e::·:1~-r AC~ _
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.,. African Comrrnssron on
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Human Rights our
Collective Respons ibility
Human and Peoples· Rights
Communication 564 /15
Community Law Centre and three Others
(on behalf on the Five Vict'ims)
V
The Federal Republic of Nigeria
.Adopted by the
African Commission on Human and Peoples• Rights
During the 7Jth Ordinary Session done virtually from 03 to 23 May 2023
,
...
...........
yoyLumbu
Chairp
Commission
on Human and Peoples' Rights
The African Commission on Human and Peoples' Ri ghts
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul @africa-union.org
https:/achpr.au .int/0 O a
ec/AIO
Communication 564 /15: Community Law Centre and three Others
(on behalf on the Five Victims) v. The Federal Republic of Nigeria
Summary of the Complaint:
1. On 31 December 2014, the Secretariat of the African Commission on Human
and Peoples' Rights (the Secretariat) received a Communication submitted
jointly by the Community Law Centre of the University of the Western Cape,
Alliance Africa, the Women Advocacy Research and Documentation Centre
and the Centre for Reproductive Rights (the Complainants) on behalf of five (5)
women in Nigeria (the victims) who suffer from lifelong injuries such as
obstetric fistulas, haemorrhage, and those who have died as a result of
complications related to pregnancy or childbirth.
2. The complaint was filed against the Federal Republic of Nigeria (Respondent
State), a State party to the African Charter on Human and Peoples' Rights (the
African Charter) .1
3. The Complainants argue that thousands of Nigerian women have lost their
lives because the Respondent State failed to provide adequate access to
maternal health care services. The Complainants further argue that most of
those deaths could have been prevented, as the reasons why women die during
pregnancy or childbirth are well known. These include problems such as
haemorrhage, unsafe abortion, eclampsia, infection, dystocia and other direct
causes.2
4. The Complainants assert that maternal mortality is a matter of social injustice
and deserves urgent responses from the Respondent State. They claim that the
low status of women, gender inequality and lack of respect for their human
rights often worsen the maternal mortality situation in the country.
5. The Complainants submit that although the Respondent State is one of the
world's leading oil producers and the largest exporter in the region, the
maternal mortality situation in the country is appalling and one of the highest
in the world. They add that the maternal mortality rate i ~:Ba:~l.< 40
deaths for 100,000 live births. 3
6. The Complainants also claim that the Respondent Sta
expenditure (sic) of $136 is among the lowest in the
compared to other less well-endowed countries that spe
1 The Federal Republic of Nigeria ratified the African Charter on Human and Peoples' R1
2
Complaint, para . 3
Ibid, para. 5.
4
Id, para. 7.
3
1
7. The Complainants contend that, according to their analysis of budgetary
allocations to health and defence in the Respondent State over the last three
years, the State spends more on the military and defence than on the health of
its population. The Complainants state that this is contrary to the provisions of
the Protocol to the African Charter on Human and Peoples' Rights on the
Rights of Women in Africa (Maputo Protocol), which urges States to reduce
military expenditure in order to free up more resources to address the
challenges facing women in the region.
8. The Complainants contend that since only women get pregnant and run the
risk of dying during childbirth, spending more oh the military and defence at
the expense of women's development is an act"of discrimination and therefore
a violation of women's rights.
9. The Complainants highlight that the Respondent State's average expenditure
on health is about 6%, which is far from the 15% buaget allocation agreed in
the Abuja Declaration in 2001. The Complainants further argue that a rightsbased approach to maternal mortality requires a State to devote the maximum
of its available resources to sexual and reproductive health services.
10. The Complainants aver that the allegations they raise concern massive
violations of women's rights to health, life and dignity and that, as such, the
Respondent State is expected to be aware of the situation. The Complainants
assert that several reports of the Respondent State suggest that maternal
mortality is a major challenge in the country.
11. The Complainants also argue that the Respondent State, although aware of the
deaths ofthousands of women during pregnancy and childbirth in the country,
has done little to effectively remedy the situation. They add that the lack of
action by the State, according to some of the Commission's decisions, means
that local remedies are not available or, even if they are, that they are not
effective or sufficient to remedy the alleged violations.
Articles alleged to be violated
12. The Complainants allege violation of Articles 2, 3, 4, 5 and 16 of the African
Charter.
Prayers
13. The Complainants pray the African Commission o
Rights (the Commission) to:
i.
s'
-;,
Find 'that the Respondent State has violated Articles ~~~~~ the
African Charter and Articles 2, 4, 5, 10 and 14 of the Maputo Protocol;
2
ii.
Order the Respondent State to provide free access to prenatal and maternal
care services for all women, particularly those in rural areas, and to establish
health care centres in rural areas throughout the country;
iii.
Request the Respondent State to invest more of its resources in improving
the health care sector as a whole;
iv.
Award the sum of 5 billion naira in damages or compensation to women
and their families who have suffered physical and psychological trauma,
including debilitating injuries, as a result of pregnancy and childbirth
related complications in the country;
v.
Request the Respondent State to devote more resources to the health sector
in order to curb the maternal mortality rate in the country.
Procedure
14. The Secretariat received the Communication on 31 December 2014 and
acknowledged receipt on 7 January 2015. On 1() July 2015, the Community Law
Centre requested that the Women Advocacy and Research Documentation
Centre and the Centre for Reproductive Rights be added as complainants in the
Communication.
15. The Commission decided to be seized of this Communication at its 18 th
Extraordinary Session held from 29 July to 7 August 2015 in Nairobi, Kenya.
16. On 26 October 2015, the Complainants were informed of the Commission's
decision to be seized of the matter and were invited to submit evidence and
arguments on admissibility within two months. The Respondent State was
informed of the seizure by NoteVerbale on the same date, which also included
the Communication and the Seizure decision.
17. On 11 January 2016, the Complainants submitted their arguments on
admissibility to the Secretariat, which were forwarded to the Respondent State
on 26 February 2016. The deadline for the Respondent State to submit its
observations on admissibility was 26 April 2016. On 18 May 2018, the
Complainant's submissions on admissibility were retransmitted to the
Respondent State by mail. However, to date, the Responden ,. . ,..,,, ot
submitted its observations on admissibility to the Commissio b..p .,,~c.Rfl 4 R,4;,.,, .,
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18. On 18 May 2018, the Secretariat sent a letter to the ComR {i1;, , ts :it" fles
information regarding the identity of the victims. On , 4.. ~ stAU - A18, tp.ef
,_ ,-,
Complain~nt submitted a list of five (5) victims, and i ic"
t
; o
personal reasons, the family members of those listed have re <· -~ f~
remain anonymous in order to protect their identity." On 15 Feo~~~~
3
Complainants submitted letters from the families of two (2) victims, who
agreed to be represented in this Communication.
19. Information letters were sent to the Parties to the Communication from the 58th
to the 65 th Ordinary Session.
20. At its 27th Extraordinary Session held from 12 February to 4 March 2020, the
Commission declared the Communication admissible.
21. On 5 March 2020, the Complainants were informed of the Admissibility
decision and were requested to submit their arguments on the Merits to the
Secretariat within 60 days in accordance with Rule 108(1) of the Commission's
Rules of Procedure. The Respondent State was also informed.
22. On 30 May 2020, the Secretariat of the Commission received the Complainants'
arguments on the Merits, which were forwarded to the Respondent State on 1
June 2020 by Note Ver bale. In the same note verbale, the Secretariat of the
Commission requested the Respondent State to submit its observations on the
Merits within a period not to exceed 60 days from the date of receipt of the
notification.
23. The Respondent State did not submit its observations within the required time
limit.
,
Admissibility
Complainants' arguments on Admissibility
24. The Complainants maintain that the Communication meets the admissibility
requirement of Article 56(5) of the African Charter as it falls within the scope
of the three derogations to the principle of exhausting local remedies. The
Complainants contend that local remedies are not available, effective and
sufficient to provide redress due to the large number of victims, the serious and
massive nature of the violations and the low level of income of victims who
cannot access legal aid.
25. The Complainants argue that the Commission does not re
of local remedies where the large number of victims make
remedies neither practicable nor desirable. Citing Am
Others. v. Sudan, the Complainants claim that the Co
distinction between cases in which the complain
committed against identified or named victims an
4
r..~~~~~
•on
massive violations in which it may be impossible for the complainants to
identify all victims'. 5
26. The Complainants also refer to the case of the African Institute for Human Rights
and Development v. Guinea, regarding 5,000 detained Sierra Leonean refugees, in
addition to an unknown proportion of the 300,000 Sierra Leonean refugees who
also suffered violations, in which the Commission found that an impractical
number of potential complainants would severely overburden the national
judicial system if even a slight majority of victims chose to pursue legal
The Complainants argue that the Commission found the
redress. 6
Communication admissible because it fell within the scope of a derogation, that
exhausting remedies was impractical due to the large number of victims.
27. The Complainants claim that a similar situation arises in the present
Communication. They submit that the Respondent State is unable to provide
effective redress through local remedies to the large number of victims, who
cannot be identified. The ComP,lainants also contend that Nigeria has the
second highest number of maternal deaths in the world, with more than 40,000
women dying each year from causes related to pregnancy or childbirth, or
about 110 women a day, and 20 to 30 times as many women suffering from
maternal morbidity.
28. The Complainants claim that the Communication also includes the thousands
of women who survive pregnancy and childbirth, but who nonetheless suffer
violations of their rights due to the denial of quality care as a result of financial,
institutional and infrastructural barriers. This is compounded by the conflict in
northern Nigeria, which has displaced 1.5 million people and resulted in the
pregnancy b y: rar,e of hundreds of women and girls captured by Boko Haram.
The Complainants state tnat as a result of the conflict, essential reproductive
and maternal health care remains inaccessible to tens of thousands of women,
which has exacerbated the already disproportionately high rates of maternal
mortality and morbidity in the northern regions.
29. The Complainants claim that they represent all the victims of a single year,
which may amount to one million women, but also the cumulative number of
millions of victims from previous years. The Complainants further argue that
it would be neither possible nor reasonable to require each of the thousands, if
not millions, of Nigerian women who have suffered preventable maternal
health violations to exhaust local remedies.
5
Communication .48/90, 50/91, 89/93: Amnesty International, Comite Loosli Bae
Human Rights, Association of Members of the Episcopal Conference of East Afric
39
6
Communication 249/02: Institute for Human Rights and Development in Afric
refugees in Guinea) V. Guinea (2004) ACHPR, para 34. See also Communicati
164/97_196/97-210/98 : Malawi Africa Association, Amnesty International, Ms
des Droits de l'Homme and RADDHO, Collectifs des Veuves et Ayants-droits, Ass
Droits .de l'Homme v. Mauritania, (2000) ACHPR, para 22-24, 26, 85
5
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30. The Complainants also argue that the Commission's jurisprudence does not
require the exhaustion of local remedies in the context of serious and massive
violations.
31. The Complainants refer to the case of Sudan Human Rights Organisation & Centre
on Housing Rights and Evictions v. Sudan, in which the Commission found that
"the scale and nature of the alleged abuses, the number of persons involved
ipso facto make local remedies unavailable, ineffective and insufficient" .7
32. The Complainants maintain that this Communication contains serious and
massive violations. They further argue that, unlike in the Communication
Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, which the
Commission found inadmissible because a single incident, an oil pipeline
explosion that caused 700 deaths and other permanent injuries, did not qualify
as a case of serious and massive violations and could have been the subject of
a single tort lawsuit case under the Oil Pipelines Act (2004), 8 in the present
Communication, each of the 40,000 daily maternal deaths and the estimated
one million additional cases of maternal morbidity would be the subject of
separate lawsuits to address the violations that occurred in a single year. 9 The
Complainants further claim that they represent all the victims of a single year,
in addition to the cumulative total number of victims of past years, when
maternal mortality and morbidity were even higher.
,
33. The Complainants argue that domestic law does not provide for any cause of
action capable of grouping the countless number of distinct violations into a
manageable number of legal actions, and that tort law cannot provide sufficient
redress that would bring about a structural change in the health care system.
34. The Complainants further contend that the present Communication is
comparable to the Sudan Human Rights Organisation v. Sudan 10 and Malawi
Africa A ssociation v . Mauritania 11 communications, in that the violations of
maternal health care are serious and massive, occurring on a large scale and on
a continuous basis. In addition, the Complainants allege that women in Nigeria
have suffered serious and massive violations as a result of the conflict with
Boko Haram in northern Nigeria. The Complainants state that hundreds of
women were abducted, raped and gotten pregnant, and that even those who
were released did not have access to adequate maternal health care.
7
Communication 279/03-296/05: Sudan Human Rights Organisation & Centre on
(COHRE) v. Sudan (2009) ACHPR, para 102. See also, Communication 54/91-61/9
210/98 v. Mauritania, para-85
8 Communication 338/07: Socio-Economic Rights and Accountability Project (S
para 5, 61, 64, 67 ..
•
9 Complainant's Submissions on Admissibility, para. 8.
10
Supra note. 9.
11 Communi~ation 54/91-61/91-96/93-98/93-164/97 _196/97-210/98 v. Maurita
6
• ·ons
7-
R,
35. The Complainants further argue that the violations of a serious and massive
nature meet the principle that the Respondent State should be informed of a
human rights violation to provide it with an opportunity to redress it before
being brought before an international jurisdiction.12
36. As a result, the Complainants submit that local remedies do not fulfil the three
criteria for exhaustion, due to the excessively high number of victims who
would have to exhaust the remedies individually and due to the serious and
massive nature of the violations.
37. Furthermore, the Complainants submit that the Communication is admissible
because it falls within the scope of the derogation from the requirement to
exhaust local remedies for low-income victims. The Complainants cite the case
of Purohit and Moore v. The Gambia, in which the Commission found the
Communication admissible because mental health patients were generally lowincome people who could not afford legal aid and therefore had no real
possibility of obtaining redress at the domestic level.1 3
38. The Complainants argue that, in this Communication, it is generally women
with low levels of income who are denied access to maternal health care due to
financial barriers, resulting in preventable maternal mortality and morbidity.
39. Therefore, the Complainants contend that the Communication falls within the
scope of three derogations to the requirement under Article 56(5), as local
remedies are unavailable, ineffective or insufficient due to the large number of
victims, the serious and massive nature of the violations and the low income of
the victims.
Analysis of the Commission on Admissibility
40. Article 56 of the African Charter sets out seven conditions, applicable jointly
and cumulatively, which a communication under Article 55 of the African
Charter should meet in order to be admissible.
41. The Commission notes that the Complainants submitted arguments on
admissibility solely in respect of Article 56 (5) of the African Charter. However,
the CornII)i_ssion will undertake its analysis on Admissibility in the light of the
Complainants' arguments in relation to Article 56(5), in addition to the other
information provided in the Communication.
12
13
42. Furthermore, although the Commission requested t
present its arguments and evidence on admissibility p
the Commission's Rules of Procedure, no reply was r
-- ~....
to
) of
the
Commission has taken the view that, in the abs
- .:::::::=:;:;::;;,'
the
Supra note 6, para. 36.
Communication 241/01 : Purohit and Moore v. The Gambia (2003) ACHPR, paras. 3
7
Respondent State, it can issue a decision on the basis of the submissions of
complainant(s ). 14 Consequently, the Commission makes the following analysis
on Admissibility relying on the information at its disposal.
43. As indicated above, the Complainants' observations relate solely to the
exhaustion of local remedies. However, before analysing Article 56(5) of the
African Charter, the Commission notes that the other conditions set out in
Article 56 of the African Charter have been met. In particular, the author of the
Communication has been identified, the Communication reveals prima facie
violations of the African Charter by a State Party, is not inconsistent with the
Constitutive Act of the AU or the African Charter and the Commission finds
no insulting or disparaging language in the Communication. Furthermore, the
Commission notes that the Communication is based on various reports from
international and national organisations such as the World Health
Organization, UNFP A, Allan Guttmacher, the Center for Reproductive Rights
and the Women Advocacy Research and Documentation Centre, 15 and is
therefore not exclusively based on media reports. Finally, the Commission has
found no evidence that the issues and claims contained in the Communication
have been brought before or resolved by any other international jurisdiction.
44. Consequently, the Commissfon is of the view that the requirements under
Articles 56(1), (2), (3), (4) and (7) nf the African Charter have been met.
45. Regarding Article 56(5), the Commission notes that communications should be
submitted after local remedies, if any, have been exhausted, unless it is clear
that this procedure is unduly prolonged. The rule requiring the exhaustion of
local remedies as a condition for bringing a complaint before the Commission
is premised on' the principle that the Respondent State should first have the
opportunity to redress by its own means, within the framework of its own
domestic legal system, the wrong that has allegedly been done to the
individual. 16
46. The Commission notes that communications should be submitted after local
remedies, if any, have been exhausted, unless it is clear that this procedure is
unduly prolonged. In its jurisprudence, the Commission has considered that
the three main criteria for determining the exhaustion of local remedies are that
the remedy must be available, effective and sufficient,17 noting further that "a
remedy is considered available if the petitioner can pursue it without
impediment, it is deemed effective if it offers a prospect of success, and it is
8 ~~.;:::::~
found sufficient if it is capable of redressing the complaint" .1:..
ot< t<V '-·AN -1-.,
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See Communication 25/89, 47/90, 56/91-100/93, para, 40, Communication 15 0 ~6, p ra,((c.6.
~ f11 unic' _ • n
~
~
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276/03, para 57 and Communication 292/04, para. 34.
15 Comp 1amt,
· para. 7.
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16
Communication 241/01: Purohit and Moore v. The Gambia (2003) ACHPR, para, ~ \ ,
A
f,.,'Q "
17
Communication 147/95-149/96: Sir Dawda K. Jawara v. The Gambia (2000) ACHP
aJ. · ~~,tf<.-~.!f
18
Id, para. 32.
"fo4f"e E1' o~"'
14
,
8
47. If one of these criteria is lacking, the requirement to exhaust local remedies
under Article 56(5) of the African Charter can therefore not be met.
48. In this Communication, the Complainants contend that local remedies are not
available, effective and sufficient to provide redress due to the large number of
victims, the serious and massive nature of the violations and the low income of
victims who cannot access legal aid.
49. In this regard, the Commission refers to its jurisprudence on the futility of
exhausting local remedies in cases of serious and widespread human rights
violations. In Open Society Justice Initiative v. Cote d'Ivoire, the Commission
concluded that the seriousness of the violations and the large number of victims
concerned made the remedies unavailable and their exhaustion practically
useless. 19
50. Regarding this Communication, the Commission notes that the prospect of
success is a determining factor in the exhaustion of local remedies, given the
low level of income of victims who are unable to access legal aid.
51. The Commission also notes that one of the rights allegedly violated in the
present Communication, namely the right to health, is included under Chapter
II on Fundamental Objectives and Directive Principles of State Policy, which
cannot be litigated under Section 6(6)(c) of the Constitution.
52. Section 6(6)(c) of the Constitution seeks to make economic, social and cultural
rights immune from litigation; however, Nigerian courts and the Commission
have taken a progressive :view on the litigation of such rights, as evidenced in
Socio Economic Rights and Accountability Project v. Nigeria, in which the
Commission concluded that "all the Nigerian cases cited above are aimed at
establishing the fact that socio-economic rights can be litigated in Nigerian
courts". 20
53. Irrespective of this, the Commission observes that Section 6(6)(c) of the
Constitution, which has not been repealed or amended by the Respondent
State, will have an impact on the prospect of success of cases at the national
level regarding violations of economic, social and cultural rights, in particular
the right to health.
54.
19
20
Therefore, in light of the provision that local remedies ar
if they offer a prospect of success, taking into account
of the victims in the present Communication and the f
and cultural rights are immune from litigation und
addition to the significant number of victims involved i
Communicatipn 318/06: Open Society Justice Initiative v. Cote d'Ivoire {2016)
Communication 300/05: Socio Economic Rights and Accountability Project v. Nig
9
~~~~
·ve
-====,;:::;;-
.
the Commission considers that these factors meet the requirements for
derogation from exhausting local remedies provided for in Article 56(5) of the
African Charter.
55. Concerning Article 56(6) of the African Charter, which provides that
communications should be submitted within a reasonable period from the time
local remedies are exhausted or from the date the Commission is seized of the
matter, the Commission notes that the timeliness requirement of Article 56(6)
of the Charter is dependent on the exhaustion of local remedies provided for in
Article 56(5) of the African Charter.21 Given that the Communication falls
within the scope of the derogation relating to the principle of exhausting local
remedies, the requirement to respect time limits is also considered to fall within
the scope of this derogation.
Decision of the African Commission on Admissibility
56. For the above reasons, the Commission declares the Communication
admissible in accordance with Article 56 of the African Charter.
On the Merits
Complainant's Submissions on the Merits
Violation of the right to life
57. The Complainants contend that the failure of the Nigerian government to
reduce the high levels of preventable maternal deaths and injuries constitutes
a violation of the right to life under Article 4 of the African Charter on Human
and Peoples' Rights (African Charter) and Article 4 of the Protocol to the
African Charter on Human and Peoples 1 Rights on the Rights of Women in
Africa (Maputo Protocol).
58. The Complainants assert that under Article 4 of the African Charter, States
!-..WE~ ~ ~ they
should take positive steps and measures to prevent loss
should address in particular preventable maternal
ir
obligations under Article 4 of African Charter. I
e
Complainants refer to various documents of the
g
Resolutions, Communications and Reports in which th
d
that preventable maternal mortality is a violation of th
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d
dignity of women in Africa and that the denial of hea
the right to life.
21
Communication 322/2006: Tsatu Tsikata v. Ghana (2006) ACHPR para. 37.
10
59. The Complainants also submit that the right to life is also enshrined in Section 33
(1) of the Nigerian Constitution and in international human rights instruments
that Nigeria has ratified. They conclude that the right to life requires States to
take measures to protect individuals from arbitrary and avoidable loss of life and
that this right should not be interpreted in a restrictive manner.
Violation of the right to health and sexual and reproductive health
60. The Complainants avow that Nigeria's per capita spending on health is USD 72,
one of the lowest in the world. They add that despite Nigeria's commitment in
the 2001 Abuja Declaration to allocate at least 15% of its annual budget to
improving the health sector, the Nigerian government has failed miserably to
meet this commitment. They claim that, on the contrary, the budget allocation to
the health sector has continued to be around 5-6 %. According to the
Complainants, for a country endowed with so many natural resources, low
spending on health, including maternal health, is not only unacceptable, but the
failure of the Nigerian Government to reduce preventable maternal injuries and
deaths is a violation of the right to health.
61. The Complainants consider that the right to health, fully guaranteed by Article
16 of the African Charter, requires States to ensure the right to health of every
individual by taking the necessary measures to protect the health of their
populations and ensuring that this includes access to medical care in the event of
illness. Relying on previous decisions of the Commission, the Complainants
insist that African governments should ensure the provision of adequate health
care services to all women, particularly poor women and those living in rural
areas.
62. In their submissions, the Complainants also refer to the Commission's
Concluding Observations on Nigeria's 5 th Periodic Report where it expressed
concern about t);te lack of a legal framework for health in Nigeria that clearly
defines the roles and responsibilities of health professionals, as well as the
oversight responsibilities of Government in the health sector as a whole. The
Commission therefore recommended the establishment of a comprehensive legal
framework to address these issues.
63. The Compl~inants thus consider that there is a violati n of Article 16 of the
the
African Charter and Article 14 of the Maputo P
Complainants, Nigeria has fully incorporated t
~=
its
domestic law and is under an obligation to guar
h as
provided for in the African Charter. Moreover, it ha
es of
ply
legislation containing health standards and policies
with. The National Health Policy includes the red
ality
and morbidity as one of its main objectives and pr
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11
this, through inter alia, improving equitable access to reproductive health
services and ensuring the availability of equipment to deliver such services.
64. The National Heal th Act states that no citizen may be refused emergency medical
treatment and, in Section 20, provides for a fine and imprisonment for noncompliance. The Complainants add that in reality however, pregnant women are
frequently denied emergency obstetric care, particularly women with low levels
of income and women living in rural areas.
65. They further state that the right to life is also enshrined in international human
rights instruments that Nigeria has ratified. In this respect, based on the
interpretation of the UN Committee on Economic, Social and Cultural Rights, the
Complainants maintain that the realisation of the right to health requires that
governments guarantee the availability, accessibility, acceptability and quality of
this right to all.
66. In their submissions, the Complainants reiterate the African Commission's
Principles and Guidelines on the Implementation of Socio-Economic Rights in
the African Charter and General Comment No. 14 of the International Covenant
on Economic, Social and Cultural Rights on the Right to Health, which address
some key principles, including the existence of minimum core obligations that
States should guarantee, that are not subject to the requirements of resource
availability and that cannot be waived.
Violation of the right to dignity and the right not to be subjected to torture or cruel,
inhuman and degrading treatment
67. The Complainants claim that dignity is the foundation of all human rights and,
therefore, the right to life has been widely interpreted by the courts as the right
to live in dignity. They add that the fundamental principle of human dignity
requires States to protect women from maternal deaths caused by gender-based
violence and denial of access to reproductive health care and information. The
right not to be subjected to torture or cruel, inhuman or degrading treatment (illtreatment) is closely related to the right to dignity.
68. The Complainants allege that some of the victims of maternal morbidity and
mortality in Nigeria are women who have suffered unnecessary delays in
obtaining maternity care in health facilities or who have been detained in health
facilities because they were unable to pay their medical bills in full, and who have
subsequently been subjected to abuse and ill-tre ~:;::;=~:,w th care providers,
• instances of
resulting in debilitating injuries or death. T
abuse and mistreatment: denial of access to
quate access
to food and drinking water, being forced t
so that beds
equent sleep
could be made available for patients who c
deprivation, and denial of access to their ne
12
69. They assert that health services, including maternal health care, should be
provided in a manner that respects women 1s dignity and their right to be free
from abuse. When women are abused in the area of reproductive rights, the
responsibility of the State is often brought into play through the enforcement of
restrictive and discriminatory laws or policies, actions by health professionals
who do not respect ethical standards, lack of appropriate regulation of private
health facilities, or lack of punishment for violence perpetrated by individuals.
70. The Complainants point out that Article 5 of the African Charter combines a wide
range of rights, including the protection of the right to dignity and liberty against
ill-treatment. To substantiate their allegations, they refer to the jurisprudence of
the African Commission, where the latter explained that this provision is violated
when a person is exposed to suffering or treated in an undignified manner and
that coercive acts, including the denial of reproductive health services, constitute
cruel, inhuman and degrading treatment in violation of Article 5 of the African
Charter.
71 . The Complainants further point out that the Article 4 of the Maputo Protocol
guarantees the right of wome to be treated with dignity. Addressing the issue
of detention of pregnant women ·n health facilities, the Complainants contend
that States must ensure that women are not treated in an inhumane, cruel, and
degrading manner when seeking sexual and reproductive health services. They
insist that in its most recent Concluding Observations, the Commission
repeatedly expressed concern about violence against women, recommending
that Nigeria strengthen its operational and institutional capacity to address
violence against women by ensuring that cases of violence are properly
investigated and prosecuted and by raising public awareness.
72. The Complainants note that the right to dignity and to non-abuse is also
enshrined in a number of international human rights instruments, all of which
Nigeria has ratified. The Complainants add that States parties to these
instruments ha\!e an obligation to refrain from committing acts of ill-treatment
and to take effective judicial and other measures to prevent, punish and redress
such acts.
73. According to the Complainants, the recognition of reproductive rights violations
as rising to the level of abuse in certain circumstances, such as maternity care,
highlights the urgent and inviolable nature of Nigeria 1s legal obligations to
ensure that the denial of antenatal care, detention, abuse and ill-treatment of
women seeking maternal health services are effectiv
essed
and remedied. The pervasiveness of these actions in
vate
rts,
health facilities and the attention focused on them
parallel letters submitted to the African Commission
ring
bodies and human rights mechanisms, and by inves
arly
ven
demonstrate that the Nigerian government was awa
when they occurred in private facilities.
13
Violation of the right to equality and non-discrimination
74. The Complainants allege that due to patriarchy and adherence to cultural
practices, women are often subjected to daily discriminatory practices and
human rights violations. The Complainants argue that these and other factors,
such as low income, lack of formal education, rural location, early marriage and
low status of women, combined with corruption and mismanagement of
resources, poor infrastructure and lack of funding for the health sector,
exacerbate the poor maternal health situation in Nigeria.
75. According to the Complainants, these factors have underpinned seemingly
insurmountable financial barriers that include a system of user fees that prevents
poor women from accessing antenatal and intrapartum care in Nigeria. Women
who receive maternity-related health care risk being detained in health facilities
if they are unable to pay later. As a result of this practice, women avoid treatment
if they cannot afford it, or may expose themselves to danger by leaving the
hospital before the end of treatment to avoid hospital charges.
76. They also point to another financial barrier related to the practice of compulsory
blood donation by the spouses of pregnant women. According to the
Complainants, although Nigeria's blood donation policy requires all donations
to be voluntary, human rights reports confirm that pregnant women attempting
to access maternal health services in many public or government hospitals, as
well as private facilities, are often forced to bring their husbands to donate blood.
Although patients can sometimes opt out of this widespread practice of
compulsory blood donation by paying a fee, this option is not always known and
has a discriminatory impact on the poor who may prefer to pay - but cannot
afford - a fee instead of donating blood.
77. Compulsory blood donation by their spouses can have multiple negative
consequences, for pregnant women who cannot or will not force their husbands
to donate blood are disadvantaged, in particular by the husbands' refusal to
allow their wives to access prenatal, intrapartum, and postpartum services and
by the women's exposure to domestic violence if they try to force their husbands
to donate blood. The requirement to donate blood also disadvantages unmarried
pregnant women, including those who become pregnant as a result of sexual
violence, or whose husbands become ill, abandon them or die during pregnancy.
These women have no choice but to pay the fee in lieu of blood donation, which
many of them may not be able to afford. The discriminato • - . ct of the fee on
tott :, ...
poor and unmarr:ied women results in reduced acce . ,t Q we.p.t · ive health
services, lower quality of care and poorer health out.6'
9 mes . ""
I, v
()N
t
~ -\
1
78. The Complainants also point to provisions of the •f Pii O Pf' ' col
discriminatory practices against women, includi "
Protocol which prohibits discriminatory practices a
14
, •cfi · • o ~
~-.~.....-1 <:i i
0
rohibit
States to adopt a holistic approach to address the root causes of discrimination
against women. They add that Article 5 of the Maputo Protocol requires States
to eradicate harmful practices that undermine the human rights of women.
79. The Complainants state that ensuring equality means addressing not only formal
(de jure) inequality, which is discrimination based on law, but also substantive
(de facto) inequality or discrimination based on practice. Formal equality, they
argue, requires ensuring that laws and policies treat all people in the same way.
Substantive equality, on the other hand, offers a more comprehensive
understanding of equality, requiring equality of outcome and opportunity.
According to the Complainants, the practice of compulsory blood donation by
the spouses of pregnant women and the detention of women in health care
facilities should they be unable to pay their maternity bills in full, because they
are based on widespread practice and not on law, fall within the scope of
violations that formal equality alone will not address.
80. The Complainants state that various international standards require Nigeria to
fully account for the high levels of preventable maternal deaths by addressing
the roles that formal and material gender-based inequalities play in women 1s
predisposition to die or suffer debilitating injuries, as well as the different
maternal health outcomes experienced by women based on their socioeconomic
•
status.
Violation of the right to information
The Complainants allege that access to comprehensive sexual and reproductive
health information is essential to prevent health problems and ensure the wellbeing of all individuals. In addition, access to sexual and reproductive health
information can help prevent unplanned pregnancies, unsafe abortions and
minimise the incidence of maternal death and morbidity. The Complainants
point out that a large proportion oI maternal deaths in Nigeria could easily be
prevented if women and girls had adequate access to information about their
health.
82. According to the Complainants, the right to information guaranteed by Article 9
of the African Charter is a gateway to the rights to health, life, dignity and
equality. With specific reference to health, the Complainants point to Article
14(2) of the Maputo Protocol which recognises the right to health information as
an essen~ial component of the right to health, stressing the importance of
information, education and communication services i
•A
of
4
adequate, affordable and accessible health care services. ~•-f'".,fr-<-'tl.E1 Ali i ,
Q"
"'
J..
~
.
83. They also refer to Artitle 14 (1) (£) of the Maputo Prob ~ol
om :&Jn
right to family planning education. More specifically
that in its last Concluding Observations, the Commi K>rb- co.u ~ ••-....,•
Nigeria revise its abortion law and adopt measures
~~ Q
It
~"EETOI:.~
15
the
ege
hat
to
contraceptives and family planning. They add that the Commission also urged
States to take appropriate measures to provide comprehensive sex education for
girls in schools.
The right to enjoy the benefits of scientific progress
84. The Complainants state that women in Nigeria have a right to benefit from
scientific progress, including progress in access to quality maternal health
services. According to them, the high levels of preventable maternal injuries and
deaths in the country, especially in comparison to other countries in the region
and around the world, indicate that women receiving maternal care services are
not enjoying this right. They point out that by failing to reduce the high rates of
preventable maternal injury and death in Nigeria through the provision of
quality maternal care services - a reproductive health service that only women
need - women are deprived of the opportunity and right to access modern
maternity services like their counterparts in countries with similar resources and
capacity to those in Nigeria. This constitutes a violation of women's right to enjoy
the benefits of scientific progress as envisaged.
85. The Complainants argue that although there is no specific provision on the right
to the benefits of scientific progress in the African Charter or the Maputo
Protocol, it can be argued that this right is intertwined with the enjoyment of the
right to health guaranteed by Article 16 of the African Charter and Article 14 of
the Maputo Protocol.
86. They insist that the Nigerian government should provide an enabling legal and
financial environment which will ensure that the benefits of scientific progress
permeate the health sector and make it accessible to all categories of women
without discrimination. Without such measures, Nigeria is likely to maintain its
position among the countries with the highest maternal mortality rates in the
world.
Violation of the right to an effective remedy
87.
The Complainants argue that the high rates of preventable maternal injury and
death in Nigeria have been experienced for more than a decade, with hundreds
of thousands of women dying, yet there is still not a single case of judicial or
administrative admissibility or remedy available to the victims or their families.
For victims to obtain redress, violations must be investigated, perpetrators
prosecuted, and reparations - including compensation - provided.
88.
They point to Article_7 of the Africa
the right .to have their case heard
-emphasise? that this right includes
organs against acts of violation of , guaranteed by con".'entions, laws, re
i s '-'i!
that everyone has
African Charter
mpetent national
s recognised and
.........::::::::::=:-"~"J'l:rra:/l force".
16
Respondent State's arguments on the merits
89. As already mentioned in the section on procedure, the Respondent State did not
submit its observations on the merits, although it had been given sufficient time
in accordance with the Commission's Rules of Procedure.
Commission's observations on the merits
Preliminary observations
The absence of the Respondent State's submjssions on the merits
90. Given that the Respondent State has failed to conclude, the Commission, in
accordance with its jurisprudence 22, will proceed with this Communication based
on the elements at its disposal.
On the alleged violations
91. The Commission observes that, in their initial submissions, the Complainants
identified certain provisions of the Maputo Protocol as having been violated, but
unfortunately, aid not elaborate on or refer to them in their substantive
submissions to show what the violation was. This is the case, for example, of
Articles 5 and 10 of the Maputo Protocol.
92. In the absence of the Complainants' arguments as to whether these provisions
have been violated, the Commission cannot find a basis for a decision on whether
they have been violated or not. It will only rule on those provisions in respect of
which the Complainants have developed their observations.
On the competence of the Commission to interpret the Ma
22
See Communication 155/96 - Social and Economic Rights Action Center
Social Rights {CESR) vi Nigeria (2001) ACHPR para 49; See also Communi
Rights and Development in Africa v/ Angola (2008) ACHPR para 34 and Co
Union for Human Rights, International Federation of Human Rights League
National Organisation for Human Rights in Senegal and Malian Associati
Angola (1997) ACHPR para. 10.
17
.......:::::::::==--
ic and
uman
rican
ights,
ublic of
93. In this Communication, in addition to the allegations of violation of the provisions
of the Charter, the Complainants allege violation of the Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Women, known as the
Maputo Protocol. It is therefore important for the Commission to recall its
competence in relation to the interpretation of this Protocol.
94. Under Article 45(3) of the African Charter, the Commission is mandated to
interpret any provision of the African Charter.
95. The Maputo Protocol being a complement to the African Charter by virtue of the
expression "Protocol to the African Charter on Human and Peoples' Rights", it
therefore forms an integral part thereof. This is also expressed in Article 66 of the
African Charter when it provides for the adoption of special protocols or
agreements where necessary to 'supplement the provisions of the Charter'.
96. In particular, the Maputo Protocol finds its legal basis in the provisions of Article
18 (3) of the African Charter which provides that it is the duty of every State to
eliminate all forms of discrimination against women and to ensure the protection
of women's rights, as provided for in international declarations and conventions.
Thus, for example, in Article 26, the Maputo Protocol requires States to include in
their periodic reports submitted in accordance with the terms of Article 62 of the
African Charter, information on the legislative or other measures they have taken
for the full realisation of the rights recognised in this Protocol.
97. From the foregoing, the Commission concludes that it is vested with the powers
to interpret the Maputo Protocol which, by virtue of its very nature, is an integral
part of the African Charter.
On the violation of the right to life
98. The right to life is guaranteed by Article 4 of the African Charter and Article 4 of
the Maputo Protocol.
On the violation of Article 4 of the African Charter
99. Article 4 of the African Charter states: "The human person is inviolable. Every human
being has the right to respect for his life and to the physical and moral integrity of his
person: No one shall be arbitrarily deprived of this • · ~~~~ • le 4 of the Maputo
Protocol, it stipulates in its 1st paragraph as
n shall have the
. right to respect for her life, physical integri
n. All forms of
. exploitation, punishment and inhuman or de
prohibited. The
e realisation of
second paragraph refers to the various co tnt~~tl.
the right highlighted in the first paragra
ct the right to
life. However, while the first focuses on t
,,."'-'~
·~.d>'t
uman person,
the second is specific to the right to life of w
18
100.As the Commission has already emphasised in Forum of Conscience v Sierra Leone,
the right to life is the basis of all other rights; it is the source from which other
rights flow; and any unjustified violation of this right amounts to an arbitrary
deprivation23 . In the Ogi,ek case, the African Court on Human and Peoples' Rights
(the African Court) returned to this fundamental character of the right to life,
indicating that all other rights and freedoms depend on this right24 . The African
Court considers that to deprive someone of life is to eliminate the very holder of
those rights and freedoms.
101.The United Nations Human Rights Committee consid~rs •that "the right to life
encompasses the right of persons to be free from acts and.omissions intended to
cause, or expected to cause, their unnatural or premature death, and to live with
dignity'' 25 . It is in this sense that this Committee indicated that deprivation of life
involves deliberate or at least foreseeable and preventable harm (damage or
injury) caused by an act or omission, which results in the termin_ation of life26. The
Commission is of the OP.inion that the State has a duty to take positive and
concrete measures to guarantee the right to life, especially in the case of vulnerable
and exposed persons, whose care becomes, a high priority27.
102. The Commission would first like to recall that economic, social and cultural rights
are programmatic rights. This means that each State sets itself objectives to achieve
in order to fulfil them. Therefore, their implementation depends on the means
available to each State. Unlike civil and political rights, where each State is obliged
to refrain from violating them, the State is obliged to realize economic, social and
cultural rights.
103. In its Resolution No. 135 on Maternal Mortality in Africa, the Commission also
stated that preventable maternal mortality is a violation of women's rights to life,
dignity and equality protected by the African Charter on Human and Peoples'
Rights and the Maputo Protocol28 . This same idea was expressed by the
Commission in its General Comment No. 3 where it stated that States must
address chronic yet pervasive threats to life including preventable maternal
mortality by building operational health systems and eliminating discriminatory
laws and practices that impact on the ability of individuals and groups to seek
health care29_
23
Communication 223/98- Forum of Conscience v/ Sierra Leone (2000) ACHP
Application 006/ 2012- African Commission on Human and Peoples' Rights v
25
General Comment ffo. ~6 of the UN Human Rights Committee on Article 6 o
Civil and Political Rights", para 3
.
26
General Comment No. 36 of the UN Human Rights Committee on Article 6 o
Civil and Political Rights ", para 6
•
24
on
on
27 Communication 276/03 - Centre for Minority Rights Development (Kenya)
behalf of Endorois Welfare Council) v/ Kenya,(2009) ACHPR para 217
See Resolution 135 on maternal mortality in Africa
29
African Commission on Human and Peoples' Rights, General Comment No. 3 on the African Charter on Human
and Peoples' Rights: The Right to Life (Article 4), para 42
28
19
104. In the case under analysis, the Complainants note that Nigeria is identified as
having the second highest number of maternal deaths. 30 The Commission
observes that, in their submissions, the Complainants do not show how this
maternal death is the result of a failure by the Nigerian State to take the necessary
measures to prevent such death. In particular, it has not been demonstrated that
the Respondent State has sufficient resources to prevent maternal death and, more
importantly, that despite the existence of resources, it has failed to take the
necessary steps to ensure the continuous and sustainable improvement of the
right to maternal health. Nor have the Complainants demonstrated that the
Respondent State has promoted or adopted measures that undermine access to
health care or social security benefits, including through laws, policies or practices
that have discriminatory effects.
105. In the absence of this explanation, the Commission concludes that the right to life
under Article 4 of the African Charter and Article 4 of the Maputo Protocol was
not violated.
Violation of the right to health and sexual and reproductive health
106.The Complainants allege violation of the right to health and sexual and
reproductive health, which are respectively protected by Article 16 of the African
Charter and Article 14 of the Maputo Protocol.
On the violation of Article 16 of the African Charter
107. Article 16 of the Charter states that: "l. Every individual shall have the right to enjoy
the highest attainable standard of physical and mental health, and that States Parties
should take the necessary measures to protect the health of their people and to provide
medical assistance in the event of sickness." The right to the highest attainable
standard of health includes the right to health facilities, goods and services which
shall be guaranteed to all without discrimination of any kind31 . In reality, the right
to the highest attainable standard of health refers to the existence of health care,
services and conditions, their accessibility, acceptability and quality, and imposes
a duty on the State to respect, fulfil and protect it.
108. In its Pretoria Declaration on Economic, Social and Cultural Rights in Africa, the
Commission explained that such care, services
~@.$~
lude, inter alia,
u i•x~>J-f.1'~1,, "
ount of food
universally accessible health services, acce
necessary to avoid malnutrition, access
ing water,
reproductive health and protection from the
30
"""'-:::::::::::::::::__....
Report, p.13
31communication 241/01 - Purohit and Moore v Gambia (2003) ACHPR para 80
32 See Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 17 September 2004, para 7
20
32
iseases •
109. As with most other economic, social and cultural rights, the implementation of
the right to the highest attainable standard of health is dependent on the economic
capacity of countries and, therefore, its fulfilment is a long-term process. With
this in mind, the Commission considers that a large majority of people in Africa
do not enjoy the highest attainable standard of physical and mental health because
African countries are generally plagued by poverty, making them incapable of
providing the facilities, infrastructure and resources that facilitate the full
enjoyment of this right33.
110.Therefore, mindful of this key parameter in determining what this right entails,
the Commission considers that the obligation of States under Article 16 of the
African Charter is to take positive and selective steps, while making full use of
available resources, towards the full realisation of the right to health in all its
aspects, without discrimination of any kind 34 . In the present case, the
Complainants note that expenditure on health in Nigeria is among the lowest in
the world, amounting to only USD 72. More importantly, they reveal that
Nigeria's budget allocation to the health sector is between 5-6%, despite the fact
that the country committed in 2001 to allocate ,at least 15% of its budget to
improving the health sector under the 2001 Abuja Declaration.
111.The Commission considers that the 15% budget allocation for the health sector
referred to in the Abuja Declaration cannot be enforced against States. Indeed, a
declaration has a symbolic scope and is essentially an expression of the political
will of the States· that have made it. In particular, through declarations, States
express their wish that the elements of the declaration be transformed, in a second
stage, into a binding legal instrument in the form of conventions or treaties. Thus,
it follows that by its nature, a declaration has only a recommendatory value and,
consequently, cannot be used as a legal basis to conclude that the rights expressed
therein have been violated.
112. As a result, Article 16 of the African Charter has not been violated.
On the violation of Article 14 of the Maputo Protocol
113. The Complainants point to the violation of Article 14. 1 (a), (b), (c), (f), and 2 (a)
and (c) of the Maputo Protocol which protects women's right to sexual and
reproductive health.
On the violation of Article 14.1 (a) (b) (c) (fJ of Maputo Protocol
114. Article 14.1 (a) (b) (c) (f) of the Maputo Protocol states as follows: "1. States shall
ensure the respect and promotion of the rights of women to health, including sexual and
reproductive health. These rights include: a) the right to control their fertility; b) the right
to decide on the number and spacing of their children; c) the free choice of contraceptive
33
34
Communication 241/01, op.cit, para 84.
Communication 241/01, op.cit, para 84.
21
methods; fJ the right to family planning education". The provisions of this article
explicitly guarantee the right to family planning.
115. The Commission considers that family planning refers to all measures taken on
behalf of an individual to control fertility, including the use of contraception, if
the individual chooses not to have children now or in the future 35. The right to
exercise control over fertility, to decide on childbearing, the number and spacing
of children, and to freely choose a method of contraception are inextricably linked,
interdependent and inseparable36. All these rights are based on respect for
women's dignity and enshrine women's freedom to make their own decisions
without interference from State or non-State actors.37
116. The right to family planning education enshrined in Article 14.1.f) of Maputo
Protocol requires States to provide full and accurate information necessary for the
respect, protection, promotion a!1-d enjoyment of health, including the choice of
contraceptive methods.
117. In the present case, the Complainants fail to demonstrate the causal link between
the facts described and the allegations of the above-mentioned provisions of
Article 14 of Maputo Protocol. Indeed, the Complainants' submissions do not
demonstrate how the facts described impetled the victims' personal decisionmaking on the right to exercise control over their fertility, on the right to decide
on their maternity, the number of children and the spacing of births, or on family
planning in general.
118. In the absence of such justification, the Committee concludes that Article 14.1 (a)
(b) (c) (f) of the Maputo Protocol has not been violated.
On the violation of Article 14.2 (a) and (c) of Maputo Protocol
119. Article 14.2 (a) and (c) of the Maputo Protocol states as follows: "States shall take
all appropriate measures to: a) Ensure that women have access to adequate health care
services at affordable cost and within reasonable distances, including information,
education and communication programmes for women, in particular those living in rural
areas; c) protect the reproductive rights of women, especially by permitting safe abortion,
in cases of sexual assault, rape, incest and when the pregnancy endangers the mental and
physical health of the mother or the life of the mother or e oetus.
,,..,.:;.; z;-~.-.4...
/ ,. ,\)
. .
,
,
'.,"'"' c;tCRE'T.q"?, ~1,
120. The prov1s10ns of this Article guarantee,~ e>me c e~s r 0(<' fordable health care
O
within reasonable distances and the ri~ t t sw
rti
in cases of sexual
1
J ~·
" Afr;can Com m;,,;on on Hurn an and Peoples' R;ghts, Ge • t \ ~ ~o.
le 14.1 (o), (b), (c) ond If)
and Article 14. 2 (a) and (c) of the Protocol to the African C
r'f'M Hum.a ~-!/] Pe"' /es' Rights on the Rights of
0
Women in Africa, para .9
~0,,,. ~~At~ ...,<r.."
.
~l:
~
36
African Commission _on Human and Peoples' Rights, General
.
n Article 14.1 (a}, (b}, (c) and (f)
and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa, para 23.
37
Idem, para 24.
22
assault, rape, incest and when the pregnancy endangers the mental and physical
health of the mother or the life of the mother or the foetus. This provision calls on
States to ensure the availability, affordability, accessibility and quality of sexual
and reproductive health care services for women without discrimination on the
basis of age, health status, disability, property status or place of residence38 . This
provision also calls on States to ensure that women are not subject to criminal
prosecution and legal sanctions for receiving health services reserved for them,
such as abortion and post-abortion care. 39
121. In the present case, the Commission notes that the Complainants do not provide
the details necessary to conclude that this right has been violated. In particular,
they have allegedly provided information showing that the costs of health care
are unsustainable in relation to the cost of living in Nigeria or that the distances
to access health care are not affordable. Nor do the Complaina11ts provide
arguments that women's reproductive rights such as safe abortion are not
protected in the cases listed in Article 14.2. a) and c) of the Maputo Protocol.
122. In the absence of all these details, the Commission concludes that Article 14.2. a)
and c) has not been violated.
On the violation of the right to digniJy and the right not to be subjected to torture
or cruel, inhuman and degrading treatment
123. The right to digniry and the right not to be subjected to torture or cruel, inhuman
and degrading treatment is guaranteed bYc Article 5 of the Charter which states as
follows 11 Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation and
degradation of man, in particular slaven;, trafficking in persons, physical or moral torture,
and cruel, inhuman or. degr_ading treatment or punishment, shall be prohibited.
124. Human dignity is a fundamental right that all human beings must enjoy without
discrimination 0£ any kind, irrespective of their mental capacities or disabilities,
as the case may be40 . For this reason, in Purohit and Moore v Gambia, the
Commission considered it as a natural right which every human being is obliged
to respect, by all means, and which also confers on every human being the duty
to respect it. 41
.. ~u,,~~,.. 4
#.. 0
A/()
7., ,•"'~ C.~(I AF/14, .o~
125. The provisions _of Article 5 of the African Charter sugW s tfi t te-i:.ture
ruel,
inhuman or degrading treatment is one of the acts that j.d t t -~'2'. l i ~ the
1
right to dignity. _In this sense, the Commission consider~ lw di , ,. is
... ept
0
around which the prohibition of torture, cruel, inhuma -... ~ gffatl-ih ~t:fea ent
(<"
,
\S',h
O'G;
<· ""Y-YRICP.~
38
<fJ
~"
African Commission on Human and Peoples'. Rights, General Comment No. 2 on
. ~-IH},,~·
c) and (f)
and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and People
n the Rights of
Women in Africa, para 29
39
Idem, para 32
°Communication 241/01 - Purohit and Moore v The Gambia (2003) ACHPR para 57
4
41
Communication 241/1- op.cit, para 57
23
or punishment is based. Indeed, as it stated in Egyptian Initiative for Personal Rights
and Interights v. Egi;pt, cruel, inhuman or degrading treatment necessarily violates
human dignity. 42 This means that any act of torture or other cruel, inhuman or
degrading treatment or punishment constitutes an affront to human dignity.
126. Neither the African Charter nor the Maputo Protocol defines the concept of
torture, cruel, inhuman or degrading treatment or punishment. In the absence of
such a definition, the Commission can only look to other international human
rights instruments to understand its scope. In its General Comment No. 20
interpreting Article 7 of the ICCPR, which prohibits torture, cruel, inhuman or
degrading treatment or punishment, the UN Human Rights Committee has
indicated that the prohibition in Article 7 relates not only to acts that cause
physical pain to the victim, but also to acts that inflict mental suffering43 .
127. Furthermore, in the Committee's view, the prohibition should extend to corporal
punishment, including excessive punishment as a penal, educational or
disciplinary measure 44 . In the case of Egyptian Initiative for Personal Rights and
Interights v. Arab Republic of Egypt, the Committee noted that the acts covered by
Article 5 are not only acts causing severe physical or mental suffering but also acts
that humiliate or coerce the person against his or her will or conscience. 45
128. The Human Rights Committee does not provide an exhaustive list of what
constitutes torture, cruel, inhuman or degrading treatment or punishment.
However, some of the treatments already considered by the Committee as torture,
cruel, inhuman or degrading treatment or punishment can serve as a basis for
understanding the scope of torture. For example, it considered that allegations of
ill-treatment or abuse against prisoners, including beatings, burnings, electric
shocks, burial alive in sand until death and rape of women, constitute evidence of
widespread use of torture or cruel or inhuman treatment46.
129. In this case, the Commission is called upon to determine whether the alleged facts
constitute torture or cruel, inhuman or degrading treatment within the meaning
of Article 5 of the African Charter. The Complainants allege in particular that the
victims are subjected to ill-treatment by health care providers resulting in
debilitating injuries or death as women die due to unnecessary delays in obtaining
42 Communication 323/06- Egi;ptian Initiative for Person
ypt (2011) ACHPR,
para 196.
43 General Comment No. 20 of the UN Human Rights
orty-fourth session
(1992), para 5.
44
General Commen_t No. 20 of the UN Human Rights
rty-fourth session
(1992),' para,,5.
45
Communication ~34/2006- Egyptian Initiative for Personal
S"'r!IJ!l.tt;i~tJ:"li
. Arab Republic of Egypt
(2011), ACHPR para 190.
46
Communication 54/91-61/91-98/93-164/97-196/97-210/98 - Malawi Africa Association, Amnesty
International, Ms Sarr Diop; Union interafricaine des droits de /'Homme and RADDHO, Collectif des Veuves et
Ayants-Droit, Association Mauritanienne des Droits de /'Homme I Mauritanie (2000) ACHPR para 118.
24
maternity care. They list other cases of mistreatment such as denial of access to
post-delivery care, etc.
130. After careful analysis of the arguments and evidence submitted by the
Complainants in support of their allegations, the Commission is of the opinion
that these acts do not qualify as torture or cruel, inhuman or degrading treatment
within the meaning of Article 5 of the African Charter. In particular, it has not
been proven that the facts described by the Complainants, which amount to
omissions on the part of the health service providers, had a specific and welldefined objective of humiliating the victims or of inducing them to act against
their will or their conscience. In particular, the Commission considers that these
acts cannot be considered degrading or humiliating because the Complainants
have not been able to establish that these acts created in the victims feelings of
fear, anguish and inferiority such as to humiliate them, debase them and possibly
break their physical or moral resistance, as explained by the European Court in
Irland v. United Kingdom (1978) 47 .
131. The Commission concludes tnat Article 5 of the African Charter has not been
violated.
On the violation of the right to equality and non-discrimination
132. The Complainants allege a violation of the right to equality and the right to nondiscrimination. uhese rights are protected by the-Charter in Articles 2 and 3. The
Commission proposes to analyse them one by one.
On the violation of the right to non-discrimination
133. This right is protected by Article 2 of the African Charter which states that "Every
individual shall be entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the P,,resent e.harter without distinction of any kind, such as race, ethnic
group, colour, sex, language, religion, political or any other opinion, national or social
origin, fortune, birth or any status". It is also protected by Article 2 of the Maputo
Protocol which states as follows: "States shall combat discrimination against women
in all its forms by adopting appropriate legislative, institutional and other measures".
While Article 2 of the African Charter advocates non-discrimination towards all
persons, Article 2 of the Maputo Protocol is very specific and focuses on one aspect
only, that of non-discrimination on the basis of sex, i.e., non-discrimination
against women.
134. In its previous decisions, the Commission has
discrimination is an unlawful or unjustified differenti
the distinctions listed in Article 2 of the African Charte
47
48
Application No. 5310/71, Case of Ireland v. the United Kingdom (1978) ECHR p
Communication 325/06- World Organisation Against Torture and the African Zo
at
of
efence of
Children's and Students' Rights (on behalf of Celine) v. Democratic Republic of Congo (2015) ACHPR para 74
25
mainly race, ethnicity, colour, sex, language, religion, political opinion or any
other status. Recognising in Zimbabwe Lawyers for Human Rights & Institute for
Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v
Zimbabwe, the Commission defined discrimination as: "any act aimed at a
distinction, exclusion, restriction or preference on the grounds of race, colour [... ] or any
other status and which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms ". 49
135. As a result, in order to prove that there has been discrimination within the
meaning of the Charter, it must be shown that the differentiation concerned the
elements listed in Article 2 of the African Charter. In particular, as the African
Court on Human and Peoples 1 Rights stated in Isiaga v. Tanzania, the right to nondiscrimination strictly prohibits differential treatment between persons in similar
circumstances on the basis of one or more of the grounds listed in Article 2 of the
African Charter50 . It follows that, in the specific context of the discrimination
described by the Maputo Protocol in its Article 2, differential treatment must be
based on the sole ground of sex. In particular, the equality of women and men
must be clearly guaranteed by law.
136. In this case, the Complainants point out that the patriarchal system and
adherence to cul~ral practices subject women to daily discriminatory practices.
They list a series of other factors that they claim exacerbate maternal health in
Nigeria. The Complainants do not show the kind of discriminatory treatment the
victims have been subjected to in relation to the grounds indicated in Article 2 of
the African Charter. In particular, in analysing their arguments and the evidence
supporting their allegations, the Committee notes that the Complainants have not
demonstrated how the patriarchal system and cultural practices have caused
differential treatment of the victims compared to the treatment accorded to other
similar categories in the same situation as the victims.
137. The Complainants 1 argument that financial barriers prevent poor women from
accessing antenatal and intrapartum care in Nigeria and thus make it clear that
they are being discriminated against is not sufficient to find a violation of Article
2 of the African Charter or Article 2 of the Maputo Protocol. Indeed, in order to
conclude that there is discrimination, the act of differentiation must be aimed at a
distinction, exclusion, restriction or preference of some kind that has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise by all
s. In the present case, this
persons, on an equal footing, of all right -- , ~ :11ee
aternity services exist,
objective is not apparent. Indeed, whil e~~ ill .. s;
articular objective of
it is not established that they were • fro ce<i
, wit
\
preventing access by a certain catego ; t
, 9 'r
~c
~
'a \
1
138. As for the Complainants allegatio ti),
spouses of pregnant women would dis -~
od donation by the
omen who do not have
,,
49
Communication 29/04 - ZLHR & IHRDA v/ Zimbabwe {2006) ACHPR, para. 91,
so Application 032/2015, Kijiji lsiaga v United Republic of Tanzania (2018) AfCHPR para, 88,
26
to pay a fee in lieu of blood donation, the Commission finds that these are
statements of fact that are not supported by any legal argument or supporting
documentation. In particular, it is not enough to say that there is a compulsory
blood donation by the spouses of pregnant women or the payment of a
consideration in terms of money, it must also be supported by evidence. In the
absence of such evidence, the Commission concludes that there is no
discrimination based on this allegation.
139. As a result, Article 2 of the African Charter and Article 2 of the Maputo Protocol
have not been violated.
On the violation of the right to equalihJ
140. The right to equality is protected by Article 3 of the African Charter, which states:
11
(1) All persons shall enjoy full equality before the law. 2. All persons are entitled to equal
protection of the law. This has two components, on the one hand the right to equality
before the law and on the other hand the right to equal protection of the law.
141.In Isiaga v Tanzania, the African Court noted that the right to equal protection of
the law means that 11 the law shall prohibit discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such
as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status 11 •51 Thus, the right to equality before the law
means that all are equal before the courts and tribunals.
142. As for the right to equal protection of the law envisaged in Article 3 of the African
Charter, the Commission stated in Spilg and Mack & DITSHWANELO (on behalf of
Lehlohonolo Bernard Kobedi) _v Botswana that it consists of the right of all persons to
have equal access to the law and the courts and to be treated equally by the law
and the courts52 . As a result, to prove a violation of Article 3 of the African
Charter, it must be shown that the victims did not receive favourable protection
similar to that accorded to others in the same situation.
143. In the present case, the Complainants do not show how the victims have benefited
from differential protection by the law and courts of the Respondent State.
144.As a result, Article 3 of the African Charter has not been violated.
On the violation of the right to information
145. The right to information is protected by Article 9 o
states that "every individual shall have the right to receive
of every person to access information. In its Declar=, ~rn
hich
right
es of
51 Application 032/2015, Kijiji /siaga v United Republic of Tanzania (2018) AfCHP ,.._,.,..,.,..,.
Communication 277/03- Spilg and Mack & DITSHWA NELO (on behalf of Le 1!1tiR;;rmrtz;i::1~
Botswana (2011), ACHPR para. 159.
52
27
obedi) v.
Freedom of Expression in Africa, the Commission indicated that the information
referred to in Article 9 of the African Charter is information "originating from" or
held by public bodies, as well as information held by private bodies, which is
necessary for the exercise or protection of a right53 .
146. In this sense, the Commission agrees with the Complainants that the right to
information is a gateway to all other human rights, including the right to health
at issue in the case under review. Thus, as the Commission stated in Egyptian
Initiative for Personal Rights and INTERIGHTS v Egypt, States have an obligation to
provide information they hold "without the need to demonstrate a direct interest
in obtaining it or personal harm, except in the case of legitimate restrictions 11 .54
147. In the case under review, the Complainants mainly invoke the violation of Article
14 of the Maputo Protocol, which refers to the right to information on sexual and
reproductive health. More specifically, they allege a violation of Article 14 (1) f of
the above mentioned Protocol which states that 11 States shall ensure respect for and
promotion of the rights of women to health, including sexual and reproductive health.
These rights include: .. .fJ the right to family planning education 11 •
148. Under this right, States Parties are obliged to provide complete and accurate
information necessary for the respect, protection and enjoyment of health,
including contraceptive methods. 55 Measures that States should take include
training and upgrading health care providers and educators on methods of
contraception, ensuring that information on contraceptive methods is provided
by any possible means, enabling health systems structures, educational
institutions and programmes and civil society organisations with the requisite
training to provide family planning education and information to those
concerned, and ensuring that information is disseminated in languages accessible
to communities. 56
149. In the present case, as already explained, it is evident from various reports that
the maternal mortality rate in Nigeria is among the highest. More importantly, it
is observed from the Complainants' allegations that the likelihood of a woman
dying as a result of pregnancy in Nigeria is high. However, the Complainants
have not shown how the ignorance of Nigerian women about contraception has
contributed to this risk and, more importantly, how the Respondent State has
played a passive role in providing family planning education. In their
submissions, the Complainants fail to establish a causal link between family
~
planning education and the maternal mortali
,r/ .. (lN H\Jr,,,: ,\
~..,,u~l'.(;RH ,\~ ,.-\,,.
~'
,
... ,. "'-4
53
Declaration on the Principles of Freedom of Expre ,pn rm .ffica, . CHI",.;) Res.62, 23 October 2002,
para IV (2).
, ~
.'f.
)
~
54
Communication 323/ 06- Egyptian Initiative for Perso
251
Rt!] ts an\t
... l
d.
55
~
~fl
TERI
AU-UA
•T. _ Egypt (2013) ACHPR para
I!}
rri
d'. ~
General Comment No. 2 on Article 14.l(a), (b), (c) and
ti
. a) cl (c) of the Protocol to the
African Charter on Human and Peoples' Rights on the Rights OJJJ.ri,m'l'lmf ~fi,
ra 28.
56
General Comment No. 2 on Article 14.l(a), (b), (c) and (f) a
'I:
l¥·
African Charter on Human and Peoples' Rights on the Rights of Women in Africa, para 28.
28
150. By failing to provide this clarification, the Commission concludes that Article
14.1. f) of the Maputo Protocol has not been violated.
On the right to enjoy the benefits of scientific progress
151. The right to enjoy the benefits of scientific progress is not expressly provided for
in either the African Charter or the Maputo Protocol. However, this does not mean
that this right, which is found in many other human rights instruments, is not
protected by the two African instruments mentioned above. It is embedded in
some of their provisions.
152. For example, in its General Comment No. 2 on Article 14.1 (a), (b), (c) and(£) and
Article 14.2 (a) and (c) of the Maputo Protocol, the Commission referred to the
right to enjoy the benefits of scientific progress as one of the rights referred to in
Article 14.2(c) 57 . The Commission stated that women are denied the right to enjoy
the benefits of scientific progress when they are denied the means to safely
terminate an unwanted pregnancy using modern, effective services58 .
153. In its General Comment No. 25, the Committee on Economic, Social and Cultural
Rights noted that the term "scientific advancement", found in the Universal
Declaration of Human Rights and the Covenant on Economic, Social and Cultural
Rights, emphasises the capacity of science to contribute to the well-being of
individuals and humanity59 . Thus, the Committee has observed that the
development of science for peace and human rights should be given priority by
States over other uses60 .
154. The Commission is of the view that there is an important link between the right
to enjoy scientific progress and the right to health. Indeed, the right to participate
in and enjoy scientific progress undoubtedly enables the realization of the right to
health. In its General Comment No. 25, the Committee noted that scientific
progress creates medical applications that prevent diseases, such as vaccines, or
allow them to be treated more effectively61 . It thus stated that 1'States Parties are
57
General Comment No. 2 on Article 14.l(a), (b), (c) and (f) and Article 14. 2
African Charter on Human and Peoples' Rights on the Rights of Women in Africa
58
General Comment No. 2 on Article 14.l(a), (b), (c) and (f) and Article 14
African Charter on Human and Peoples' Rights on the Rights of Women in A
59
Committee on Economic, Social and Cultural Rights, General Comment No.
social and cultural rights (Article 15, paragraphs l (b), 2, 3 and 4 of the I
Social and Cultural Rights); pa'ra 6
60
IJJJ:::t:e):l::tl:::t::~~I
ocol to the
,nomic,
nomic,
Ibid
Comm ittee on Economic, Social and Cultural Rights, General Comment No. 2
Lr,,iiQ:tt~~(;,
conomic,
social and cultural rights (Article 15, paragraphs l(b), 2, 3 and 4 of the International Covenant on Economic,
Social and Cultural Rights); para 67
61
29
under an obligation to make available and accessible to all, without
discrimination, particularly the most vulnerable, all the best available applications
of scientific progress necessary for the realisation of the highest attainable
standard of health. 62
155. In this case, the Complainants consider that women in Nigeria are not benefiting
from the scientific progress of Nigeria's health care system because, according to
them, by failing to reduce the high levels of preventable maternal injuries and
deaths in Nigeria through a quality maternal health service and a reproductive
health service that they need, women are being denied the opportunity and right
to access modern maternity services.
156. The Commission considers that one of the constituent elements of the right to
enjoy scientific progress is its availability. The latter means that scientific progress
actually exists. This condition is fundamental because one cannot claim the
enjoyment of a right that does not exist. It is only when its existence has been
demonstrated that it can be confirmed that it is accessible to all without
discrimination. In our case, while the Complainants have demonstrated that there
are many maternal deaths and injuries in the Respondent State, they have not
established how scientific progress in health care in the Respondent State is
available and sufficient to overcome all of these challenges, and if it is available,
that it has been made inaccessible to women.
157. In the absence of such a demonstration, the Commission concludes that the right
to enjoy scientific progress has not been established.
,.
"
On the violation of the right to an effective remedy
158. The right to an effective remedy is not expressly stated in the Charter. However,
in interpreting Article 7 of the African Charter in Groupe de Travail sur les Dossiers
Judiciaires Strategiques v. Democratic Republic of Congo, the Commission indicated
that this right may be implicitly or automatically reflected in many of the rights
protected by the African Charter. 63 In the Commission's view, an instrument
cannot protect such a wide range of rights without providing for a right of remedy
and appeal in the event of a violation of the rights established. Without the right
of remedy and appeal, the other rights in the Charter would be mere illusions and
empty proclamations. 64
159. The right to an effective remedy has
its Guidelines and Principles on the
y the Commission in
d Legal Assistance in
62
Committee on Economic, Social and Cultural Rights,
OJ on science and economic,
social and cultural rights (Article 15, paragraphs l(b),
nal Covenant on Economic,
Social and Cultural Rights); para. 70
63
Communication 259/2002 - Working Group on Str ':1' ""~ ~ ~':IP'"
emocratic Republic of Congo
(2011} ACHPR para 78
64
Communication 259/2002 - Working Group on Strategic Court Cases v. Democratic Republic of Congo {2011}
ACHPR para 78
30
Africa indicating that everyone has the right to an effective remedy before the
competent national courts against acts violating rights granted by the
Constitution, law or charter, even if the acts were committed by persons acting in
an official capacity65 . This right is also reflected in Article 7(1) (a) of the African
Charter, which defines one aspect of the right to have one 1s case heard as the right
to have recourse to the competent national courts against any act violating one 1s
fundamental rights as recognised and guaranteed by the conventions, laws,
regulations and customs in force. 66
160. As the Commission has already indicated, the right to an effective remedy
includes access to justice, redress for harm suffered and access to factual
information about violations67 . In Association of Victims of Post Electoral Violence &
INTERIGHTS v Cameroon, the Commission furtner clarified that an effective
remedy is one that not only exists de facto, but is also accessible to the party
concerned and is also appropriate to allow for the denunciation of the alleged
violations and the payment of ar.propriate compensation. 68
161. In particular, the right to an effective remedy guarantees the individual the
possibility to seek redress from the State through the competent judicial bodies.
Thus, this right would be jeopardised if, for,example, a law prevented violated
rights from being asserted before the competent bodies or when legal action is
used to obstruct their referral. The guarantee of the right to an effective remedy
also includes the administration of justice. The latter must be organised in such a
way as to ensure fairness for all, regardless of the identity of the parties to the
proceedings and the nature of the proceedings themselves.
162. In the present case, the Commission is called upon to determine whether there is
no avenue open to the victims to apply to the competent bodies to establish the
alleged violatfons and award reparations where appropriate. In particular, the
Complainants allege that the high rates of preventable maternal injury and death
in Nigeria have lasted for more than a decade with hundreds of thousands of
women dying and that there is still no judicial or administrative admissibility or
remedy available to the victims or their families.
163. However, the Complainants have not demonstrated whether the victims were
prevented, by de facto or de jure means, from seizing the competent bodies or that
they were denied such an opportunity or that such charm ~ ::tu:!~
t all in
the Respondent State. It is indeed this refusal or ab
determining the existence of a violation of the right to
65
Guidelines and Principles on the Right to a Fair Trial and Legal Assistance in
66 Article 7 (1) (a) of the Charter which states that: "Everyone is entitled to a fa
~ :.n"".-r-,
es: a.)
the right to have recourse to the competent national courts in respect of any act vrv,a,ffljla
rights
recognised and guaranteed to him by the conventions, laws, regulations and custom ~ ~;!::::~
67
Guidelines and Principles on the Right to a Fair Trial and Legal Assistance in Africa, Section C
68 Communication 272/ 03- Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon (2009)
ACHPR, para 128.
31
164. In the absence of such justification, the Commission concludes that the right to an
effective remedy has not been violated.
Claim for Compensation
165. The Complainants request a series of reparations. As the Commission did not find
any violation of the Maputo Protocol or the Charter, it cannot grant reparations.
Commission's Decision on the Merits
For these reasons,
166.
1.
ii.
The Commission declares that:
Articles 2, 3, 4, 5 and 16 of the Charter and Articles 2, 4 and 14(1)
(b) (c) (£) and (2) (a) and (c) of the Maputo Protocol have not been
violated;
The right to an effective remedy and the right to enjoy the benefits
of scientific rogress have not been violated. ,
167. Consequently,
the Complaina
all the claims for compensation made by
Adopted by the
Ordinary Session i , ~ ,ri'.-w........-:::::=::=::::_......
Human and Peoples' Rights at its 75 th
from 3 to 23 May 2023
32