APPRAISING THE LEGAL AND POLICY FRAMEWORK FOR MATERNAL HEALTH IN NIGERIA – THE WAY FORWARD
The increasing fanciful terms used to describe the state of maternal health in Nigeria has and should become a cause of urgent concern for policy makers, stakeholders and other persons interested in the health, wellbeing and image of the most populous country in Africa. At a Millenium Summit held in New York, World Leaders pledged, among others, to improve maternal health by 2015. The level of compliance with this pledge in Nigeria and other countries is still at a dismal low.
A reserved estimate of maternal mortality in the world over the years put Nigeria among the top 10 countries worst hit, and among the top three in the developing world. A 2008 report attributed 50% of the global estimate of maternal deaths as originating from Nigeria and five other countries.[i] And next to India, Nigeria is reported to be the country with the highest absolute number of maternal death in the world with a mortality ratio of 545 per 100,000 live births.[ii]
More than two decades into the struggle to eradicate maternal mortality and despite the increasing activities of NGOs, both local and foreign,[iii] and various funding and aids received from international donors[iv] towards stemming the rampage, the statistics are still not much better than they were. Allowing for possibilities of exaggeration, these reports indict the policies, movements, and other such mobilizations against maternal health. It is time to drop the hypocrisy and take a stand on maternal health.
Maternal Health encompasses the totallity of the physical, mental, sexual and psychological health and wellbeing of a woman, and includes reproductive health. Reproductive health is a term used to describe a woman’s right to her body in terms of deciding freely, and without coercion, whether to have sex, use contraceptives, have kids, the number of kids to have, the spacing between one kid and the next, and the right to have material information necessary to make an informed decision. Reproductive health has been equated with a right and both are used complementarily, as in this paper.
Right to Maternal Health?
A fundamental question is whether there is any such thing as a right to health in Nigeria, or in the context of the discussion, a right to maternal health. The 1999 Constitution expressly sets out what are described as fundamental rights of a Nigerian citizen to include right to life, personal liberty, personal dignity, freedom of movement, privacy, freedom from discrimination.[v] However, there is no express provision stating that ”every person shall have a right to adequate medical care as may be necessary for her health and welbeing.”
Arguments exist to the effect that a liberal and inclusive interpretation of the expressly mentioned rights in the Constitution would lead to an inference of a recognition of the right to health.[vi] Dr. Ladan suggests that Sections 14 and 17 of the 1999 Constitution which deal with the objectives of the policies of the Nigerian Government to, for example, ensure that the health, safety and welfare of all persons are not endangered or abused, is evidence enough that the right to health ia a basic constitutional right. According to him,
”[t]he constitutional provisions clearly recognized that the right to life, sanctity of the human person and human dignity (provided for in sections 17, 33 and 35) are clearly connected to physical and mental health of persons. Clearly, constitional provision that conditions of work be just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life [section 17(3)(b)] is one, which if properly implemented will work to promote women’s health generally. The prohibition of sex-discrimination (section 42) also means that women and children are entitled to good health and a decent environment as men.”
What the foregoing argument does is to attempt to stretch the express provisions of the Constitution from what it actually covers to what it ought to have covered. Certainly, a person deprived of adequate medical care necessary to live, has been constructively denied the right to live. However, it does not seem to fit within the contemplation of the Constitution which appears to refer to a right not to be killed.
Similarly, the connection to physical and mental health attributed to section 35 of the 1999 constitiution (personal liberty) is, arguably, a reference to the exception to the right to personal liberty which permits minors and persons of unsound mind to be compulsorily detained for their education or treatment, respectively. It does not appear to give a right to, for example, be treated for a mental condition. In any case, a right is a right because it can be enforced by the holder, and creates a corresponding obligation on others to respect that right. In the case of a woman, can the foregoing provisions of the Constitution be relied on to make a claim to be given necessary pre-natal care, or to demand birth assistance in a hospital facility? Can the existing right sections in the Constitution be relied on to make a claim for birth control medication, abortion, proper nutrition in pregancy?
Unlike the constitution, the Labour Law, section 54, at least, contains clear wording expressly conferring certain reproductive rights on women. According to the section, ”…a woman shall have the right” to maternity leave, pay during maternity leave, nursing hours, not to be dismissed during maternity leave.[vii]
While the trend in the Western countries may appear to be that a recognition of the right to live also extends to an obligation to provide health facilities for all, even in those Western countries, it does not seem that there is such a thing as a right to health, which imposes a duty on government, hospitals and medical practitioners to provide medical treatment. More certain is the absence of a legislative recognition of the right to maternal health. Yet, the dampening effect of the state of maternal health in Nigeria in relation to the rest of the world, is widely acknowledged, and has moved past the position where the Western countries are waited on for pointers on how to deal with the scourge.
Agitations on the State of Maternal Health in Nigeria
Several issues agitate the mind concerning the seeming irretractable nature of maternal mortality in Nigeria. Perhaps, the donor funds are not adequate. Or maternal mortality is nature’s badge for a selective poverty-stricken country, or nature’s sorting hat for a highly fertile country.[viii] Perhaps, the commitment to eradicating maternal mortality is a mere smokescreen, and a veneer or conduit for channeling funds into private pockets. Perhaps too, the problem of maternal mortality is too monumental and, thus, a lost cause which should just be suffered in silence until it has run its cause. Evidently, these are depressing thoughts, but despite a fervent collective wish, is arguably real.
Causes of the State of Maternal Health in Nigeria
The level of maternal mortality in Nigeria is caused by internal and systemic factors, relating to the governance, quality and effectiveness of health services in Nigeria.[ix] Such systemic factors include the absence or insufficiency of political will to push maternal health to the front burner of national consciousness through legislation and policy. Other systemic factors include lack of pragmatic implementation structure for maternal policies, inadequate budgetary allocation to health, particularly maternal health, absence of proper monitoring and evaluation mechanisms, and the absence of adequate data collection system for maternal health indicators.
Other factors derive from the context of the society itself and its endemic beliefs and traditions such as misconceptions about contraceptives, the desire for male child, child marriage, which, if not addressed, may compromise global effort at eradicating maternal mortality, and accelerating the attainment of Nigeria’s Millenium Development Goals 4 and 5. However, for space and time, this paper will focus on the systemic factors responsible for maternal mortality, particularly the absence of effective policy and legislation, and how they can be addressed to accelerate the reduction and eventual eradication of maternal mortality in Nigeria.
The Legislative Framework for Maternal Health in Nigeria
There are aspects of the Nigerian law which commentators have argued speak to maternal health in Nigeria. Examples include sections 17, 33-45 of the 1999 constitiution of the Federal Republic of Nigeria; section 54 of the Nigerian Labour Law; Chapter 21 and Part 56 of the Criminal Code; section 18 of the Marriage Act; section 3 of the Matrimonial Causes Act. Analysis of these provisions deserves a much more closer scrutiny than can be made in this piece. Apart from Federal legislations, state legislations also exist to lend voices against violations of women health.[x] But these laws are scattered in different legislations and their provisions or interpretations are sometimes controversial. Numerous treaties[xi] and policies[xii] have been ratified and put in place to demonstrate, at least in principle, a willingness to protect maternal health. But, as yet, no legislation has been enacted giving women the right to maternal health.
Apart from policies, commitments to alleviating maternal mortality in Nigeria have been made at the National level in 2007, at a presidential retreat on health organised by the then President Olusegun Obasanjo which, as part of the resolutions, recommended the introduction of free maternity care to encourage the use of evidence-based care which, it was hoped, would translate to a reduced maternal rate.[xiii] Similar commitment to eradicating maternal mortality through free or partially free maternal care has also been reported, to an extent, at the state level.[xiv]
What Needs to be Done
These provisions and commitments are laudable in themselves, but they have not been effective in significantly promoting maternal health and reducinmg maternal mortality. Given the foregoing, it is time a definite right to maternal health, properly so called, is entrenched in the constitution as one of the fundamental rights. A separate legislation, stating all the elements which make up reproductive rights of women should also be enacted to give a practical and legal bite to the cacophony of policies that abound on maternal health. This will, in turn, entitle women to claim against the government for provisions of services necessary in the promotion of their health.
In other words, it is not enough for both government and non-governmental agencies to pledge support for the promotion of maternal health, sustained practical implementation is required. In this respect, despite arguments to the contrary,[xv] sex-specific legislation is desired. Such legislation should collate all the laws and policies relating to women and their reproductive rights and codify them into rights which speak specifically to women. Specifically, such legislation should expressly give women the right to be free from harmful traditional practices; the right to be free from female genital mutilation; the right to freely form a family; the right to determine the number and spacing of their children; the right to contraceptives and other means of family planning, the right to receive free or low-cost pre-natal services; the right to be free from all acts of domestic violence.
A right remains a right even where the owner of the right decides not to enforce it. Any violation of such rights should be made redressible. It is after a definite stand has been taken through legislation, and proper disbursement of resources has been made, that legitimate further discussion on sensitizing and encouraging women to enforce their right may be taken. In the absence of a statutory recognition of maternal right, backed by resource mobilization, there will continue to be duplicity and cyclical movement in the fight towards eradicating maternal mortality in Nigeria.
All blogs are the opinions of the writer and the views expressed therein are not necessarily endorsed by CHELD.
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