THE LEGAL FRAMEWORK FOR THE REPRODUCTIVE RIGHTS OF WOMEN UNDER INTERNATIONAL HUMAN RIGHTS LAW
3.3 INTERNATIONAL AND REGIONAL TREATIES ON THE PROTECTION OF THE REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN NIGERIA AND
SOUTH AFRICA
Nigeria and South Africa are members of the international community and have signed and ratified some of the international instruments that protect the reproductive health rights of women. Although both countries are democratic states, their attitude to the execution and fulfilment of the various international treaties to which they have both subscribed are poles apart.
124 Articles 89 and 90 of the Beijing Declaration and Platform of Action.
125 Article 92 of the Beijing Declaration and Platform of Action.
126 The African Union Protocol on Women‟s Rights 2005, is an example of an instrument that embodied the reproductive health rights of women in accordance with the various international conventions on women‟s rights.
127 General Comment No 14 of the UN Committee on Economic, Social and Cultural Rights (2000).
128 General Recommendation 24 of the United Nations Committee on the Elimination of Discrimination against Women, 1999.
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The duty of a state to implement a treaty is entrenched in the international law principle known as pacta sunt servanda (agreement must be kept) – which signifies that a state that agrees to the terms of an international treaty must be willing to observe the provisions of the treaty.
Nevertheless, states adopt different approaches in fulfilling their international treaty obligations.
A state may make the provisions of a treaty part of her constitution, or make the provisions of a treaty superior to her statutory law. Treaties can also be made equal to statutory law or may not be applicable in the country until they are enacted as a law by the legislature.129
The approach adopted by a particular state depends on the way in which it classifies a treaty.130 Thus, despite the international nature of a treaty, its application in a particular state is subject to the legal provisions of the state. According to Oyebode:
More often than not, it is the constitution of a state that provides the guidelines for treaty implementation either by specifying the location of the treaties within the hierarchy of sources of the domestic law or by establishing the relationship between international law and domestic law.131
It goes without saying that Nigeria and South Africa‟s constitutional provisions will determine the status of an international treaty in their domain.
Nigeria has acceded to a number of international and regional instruments that promote the realisation of the reproductive health rights of women. These include the CEDAW (13 June 1985); the International Covenant on Economic, Social and Cultural Rights (29 July 1993); the Convention on the Rights of the Child (19 April 1991); and the Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of Women in Africa (2005). However, this has not translated to improved reproductive rights for the country‟s women. This is because, in terms of the Nigerian Constitution, treaties signed by the country do not automatically become part of the law – unless they have been incorporated through domestic legislation.132 This position was
129 J.A. Dada “Human rights under the Nigerian Constitution: Issues and problems” (2012) 2(2) International Journal of Humanities and Social Science 33, 39.
130 A. Oyebobe International law and politics: An African perspective 1st Ed. (2003) 175.
131 A.B. Oyebode Treaty making and treaty implementation in Nigeria: An appraisal, D.Jur. Dissertation, Osgoode Hall Law School, York University, Toronto, Canada, 1988. 286.
132 E. Egede “Bringing human rights home: An examination of the domestication of human rights treaties in Nigeria” (2007) 51(2) Journal of African Law 249, 268-269.
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interpreted by the Supreme Court of Nigeria in General Sani Abacha v Gani Fawehinmi.133 The Supreme Court stated inter alia that:
An international treaty to which Nigeria is a signatory does not ipso facto become a law enforceable as such in Nigeria. Such a treaty would have the force of law and therefore justiciable only if the same has been enacted into law by the National Assembly…
Thus, for any treaty to be enforceable in Nigeria, it must be enacted as law by the legislative arm of the federal government (the National Assembly).134 Nigeria operates a federal system of government, comprising the federal government at central level and 36 states.135 The National Assembly comprises two houses, the House of Representatives and the Senate, and legislates for the Federation – while states‟ Houses of Assembly legislate for the states.136 The Constitution divides powers between the national and states‟ Houses of Assembly, in terms of exclusive and concurrent legislative lists.137 It empowers the National Assembly to legislate on issues on the exclusive and concurrent legislative lists,138 while the states‟ Houses of Assembly are only empowered to legislate on issues on the concurrent list, and other matters that are not on both lists. In terms of the domestication of any treaty to which Nigeria has assented – regardless of the nature of the matter – and whether or not it is on the exclusive legislative list, the National Assembly must enact it as a law for the treaty to be enforceable in the country.139 This aims to ensure that there is uniformity in the Federation‟s foreign policy.140 States‟ Houses of Assembly must participate in the domestication of matters that are not on the exclusive legislative list. The Constitution provides that before a Bill for the domestication of a treaty can be assented to by the president, the majority of Houses of Assembly in the country must have ratified the treaty.141 It has been argued that this process of domestication of treaties was inherited by Nigeria from Britain.142 It follows that assent and signing a treaty does not translate into the enjoyment of the
133 (2000) FWLR Pt 4 533 at 585-586.
134 Section 12(1) of the 1999 Constitution.
135 Sections 2 and 3.
136 Section 4.
137 Section 4 of the 1999 Constitution.
138 Section 4 (2) (3).
139 Section 12(2).
140 Oyebode, note 131 (above) 129.
141 Section 12(3).
142 Egede, note 132(above).
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rights recognised in such treaties. This requires commitment on the part of the government to follow due process – so that such treaties do not amount to a toothless bull dog. Domestication of an international treaty in Nigeria by the National Assembly may not make much difference if such treaty deals with an issue which is on the concurrent legislative list. This is because, when a treaty of this nature is domesticated by the National Assembly, a state‟s House of Assembly must also enact it as a law – in order for it to apply in that particular state. An example is the Child Rights Convention, which was domesticated by the National Assembly and adopted by some states. This is discussed more extensively in a subsequent chapter. It goes without saying, that in Nigeria, there may be disparity in the enjoyment of the various reproductive health rights treaties, even if they are domesticated by the federal government of Nigeria. This is because some state governments may decide not to adopt the domesticated treaty.
Furthermore, when a treaty is domesticated in Nigeria, it does not enjoy primacy over the Constitution. The Nigerian Constitution clearly states that: “The Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria”143 It goes further by stating that “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void”. Therefore, notwithstanding the content of an international treaty, its status is equal to the status of domestic legislation in Nigeria. This was clarified by the Supreme Court of Nigeria in General Sani Abacha v Gani Fawehinmi.144 The Court elucidated the status of the African Charter on Human and Peoples‟ Rights (Ratification and Enforcement) Act145 by declaring that:
It is a statute with International flavor. Being so … if there is a conflict between it and another statute its provisions will prevail over those of other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation … The Charter possesses “a greater vigour and strength” than any other domestic statute but that is not to say that the Charter is superior to the constitution.
This suggests that some of the provisions of the African Charter may not be enforceable in Nigeria. Having been domesticated, the Charter ought to address the Constitution‟s inadequacies
143 Section 1(1).
144 Note 133 (above).
145 Cap 10 LFN 1990 (Now Cap A9 LFN 2004).
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in terms of socio-economic and cultural rights.146 The African Charter recognises the socio- economic and cultural rights categorised in Chapter two of the Constitution as part of the rights that are not enforceable in the courts by virtue of section 6(6) of the 1999 Constitution. However, these rights are not enforceable in Nigeria, since the Charter‟s provisions are inconsistent with the provisions of the Constitution.147 This is the reason for the dearth of cases on the enforcement of the reproductive health rights of women in Nigeria – despite their daily violation at public and private levels.
The realisation of Nigerian women‟s socio-economic rights, and, more importantly, their reproductive health rights, is thus in effect, a mirage – despite the country having acceded to the various human rights instruments that recognise these rights. Reflecting on the influence of the Constitution in international treaties, one of the Justices of the Supreme Court in General Sani Abacha v Gani Fawehinmi stated that:
It is therefore manifest that no matter how beneficial to the country or the citizenry an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into law by the National Assembly.148
South Africa has also signed and ratified a number of international treaties that promote women‟s reproductive health rights.149 The South African Constitution, mandates Parliament to promote and protect human rights.150 Section 42 notes that the South African Parliament consists of the National Assembly and the National Council of Provinces, and sets out the duties of each body. As in Nigeria, the executive signs and ratifies a treaty – but such treaty will not have the force of law in South Africa unless it has been approved and enacted into law by national legislation.151 Once Parliament has resolved to approve an international treaty, it must be incorporated into domestic law.152 In Glenister v President of the Republic of South Africa and
146 Egede, note 132 (above).
147 Section 1(1) of the 1999 Constitution.
148 Abacha‟s case, note per Ejiwumi JSC, 356-357.
149 The International Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of all Forms of Discrimination against Women, and The African Charter on Human and Peoples‟ Rights – among others.
150 Section 1(a) of the 1996 Constitution of the Republic of South Africa.
151 See, generally, Section 231 of the 1996 Constitution on International Agreements.
152 L. Chenwi “Using international human rights law to promote constitutional rights: The (potential) role of the South African parliament” (2011) 15 Law, Democracy & Development 1, 10.
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Others the Constitutional Court highlighted the various ways in which an international treaty can be domesticated in South Africa, by stating that:
(a) the provisions of the agreement may be embodied in the text of an Act;
(b) the agreement may be included as a schedule to a statute; and
(c) the enabling legislation may authorize the executive to bring the agreement into effect as domestic law by way of a proclamation or notice in the Government Gazette.
Upon incorporation, an international treaty is equal to any other domestic law, and is not superior to it unless it is explicitly elevated by Parliament based on its general application or in the event of any conflict between the treaty and domestic legislation.153
From the forgoing discussion, it is evident that the procedures for the domestication of international treaties in Nigeria and South Africa are similar. However, South Africa has demonstrated the political will to incorporate the provisions of most of the treaties on the reproductive health rights of women. The most recent development in South Africa is the ratification of the ICESCR. South Africa has been able to promote the reproductive health rights in various international instruments, because her Constitution accommodates reproductive autonomy. Notwithstanding this, South Africa still expressed some reservations on Article 6(h) of the African women‟s protocol which confers equality between the man and the wife where nationality of their children is concerned. Nevertheless, the country has adopted the various provisions of the international treaties that promote and protect women‟s reproductive health rights.
One could argue that one of the motivations for the domestication of international treaties in South Africa is that women are considerably represented in the parliament – unlike in Nigeria.
Women have constituted about 40% of the members of parliament in South Africa, whereas in Nigeria women representation is as low as 7%.154 If there is gender parity in the parliament, women will be able to agitate for the domestication of treaties on women‟s rights. For example, the Nigerian senate recently threw out a gender equality bill which could have afforded Nigeria the opportunity to domesticate some of the provisions of the United Nations Convention on the Elimination of all Forms of Discrimination against Women and the Protocol to the African
153 Chenwi, note 152(above).
154 Available at: http://beta.data.worldbank.org.
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Charter on Human and People‟s Rights on the Rights of Women in Africa. The Bill might have been able to pass, if there had been gender parity in the senate.
In voting for legislators, men vote against women, on the grounds that women are inferior and therefore cannot legislate on their behalf. Women are discriminated against by excluding them from politics through traditional methods based on male- centered interpretation of culture.155 In some situations, husbands find a way of stopping their wife from participating, due to the belief that a woman‟s job is to take care of the home and that participating in such activities will hinder her from performing her role as a mother and wife. This is as a result of wrong perception about in politics they are seen and treated as (prostitutes/ wayward) of easy virtues, cultural rebellions among others.156 Women‟s lack of participation in legislative processes has a great impact on the enforceability of their reproductive health rights.157 Men‟s efforts, if any, to promote these rights will inevitably not be sufficient, because they are not the direct beneficiaries of such rights.