ANALYSIS OF THE LEGAL AND CULTURAL PERSPECTIVES
4.4 CONSTITUTIONAL, LEGISLATIVE AND POLICY FRAMEWORK FOR THE PROTECTION OF THE REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN
4.4.1 Constitutional Framework
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Assembly and assented to by the Governor of the state. However, as noted earlier, only 24 of the 36 states have passed the Child Rights Act into law. The 12 that have yet to do so are mostly northern states: Adamawa, Bauchi, Borno, Enugu, Gombe, Yobe, Kaduna, Kano, Kastina, Kebbi, Sokoto, and Zamfara states.128
4.4 CONSTITUTIONAL, LEGISLATIVE AND POLICY FRAMEWORK FOR THE
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have equality of rights, obligations and opportunities before the law; and (b) the sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced.
Subsection (3) states that the state shall direct its policy towards ensuring that: (d) there are adequate medical and health facilities for all persons; (f) children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect; and (h) the evolution and promotion of family life is encouraged. In Section 21 (a), the Constitution provides that “the state shall protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this chapter”.
The various provisions highlighted above are connected with the relationship between various cultural practices and the reproductive health rights of women in Nigeria. According to Section 17(1), there should be no disparity of any kind; all citizens should be treated equally, whether male or female. This suggests that male citizens should not dominate female citizens. This provision was amplified in paragraph 2 (b), by providing that the sanctity of the human person shall be recognised and that human dignity shall be maintained and enhanced. Subsection 3(d) accommodates the issue of reproductive health rights, by making provision for medical and health facilities for all women.
Reproductive health rights cannot be enjoyed in the absence of good medical and health facilities. Section (3)(f) is also of significance on the issue of the reproductive health rights of women, as it aims to protect children and young persons from all forms of exploitation. This would include sexual exploitation which has direct consequences for a woman‟s reproductive autonomy. Furthermore, section 17(3)(h) enjoins states to encourage the evolution and promotion of family life. Finally, section 21 provides that the state shall promote Nigerian cultures that enhance human dignity. It follows that any culture that fails to enhance human dignity, is inconsistent with the provisions of the Constitution.
Chapter two of the Nigerian Constitution merely provides for the fundamental objectives of state policy that should guide the state at all levels in policy-making – to ensure social order.
Nevertheless, the various rights protected by this chapter are not justiciable. To this end, an
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action cannot be taken to the court to enforce compliance with these provisions.129 If policy- makers choose not to pay attention to these socio-economic issues, citizens cannot compel them to do so. Accordingly, the provisions of this section do not grant legal rights to Nigeria‟s citizens, and their breach cannot be redressed in court.130
The jurisdiction of the court on this matter is rendered null and void by the constitutional provision, which provides that the court “shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter two of this Constitution”.131
In contrast, the civil and political rights in chapter four of the Constitution are justiciable. While the various civil and political rights related to women‟s reproductive health rights are discussed more comprehensively at a later stage, it should be noted that women can enforce the following legal rights – whenever they are breached.
(a) The Right to Life
The Nigerian Constitution recognises the right to life. Section 33 states that “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…”.132 This right has been described as the fulcrum of all rights from which every other right flows.133 The constitution provides that any death not arising from the execution of a death sentence, is a violation of the right to life. Nigerian women experience violation of this right on a daily basis as a result of various cultural practices that are inimical to good reproductive health, and that lead to loss of life. Women who are victims of certain cultural
129 Section 6(6), 1999 Constitution.
130 I.N. Aniekwu “Gender and reproductive health: Towards advancing judicial reform in Nigerian law”. In: E.
Azinge (Ed.), Judicial reform and transformation in Nigeria (2012) 428, 430.
131 Section 6(6)(c), 1999 Constitution.
132 Constitution of the Republic of Nigeria, 1999.
133 U.P. Okeke “A case for the enforcement of women‟s rights as human rights in Nigeria”. Available at: http:
//www.wunrn.com (accessed on 14 April 2015).
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practices134 suffer from vesico vaginal fistula, sepsis, postpartum hemorrhage, chronic pelvic and obstetric complications, prolonged and obstructed labour, reproductive tract infections, among others – which may lead to death.
Although the reproductive health rights of women are not expressly protected by the Constitution, the provisions of section 33 can be invoked to seek protection of such right. The reproductive life of a person is germane to their existence. Consequently, its protection is one of the necessary conditions to enjoy the right to life, which the Constitution guarantees.
(b) The Right to Dignity
Section 34 of the Constitution provides that every individual is entitled to respect for the dignity of his/her person. Thus, no person shall be subjected to torture or to inhuman or degrading treatment.135 This section further provides that no person shall be held in slavery or servitude.
The dignity of a person cannot be divorced from his/her socio-cultural life. Certain cultural practices relating to widowhood impede women‟s right to dignity. In Theresa Onwo v Nwafor Oko &12 Others,136 the appellant lost her husband, and in accordance with the custom and tradition of the community, the respondents forced her to shave her head. She was locked up in a room and all her possessions were taken away from her. She applied to the court for leave to sue the respondents in order to enforce her fundamental right to dignity and the right to own property – among other rights. The High Court granted her leave to enforce her rights.
The practices of early forced marriage and FGM are in conflict with the provisions of section 34.
These practices are tantamount to inhuman or degrading treatment. In the context of reproductive health rights, dignity entails the right to make decisions regarding one‟s body without any external influence. Practices that subject women to inhuman or degrading treatment – such as FGM, widowhood practices, and early forced marriages, among others – conflict with this section of the Constitution.
(c) The Right to Personal Liberty
134 Cultural practices such as female genital mutilation, polygamy, and early forced marriages, among others, can impede the right to life.
135 Section 34, 1999 Constitution.
136 1996 6, Nigerian Weekly Law Report, Pt 456, 584.
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Section 35 of the Constitution provides for the right to personal liberty and that nobody shall be deprived of that right except in special circumstances that are stated in the Constitution.137 A widowhood rite that restricts a woman‟s movement and early forced marriage are, however, in conflict with this provision.
(d) The Right to Freedom from Discrimination138
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 groups, places of origin, sex, religion or political opinions are not made subject; or
(b) Be accorded either expressly by, or in the practical application of, 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 groups, places of origin, sex, religion or political opinions.
Section 42 of the Constitution provides for freedom from discrimination on a number of grounds, including gender. It is implicit from this section that the Constitution forbids disparity in the application of any law or action to Nigerian citizens. Citizens must be treated equally irrespective of their gender, community, ethnic group, place of origin, religion and political opinions. Consequently, any harmful cultural practice that applies to women in a particular community/ethnic group is not in consonance with this section of the Constitution.
Discrimination is inherent in a patriarchal society like Nigeria due to the culture of male preference – in which parents prefer their sons to their daughters. This makes boys feel superior to girls, and, from childhood, they discriminate against their female counterparts.139 Upon marriage, the culture regards a woman as inferior to the husband. She is regarded as the
137 1999 Constitution.
138 Section 42, 1999 Constitution.
139 Durojaye et al., note 1 (above).
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husband‟s chattel and her rights are subsumed under her husband‟s rights – meaning that she has no rights of her own.140
Several cultural practices in Nigeria encourage discrimination against women. Female genital mutilation discriminates against women on the grounds of gender. This practice denies women mutual sexual satisfaction as a result of the mutilation of their genitals. Widowhood practices also constitute discrimination against women. While women suffer degrading treatment on the loss of their spouse, if a man loses his wife in the same circumstances, he is exempt from such treatment.
Early forced marriage is another cultural practice that discriminates against women. This is simply a case of discrimination on the grounds of gender. A cultural practice that allows a girl child who is not yet mature – both physically and physiologically – to be married off while her male counterpart is allowed to mature and take decisions on whom and when to marry, is discriminatory. Polygamy is also discriminatory.
(e) The Right to Freedom of Thought, Conscience and Religion
Section 38 of the Constitution provides that every citizen of Nigeria shall be entitled to freedom of thought, conscience and religion.141 This includes the freedom to change one‟s religious beliefs, and the freedom to manifest or propagate one‟s religion or beliefs in worship, teaching, practice and observance. It is implicit from the foregoing, that nobody should be coerced under any circumstances to believe or participate in any religion – or be forced to obey any tradition that is contrary to their thoughts and conscience. In Nigeria, young girls and women are compelled to obey and follow the precepts of their father and husband on important issues in life.
The common belief in Nigerian society is that young girls and women do not have a mind of their own. Hence, they do not have freedom of thought and conscience. They rely on the men in their lives (father or husband) to take decisions for them. Consequently, they are victims of traditional practices that affect them adversely. Forced marriages, FGM and widowhood practices, among others, are examples of practices which women subscribe to against their
140 Okeke, note 133 (above).
141 Section 38, 1999 Constitution.
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conscience. In Theresa Onwo v Nwafor Oko and 12 others,142 in which the defendants wanted to subject the appellant to a particular custom against her conscience, the court ruled in her favour, that such an act is against her fundamental human rights.
(f) The Right to Freedom of Expression and the Press
Section 39 of the Constitution guarantees the right to freedom of expression.143 This includes the freedom to hold opinions and to receive and impact ideas and information, without interference.
This is not in consonance with traditional practice in Nigeria, which believes that women are to be seen and not heard. Patriarchy has a significant influence on human relationships. Women are forced into marriages and humiliating rituals without their consent.144 This practice has greatly subdued women and affected their reproductive health rights in Nigeria. There are also other laws and statutes in Nigeria that relate to the reproductive health rights of women.