Police Regulation 127 made under the Police Act Cap. 1990 Laws of the Federation states that:

An unmarried woman police officer who becomes pregnant shall be discharged from the force, and shall not be re-listed except with the approval of the Inspector General.

A provision such as this is clearly premised on morality, reflects social prejudices and is not informed by the exigencies of law enforcement duties. Necessarily, this provision violates the rights of unmarried women in the Police Force to equal enjoyment of all human rights contrary to the constitutional guarantee against discrimination contained in Section 41 of the 1999 Constitution and the protection afforded by the provisions of Section 54 of the Labour Act. Arguably, this provision in the Police regulation may be struck down for its unconstitutionality if brought to test before the courts if a cue is taken from the judicial attitude in Augustine Mojekwu v Caroline Mgbafor Okechukwu Mojekwu.¹⁹

6)    Also, this protective legislation functions at times like a double-edged sword. Some employers unwillingly adhere to the standards of the state refrain from hiring women or at least young women of child-bearing age.

7)    The tenor of the whole legislation provides a guide to its perspectives on women’s rights. While the statute positively affirms more space for women in the labour sector in some provisions, it withdraws substantial space (by reinforcing traditional division of roles based on gender) from them in some other provisions (see sections 55 and 56)

                The question may be asked “are special/protective legislation in favour of women in fact discriminatory or are they designed to do justice in recognition of the fact that there are two kinds of human beings who are fundamentally different?” The fact is that special/protective legislation for women involves the establishment of some benefits for them and the restriction of women. Some have argued that to the extent that the labour legislation is sex-specific, it is anti-egalitarian and limits women to their difference, denying them equality of opportunity.

                In contrast, arguments in defence of sex-specific legislation urges that a distinction should be made between “laws drawing explicit sex-based lines” and “laws governing reproductive biology”. Where this is done, there is greater likelihood that the law would protect not just women but men also whose reproductive biology may be put at risk by hazardous workplaces.

1.1.4                            CRIMINAL LAW

GENERAL BACKGROUND

Until recently, the sources of Criminal Law in Nigeria were Criminal Codes of the Southern states and the penal Codes of the Northern states of the Federation, as well  as the Federal Criminal Code, Cap 77 of the 1990 Laws of the Federation and the Federal penal Code, Cap 345, 1990 Laws of the Federation. That is, criminal law is codified law. The Constitution expressly prohibits unwritten criminal law.²⁰

          It is important to note that the Criminal Code provisions of the southern states and the Federation a well as the Penal Code provisions of the northern states and the Federation are in pari materia. Consequently, this review will use the Criminal Code, Cap 77, and the Penal Code, Cap 345 of the 1990 Laws of the Federation for the analyses of the relevant criminal provisions.

          Criminal Law is different from other areas of law in many regards, one of which is that a criminal offence is not regarded as a wrong done solely to the individual or direct victim. A criminal wrong is employed also, and even more importantly, as a wrong done to society at large. Thus, criminal law is employed to protect public interest including public morality.

          Nigeria’s legal system is deeply rooted in received English law and morality of its time. As a British colony, English law was introduced and with time, it superceded customary law in the area of criminal law. This legacy is preserved by the constitutional provision that prohibits unwritten law as the source of criminal law.

          It should be noted that under the Criminal Codes, offences are classified according to their perceived seriousness into simple offences, misdemeanours and felonies. A simple offence is one that is punishable with not more than six months imprisonment. A misdemeanour is an offence punishable with over six months but less than three years imprisonment. A felony is an offence punishable with three years or more imprisonment. A felony is thus the most serious category for offences. The above provisions therefore provide insight into how grave the society perceives the acts and behaviours that the legal provisions aim at prohibiting.

1.1.5                            Specific Criminal Law provisions Pertaining to Reproductive Health: -

Chapter 21 of the Criminal Code has the title Offences against Morality. The provisions in this Chapter touch on both sexual and reproductive health and rights. All the provisions in the Chapter are included in this review because of the expansive definition of reproductive health provided by Principle 7.2 of the ICPD Document (quoted above).

·                                                      Section 214 provides that

Any person that

2.                             Has carnal knowledge of any person against the order of nature; or

3.                             Has carnal knowledge of an animal; or

4.                             Permits a male to have carnal knowledge of him or her against the order of nature;

is guilty of a felony, and is liable to imprisonment for fourteen years.

·                                 Section 215 provides that

Any person who attempts to commit any of the offences defined in the last preceding section is guilty of a felony, and is liable to imprisonment for even years.

The offender cannot be arrested without a warrant.

·                                 Section 217 provides that

Any male person who, whether in public or private, commits any gross act of indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male with himself or with another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment for three years.

The offender cannot be arrested without warrant.

1.1.6                            COMMENTARIES

Commentaries on Section 214,215 and 217

The above provisions are to be understood against the backdrop of the title to the review of domestic legislation. The provisions are not designed to respond to the claim of right of the individual premised on human rights argumentation.  Rather, criminal law is used in this situation to affirm/reaffirm the culturally accepted mores and to serve a deterrent purpose. The infraction on this law is prohibited with the threat of punishment. These provisions can be interpreted as making it an offence to practice or attempt to practice anal or oral sex, to effect vaginal penetration for sexual purposes with anything other than a male penis. There is no room in the law for excluding consensual behaviour in private between consenting adults as is now the case in many other jurisdictions.

·                                 Section 216 provides that

Any person who unlawfully an indecently deals with a boy under the age of fourteen years is guilty of a felony, and is liable to imprisonment for seven years.

          The term “deal with” includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.

Commentary

This provision aims at protecting the young person from sexual abuse and/or exploitation.

·                                 Section 218 provides that

Any person who has unlawfully carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without canning.

          The prosecution for either of the offences defined in this section shall begun within two months after the offence is committed.

          A person cannot be convicted of either of the offence in this section upon the uncorroborated testimony of one witness.

Commentary on Section 218

1.                                                     This provision like the one immediately above aims at protecting the young person from sexual abuse and/or exploitation. Also, to the extent that it is a well-settled position that the law in this provision does not permit any defence, a person accused cannot plead that the girl consented or that he reasonably believed her to be above the age. Thus, it can be deducted that the other aim is to delay first sexual intercourse although there is no liability on the part of the girl even if there is evidence to show that she consented. It appears that there is a presumption that a person below the statutory minimum age specified in the provision is incapable of giving valid consent.

2.                                                     This provision has serious implications in considering the legality of sexual intercourse between married persons where the wife is under-aged. Section 6 of Criminal Code  defines unlawful carnal knowledge as carnal connection between persons other than a husband and wife, necessarily therefore, where a valid marriage is contacted under any one of the systems of law allowing early marriage, sexual intercourse with the wife cannot be regarded as unlawful and falling within the contemplation of Section 218. A similar position exists under the Penal Code applicable in the northern states. It must be noted that the criminal law clearly intends this position. In virtually all other provisions of the Criminal Code where there is a reference to “husband and wife”, it is specifically stated that this means husband and wife of a Christian marriage. By not adopting such limitation, the provisions of Section 6 are designed to protect all married couples regardless of which system of law their marriage is contracted under, provided only that a valid marriage must exist in law by the requirements of the relevant system of law.

3.                                                     In some states, the lower age of eleven years is stated.²¹ This means that young girls do not enjoy equal degree of legal protection in all the states. While a girl under the age of thirteen is protected against sexual violation in one state, a similarly aged young girl in another state or even the same girl will not enjoy the same degree or protection as she moves from one state to another.

4.                                                     Arguably the provisions in this section are not far-reaching enough in giving protection to the young girl. It is hard to understand why a time limitation, which is unusual to criminal proceedings, is included just as it is curious to find that corroboration of the evidence of the victim is specifically required. Probably the reason why there is a time bar is because of the requirement of corroboration – to ensure that the corroborative evidence is still reliable. However, it is argued that such time bar reflects an inadequate sensitivity to need for effective protection. Where there is a sound understanding of the nature of sexual offences and victims’ response to their victimization, it will be recognised that victimization is usually not reported immediately. In virtually all accounts of child sexual abuse, the young child is usually prevented from reporting, or fails to report abuse as a result of fear from threats of the prohibition of such victimization. Where reporting is usually hinged on discovery of a third party, a provision such as the above may preclude effective legal protection because such discovery may be late.

5.                                                     Much has been said about how the scope of protection afforded women by law through the criminalisation of some sexual offences is permitted on misogynistic Freudian psychological theories and theses about women’s perceptions of sexuality, women’s ability to speak the truth etc. Preserving in the statute books provisions based on such discredited views means that the law reflects a prejudicial perspective to women’s sexual and reproductive rights.

·                                                                                       Section 221 provides that

Any person who

1)                                has or attempts to have unlawful carnal knowledge of a girl being of or above thirteen years and under sixteen  years of age; or

2)                                knowing a woman or a girl to be an idiot or imbecile, has or attempt to have unlawful carnal knowledge of her;

is guilty of a misdemeanour, and is liable to imprisonment with or without canning.

* It is a defence to any to either of the offences firstly defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.

The prosecution for any of the offences defined in this section shall begun within two months after the offence is committed.

A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.

1.1.7  COMMENTARY ON SECTION 218 AND 221

There are two main differences between this provision and the earlier one.

1.                             One is that the offender has a defence if he can show that there were reasonable grounds for believing the young woman to have attained the age of 16 years and that he did believe so premised on these reasonable grounds.

2.                             The other is that the victim of the offence is this section is liable only for a misdemeanour and not a felony as the offender in the previous section. It would appear that the law’s statement is that unlawful carnal knowledge of a girl aged over thirteen (or eleven as the case may be) is not as offensive as unlawful carnal knowledge of a girl aged under.

3.                             ALSO a householder permitting defilement of young girls on his premises is guilty of a misdemeanour and liable to two years imprisonment with or without caning. If the girl is of or above 13 years but under 16 years. If the girl is under 13 years, he is guilty of a felony and is liable to imprisonment for life with or without caning.

4.                             Similarly, a parent/guardian is liable if he/she knowingly allows a girl to consent with, or enter or continue in the employment of any prostitute or person of known immoral character. Further, allowing persons under sixteen (16) years to be in brothels residing or frequently is an offence punishable with six (6) months imprisonment or a fine or both. There is also criminal liability for unlawful detention with intent to defile. This attracts a stiff penalty.

1.1.8                            COMMENTARY ON THE CRIMINAL CODE ACT

The protection under the Criminal Code does not extend to married adolescents by virtue of section 6 of the Criminal Code that defines unlawful carnal knowledge as “carnal connection which takes place otherwise than between husband and wife” Consequently, sexual intercourse between a girl under the age of thirteen years and a man of sixty-three years of age who is her husband is not an offence.

          In other words, marriage provides a defence for a clear case of sexual abuse-having sexual intercourse with a girl who has not attained the age of majority.

Rape: Is defined as an unlawful carnal knowledge of a woman or girl without her consent, or with her consent if that is obtained by forced or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or in the case of a woman, by impersonating her husband. (Section 357 of the Criminal Code).  The punishment for rape is imprisonment for life with or without caning while attempted rape carries fourteen (14) years imprisonment.

          Even though, research has shown that rape is on the increase including rape by agents of the state, very few cases get reported. The social stigma attached as well as lack of confidence in the police and judicial handling of rape case, which does not adequately protect the woman accounts for victims’ unwillingness to report cases.

          Marital rape is not recognized as a crime and a husband will not therefore be guilty of rape; he may be found guilty of assault of wounding the woman if he uses force or violence to have sex with her. It is important to note that rape is a gender offence and that a woman cannot be guilty of raping a man because the offence can only be committed upon a woman or girl. Further, to ground a conviction in rape, the testimony of the victim must be corroborated. Indeed, a person cannot be convicted of any of these sexual offences discussed above upon uncorroborated testimony of one witness. This can be quite frustrating and many a times criminal/rapists get away with offences they have committed for lack of corroboration and for the female victims or rape, they become doubly jeopardized and traumatized. Other relevant provision that protects adolescents from sexual exploitation is the provision in the Criminal Code Act against encouraging the seduction or prostitution of a girl under sixteen. Persons also trading in prostitution are also liable to punishment for two years imprisonment if convicted. This can be used to ground a conviction for trafficking in women and girls, which obviously amounts to sexual exploitation. Other forms of sexual violence apart from rape for example, sexual harassment are not criminalized by the law. There are also gaps in protecting women from all forms of domestic violence. Female genital mutilation is not criminalized. It is only now that a few states are enacting laws to deal with that but at the federal level, there is no de jure protection for women. The Matrimonial Causes Acts (CAP 220 LFN) did not provide minimum age for marriage. It merely stated that “a marriage is void if either party is not of marriageable age”.

·                                   Section 222A provides that

Any person who –

1)                               Detains a woman or a girl against her will or upon promises in order…*****

2)                               Detains a woman or a girl against her will in a brothel; is guilty of a misdemeanour, and is liable to imprisonment for two years.

·                                                           Section 227 provides that

Any person who conspired with another to induce any woman or girl, by means of any false pretence or other fraudulent means to permit  any man to have unlawful carnal knowledge of her is guilty of a felony and is liable to imprisonment for three years.

·                                                Section 228 provides that

Any person who, with intent to procure miscarriage of a woman whether she is or not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force or any kind or uses any other means whatever, is guilty of a felony, and liable to imprisonment for seven years.

·                                                Section 229 provides that

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to her or causes her to take poison or other noxious thing, or uses any force of any kind or uses any other means whatever, is guilty of a felony, and is liable to imprisonment for seven years.

·                                                Section 230 provides that

Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or not with child, is guilty of a felony, and is liable to imprisonment for three years.

          The Penal Code provisions are substantially the same.

·                                                Section 232 of the Penal Code provides that:

Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for fourteen years.

** These provisions encompass the laws relating to abortion in the criminal statutes.

1.1.9                            Commentary

Under Nigerian law, interfering with pregnancy no matter how early this takes place is regarded as criminal unless such interference is undertaken for therapeutic reasons as prescribed by the Criminal and penal Codes to wit: in good faith to preserve the mother’s life.

One view posits that the reason for is that the foetus is regarded as human life from the moment the ovum is fertilized, one in which the society has an interest that must be protected by aw. It is only when the mother’s life is at risk that it is conceded that there is an overriding interest that allows abortion to be tolerated. Feminist critique however, asserts that this position rather than being informed by interest in foetal life, is in fact, the result of male quest to control women’s fertility to reinforce a “phallocentric” world.

This rule of law follows the English Offences against the Persons Act of 1861 that expressly modified the old common law rule that life commenced only after the “quickening” of the child in the womb. This common law rule is itself premised on the ancient thought that a foetus did not begin to live until sometime after conception, at a moment when “quickening” takes place. Even though there was debate as to the time when quickening takes place which gave rise to difficulties for legal proof purpose, the distinction between “quick” and “non-quick” pregnancies remained important, at least for the purpose of punishment.

While sections 228 and 229 of the Criminal Code criminalize the conduct of both the woman and the person who aids or attempts the abortion of a woman, it has been observed that the woman is rarely prosecuted. It would appear the prosecutorial “anger” is directed more at the abortionist. There is the tendency of law (indeed, its enforcer) to view the woman who elects for abortion as “sick” (psychologically) or an innocent victim, the subject of coercion or deceit. This view of the woman who seeks or procures an abortion is premised on the social valuation of children and the tendency to homogenise femininity and motherhood. It is thus thought that no woman in her “right senses” would desire/like to eliminate her baby.

In almost every part of the world, abortions have been the subject of religious, social, political and legal discourses. In many parts, abortion-related laws have witnessed serious challenges especially in the last five decades. While very few remain outside the Holy See  who argue absolute restriction on abortion, many argue and advocate for liberalising abortion laws while others fight for outright legalisation of  abortion. Both groups of advocates argue along two main lines- the health argumentation and the rights argumentation. While the former thinking contends that the existing abortion laws are too restrictive in the prescription of what constitutes therapeutic reasons, the latter thinking is that the existing abortion law reflect “an unwarranted, unsupportable infringement of women’s right to privacy.

Those adopting the health argumentation point to the fact that restrictive abortion law open up more people to the risk of unsafe abortion as abortion services are made largely unavailable. This is because in spite of the law in many places, a large number of abortions take place, whether induced by the woman herself, acting alone or with the assistance of other types of health workers. Unsafe abortion is one of the greatest dangers to women’s reproductive health and restrictive abortion laws constitute serious delimitation of women’s reproductive rights. A variety of complications as well as death occur as a result of unsafe abortions. Permanent disability is also not uncommon. All these, is in spite of the fact that abortion when performed by qualified persons with correct techniques and sanitary standards is a relatively safe procedure.

Also it is argued that the restriction of the grounds upon which abortion may be performed to saving the woman’s life is too narrow and may be insensitive to the difficulties posed by peculiar experiences of women. For example, a rape victim who becomes pregnant is not entitled to abortion even though this is clearly a case of unwanted and forced pregnancy. The trauma experienced by rape victims who find themselves pregnant should be sufficient to ground liberalization of abortion laws so that they can have access to legal abortion. When it is appreciated that rape caries with it risk also of HIV infection, the least the law could do is be a sensitive to the danger and consequent fears of the victims of rape.

Given Nigeria’s high rate of mortality in the female adolescent population resulting from unsafe abortion, there is need for urgent and serious rethink of the restrictive abortion laws. By prohibiting legal abortion except for where the life of the mother is in danger, most adolescents have recourse to affordable, illegal service usually rendered by quacks.

In some jurisdictions, national and international courts have interpreted the implication of the right to privacy for abortion laws. One of the foremost cases is Roe V Wade 405 U.S. 438 in which the US Supreme Court asserted that the US constitutional “right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In the earlier case of Eisentandt V Baird,  Brennan J asserted that “if the right of privacy means anything, it is the right of the individual, married or single to be free from unwarranted governmental intrusions to matters fundamentally affecting a person as to the decision whether to bear or beget a child:. While the court in Roe v Wade  was not suggesting that  women has an unlimited  discretion to terminate her pregnancy at anytime throughout its term, it considered that abortion laws that effectively reserved the decision-making power over when a woman can have abortion in persons other than the woman herself was unconstitutional. The court however, limited its recognition of unrestricted right to abortion (what is usually called abortion on demand) to the first trimester of pregnancy. In its view, after this stage, the interest of the right to privacy of the woman is far outweighed by the interest of the society in the mother and child’s well-being which is put at risk by unrestricted abortion beyond the trimester.

Those who argue for the legalisation of abortion on ground of constitutional rights to privacy posit that “the risk is to resolve the issue by constitutional measurement, free of emotion and predilection” (per Blackman J in Roe v Wade 410 US 113 (1973) and Doe v Bouton, 410 US 179 (1993).  On the other hand, those who argue for the liberalization of abortion seek to avoid the philosophical and jurisprudential logjam that an attempt to deduce the intendment of the constitution writers in relation to what implication the constitutional: right to privacy” has for abortion would induce. They would rather argue that restrictive abortion laws as found in Nigerian statutes are insensitive to the plight of some women who find themselves pregnant and simply ignore the enormous human cost of restrictive abortion laws.

In the context of Nigeria, the political readiness for the legalisation is doubtful and it is reasoned that advocacy for this, whether through legislative reform or judicial elaboration of the meaning and scope of the constitutional right to privacy, would necessarily fail. It must be emphasised that the history of the development of abortion laws reflects that no development stage was arrived at in a political vacuum. Indeed, the cases of Roe v Wade and like other took place in the context of changing socio-political view and advocacy.

It needs to be noted that lobbying the judiciary and the legislature poses different challenges and probably dictates different approaches. While the legislature can be lobbied for liberalisation, the chances of success in that regard with the courts are more doubtful. Courts can do no more than interpret the law.

·                                                Section 297 of the Criminal Code further provides that:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the operation is reasonable, having regard to the patient’s state at the time  and to all the circumstances of the case.

1.1.10         Commentary on Section 287

This provision is designed to protect a doctor or probably any other person trained and skilled who carries out any surgical operation including an abortion for the purpose of preserving the woman's life, provided, of course, that the surgery was carried out in good faith and reasonable care and skill is demonstrated. The pertinent question is what is the standard of reasonable care and skill. Would a mid-wife be expected to have as much skill as a trained medical doctor? Would it suffice if the mid-wife demonstrates a standard of care and skill as can reasonably be expected of those who have no more than training as mid-wife? How would the traditional doctor for whom providing maternity related services been all aspect of his practice be assessed? Would the standard of care and skill expected of him be as is reasonable to other traditional doctors?

Given that the statute uses the phrase "any person" and does not restrict itself to medical doctor, it can be surmised that the statute recognizes that there are other service providers in this regard beyond medical doctors. All that is required is for them to demonstrate reasonable care and skill, the standard for which, it is submitted is the standard reasonable to service providers in the same group. While this is a fair enough position given the prominent place of traditional doctors (used to include traditional birth attendants) in the provision of health care services in Nigeria, the provision throw up pertinent issues which must be addressed. Section 58(2) of the Ghanaian Criminal Code provides that the abortion procedure must be undertaken by a registered physician acting: in government hospital or in an approved private hospital or clinic, or other place. This is clearly a better provision which it is suggested should be adopted for Nigeria in place of the present position of law that is silent on the issue and for just any person to carry out the procedure and anywhere.

This provision of law may sound curious given the prominent involvement of unqualified persons in the practice of abortion in Nigeria and the fact that most complications and deaths result from unsafe abortion carried out by these incompetent persons. How is a qualified person in this category identified? While medical doctors and midwives and such other service providers receive certification and are licensed only after undergoing some prescribed course of training, the pertinent question is "what will be the measurement for certification of those who receive their training outside the formal education sector?" It is submitted that the law as it stands in relation to this provision exposes women more to the risk of unsafe abortion in the hands of unqualified persons.

While abortion is generally prohibited, whether carried out by a trained medical doctor or a except where it is to save the mother's life, the untrained who tries to procure the miscarriage of a pregnant woman is more at the receiving end of the law's anger. The "anger" directed at the abortionist has a part of its history in the organized campaigns of the 19th century (in Europe and America) to mobilise for statutory regulations of abortion in order to make it the exclusive preserve of the medical profession. True, there was sufficient evidence of the grave human costs of abortions carried out by unskilled persons. However, it has been said that the medical profession, had special reasons dictated by professional self-interest for mobilising against abortion carried out by non-doctors. As doctors asserted technical superiority over their competitors who were uncertified midwives (in Europe or North America) and traditional healers (in Nigeria and other colonial entities), they lobbied for the exclusion of the latter to assert and obtain institutional affirmation of that superiority.

·                                 Interpreting the right to privacy under the Nigerian constitution and its implications for Criminal Abortion Laws.

Section 37 of the 1999 Constitution provides that:

The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.

Even though the marginal notes to this provision read "right to privacy and family life" the limitation of the constitutional right to privacy to citizens is suggestive that the predominant consideration of the drafters of the Constitution was-not the protection of the right of privacy as it pertains to family. Otherwise, it becomes extremely difficult to appreciate why the right to family life is or should be guaranteed only to citizens.

The right to privacy under section 37 is not unqualified; the derogation clause in section 45 allows for the restriction of this right (and many others) by means of laws that are reasonably necessary in democratic society. Thus, legislation may be enacted to limit the scope of enjoyment of this right. However, the people may exercise their oversight power over the elected legislature to denounce a law that is not popularly acceptable as "reasonably necessary for a democratic society" .Also, the court may still be called upon to determine whether the law is "reasonably necessary". This is what was done in the case like Roe v Wade referred to earlier.

1.1.11         Other Criminal Code Offences Relating to Reproductive Health.

Other relevant provisions are found in Part 5 of the Criminal Code which bears the title Offences against the Person and Relating to Marriage and Parental Duties and Against the Reputation of Individuals. These offences include infanticide, killing an unborn child and concealment of the birth of children.

Section 328 provides that

Any person who, when a woman is about to be delivered of a child being born alive by an act or omission of such  a nature that if the child had been born alive and had died, he would be deemed to have unlawfully killed the child, is guilty of felony and is liable to imprisonment for life.

1.1.12         Commentary on Section 328

By this provision, the law criminalizes not only intentional acts or omissions, but also conducts amounting to professional negligence by medical and health related workers including traditional birth attendants. Also by the provision, causing the death of a child on grounds of cogenital disease/ deformity or whatsoever would amount to a crime.

1.1.13         Marriage Act and Matrimonial Causes Act

A) Laws Relating to Age of Marriage and Consent to Marriage

The age of marriage has critical relevance to a person's enjoyment of reproductive health and enjoyment of reproductive rights. Usually, it is the female child that is the victim of the traditional practice of early marriage. Such early marriages deny their young female victims the right to exercise choice in the issue of who to marry. Even where it is argued that they consented and went along with the marriage arrangements, the validity of such consent is questionable on grounds of they were attained sufficient maturity and had sufficient information to enable them exercise sound judgement on the issue. Early marriages for girls have been linked to harm to women's health.

Usually, the girl-child-wife is yet to attain physiological as well as emotional maturity as is suited for child bearing. The underdeveloped pelvic cavity usually occasions difficulty for child delivery resulting in prolonged labour, tear and perforation of the bladder. With such perforation creating an abnormal communication between the bladder and the vagina or rectum, the victim leaks urine or faeces from the abnormal orifice -condition that is known in medical parlance as Vesico- Vaginal fistulae or Recto- Vaginal fistulae. Other effects of early pregnancy for the immature girl-child include very high foetal loss and a high rate of maternal mortality. Long term effects include living with a debilitating disease, social ostracisation and denial of the opportunity for self-actualization.

Statutory marriage means marriage according to the provisions of statutory laws as opposed to customary or sharia law. It is sometimes described as English Marriage because this form of marriage is a legacy of received English law. This form of marriage is regulated by the Marriage Act, Cap. 218 and the Matrimonial Causes Act (hereinafter referred to as MCA), Cap 220, 1990 Laws of the Federation.

Section 18 of the Marriage Act provides that:

If either party to an intended marriage, not being a widower or widow, is under twenty- one years of age, the written consent of the father, or if he be dead, the written consent of the mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party, must be produced annexed to such affidavit as aforesaid before a license can be granted or a certificate issued.

In other words, the law permits any person, male or female aged over 21 to contract a valid marriage without requiring parental consent but where any party to a marriage is under the age of 21, there is requirement of parental consent to be produced by such party. Thus a parent can, technically speaking give parental consent to the marriage of a thirteen-year old girl or boy. After all, at common-law, the age of puberty was put at fourteen for boys and thirteen for girls. Thus, it is unclear what the minimum age of marriage is under the statute.

Although the MCA uses the phrase "marriageable age", nowhere in the statute is the word defined Section 3(1)(e) of the Act provides that a marriage shall be void if anyone of the parties is not of marriageable age.

1.2     REVIEW OF NATIONAL POLICIES RELEVANT TO REPRODUCTIVE HEALTH.

          The Federal Ministry of Health (FMOH) is responsible for establishing/formulating health policies in Nigeria. The Nigerian government adopted the National Health Policy and Strategy to achieve health for all Nigerians, which articulates the goal of enabling all Nigerians to achieve socially and economically productive lives.²² According to the National Health Policy, health is an essential component of social and economic development as well as being an instrument of social Justice and national security. The Health Policy establishes Primary Health Care (PHC) as an integral part of the national health system and a priority for national development. PHC is defined in the policy in accordance with World Health Organisation (WHO) guidelines to include general health services, preventive, curative, promotive and rehabilitative care.

          Although the National Health Policy does not specifically provide for reproductive health care, PHC encompasses basic treatment, maternal and child health, and family planning services, the prevention and control of infections diseases, and the provision of essential drugs and supplies.

          Thus, the National Health Policy fails to provide for comprehensive reproductive health concerns, and focuses primarily on family planning maternal and child healthcare.

          Likewise, the National Adolescent Health Policy²³ falls short, by neglecting to integrate contraception provision into adolescent health programmes.

          The National Policy on Population for Development, Unity Progress and Self-reliance²⁴ and the National Health Policy continue to be the guiding documents on population and family planning. While the population policy conters on the principle that couples and individuals have the right  to determine the number and spacing of their children, its framework concerns focus on the impact of rapid population growth on economic development. Written before the International Conference on Population and Development in 1994 and the five-year review in 1999, Nigeria’s Population Policy fails to account for emerging concerns in family planning and reproductive health, including the rapidly increasing spread of HIV/AIDS  and complications from Female Genital Mutilation (FGM).

          The 2001 National Policy on Reproductive health  and Strategy to achieve quality reproductive and sexual health for all Nigerians,²⁵ designed to supplement the National Health Policy and to correct some, if not all, the deficiencies mentioned above, was adopted by the  Federal Government of Nigeria. This policy document acknowledges the necessity for every nation to operationalise the reproductive health concept and promote quality reproductive health services in the interest of the well-being of the people, enhanced social life of the community, national development and the future of the human society. Further, the policy clearly expresses the commitment of the government and peoples of Nigeria to effectively address the major reproductive health challenges and revise the current trend of poor reproductive health status and services.

          Furthermore, the RH Policy noted that while the various laws in force in Nigeria address different areas of reproductive health, many of these laws, however, do not reflect the reproductive health  concept and so are inadequate to meet the needs of actualizing reproductive rights as contemporarily understood. While the provisions of many of the policies in the health sector are relevant to promotion of reproductive health their targets are sometimes contradictory or outdated or both.

          Accordingly, the RH Policy provides for thirteen specific objectives and targets for 2001-2006 as follows: -

a)                                To reduce maternal mortality and morbidity due to pregnancy and childbirth by 50%.

b)                                To reduce perinatal and neonatal morbidity and mortality by 30%.

c)                                 To reduce the level of unwanted pregnancies in all women of reproductive age by 50%.

d)                                To reduce the incidence and prevalence of sexually transmitted infections including the transmission of HIV infection.

e)                                 Limit all forms of gender-based violence and other practices that are harmful to the health of women and children.

f)                                  To reduce greater imbalance in  availability of reproductive health services.

g)                                 To reduce the incidence and prevalence of reproductive cancers and other non-communicable diseases.

h)                                To increase knowledge of reproductive biology and promote responsible behaviours of adolescents regarding prevention of unwanted pregnancy and sexually transmitted infections.

i)                                  To reduce gender imbalance, in all sexual and reproductive health matters.

j)                                  To reduce the prevalence of infertility and provide adoption services for infertile couples.

k)                                To reduce the incidence and prevalence of infertility and sexual dysfunction in men and women.

l)                                  To increase the involvement of men in reproductive health issues.

m)                              To  promote research on reproductive health issues

Moreover, the RH Policy provides for strategies and institutional framework for policy implementation as well as monitoring  and evaluation of policy implementation at all levels of government: - federal, state an local.

Comments on R.H. Policy

          Rather than listing the core reproductive rights under Annex 2 of the policy document, it ought to have them part of its in-built policy declaration or guiding principles or federal government’s affirmation as it is the case with the National Policy on HIV-AIDS, 2003: - which has an in-built sub-head titled: - Law, Ethics and Human Rights, which explicitly stated government’s affirmation.

          Item 1.2.4 on the State of RH laws and policies need updating to reflect the current strategic objectives and targets of the 2003 revised HIV-AIDS policy that are consistent with the RH policy

          Item 1.3 on justification of the RH Policy needs updating also by adding to the last bullet point the following: - “…..the implementation of the Beijing Declaration and Platform for Action, 1995, and the African Protocol on Women’s Rights in Africa, 2003/05, etc.

          On item 2.2.3 relating to policy declaration, it is sad to note that apart from the reviewed HIV-AIDS Policy of 1997 in 2003, the Health and Population Policies in 2004,  no other law has been reviewed or updated to encompass the broad spectrum of reproductive health issues in a coherent and integrated manner, with  particular attention to priority-setting.

          On item 3.2 the targets set out for the realisation of the specific objectives expires this year without any comprehensive monitoring from the appropriate authority. Hence the targets time frame needs to be extended to 2012 to allow room for progressive realisation of the stated objectives.

          The National Policy on Women, adopted by the Federal Government in April 2001 revised in 2004, articulates several health objectives with regard to women. It addresses numerous social and cultural aspects that impact women’s health, including, their role as primary health care providers for family and community, harmful cultural practices, high illiteracy rates, low social status, and neglect of women’s an “integrated multi-sectoral approach or effective service delivery.”

          Under the Policy on Women, health objectives include: -

i.                                                                               encouraging a participatory approach to health development to improve the involvement of women in health  decision-making organs by recruiting more women into such positions;

ii.                                                                             providing accessible, affordable and well equipped and staffed health facilities for use of women and other vulnerable groups and to encourage local efforts to establish and maintain such facilities;

iii.                                                                          supplying information services and technical advice on women’s health issues and family life;

iv.                                                                           Eliminating Harmful Traditional Practices that affect the health of girls and women,

v.                                                                              Strengthening the vaccination of children and pregnant women against identified endemic and preventable diseases.

To implement the enumerated goals and objectives, the policy strategies includes: -

a)                                         expanding current training programs for Traditional Birth Attendants (TBAS) to include traditional women healers, with a focus on hygienic delivery conditions and recognising complications for referral;

b)                                         updating health and family life education at all levels;

c)                                          enforcing legislation and advocacy against all harmful traditional practices, and gender-disaggregating data on women’s special health needs to enable more strategic policy  making and evaluation.

The Policy on Women also specifically addresses the need for legal reforms in the health sector, which should include: -

a)                                            Government legislation on mandatory provision of maternal health services to all women to protect against such disabilities as VVF (Vesico-Vaginal Fistula), FGM (Female Genital Mutilation) and other harmful tradition practices;

b)                                            Ensuring women’s access to free or low – cost legal services;

c)                                             Fixing a minimum age of 18 for all forms of marriage (statutory, customary and religious) so that girls enjoy their fundamental rights to education and to proper physical and mental development;

d)                                            Enactment of family protection law to criminalise acts of domestic violence and neglect;

e)                                             Review and codify customary uncertainties in their content and application; and

f)                                              Promote harmonisation of laws to ensure women’s rights to inheritance, custody of their children and ownership of land.

Furthermore, the Policy includes various other measures to eliminate discrimination, for example, in the laws on personal income tax, and improved protection of women under the Labour Law, with respect to maternity leave, non-discriminatory terms of services and the provision of creches.

However, the Policy on Women is vague, about practices such as female genital mutilation, referring to the elimination of harmful traditional practices that affect the health of girls and women, but failing to state explicitly that legislation will be enacted at federal level to ban FGM, more generally, the policy says little about the mechanisms and timetable for achieving its objectives.

The revised National Polity on HIV-AIDS, adopted on June 10, 2003 by the Federal government of Nigeria, aims to improve upon the country’s response to HIV-AIDS by adequately addressing the overlooked components and improving the previously used strategies by utilising cost effective, practical, socially acceptable and scientifically sound solutions to ensure that the HIV-AIDS epidemic is brought under control and the country resumes its social and economic development unhindered by the contagion.

The overall goal of the policy on HIV-AIDS is to control the spread of HIV-AIDS in Nigeria, and to mitigate its impact to the point where it is no longer of public health, social and economic concerns, such that all Nigerians will be able to achieve socially and economically productive live free of the diseases and its effects.

The revised policy is a new approach to the epidemic, ensuring that all sectors of the economy relevant to the control of the epidemic are involved in the planning, implementation and evaluation of the country’s response to the epidemic. Similarly, all sectors of the economy that are affected by the epidemic are to jointly develop plans and processes to mitigate its impact. This approach includes strategies to prevent further HIV-AIDS transmission, provide care and support for the people living with HIV-AIDS and mitigate the social and economic impact of HIV-AIDS on the country. The policy identifies the importance of upholding and protecting the rights of all Nigerians including people living with or affected by  HIV-AIDS, addresses the vulnerability of certain social groups including women and children to the HIV-AIDS epidemic; and develops appropriate measures to ensure that all these relevant issues are addressed.

Having recognised that the previous multi-sectoral approach lacked a legal and institutional framework through which to operate and lacked a well-defined sectoral roles of the various implementers, which led to poor coordination, multiplicity of effort and an inability to fully maximize investments in the actualisation of the 3-year HIV-AIDS Emergency Action Plan (HEAP) objectives, (formulated in 2001: - for 2001-2004 implementation), the policy declares that the Federal Government of Nigeria shall constitute a permanent statutory body or agency that derives its power form legislation to replace the presently existing National Action Committee on AIDS (NACA). This body or agency shall assume responsibility for the definition of the HIV-AIDS epidemic, build up the in-country capacity to plan, implement and monitor HIV-AIDS programs, and monitor and evaluate the progress and impact of the country’s response to the epidemic.

Comments on the Revised HIV-AIDS Policy

          Despite the declaration of the policy on the necessity for an enabling law to establish a permanent statutory body or agency, to date, no such legal framework has been passed into law, neither has it come into force to enable the new body to take off, with clearly defined functions, powers and responsibility to account to the public and other stakeholders.

The resultant consequence is that the existing adhoc institutional arrangement lacks the legal foundation to assume  responsibility for defining the HIV-AIDS epidemic, coordinating the timely and effective development, execution, monitoring, and revision of the HEAP, the HIV-AIDS policy and of all subsequent plans. Further, the impact of this gap lies in the absence of a legal authority for an adhoc body to ensure that government and partners are advised in a timely manner of the level of financial, organisational, and human resource support required to undertake and complete programme initiatives.

More importantly is the fact that the revised policy’s second strategic policy component titled: - Law, Human Rights and Ethics, is rendered weak, ineffective and hardly realizable due to the absence of any clear evidence of the discharge of government’s commitment to review any of the existing legislations and enact appropriate new legislations for the protection of the rights of victims of HIV-AIDS and of sexual violence, as well as the codification of HIV relevant legislation.

Moreover, the rights of people infected and affected by HIV-AIDS declared by the revised policy cannot be effectively promoted and  protected or enforced without a legislative intervention or without declaring that they should be upgraded to the level of fundamental human rights provisions of chapter 4 of the constitution or at least to be  part of chapter two on fundamental objectives and directive principles of state policy.

1.3     COMMENTS ON OTHER GAPS AND LEVEL OF IMPLEMENTATION OF RH POLICIES AND LAWS IN NIGERIA

This part of the study seeks to identify gaps in the legal status of contraceptives, sterilisation and abortion as well as in the level of implementation of RH policies and laws in Nigeria.

1.3.1                            LEGAL STATUS OF CONTRACEPTIVES, STERILISATION AND ABORTION

There is no law in Nigeria that explicitly regulates the sale or use of contraceptive drugs and devices. However, the National Policy on Population states that: - “national family planning programmes shall make available a variety of methods of fertility regulation to ensure free and conscious choice by all couples.” The availability of contraceptives at government distribution conters indicates that contraceptive use and distribution is legal in Nigeria. In fact, a wide assortment of contraceptive devices and procedures, including pills, injectables, IUDs, diaphragms, foams, condoms, and female and male sterilisation are available.²⁶

The Nigerian government does not have a policy directed at the safety requirements of contraceptive drugs and devices. However, the Food and Drugs Act prohibits misleading labelling and advertising practices.²⁷ This act authorizes the Minister of Health to require manufacturers of drugs to furnish information on a drug’s chemical composition, its intended use, the results of clinical investigations, and any adverse effects on health. Devices or drugs may not be imported into Nigeria unless they are accompanied by a certificate that guarantees that they comply with Nigerian standards and the standards of the country in which they are manufactured, any person who contravenes the requirements of the Food and Drugs Act is subject to imprisonment for two years or to a fine.²⁸

Further, there is no law in Nigeria that prohibits the advertising of contraceptives or the distribution of contraceptive information. However, advertisements or other published material concerning contraceptive use must not contravene laws prohibiting the publication or distribution of “obscene” materials. Materials which “tend to deprave or corrupt” may be deemed obscene and prohibited.²⁹

Furthermore, as stated earlier, the criminal law in Nigeria makes the performance of an abortion a criminal offence unless it is performed to save a pregnant woman’s life. Hence abortions are illegal regardless of the duration of pregnancy; the laws prohibit abortions performed at all stages of fetal or embryonic development from the time of fertilisation. However, the laws do not clearly distinguish between abortions performed by registered medical practitioners and unregistered medical practitioners, and do not stipulate the kind of facilities in which abortions may take place.

Spousal consent is not a requirement for operation necessary to save a woman’s life, but it is commonly required by medical establishments in Nigeria. The government does not subsidize abortion services and abortions are not available in most public health facilities.

Thought the Federal Ministry of Health proposed reform of the abortion law in 1991, and the Nigerian Medical Association endorsed such efforts, no new legislation has been enacted. Health professionals and women’s rights groups have joined the call for reform of the restrictive abortion laws. Some of the currently proposed revisions would permit legal abortions for pregnancies resulting from rape or incest, require a 48 hour waiting period complete with counselling, and designate clinics for abortions to be performed by trained medical personnel. Public debate on amending the highly restrictive abortion ban has reached the legislature, which is reportedly scheduled to deliberate on the domestically controversial issue of liberalizing the procedure.³⁰

Moreover, sterilization is legal in Nigeria. Although “emasculation” is regarded as “grievous harm” in the Penal Code, the law exempts surgical operations that are performed in good faith and with reasonable care from prosecution as a crime. The Criminal Code contains similar provisions. In 1992, the federal government of Nigeria confirmed in a report to the UN Population Fund that sterilization in Nigeria is legal if performed for life, health eugenic, or contraceptive purposes. Sterilization is not a common method of contraception in Nigeria; women who have elected female sterilization comprise fewer than four percent of female contraceptive users.³¹

Sterilization is available in government health institutions and teaching hospitals. All surgical operations must be performed by registered practitioners in Nigeria. It is common for Nigerian medical practitioners to require spousal consent for female sterilizations.

1.3.2  COMMENTS ON LEVEL OF IMPLEMENTATION

          The degree of implementation of national policies that are relevant to the promotion of RH depends largely on two broad factors: - (a) the state of the Health Sector; and (b) the political will to ensure effective implementation of the contents of the policies (both in letter and spirit).

a) The State of the Health Sector

          The monitoring and evaluation of implementation of the RH policy adopted in 2001 depends heavily on the support given by the Federal Ministry of Health to the capacity of the National Health Management Information System to provide information at all levels on progress made in reducing mortality and morbidity arising from reproductive health issues; and support the supervision, monitoring and evaluation of reproductive health programmes at State and Local Government levels.

The above mentioned support needed is capital intensive and requires sufficient budgetary allocation to carry out the task in addition to both human and technical capacity building or resource mobilization. This is so because the morbidity and mortality patterns described earlier are determined not only by factors intrinsic to the individual but above all by external factors, including the extent to which adequate health care services are available and accessible. Other external factors, such as poverty, the environment, water supply and sanitation, educational levels, cultural attitudes and gender relations, also have important ramifications for reproductive health and survival.

The weaknesses in data recording, collating and reporting, from local to federal levels, as well as the poor capacity to analyse and utilise data for health policy development and planning, remain major challenges to overcome.³²

To a limited extent, the dearth of routine data is offset by the data available from surveys. However, while these surveys may be of value in monitoring key health and survival indicators, they are limited value for monitoring and assessing the capacity of the health system itself to respond to survival needs. This latter requirement can only be fulfilled by a more functional information management system, capable of gathering, analysing and disseminating reliable, comprehensive data on a timely basis.³³

The problems are compounded by the lack of comprehensive data on health system financing, due to the multiple actors involved in the system and the lack of any effective system for collating financial data from the federal, state and local governments, numerous parastatals, donors and NGOs. As a result, information on the distribution of expenditure between tiers of the system, different services and different parts of the country, as well as unit costs and other critical financial data for health sector planning, is simply difficult to come by on regular basis.³⁴

The high levels of morbidity and mortality, the limited or in many cases negative progress towards the attainment of the international goals for health and survival and the inequities in the distribution of health resources are all testimony to the fact that the Nigerian health sector has a long way to contribute in a meaningful manner to the stated national development goals of a just and egalitarian society and the achievement of health for all.

Several reasons have been proffered for this dismal situation, the most important being the weak political commitment under successive regimes to addressing the crisis in the health sector, inadequate budgetary allocations, over-dependence on donors, the fragmentation of the health system into a mass of poorly coordinated, parallel, vertical programmes and the failure to give real content to the declared aims of decentralisation and community participation in management.

In this respect, the Medium Term Plan of Action for Health Sector Reform for the years 2001-03, employed a combination of practical approaches, increased funding and additional resource mobilisation from donors to achieve  tangible improvements in seven key areas: - primary health care, disease control, sexual and reproductive health (including STIs and HIV-AIDS), secondary and tertiary care, drug production and management, coordination with development partners, and organization and management.

b) The Political Commitment

          In this respect, the return to civilian rule has provided opportunities for a fresh approach to health sector reform. There are signs of greater political will to tackle the underlying problems affecting the health system and of a renewed interest on the part of some development partners to assist these efforts.

          One practical demonstration of the political commitment on the part of Nigerian leadership is the 2004 revision of the National Health Policy which seeks to provide a comprehensive framework for a more coordinated, integrated and sustainable RH programming and clearly specified implementation process including monitoring and evaluation techniques.

          Further, the newly developed 2004-2007 Health Sector Reform Plan of Action seeks to, among other things, support the implementation of the revised  National Health  policy, guide investments and actions by all levels of government, the private sector, donors and all development partners in health. The plan contains goals, targets and priorities in seven strategic intervention areas.

          Furthermore, the development of the HEAP document as a back up to the National Policy on HIV-AIDS shows the proactive national response to the spread of the epidemic under the current dispensation.

          The HEAP document as a programmatic framework identified over 200 activities conceived as short-term (2001-2004), high impact interventions. Among the achievements of the above measures are: -

a)                                sustained improvement in establishing and documenting the magnitude, trend and future projections of the HIV-AIDS/STDs epidemic, which serve as a formidable tool for advocacy and effective planning;

b)                                high-level advocacy to policy makers and opinion leaders which has resulted in the recent increase in political commitment and increased funding of the national response;

c)                                 acceptance of the reality and an increased level of awareness about HIV-AIDS epidemic by the general population;

d)                                more openness in discussing the disease and its impact on society, the economy and the family;

e)                                 significant mobilisation of financial and technical resources from within and external sources;

f)                                  increased tempo of activities by local and foreign NGOs, resulting in substantial community-based innovative projects;

g)                                 broad-based consultative and participatory planning process and the increasing mainstreaming  of HIV-AIDS into all facets of national life.³⁵

Despite these efforts, however, the national response to HIV-AIDS still has many challenges to contend with. This include the following:-

i.                                                    to expand Voluntary Counselling and Testing (VCT);

ii.                                                  to provide drugs and treatment;

iii.                                               build infrastructure in response to the outcomes of VCT and other awareness programmes;

iv.                                                provide safety nets for the poor, especially through access to affordable drugs, nutrition, counselling follow-up and assistance to help orphans stay in school;

v.                                                   enough rapid expansion of the intervention programmes quite critical if health  personnel and facilities are to be able to cope with the trend;

vi.                                                a sustained proactive multi-sectoral approach towards prevention and mitigation of its effects is necessary to stop and begin to reverse its impact on human development in Nigeria.

Moreover, the emerging issues highlighted by the 1991 census, the 1994 ICPD plan of action, the 1999 HIV-AIDS Summit in Abuja and other fora resulted in a revision of the National Policy on Population, which was signed by the President on 14 January 2004. The revised Policy recognizes that population factors, social and economic development, as well as environmental issues are all critical to the achievement of sustainable development in Nigeria. The overall goal of the 2004 policy on population for sustainable development is the improvement in the quality of life and standards of living of the people of Nigeria.

1.3.3  COMMENTS ON THE LEVEL OF DOMESTIC IMPLEMENTATION OF INTERNATIONAL LEGAL INSTRUMENTS/NON-BINDING STANDARDS RELEVANT TO REPRODUCTIVE HEALTH AND RIGHTS IN NIGERIA

As earlier listed, the Protocol on the Rights of women in Africa³⁶ is one of the key instruments for advancing reproductive and sexual health rights in Nigeria having being ratified by Nigeria, though yet to be domesticated or incorporated as part of Nigerian law. Hence legally binding on Nigeria in terms of respect, observance, promotion and protection of the rights guaranteed therein.

The Protocol³⁷ affirms reproductive choice and autonomy as a key human right and contains a number of global first. For example, it represents the first time that an international human rights instrument has explicitly articulated a woman’s right to abortion when pregnancy results form sexual assault, rape or incest, when continuation of the pregnancy endangers the life or health of the pregnant woman; and in cases of grave fetal defects that are incompatible with life. Another first is the protocol’s call for the prohibition of harmful practices such as FGM, which have ravaged the lives of countless young women in Africa.

The Protocol requires States Parties (like Nigeria) to “ensure that the right to health of women, including sexual and reproductive health, is respected and promoted.” This includes : - (a) the right to control their fertility; (b) the right to decide whether to have children, the number of children and the spacing of children; (c) the right to choose any method of contraception; (d) the right to self-protection and to be protected against sexually transmitted infection, including HIV-AIDS; (e) the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infection, including HIV-AIDS, in accordance with internationally recognized standards and best practices; (f) the right to have family planning education.

The Protocol also provides that States Parties shall take all appropriate measures to : - a) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas; (b) establish and strengthen existing pre-natal, delivery and post natal health and nutritional  services for women during pregnancy  and  while they are breast-feeding ; (c) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and when the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.

The Protocol also calls upon States to: -

a)                                                                                         provide adequate, affordable, and accessible health service to women;

b)                                                  prohibit all medical or scientific experiments on women without their informed consent;

c)                                                                                          guarantee women’s right to consent to marriage;

d)                                                                                         set the minimum age of marriage at 18 years;

e)                                                                                          ensure equal rights for women in marriage;

f)                                                    protect women against all forms of violence during armed conflict and consider such acts as war crimes;

g)                                                   enact and enforce laws upholding all forms of violence against women, including unwanted or forced sex;

h)                                                                                         and, reform laws and practices that discriminate against women.³⁸

In addition to the above Protocol, women’s reproductive and sexual health rights, including the rights to equality, life, liberty, security of the person, health, family planning, consent to marriage, privacy, protection from all forms of discrimination, sexual violence, harmful practices, and from cruel, inhuman, and degrading treatment or punishment, are embedded in the following African and UN international human rights treaties ratified by Nigeria.

1.                                   The African Charter on Human and Peoples’ Rights (Articles 3-6, 16).

2.                                   The OAU Charter on the Rights and Welfare of the African Child (Articles 3-16).

3.                                   UN Convention on the Rights of the Child (CRC) (Articles 1,6,16,24,37,19,34),

4.                                   UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (Articles 1, 2, 5, 6, 10-12, 16).

5.                                   International Covenant on Economic, Social and Cultural Rights (ICESCR) (Articles 2, 10, 12-13).

6.                                   International Covenant on Civil and Political Rights (ICCPR) (Articles 6, 7, 9, 17, 23).

7.                                   UN convention Against Torture (CAT) (Article 1).

8.                                   UN Convention on the Elimination of All Forms of Racial Discrimination (Article 5).

These treaties are legally binding instruments that require all ratifying countries  (like Nigeria) to take specific actions at the national level to respect, promote and protect reproductive and sexual  health rights of women in particular.

Of all the above mentioned treaties, only the African Charter on Human and Peoples’ Rights had been domesticated as cap, 10 Laws of the Federation of Nigeria, 1990 and applied in cases that came before Nigerian courts. However this charter contains the following key shortcomings as it pertains to women: -

a)                             only one out of the more than sixty articles makes specific reference to women;

b)                             its failure to explicitly define discrimination against women;

c)                              its lack of guarantee to the right to consent to marriage and equality in marriage; and,

d)                             its emphasis on traditional values and practices that have long impeded the advancement of women’s rights in Africa.

Hence the justification to domesticate the protocol on Women’s Rights in Africa that is supplementary to the Charter in order to remedy the deficiencies mentioned above.

Another bold attempt to implement the provisions of the UN Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child, as well as CEDAW in particular, are the following Nigerian Laws at both the Federal and State levels: -

1.                             The Child Rights Act, 2003: - defines a child as a person below the age of 18 years; and sets 18 as the minimum legal age for all purposes, including marriage, sexual consent, criminal liability, deprivation of liberty, corporal punishment and imprisonment, as well as subjecting to capital punishment, labour, economic and sexual exploitation; etc (Section 277, 21-34 and 221).

It however failed to protect the girl-child from harmful practice like FGM.

2.                             A selective domestic implementation of the provisions of Article 6 of CEDAW on prohibition of trafficking in women and exploitation for prostitution can be found in the promulgation of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, No. 24, as amended by Act No. 14 of 7^th December, 2005. This Act prohibits and prescribes punishment for traffic in persons, particularly women and children, and establishes a national agency (NAPTIP), charged with the responsibility for investigation and prosecution of offenders thereof and the counselling and rehabilitation of trafficked persons.

To date, NAPTIP has recorded successful prosecution of seven cases at different State High Courts of the Federation, including Kano, Ogun and Edo states.

3.                             The following spate of domestic legislations at both States and Federal levels, that aimed at eliminating all forms of discrimination against women, including all forms of violence and harmful traditional practices against women and the girl-child, are hence consistent with the relevant provisions of all the eight mentioned UN and African treaties. These laws are as follows: -

a)                             The Enugu State of Nigeria 2001, No. 3 on: - The Prohibition of  Infringement of a Widow’s and Widower’s Fundamental Rights law;

b)                             The Edo State Criminal Code (Amendment) Law 2000, cap. 48 on the prohibition of trafficking and sexual exploitation of women and girls;

c)                              The Zamfara State Sharia Penal Code law of 2000, Vol. 1, No. 4, sections 207 to 239 equally seeks to protect women and young girls from all forms of cruelty, sexual, labour and economic exploitation as well as trafficking;

d)                             Bauchi State Hawking by Children (Prohibition) Act 1985, cap. 58;

e)                              Ebonyi State Law 010(2000) on the Abolition of Harmful Traditional Practices against Women and Children;

f)                               Edo State Female Genital Mutilation (FGM) Prohibition Law 2000;

g)                              Cross-River State Girl-Child Marriage and Female Circumscission (Prohibition) Law of (2000).

4.                                Furthermore, section 54 of the Labour Act Cap. 198 Laws of the Federation of Nigeria, 1990 provides protection to pregnant women workers and their right to Maternity Leave. Under section 58 (1) of the same Act, breach of any provision on maternity leave is, in addition to any civil liability, a criminal offence.

However, sections 54 and 55 of the same Labour Act contained prohibitions of employment of women at night and in underground work, thereby arming an employer with a legitimate weapon against women or the interest group in question, except that the prohibitions do not apply to women falling within the middle level and high level cadres of employment.

5.                                Moreover, the Factories Act Cap. 126, Laws of the Federation of Nigeria 1990, which makes detailed provisions for the health, safety and welfare of  workers does not take into consideration the sensitivity and susceptibility of the female reproductive health rights/functions and the need to protect the unborn baby; the effect of toxic substances, radio-active materials in women. Little or no research has been carried out to know the extent of the hazards and the ways of eliminating the hazards.

1.4     CONCLUSION AND RECOMMENDATIONS

          It is evident from the above review of relevant and key national policies and legislations as well as international instruments related to Reproductive Health and Rights in Nigeria, that efforts in the progressive realization of the goals, objectives and targets set out above, have been made. However, a lot more needs to be done by exploiting the windows of opportunity that exist in Nigeria.

          From the identified gaps in the RH policies and legislations as well as comments on the level of implementation, the following recommendations are made: -

1.                                                     To improve the policy environment, a vigorous preventive awareness campaign should be mounted like never before. This should be so enriched with cases and statistics to compel a positive change in the behaviour of the target populations and the message should be disseminated consistently and sustainably to the remotest corner of the country.

2.                                                     To meaningfully enjoy and ensure effective promotion and protection of reproductive health and sexual rights, and the rights of persons infected and affected by HIV-AIDS outlined in the policies, there is the need for urgent constitutional review to upgrade these rights as fundamental human rights under chapter 4 of the constitution or at least, as part of chapter 2 on fundamental objectives and directive principles of state policy. These rights must be made part of constitutional obligations of all levels and tiers of government to respect, observe, promote and protect because they are human rights founded upon principles of human dignity and equality as well as survival issues.

3.                                                     The constitutional status of these rights will automatically attract repeal of provisions of anti-reproductive health rights legislations and the adoption of laws that guarantee women and men the full range of reproductive health services; criminal laws that penalize gender-based violence, including violence that occurs in the family, home, in schools and the workplace; laws with education and outreach components, that prohibit FGM; family laws that guarantee women’s rights to equality in marriage, including their right to land and property ownership during and upon the dissolution of marriage; laws that require accompanying policies or programs include laws that address or recognize women’s rights to sexual and reproductive  health, a woman’s rights to abortion, violence and sexual discrimination/harassment against women.

4.                                                     The above approach will hopefully address women’s unjust legal, political, economic and social powerlessness, which explains much unsafe motherhood and maternal mortality and morbidity.

5.                                                     The national response to reproductive health concerns and HIV-AIDS needs to be continuously assessed, to provide all stakeholders with constant feedback on progress with implementation, by identifying actual or potential successes and problems so as to facilitate timely adjustments to implementation. The existing management information system needs to be made more effective by enhancing its capacity (human, technical and financial) with clear statements of measurable objectives in order to serve as an indispensable tool to assess and improve performance.

6.                                                     Other existing windows of opportunity to explore as a way forward in addressing reproductive health concerns and in combating HIV-AIDS epidemic, include the large network of civil society groups that should be maximized. All stakeholders, including the government, should ensure that the whole country is effectively covered in the number and diversity of intervention. The capacity of the support groups should be built to achieve the goal of the intervention.

7.                                                     Additional veritable window of opportunity, is the public-private partnership that should be solidified. The private sector should be more encouraged to play a greater role in the above mentioned critical areas of concern given its potential to mobilize abundant human, technical and financial resources. Given the financial constraints and the non-availability of certain expertise in government, it is desirable to establish a formal, mutually beneficial, business arrangement of long-term nature, between the government institutions and private partners involving share governance and accountability as an important component in mobilizing resources for the national response.

8.                                                     The partnership must be all-embracing; state and local governments and all CSOs as well as development partners must play their part, alongside the federal government and the private sector. The existing political commitment should translate to positive results, for it to be meaningful.

ENDNOTES AND REFERENCES

1.                       See Ladan M.T., Introduction to International Human Rights and Humanitarian Laws, 1999, A.B.U. Press, Zaria, Nigeria, Chapter 2.

2.                       Ibid.

3.                       (1981) 1NCLR 262.

4.                       Section 34 (1) of 1999 Nigeria Constitution.

5.                       (1991) Part 200, 6 NWLR 708 at 764-778.

6.                       Section 35(1)(c) Constitution of Nigeria.

7.                       Ibid, section 33(1)-(2).

8.                       Ibid, section 37.

9.                       Ibid, section 39.

10.                   Section 40, Ibid.

11.                   Section 41, Ibid.

12.                   See WHO International Health Regulation (1969).

13.                   See section 38 Constitution.

14.                   Ibid, section 36(1).

15.                   Section 43, Ibid.

16.                   Section 45, Ibid.

17.                   Ibid, section 45(a).

18.                   Ibid, section 45(b).

19.                   (1997) 7 NWLR (pt. 50) 238.

20.                   Section 36 (12).

21.                   E.g. Oyo State.

22.                   Of 1988, 1998 and revised in 2004.

23.                   Adopted in 1995.

24.                   Initially adopted in 1988, revised in 2004.

25.                   Adopted in May 2001.

26.                   See Centre for Reproductive Law and Policy, New-York, USA, (2001) Progress Report: - Women of the World: - Laws and Policies Affecting their Reproductive Lives-Anglophone Africa, p.79.

27.                   Food and Drugs Act Cap. 150 LFN 1990, section 5(a).

28.                   Ibid, sections 4, 8(2) and 17.

29.                   Criminal Code, section 233(c)(1); Penal Code Law, section 202.

30.                   Supra note 26, at p.81.

31.                   Ibid, at p.82.

32.                   See UNICEF and FGN (2001): - Women and Children’s in Nigeria: - A Wake up Call:- SAA: - pp.97-100.

33.                   Ibid at pp.98-100.

34.                   Ibid.

35.                   See UNDP (2004) Human Development: - HIV/AIDS: - A Challenge to Sustainable Development in Nigeria, at pp.56-98.

36.                   Adopted on July 11, 2003, entered into force on 25 November, 2005.

37.                   See Articles 1-26.

38.                   Ibid.

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