The first decision of the African Commission on maternal mortality: Community Law Centre and Others v Nigeria

5.1 The right to health

The World Health Organisation (WHO) has noted that the direct causes of maternal injury and death are excessive blood loss, infection, high blood pressure, unsafe abortion, and obstructed labour, while the indirect causes include anaemia, malaria, and heart disease.22 It further notes that maternal mortality is preventable with timely management by a skilled health professional working in a supportive environment. According to WHO, states are to ensure that healthcare providers deliver maternal healthcare services in the most respectful manner to pregnant women.23

In the case at hand, the complainants argued that the failure by the government of Nigeria to address preventable maternal deaths and morbidities constituted a violation of the right of health. Furthermore, they argued that most Nigerians pay for healthcare services out-of-pocket thereby making it difficult for a large number of the population, particularly women in rural areas, to access health services in general and maternal healthcare services in particular. They relied on norms and standards on the right to health under international law, including General Comments 14 and 22 of the Committee on Economic Social and Cultural Rights (CESCR), General Comments 6 and 35 of the Human Rights Committee, General Recommendation 24 of the CEDAW Committee, and the Resolutions and General Comments of the African Commission. However, the Commission found that the complainants had not proven that Nigeria had adequate resources to realise the right to health.

The approach of the Commission to the right to health is retrogressive. According to the Commission, the realisation of the right to health like other socio-economic rights is ‘problematic in Africa’ due to economic challenges and high poverty levels, thereby making it difficult to provide infrastructure and facilities to realise it.24 The Commission noted that a state is only required to take ‘positive and selective steps’ under article 16 of the Charter to realise the right to health. The Commission concluded that the 15 per cent allocation to the health sector agreed during the Abuja Declaration is not binding on states and therefore cannot be enforced. Furthermore, the Commission noted that there wasn’t enough evidence to show that Nigeria was not meeting its obligations as envisaged under article 14(2)(a). This conclusion is confusing, given that in the admissibility consideration, the Commission acknowledged its own prior jurisprudence that preventable maternal mortality was a violation of the rights to life, health and dignity of women in Africa. The complainants’ argument was simply that the cost of health services in Nigeria is prohibitive and not in tune with the economic realities in the country. The Commission was not convinced by this argument, and therefore found no violations of the right to health against Nigeria. This outcome is retrogressive because it lowers the threshold of state responsibilities from settled standards, including those in the jurisprudence of the Commission itself.

For instance, while it is true that the implementation of socio-economic rights, including the right to health, requires adequate resources, states are required to take concrete, positive and progressive steps towards realising this right.25 One of the steps or measures that the government of Nigeria would be expected to take in this regard is to invest in primary healthcare services to facilitate access to healthcare for those in rural or disadvantaged communities. Even in the most literal sense, the term progressive implies incremental and measurable, as guided by a well-articulated and accountable plan. It cannot be interpreted, as the Commission seems to suggest, to mean that the state has absolutely no responsibility simply because it does not have resources.26

Furthermore, while the right to health as part of socio-economic rights is to be realised progressively, the minimum core content of the right is not subject to progressive realisation, but must rather be realised immediately.27 The CESCR in its explanation of the minimum core in relation to the right to health, has referred to the Programme of Action of the International Conference on Population and Development, and the Alma-Ata Declaration as instruments reflecting an international consensus on the core obligations arising under article 12.28 Furthermore, the Committee has recognised as part of the minimum core, the obligation ‘[t]o ensure reproductive, maternal (prenatal as well as postnatal) and child health care’.29 In 2016, the CESCR adopted General Comment 22 on the right to sexual and reproductive health30 and acknowledged as guidance for the purposes of specifying the minimum core ‘contemporary human rights instruments and jurisprudence, as well as the most current international guidelines and protocols established by United Nations agencies, in particular WHO and the United Nations Population Fund (UNFPA)’.31 It therefore seems that the Commission backtracked on well-established and generally-accepted standards. Furthermore, the argument of the Commission in this regard shifts the burden of proof of resources to the complainants, and yet such duty is already established by treaty to rest upon the state. Indeed, the state is presumed to have resources, unless it can demonstrate the lack of resources and corresponding failure to obtain assistance to fulfil its obligations. In its current iteration, the Commission seems to absolve the respondent state of its duties.

Rather than consolidate its position on the basis of the jurisprudence of the CESCR with regard to the nature of the state’s obligation to realise the right to health, the decision refers to the state’s duty to take ‘positive and selective steps’32 to realise socio-economic rights. This is a departure from the language of the CESCR’s ‘concrete and targeted’ measures,33 which has also previously been co-opted by the Commission.34 The choice of terminology can be interpreted as introducing new parameters of interpretation. But this would be tantamount to lowering the standard. It is more plausible to assume a poor choice of terminology as opposed to a purposive redirection. The latter conclusion dents the credibility of the Commission’s reasoning in the current decision, but may serve to discredit the influence of this line of reasoning in subsequent jurisprudence.

It is a settled standard that states ought not to take retrogressive steps in the realisation of the right to health. It is also generally established that beyond the question of the volume of resources, it is also about how judicious the state is in utilising the resources it has. The complainants had argued both that Nigeria had the resources as a result of its oil wealth, and established that the Nigerian government had allocated more resources to military and defence at the expense of the health sector, as a testament to the lack of political will to address maternal mortality in the country. Indeed, Nigeria is one of Africa’s largest economies.35 In the circumstances, and without a rebuttal of these representations by the state, the Commission ought to have assumed sufficiency of resources.

The concept of progressive realisation, implies incremental allocation to the health sector with a view to realising the right to health.36 It is endorsed by the African Commission’s Guidelines and Principles for the Implementation of the Socio-economic Rights in the Charter.37 Based on an analysis of Nigeria’s budgets for three years, the complainants had illustrated that the allocation to the health sector hovered between 5 and 6 per cent, while allocation to military and defence exceeded 10 per cent. This information was however not factored in the decision, thereby missing an opportunity to expound on the responsibilities of state parties in respect of resourcing the implementation of women’s rights, as required under article 10(3) of the African Women’s Protocol.38

In the Treatment Action Campaign case, the Constitutional Court of South Africa rejected a similar argument of a lack of resources by the South African government on the basis that it did not provide evidence to support a lack of resources to roll out programmes for the prevention of mother-to-child transmission of HIV in the country.39 In the absence of any evidence to the contrary, the Commission could have found the Nigerian state to be in breach of its obligation to realise the right to health under the Charter and the African Women’s Protocol. This is significant because article 14(2)(a) of the African Women’s Protocol is a codification of the reasoning of the CESCR in its General Comment 14 where it is stated that states are obligated to ensure available, accessible, acceptable and quality healthcare services to all.40 In a country where the majority of women, particularly those in rural areas do not have adequate access to maternal healthcare services, it cannot be said that the government is meeting its obligations under the African Charter and African Women’s Protocol.

Furthermore, the Commission held that there was no connection between access to safe abortion (article 14(2)(c)), and maternal mortality,41 or between lack of family planning education and maternal mortality.42 It is a settled fact that deaths from unsafe abortion contribute to maternal mortality. For instance, it has been noted that 77 per cent of abortions in sub-Saharan Africa are unsafe and about 6.2 million incidences of abortion take place each year,43 thereby affecting the health of women and girls and contributing significantly to the high rates of maternal mortality in the region.44 It is reported that an estimated 1.2 to 2 million abortions occur in Nigeria every year.45 Coupled with restrictive abortion laws, it is not surprising that unsafe abortion contributes to the high rates of maternal mortality in Nigeria. There is an apparent break in logic, since the decision both

acknowledges in the admissibility consideration that there was ‘a significant number of victims involved in the respondent state’46 and relies on this to waive the requirement of exhaustion of local remedies, but finds this immaterial to the responsibility of the state.

In terms of article 60 of the African Charter, the Commission should have drawn inspiration from decisions of UN treaty bodies and national courts in the region to affirm the links between lack of access to safe abortion, increased maternal mortality and violation of the right to health. For instance, in Alyne da Silva Pimental v Brazil,47 the CEDAW Committee found the Brazilian government in violation of its obligation to realise the right to health and maternal healthcare of a woman from a disadvantaged and Afro-Brazilian community as guaranteed in article 12 of the Convention. The Committee affirmed that denial of maternal healthcare services violated Alyne’s right to healthcare services. The Committee found that the state did not comply with its obligation under article 12(2) of the Convention to ‘ensure to women appropriate services in connection with pregnancy, confinement and the postnatal period’ because of its failure to meet Alyne’s ‘specific, distinctive health needs and interests’ during pregnancy.48 Cook has argued that the decision in the Alyne case has aided our understanding of maternal mortality as a violation of women’s human rights and the articulation of collective obligations to ensure women’s equal rights in the field of healthcare.49

Also, the Ugandan Constitutional Court held that the Ugandan government was in violation of the right to health of two women for failing to provide quality maternal healthcare services.50 The Court found that the right to healthcare, including maternal healthcare services, guaranteed under the Ugandan Constitution, constituted a minimum core obligation which the government had to implement immediately.51 More importantly, the Court held that maximum available resources include internal and external resources the state could mobilise in order to ensure effective delivery of maternal healthcare services thereby avoiding preventable deaths.52 The Court invoked the indivisibility and interrelated approach to find that failure of the Ugandan government to prevent maternal deaths constituted violations of the rights to life, dignity, and health.

The Commission’s views on the weight of the Abuja Declarations on HIV/AIDS, Malaria, Tuberculosis and other infectious Diseases (Abuja Declaration) for state responsibilities also raises concern. It noted that the Abuja Declaration is not a binding instrument and that, as such, the Nigerian government could not be held accountable for not meeting the commitments in the Declaration.53 It is true that the Abuja Declaration is a soft law norm and therefore not binding on states. However, it remains an important normative standard to gauge governments’ commitments to realise the right to health in the region. The fact that a state is not complying with the Declaration is an indication of lack of political will to ensure the enjoyment of the right to health. The Declaration was made by the Assembly of Heads of State of African governments, the highest decision making organ of the AU. Therefore, even if it does not have binding force, it remains an important document to assess progress made by states towards resourcing health.

Nolan argues that ‘soft law can include ‘mechanisms [that] provide guidelines and principles which, while not legally binding, have force by virtue of the consent that governments, companies, and other civil society actors accord them’.54 The author further notes as follows:55

Thus to argue that soft law is simply not-law is perhaps too simplistic. The evolution of soft law instruments in the business and human rights sector has created at minimum, standards of expected conduct that, while not setting out to be legally binding, may have normative value that is intended to prescribe expected standards of behaviour.

According to Shelton non-binding normative instruments may do one or more of the following:56

(1) codify pre-existing customary international law, helping to provide greater precision through the written text;

(2) crystallize a trend towards a particular norm, overriding the views of dissenters and persuading those who have little or no relevant state practice to acquiesce in the development of the norm;

(3) precede and help form new customary international law;

(4) consolidate political opinion around the need for action on a new problem, fostering consensus that may lead to treaty negotiations or further soft law;

(5) fill in gaps in existing treaties in force;

(6) form part of the subsequent state practice that can be utilized to interpret treaties;

(7) provide guidance or a model for domestic laws, without international obligation, and,

(8) substitute for legal obligation when on-going relations make formal treaties too costly and time-consuming or otherwise unnecessary or politically unacceptable.

From the above it is clear that while soft law is not necessarily binding on states, it is an important consideration in measuring a government’s commitments to realizing human rights. In any case, the Abuja Declaration is not an isolated document, but rather part of a regular approach of the African Union to express shared policy commitments consistent with its agenda. In a cumulative sense, the soft law of the African Union has been a basis for momentous political and policy actions, as in the case of the African Union Agenda 2063. It is difficult to reconcile the weight of such instruments with the apparent position that such instruments have no bearing on the actions of AU member states.

In making its argument on the weight of declarations, the Commission stated that a declaration has ‘symbolic scope and is essentially the expression of the political will ... a declaration has only a recommendatory value ... cannot be used as a legal basis to argue that rights therein have been violated’.57 The choice of words discounts the value of declarations altogether, not only in relation to their lack of binding force. This is at odds with the fact that binding force is not the only measure of value of an instrument.

In any case, the African Commission has cited soft law to buttress its points in numerous past decisions. For instance, in the Egypt Initiative for Personal Rights and Interights v Egypt,58 the Commission relied on the Guidelines and Measures for the Prohibition of Torture, Inhuman and Degrading Treatment or Punishment in Africa and the ‘Declaration on the Elimination of Violence against Women’ in arriving at its decision. Relying on this ‘soft law’ as a tool for interpretative guidance, the Commission found that the Egyptian government was in violation of article 5 of the African Charter on the right to dignity. Also, in Huri-Law v Nigeria, the African Commission relied on the UN Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment to hold that the Nigeria government had failed in its obligations under the Charter to treat prisoners with respect and dignity.59 In a nutshell, the Commission’s approach to the weight of soft law as irrelevant in holding states accountable in its decisions is contradictory in as far as it considers them weighty in some instances and of little weight in other cases.

5.2 The right to life

Maternal deaths underscore failure on the part of the state to prevent loss of life. The complainants argued that since the deaths were preventable, the respondent state had failed to take positive steps to prevent loss of life. They relied on global and regional norms, including the jurisprudence of the Commission to support the argument.

For instance, the complainants referred to General Comments 660 and 3661 of the Human Rights Committee on the Right to life, General Comment 362 of the Commission, and case law of the Commission.63 However, the Commission found that no evidence had been presented to the effect that maternal deaths in the country were the result of the failure on the part of the Nigerian state to prevent such deaths. In particular, that there was no evidence that the respondent state had sufficient resources to prevent maternal deaths.

This is a restrictive approach by the Commission, particularly in light of plenty of evidence and reports including those of WHO, UNFPA, and the respondent state itself, indicating the high rates of maternal mortality in the country. The Commission did not reference its own jurisprudence such as General Comment 3 on the right to life, where it explains that states have the positive obligation to prevent loss of life, including preventable maternal deaths.64 Furthermore, in International Pen and Others v Nigeria, the Commission affirmed that a violation of the right to health of a prisoner will result in the violation of the right to life.65 Moreover, in Resolution 135 on Maternal Mortality, the Commission had declared maternal deaths in Africa a state of emergency and called on African governments to take decisive measures to address this.66 The Commission further noted that maternal death is a violation of several rights of women, including the rights to life, dignity, non-discrimination and health.67

The approach of the Commission shows material inconsistencies in the approach to the link between the right to health and life. Needless to say, other human rights bodies68 and national courts69 have affirmed that maternal death constitutes a violation of the right to life. For instance, in the Alyne case of Brazil, the central question was whether the failure by the Brazilian government to prevent death during childbirth constituted a violation of the right to life, and the CEDAW Committee agreed that it did. Scholars also support this view. For instance, Cook and others argue that when women die during pregnancy and childbirth, it is an indication of failure on the part of the state to guarantee the right to life.70 They further argue that the effective protection of the right to life requires states to take measures that will ensure access to healthcare services for women and guarantee safe delivery.71 Echoing Cook and others, Yamin has argued that states must be held accountable for the death of women during pregnancy and childbirth as these deaths constitute a violation of the right to life.72

5.3 The right to non-discrimination

The CEDAW Committee affirmed in its General Recommendation 24 that failure by the state to provide healthcare services specifically needed by women constitute an act of discrimination prohibited under the Convention.73 Maternal healthcare services are peculiar to women’s needs, and when a state fails to ensure access to these services, it violates the right to equality and non-discrimination. Similarly, the disparities in healthcare services between women based on geographic location, rurality or socioeconomic status constitute an act of discrimination. The reasoning of the Commission seems blind to the impact of such intersectionality on maternal health, and therefore fails to appreciate the discriminatory nuances in the maternal health outcomes. The glaring structural inequalities compounded by discrimination on the basis of sex, gender, age, disabilities and marital status could have informed the Commission’s analysis of equality and non-discrimination in the current context.

A woman-centred approach or ‘asking the woman question’,74 was imperative in the analysis since gender inequality and cultural practices aggravate maternal mortality. By asking the woman question the Commission could have analysed the laws, policies and practices that perpetuate the low status of women and prevent them from exercising their agency. In particular, the Commission ought to have considered the existing legal and social-cultural barriers that hinder access to maternal healthcare services for women in Nigeria. This would have provided a more purposive interpretation of article 2 of the African Women’s Protocol and yielded a substantive approach to equality.

The interpretation of the Commission that differential treatment in article 2 of the African Women’s Protocol, must be ‘based solely on the ground of sex’, does not align with feminist scholars’ reasoning. The African Women’s Protocol itself already lists grounds of discrimination beyond sex, including grounds yielding intersectional vulnerabilities such as rurality and disability. It is inconceivable to interpret it to mean that the ‘sole’ purpose of the Protocol is to eliminate discrimination between men and women. Even if that were the case, the Protocol is more aligned with fostering gender equality more generally, which subsumes sex equality.75 The treatment of women, particularly in the context of reproductive health, is largely influenced and driven by social gender norms.

The right to non-discrimination is an integral part of the principle of equality, and has been described as the right of everyone not to be denied their rights on the grounds of sex, race, religion, language, political affiliation or other status.76 In Purohit and Moore v The Gambia, the Commission noted that articles 2 and 3 are some of the most important provisions of the Charter77 and that the enjoyment of all other rights in the Charter depend on them. Against this background, the Commission’s restrictive interpretation of the discrimination provision in the African Women’s Protocol as ‘solely based on sex’ is absurd. Comparatively, the CEDAW Committee in the Alyne case noted that since maternal health is peculiar to women, the Brazilian government was violating the right to non-discrimination of women by failing to provide maternal healthcare services. The CEDAW Committee has also noted in General Recommendation 24 that failure by the state to ensure healthcare services peculiar to the needs of women will amount to discrimination under the CEDAW.78

A formal approach to equality ignores the existing differences and historical disadvantages which require the adoption of corrective measures to address.79 The disparity necessitates a substantive equality approach to close the gap. There is no doubt that a response based on the narrow interpretation preferred by the Commission ignores the suffering of these women, and would result in injustice. With over 40,000 maternal deaths annually, the majority of which occur in disadvantaged communities, the need for urgent and corrective measures to address the situation based on a substantive equality approach cannot be overstated.

5.4 The right to dignity and to be free from torture, inhuman and degrading treatment

The complainants argued that mistreatment of women and the negative attitudes of healthcare providers towards maternity patients contribute to the high maternal deaths in Nigeria. They argued that the mistreatment of women during childbirth constitutes a violation of the right to dignity and amounts to torture, inhuman and degrading treatment in line with the reasoning of human rights bodies.80 The complainants had relied on the jurisprudence of the Commission and other human rights bodies in this regard, as well as decisions of national courts.81 In its decision, the Commission ignored its own General Comment No. 4, where it stated that acts such as involuntary sterilisation and other mistreatment of women in health facilities constitutes torture, cruel, inhuman and degrading treatment.82

Instead, the Commission relied on the jurisprudence of the Human Rights Committee to argue that the mistreatment of women during pregnancy and childbirth does not constitute cruel, inhuman and degrading treatment.83 It is not clear why the Commission would cite a decision of the Human Rights Committee and depart from its own norms on the same issue. For instance, while explaining the meaning of the right to dignity in the Purohit case, the Commission stated that

the term ‘cruel, inhuman, or degrading punishment and treatment’ is to be interpreted so as to extend to the widest possible protection against abuses, whether physical or mental and that ‘exposing victims to personal suffering and indignity violates the right to human dignity. Personal suffering and indignity can take many forms and will depend on the particular circumstances of each communication brought before the African Commission’.84

Until the present decision, the Commission had consistently followed this reasoning. For instance, in Doebbler v Sudan, the Commission noted that ‘the prohibition of torture, cruel, inhuman, or degrading treatment or punishment is to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses’.85 In the Equality Now case,86 which related to child and forced marriages, the Commission adopted a similarly progressive and purposive interpretation of the right to dignity as follows:

At the core of human dignity is the idea and recognition that a human being has unique worth, value and significance that is innate, and not acquired. It also entails that a human being is a moral agent possessed with the conscience and personal volition to decide what happens to his or her body. The right to respect of dignity is a guarantee that a human being should not be subjected to acts or omissions that degrade or humiliate him or her. The worth, value and significance of a human being may not and need not be conceptualised with scientific precision.

In Resolution 260, the Commission declares that all forms of involuntary sterilisation violate, in particular; the right to equality and non-discrimination, dignity, liberty and security of person, freedom from torture, cruel, inhuman and degrading treatment, and the right to the best attainable state of physical and mental health as enshrined in regional human rights instruments such as the African Charter and the African Women’s protocol.87 Some studies have shown that abuse and mistreatment of pregnant women in health facilities contribute to high maternal mortality.88

The foregoing jurisprudence is consistent with the trend of human rights bodies, special mechanisms and national courts to frame mistreatment, forced sterilisation and other coercive treatment as constituting torture, inhuman and degrading treatment. For instance, the Human Rights Committee has noted that forced sterilisation contravenes article 7 of the ICCPR which prohibits torture, cruel, inhuman or degrading treatment, and article 17 on right to privacy.89 In VC v Slovakia, the European Court on Human Rights found that sterilisation was carried out with gross disregard to the right to autonomy and choice of the Applicant, and was therefore a violation of articles 3 on the prohibition of inhuman and degrading treatment, and 8 on the right to family life, of the European Convention.90

Also, the Special Rapporteur on the rights of persons with disabilities has condemned forced sterilisation of women with disabilities calling on states to guarantee healthcare services to persons with disabilities that are grounded in human rights, including respect for their autonomy, privacy, dignity, and to be free from torture, cruel, inhuman and degrading treatment.91 Other human rights bodies such as the CEDAW Committee and the Special Rapporteur on violence against women have sometimes referred to the mistreatment of pregnant women in health facilities as obstetric violence. For instance, in NAE v Spain the CEDAW Committee found that mistreatment of a pregnant woman during delivery such as induced labour and separation from the new baby constituted obstetric violence. Echoing General Recommendation 24 on women and health, the Committee notes that

quality health-care services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives.92

The Committee cited the definition of the Special Rapporteur on violence against women and its consequences as:

as the violence against women experienced during facility-based childbirth and affirms that this form of violence has been shown to be widespread and systematic in nature or engrained in the health system.93

At the national level, the High Court of Kenya in Millicent Awuor Omuya alias Maimuna Awuor & Another v The Attorney General & 4 Others found that the detention and mistreatment of the petitioners, including being made to sleep on the floors due to inability to pay medical fees after delivery, constituted ill-treatment and undermined the right to dignity and to be free from torture, inhuman and degrading treatment.94

These developments point to the fact that coercion, abuse and mistreatment of women seeking maternal health services in health facilities is a form of torture, cruel inhuman and degrading treatment under international law. The Commission’s departure from its own rights affirming reasoning to a restrictive interpretation of the right to dignity is therefore retrogressive.