CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the Study

Men and Women are entitled to the full protection of their rights because they are human beings. At its most basic level, “human rights” are safeguarded prerogative granted because a person is alive. This means that all human beings have rights by virtue of human species membership. A right, therefore is a claim to something (by the right holder) that can be exercised and enforced under a set of grounds or justifications without interference from others. The subject of right can be an individual or a group, and the object is that which is being laid claim to as a right. Human rights are, therefore, those rights that every human being possesses and is entitled to enjoy by virtue of being a human being.

Health has been defined by World Health Organization (WHO) “as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity”. The preamble to the Constitution of the World Health Organization also proclaims that “the enjoyment of the highest attainable standard of living is one of the fundamental rights of every human being without distinction of races, religion, and political belief, economic or social conditions”.5

Right to health as a fundamental human right was declared by the Universal

Declaration of Human Rights (UDHR) . Women‟s right to health has been declared as human right at Beijing, China. At the Conference, delegates from 189 countries committed themselves to upholding the equal rights and inherent dignity of women through the adoption of the Beijing Declaration. The Declaration called on governments to implement measures to eliminate discrimination and violence against women and girls, recognize women‟s rights as human rights; and within this context, control all aspects of their health and fulfil their responsibilities to respect women‟s human rights and humanitarian law.8

Women and men share many similar health challenges, but the differences are such that women deserve particular attention. They experience conditions that have negative impact on their wellbeing. Some of these are pregnancy and childbirth which are not diseases, but are biological and social processes that carry health risks and require health care. Throughout human history, pregnancy and child bearing have been major contributors to the health problem and disability among women. Maternal Mortality (the death of women during pregnancy, delivery or the post partum period) is a key indicator of women‟s health status. This indicator is very high in Nigeria, as it has been observed that over the past three and half decades, Nigeria has progressively shown one of the most abysmally poor reproductive health indexes in the world. Women‟s health should not be a problem only to women themselves. It is crucial to the health of the children they bear and their fitness for their roles both in the home and in public life. This underscores the importance of providing sound healthcare for women as an investment not just for the present but also for the continuity of future generation. From the above, it is crucial that the underlying social and economic determinants of women‟s health, including education and employment, are important for the survival, growth and development of children.

Culture in Nigeria is a major culprit that adversely affects women‟s health. This manifests in various forms ranging from Female Genital Mutilation, early/child marriages, forced marriages, widowhood practices, unsafe traditional delivery practices, the preference of male children to female children, violence against women, et cetera. They contribute to the poor health index of the Nigerian women. The preference of male children to female children has direct impact on the psychological state of such female children as can be seen in this folksong: “why did you come oh girl? When we wished for a boy? Take a jar and fill it from the sea, may you fall into it and drown” The song shows the resentment of the girl child in some parts of Africa and Nigeria. The resentment places a heavy burden on the socio-economic and psychological well being of women in Nigeria.

Notwithstanding all these, there are many International and National legislation and safeguards on women‟s right to health. In Nigeria, the Constitution did not make express provisions for ensuring the right to health but under Chapter II, it provides for the social objectives of government. Chapter IV on Fundamental Rights also provides for the right to life and right to the dignity of human person. The Labour Act and the Criminal Code15 also make provisions to guarantee women‟s right to health.

There are several international instruments on Women‟s right to health, urging state parties to ensure the provision of such rights in their National Laws and to uphold the observance and protection of such rights. Some of these instruments include, but not limited to, the United Nations Universal Declaration of Human Rights (UDHR) , United

Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) , African Charter on Human and Peoples Rights,18 which has been ratified and domesticated by Nigeria; International Covenant on Economic, Social and Cultural Rights, Maputo Protocol on the Rights of Women in Africa . All these are considered in details in the course of the work.

1.2 Statement of the Research problem

Women suffer many health challenges especially during their reproductive years. Some of these challenges are not diseases but biological and social processes that carry health risks and require healthcare. Culture-based practices lead to poor health condition of women example, female genital mutilation, unhealthy widowhood practices, violence against women, early child marriage, certain traditional beliefs, et cetera. Lack of health care facilities and personnel at the grassroots, dearth of modern medical equipment and procedure is another problem militating against the actualization of women of right to health. There are National and International legislation that aim at protecting and safeguarding women‟s right to health, but the problem lies in implementation and lack of political will on the part of government to pursue policies and programmes advancing women‟s rights to their logical conclusion.

This thesis, therefore, is a research into the question, whether or not the non

domestication of international conventions relating to women‟s right to health to which Nigeria is signatory is a major cause or contributory to the non existence of the right to health for women in Nigeria.

1.3 Empirical Research Questions

a. Do women suffer from health challenges during their reproductive years that are not necessarily disease based but biological and social processes that carry health risks and require health care?

b. Are there culture based practices that contribute to the poor health status of women in Nigeria?

c. How does lack of health care facilities and personnel especially at the grass roots affect the status of women‟s health in Nigeria?

d. What are the components of women‟s right to health and how do they affect maternal mortality in Nigeria?

1.4 Aims and Objectives of the Research

1.4.1 Main objective

To show that the Nigerian legal system has not been able to capture the extent of women‟s right to health under several international Conventions that Nigeria is a party to.

1.4.2 Specific objectives

a. To study the extent to which Nigeria has been able to measure up to international standards in terms of domestication of International Conventions on women‟s right to health to which Nigeria is signatory.

b. To explain how socio-cultural practises contribute to the abuse of women‟s right to health.

c. To show that non-domestication of International Conventions on women‟s right to health and non-provision of punitive measures against the abuse of these rights in Nigerian National Laws is a major reason for the persistent practise of harmful cultural practises in Nigeria against women.

1.5 Scope and Limitation of the research

This research focuses on the applicability of International Conventions on women‟s right to health in Nigeria. It examines the effect of non-domestication of International Conventions on women‟s right to health in Nigeria. It further examines the effect of negative socio-cultural practises on women‟s right to health by gathering information from experienced experts in the field of women‟s health. It seeks to find out the extent to which International Conventions on women‟s right to health have been able to protect women in Nigeria.

The limitation faced in the course of this research is insecurity. The researcher could not travel to many parts of the country to carry out the empirical research because of insecurity problems prevalent in the country. Another limitation is lack of funds to travel extensively in order to gather information and materials for the work.

1.6 Justification

Nigeria is a party to numerous International Convections that protect women‟s right to health like the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) International Convention on Civil and Political Rights (ICCPR), International Convention on Economic, Social and Cultural

Rights (ICESCR), Convention on the Rights of the Child (CRC), African Charter on Human and Peoples‟ Rights (ACHPR), The Protocol to the African Charter on Human and Peoples‟ Rights among others, but only the ACHPR have been domesticated. The Protocol to the African Charter on Human and Peoples‟ Rights which make very specific provisions on women‟s right to health in Article 14 has not been domesticated. The nondomestication of these International Conventions to make them applicable in Nigeria as part of our National Laws as provided by section 12 of the constitution have made them ineffective in the protection of women‟s right to health in Nigeria.

Following from these lack of protection, many women die in pregnancy and child birth in Nigeria as indicated by the maternal mortality ratio which is 576 to every hundred thousand live birth These deaths are preventable if government live up to their responsibilities towards its citizens by providing healthcare and putting adequate legislation in place to punish those that abuse women‟s right to health. This research is also necessary to show that socio-cultural practises like female genital mutilation, child/early marriages, negative widowhood practises as problems that violate women‟s right and, therefore, women need protection by application, enforcement and

implementation of legislation and policies on the issue.

1.7 Research Methodology

The methodology for this research is both doctrinal and empirical. Primary and secondary sources of information are used in the research. The primary sources of doctrinal research include International Conventions, the Nigerian Constitution, the Penal Code, the Criminal Code, the Labour Act, the Marriage Act, the Child Rights Act. The secondary sources include books, journals, articles and the internet. For the empirical research method, questionnaire and interview survey was administered on health experts like doctors, nurses, midwives and female patients and women generally.

1.8 Literature Review

There are many writings on human rights generally and on women‟s rights in particular.

Rebecca Cook, Bernard Dickens and Mahmoud Fathalla are of the view that, the right to health is an inclusive right which contains both freedoms and entitlements. The freedoms includes the right to control one‟s health and body including sexual and reproductive freedoms, and the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest level of health. The health care system has obligations to people‟s right to health. It has the obligations to respect, protect and fulfil the right to health. It has to respect and protect the freedoms and fulfil the entitlements embodied in the human right to health. According to them,30 reproductive health is special, maternity is not a disease, it means the propagation of our species. It is a risky business which women undertake. Women have a right to be protected when they go through risks for survival of our species. They are of the view that reproductive and sexual ill-health do not occur in a vacuum, but are conditioned by combine laws and values

Some other writers have advocated that socio-cultural factors contribute to the denial of women‟s right to health. According to Eze in spite of Article 18(3) of the African Charter which provides that states should ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child stipulated in International Declarations and Conventions, women are still being discriminated against in social, political, economic and cultural fields. From the view of Adebayo , there are certain age long socio-cultural practices that hinder women from fully enjoying their rights. He identifies these as cultural practices and attitudes passed from one generation to another which have been powerful obstacles to women‟s enjoyment of their human rights.