The foundation of reproductive rights is based on human rights. Rights are embedded in the concept of claims, wants, desires, aspirations, and achievements. Human rights on the other hand, encompasses “those claims made by men and women for themselves and on behalf of others supported by some theories which concentrates on the humanity of man and woman; as a member of human community”.
Justice Kayode Eso, J.S.C in the case of Archbishop A.O Okogie v. A.G Lagos State (1981) described ‘human rights’ as rights which stand above ordinary laws of the land and which in fact are antecedents to the political society itself. Human rights are primary conditions to a civilised existence.
Nigerian constitutions since independence have those rights, so that the rights could be immutable to the extent of non-immutability of the constitution itself.
Human rights provisions contained in Chapter IV to the Constitution of the Federal Republic of Nigeria 1999 (as amended), include the right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to private and family life, right to freedom of thoughts, conscience and religion, right to freedom of movement, right to freedom from discrimination, right to own and acquire properties in Nigeria.
In the event of breach, all these rights are legally enforceable before any court of law in Nigeria.
As an advocate of women’s rights, Adebayo postulates that these constitutionally guaranteed rights, in particular the provisions of section 42 of the 1999 Constitution (as amended), gives to everyone irrespective of gender; the right to freedom from discrimination on grounds of sex, place of origin, religion, or political opinion. Among others factors, the words ‘sex’ appearing in the sub-section (1) of section 42, by extension and interpretation inclusive of women’s rights.
Women who are citizens of this country are entitled to all these rights and can challenge anyone who attempts to interfere with the exercise of any of the recognised rights in the constitution.
Adebayo identifies sexual rights as a fundamental aspect of human rights, adding that these rights include the right to experience a pleasurable sexuality, which is an important means of communication and love between couple. Sexual rights include the liberty and freedom in the responsible exercise of sexuality.
Sexual rights are important because they ensure respect within a relationship. According to Ezeilo, gender equality cannot be obtained without sexual rights and that without respect for sexual rights as human rights, women and girls are at the risk of genital mutilation, sexual harassment, rape, domestic violence, sexual slavery, unwanted pregnancy and sexual transmitted diseases including HIV/AIDS.
While deliberating further, Adebayo observed that the reproductive health rights encircle certain human rights that are already recognised by national laws and international human rights documents and other consensus instruments and covenants.
Reproductive Health Rights consist of the recognition of the basic rights of all couple to decide freely and responsibly; the number, spacing and timing of their children and to have information and means to do so, and the right to the highest standard of reproductive health. It also includes the right to make decisions concerning reproduction free from discrimination, coercion, and violence; and the rights of women to have control over her body and decide freely on matters related to their sexuality.
Similarly, Adebayo asserts that a manifestation of these rights suggests a protection from violence against women. Violence against women includes trafficking in women and children; sexual exploitation; female genital mutilation; early girl child marriage; harmful traditional practices against women. Others are inadequate access to and participation by women in society economy, politics and government; and gender biases.
Globally, many women face barriers to the enjoyment of their rights because of factors like race, language, ethnicity, culture, religion, disability, or socio- economic class, or because they are indigenous people, migrants, displaced women or refugees. It should be noted that women may also be disadvantaged and marginalised by their general lack of awareness and lack of recognition of their human rights.
Reproductive Health Rights
The term reproductive rights “embrace certain human rights that are already recognised in national laws as well as, international legal and human rights documents as expressed under principle 7.3 of the International Conference on Population and Development (ICPD) and 1994 and article 16(1) (e) of Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979. In the exercise of these rights, account should be taken of the needs of the living and future children and their responsibility towards the community.
Feminists like Volokh defines reproductive rights as an individual’s right to determination over their bodies for sexual, marriage and reproductive choices as rights. In my evaluation, it is evident that reproductive rights encompass two broad principles. These are the right to reproductive health care and the right to reproductive self- determination. The right to reproductive healthcare is rooted in the provisions of international human rights instruments protecting life and health.
The phrase ‘My right or not my choice’ is meant to represent the idea of personal bodily autonomy, bodily integrity and freedom of choice. Bodily autonomy constitutes self- determination over one’s own body, without external domination or duress. Bodily integrity is the inviolability of the physical body that emphasises the importance of personal autonomy, self- ownership, and the self-determination of human beings over their own bodies. Peter and Chrisje (2001) assert that the violation of the bodily integrity of another is regarded as either unethical, an infringement of fundamental rights and/or possibly criminal act.
Similarly, in the words of Suzannah (2015) the slogan ‘My body, my choice’ is a feminist idea which can be used synonymously with women’s reproductive rights and women’s rights issues.”
Adebayo postulates that the scope of reproductive health rights on the overall covers fundamental aspect of women’s well-being. Without regular access to safe, high quality services, women become vulnerable to a host of health complications which may include complications during childbirth, unwanted pregnancy and sexually transmitted diseases. Whereas reproductive health is a state of complete physical, mental and social well-being and not merely the absence of diseases of infirmity, in all matters related to the reproductive system, its functions and processes (WACOL, 2003).
Adebayo (2016) advocates for women’s right to have a satisfying sex life, capacity to reproduce and the freedom to decide if, when and how often to do so. Men and women should have the right to be informed and to have access to safe, effective, affordable and acceptable methods of their choice for the regulation of fertility as well as the right of access to health care for safe pregnancy and child birth. Reproductive health care is thus defined as the assemblage of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems (Article 94 and 97 of CEDAW & Article 7.9 of ICPD).
In addition, reproductive health consist of safe motherhood comprising of prenatal care, safe delivery, essential obstetric care, prenatal and neonatal, postnatal care and breastfeeding; family planning information and services. Others are, prevention and management of infertility and sexual dysfunction in both men and women; elimination of harmful practices, such as female genital mutilation and premature marriage; and management of non-infectious conditions of the reproductive system such as genital fistula.
Legal Regime of Bodily Self-Determination
There are both local and international instruments relevant to reproductive health in Nigeria. Equally, there are certain states obligations and specific actions required to be undertaken by government and other stakeholders in order to ensure the productive realisation of the components of reproductive health rights. Adebayo (2016a) informs that the International Conference on Population and Development (ICPD) held in
Cairo, Egypt marked a critical shift in the focus of population programmes and underscored the need to meet reproductive health needs of individuals and couples throughout life circle, as an approach to improving quality of lives of people and stabilising the world population. Nigeria as a signatory to the ICPD, committed herself to the operationalisation and realisation of the reproductive health concept and the achievements of the ICPD targeted goals.
In terms of local legislation, Sections 17, 33-45 of the 1999 Constitution contain provisions that are relevant to the promotion and protection of reproductive health rights in Nigeria. In addition, section 45 of the Nigerian Labour Law; the Criminal Code; the Marriage Act, as well as Matrimonial Causes Act, contained relevant, but controversial provisions relating to reproductive health rights of women .
The policies on the prohibition of discrimination and violence against women include the National Reproductive Health Policy and Strategy of 2001; National Policy on Women of 2004; National Policy on the Elimination of Female Genital Mutilation of 1998; National Policy on Women (2000/2004), National Adolescent Health Policy (1995), and National Policy on Maternal and Child Health of 1994. All these legislations have in one way or the other imparted on the framework that seeks to achieve quality reproductive and sexual health for all Nigerians.
At the international level, Nigeria has signed and ratified a host of multilateral treaties operative to the promotion and protection of the provisions that are relevant to reproductive health rights. To mention a few of these treaties/instruments are: The Protocol on the Rights of Women in Africa (2004), African Charter on Human and People’s Rights (2003), United Nations Convention on the Elimination of all Forms of Discriminations Against Women (CEDAW) of 1985; International Covenants on Civil and Political Rights (ICCPR) of 1993; International Covenants on Economic Social and Cultural Rights (ICESCR) of 1993; and the Universal Declaration of Human Rights of 1948.
Another step in the right direction for women’s advancement in Nigeria was the establishment in 1989 of the National Commission for Women as a means of promoting the full integration of women in development and for eliminating discrimination on grounds of sex. Advancing this frontier further, the year 1993-1995 witnessed the establishment of Ministry of Women Affairs and the National Commission on Human Rights respectively to deal with all matters relating to the protection of human rights (Nwankwo, 2004).
The wives of past Interestingly, Head of States/Presidents, have made women issues a national agenda by embarking on some specific programmes towards protecting and promoting women’s rights. To mention just a few are the Better Life Programme (BLP) initiated by the erstwhile Maryam Babangida, wife of former military ruler, General Ibrahim Babangida and the Family Support Programme (FSP) embarked upon by Hajja Laila Maryam Abacha, the wife of the erstwhile military junta, General Sani Abacha. Adebayo (2012) has acknowledged the fact that, today the office of the First Lady of the Republic has been institutionalised, though legally speaking, it has no constitutional backing.
The interplay of all these legislations, policies, instruments, treaties, and documents bestow on the Government through the Federal Ministry of Health, the responsibility of establishing and formulating health, policies for the country. Nonetheless, the policies and strategies were meant to achieve good health for all Nigerians, to articulate the goals of enabling all Nigerians to achieve socially and economically productive lives. According to Ladan (2006), the issues make as imperative, social, economic development, social justice, national security and general guidelines on overall healthcare service, preventive, curative, promotive and rehabilitative healthcare delivery.
Deficiency of Law and Policy
Unfortunately, not much has been achieved in the advancement of women’s rights. This is due to factors like economic, political, legal, social, cultural and tradition; which continue to impede the actualisation of women’s human rights.
Nigerian women suffer marginalisation in politics, poorly remunerated in the labour market, widowhood rites and practices, female genital mutilation and girl child betrothal. All these challenges are not only discriminatory of women, but inimical to women’s human rights advancement.
Endless and Unresolved Battles for Supremacy on Reproductive Health
Vice-Chancellor sir, the question of whether or not women’s reproductive health rights are recognised under the Nigerian law is paramount and important. This is so because I discovered in my research that the 1999 Constitution (as amended) does not recognise directly, the right to bodily autonomy or reproductive rights as a right per se (Adebayo, 2007b). However, several chapters of the Constitution spanning sections 33-44, contain cluster of human rights provisions that can, through the various rules of interpretation of statutes said to cover reproductive rights of women.
In particular, Chapter two of the 1999 Constitution (as amended) contains the country’s Fundamental Objectives and Directive Principles of State Policy alluded to these rights. Thus, it may not be wrong for one to infer recognition of the right to bodily autonomy or reproductive health rights as basic constitutional rights. Similarly, Section 14 of the Constitution also recognises that the security and welfare of the people shall be the primary purpose of the government.
Section 17 of the same Constitution also provides that the social objectives of Nigerian states obligates the government to direct its policies to ensure adequate medical and health facilities for all persons, and ensure that the health, safety and welfare of all persons in employment are not endangered or abused (Adebayo, 2007b). In addition, the section provides that children, young person and the aged shall be protected against exploitation, or against moral or material neglect; and that provision is made for public assistance in deserving cases.
Unfortunately, despite the laudable objectives behind the laws, policies, documents, instruments, declarations, and treaties on reproductive health rights, there is no iota of doubt that; there are still some lacunas either in their articulation, interpretation, implementation or application of these laws, policies and instrument. For instance, the National Health Policy fails to provide holistically for a comprehensive reproductive health rights, but focuses mainly on basic treatment, maternal and child health, family planning services, prevention and control of infectious diseases, and the provision of essential drugs and supplies (Adebayo, 2010a). Although the National Health Policy continue to be the guiding document on population and family planning, less attention is given to individual’s rights to determine the number and spacing of their children. Furthermore, the National Health Policy focuses on population growth and economic development rather than the legal implication/enforcement of the right to adequate facilities conducive to family planning. Adebayo, (2019) also notes with dismay that even the Nation’s Population Policy fails to account for the emerging concerns in family planning and reproductive health.
Sadly, many of the various laws in force in Nigeria on the emerging issues in the reproductive health due to the inadequacy in them do not address the true intent of reproductive health concept. Similarly, some of these policies do not provide for strategies and institutional frameworks for policy implementation, monitoring and evaluation of policy implementation on a regular basis at all levels of government (Adebayo, 2010b).
In addition, majority of these policies, tilts toward reducing maternal mortality and stillbirth or morbidity that are pregnancy related, reduction of incidences of sexually transmitted diseases; limiting all forms of gender-based violence and harmful traditional practices to women and children; and reducing greater imbalance in availability of reproductive health services. Others are increasing the involvement of men in reproductive health matters; reducing incidence and prevalence of infertility in men and women; and to promote research on reproductive health issues (ARFH Monograph, 1998).
Despite the declarations in these policies and the necessity for an enabling law to establish a permanent national statutory body or agency, no such legal framework has been passed to a law with a clearly defined functions, powers and responsibility to account to the public and stakeholders. An exception perhaps is the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) but the agency is also hindered by administrative bottlenecks. The result is that the existing institutional arrangement lacks provision for the effective development; execution, monitoring, and revision of the existing
policies.
Furthermore, Adebayo and Olokooba (2017a) insist that the lack of governmental commitment and financial support, coupled with low level of human resources support, have rendered weak and ineffective any review of the existing legislations on reproductive rights as human rights and the enactment of appropriate new legislations for the protection of women’s reproductive rights. The result is that these rights, particularly those relating to these rights of victims of the dreaded HIV/AIDS scourge and the rights of victims of sexual violence against women and the girl child are not well articulated.
Part of my analysis on women’s reproductive health rights is the rights of women in certain circumstances to contraceptives, sterilisation, and abortion. Presently there is no explicit law in Nigeria that regulates the sale or use of contraceptives drugs and devices, because they are openly sold in our chemists, pharmacy and retail outlets. The various family planning programmes only made available a variety of methods of fertility regulations to ensure free and conscious choice of all couples. However, Adebayo, (2010a) argues that the availability of contraceptive such as injectables, diaphragms, foaming tablets and male sterilisation at government distribution centres suggest that contraceptive use and distribution is legal in Nigeria. Perhaps, the only available legal control is through (National Agency for Food and Drug Administration and Control Act, 1993 (NAFDAC).
The Act prohibits misleading labelling and advertising practice by requiring manufacturers of drugs to furnish information on drugs chemical composition, it’s intended use and the result of clinical investigation and any adverse effect on the health that the drug may have.
Adebayo (2012) has also noted that abortion through contraception is also another major issue in the reproductive rights of women. The criminal law in Nigeria (sections 228-230 of the Criminal Code and Section 232 of the Penal Code) makes
the performance of abortion a criminal offence, unless it is performed to save a pregnant woman’s life. Abortion in Nigeria is illegal regardless of the duration of the pregnancy; the law prohibits abortion performed from the time of fertilisation and at all stages of foetal or embryonic development.
However, Ladan (1999) submits that, the law does not clearly distinguish between abortion performed by qualified medical practitioners and by quacks, nor the facilities in which an abortion takes place. Government does not subsidised abortion services and abortion are not available in most public health facilities except where it is to be done to save a woman’s life or in pregnancies resulting from rape or incest. This development has led health professionals as well as jurists and women’s rights groups to call for a reform of the restrictive abortion laws to permit legal abortion for pregnancies resulting from rape, incest, and unwanted cases, in designated clinics to be handling by trained specialist medical personnel as legally enforceable human rights of women (Adebayo, 2019a).
Levitating Freedom of Choice
Vice-Chancellor sir, Adebayo and Olokooba (2017b) are of the opinion that, presently, the state of reproductive health rights in Nigeria has been hampered by external factors such as non-availability and inaccessibility of health care services, poverty, the environment, educational levels, cultural values, gender relations, and survival factors. The lapses and laxity in data recording, collating and reporting from local to federal levels, as well as poor capacity to analyse and utilise data for health policy and development and planning cannot be overemphasised. All these in the words of Braam, and Hessini (2000) remain major challenges to be overawed. Several reasons have been proffered for these lamentable situations. I equally acknowledged the weak political commitment of successive regimes to address the crisis in the health sector, inadequate budgetary allocations, over dependency on donors, the fragmentation of the health system into a mass of poorly coordinated parallel, vertical programme and failure to give real content to the declared aim of decentralisation and community participation in healthcare management.
Furthermore, during the erstwhile administration of General Olusegun Obasanjo (rtd), there were fresh approaches to the health sector reforms. For instance, the revision of the
National Health Policy in 2004 to provide a
comprehensive framework for a more coordinated, integrated and sustainable reproductive health programme which specified implementation process including monitoring and evaluation techniques. There is also high-level advocacy to policy makers and opinion leaders which has resulted in the recent increase in political commitment and increasing funding of health institutions. Recently, on the 9th July, 2024, the bill to among others, create extra 74 seats for women in parliament (both Senate and House of Representative) passed the second reading. The bill seeks to amend Sections 48 and 49 of the Constitution.
Prominent too is the Protocol on the rights of women in Africa that has been adopted in Nigeria in July, 2003. It has become one of the many instruments for advancing reproductive and sexual health rights in Nigeria. For instance, article 1 -26 of the Protocol affirm reproductive choice and autonomy as major human rights. The protocol represents the first international instrument to articulate women’s rights as human rights (Cook and Dickens, 2003).
In addition, the Protocol requires countries like Nigeria, to ensure that the right to health of women including sexual and reproductive health rights such as the right of women to control their fertility; right to decide whether to have children; the number and spacing of children; right to choose any method of contraception; right to protection against sexually transmitted diseases (HIV/AIDS); right to have family planning education, are respected and protected. The Protocol also enjoins countries to take appropriate measures to provide adequate, affordable, and accessible health services, including information, education and communication programmes with women in rural areas.
Recommendations
It is important for me to make the following recommendations on the reproductive autonomy and reproductive rights of women:
1. The inclusion of women’s rights in our constitution as part of the third generation of rights (socio-cultural rights) it is important and these rights should be made enforceable. Doing this will promote reproductive health rights in our society. Couple with this, I recommend the amendment of Chapter IV of the Constitution on Fundamental Human Rights to be made justiceable; or in the alternative, a new and separate chapter be created for these women’s rights in the proposed amendment to the constitution and tagged ‘Socio Cultural Rights’ and be made enforceable in our courts of law.
2. More concerted efforts should be made in educating men and women about the advantages of allowing women exercise not only their economic rights, but also reproductive rights as this will improve the quality of life of women and their family and by implication the whole nation. A vigorous preventive awareness campaign should be mounted that will facilitate the empowerment of women through training or induction course for our policy makers and a series of well- designed programmes for staff on gender issues and the use of gender disaggregated data for assessment and reporting.
3. Governmental and Non-Governmental Organisations should partner and play a greater role in the critical areas of concern for women’s reproductive health rights, giving the potentials that the private sector can mobilise abundant human, technical and financial resources like the Women Aid Collative (WACOL), Association for Reproductive and Family Health (ARFH), Civil Resources and Documentation Centre (CIRRDOC), Federation of Moslem Women Association in Nigeria (FOMWAN), National Council for Women’s Society in Nigeria (NCWS) that are currently doing good work in this direction.
4. The policies and legislations on women’s reproductive health rights have not specifically addressed some of the most needed reforms in the health sector. Hence, I am recommending that there should be a mandatory provision of government legislation on mental health services to protect women against disabilities arising from effect of female genital mutilation and other harmful traditional practice. In addition, women must have free and low-cost access to legal services. There must be the harmonisation of laws to ensure a realisation of women’s rights.
5. Furthermore, in order to effectively promote, protect, and enforce women’s reproductive health rights, all international legislations and policies on women’s should be articulated and reproductive health harmonised into a single instrument and documented. For instance, all protocols, declarations, policies, and charters on women’s reproductive health rights; including the right to equality of life, liberty, security of persons, family planning, consent to marry, privacy, protection from discrimination, sexual violence, harmful traditional practices, cruel and inhuman degrading treatment, should be domesticated and implemented in line with Section 12 of the 1999 Constitution (as amended).
6. There is also the need to reform and engender the language and substantive contents of the 1999 Constitution (as amended), particularly the sections that perpetuate gender discrimination and inequality between man and woman. For instance, section 25 of the
29 Constitution which provides for citizenship by registration is not constitutional. Equally, Section 24 of the same constitution provides that a woman lacks the legal ability to confer on her foreign husband the right to be resident within Nigeria.
7. There must be a substantial reduction in gender gap in education and employment through policies that are responsive to the current problems of women advancement. There should be a special focus on issues of gender stereotypes through reassessment of the roles of women and men. Notable and commendable was the establishment in 1989 of the National Commission for Women by Decree Nos. 30 and the establishment of the Federal Ministry of Women Affairs and National Commission on Human Rights in 1993-1995, all geared towards promoting and protecting rights of women.
8. Finally, a separate court may be created under the constitution and give special jurisdiction to entertain cases of women’s reproductive rights, abuses and violations. Such court should be given a separate legal and constitutional backing. The existing Family Court is non-active and functional enough to address issues of obnoxious laws and traditional or cultural practices that dehumanise women like widowhood rites, marital rape, inheritance and ownership of real property. The cases of Mojekwu v. Mojekwu and Mojekwu v. Ejikeme are milestones and welcomed in advancing women’s rights in this regard.
There is no doubt, Vice-Chancellor sir, that if these recommendations are accepted and put in the proper place and perspective and are followed to the letters, they will promote the effectiveness of the legislations on women’s bodily autonomy and reproductive rights and thus pave way for easy realisation and effective enjoyment of these rights of women in Nigeria.
***Extracted from Prof. Mamhud Kayode Adebayo’s Inaugural Lecture Titled: ON THE REPRODUCTIVE AUTONOMY OF MY RIGHT OR NOT MY CHOICE.
***Adebayo is a Professor of Private and Property Law, University of Ilorin
