AN EXAMINATION OF THE PROTECTION OF WOMEN’S RIGHT TO HEALTH UNDER INTERNATIONAL LAW: A CASE STUDY OF NIGERIA.
1.1 Background to the Study
Men and Women are entitled to the full protection of their rights because they are human beings. At its most basic level, “human rights” are safeguarded prerogative granted because a person is alive. This means that all human beings have rights by virtue of human species membership. A right, therefore is a claim to something (by the right holder) that can be exercised and enforced under a set of grounds or justifications without interference from others. The subject of right can be an individual or a group, and the object is that which is being laid claim to as a right. Human rights are, therefore, those rights that every human being possesses and is entitled to enjoy by virtue of being a human being.
Health has been defined by World Health Organization (WHO) “as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity”. The preamble to the Constitution of the World Health Organization also proclaims that “the enjoyment of the highest attainable standard of living is one of the fundamental rights of every human being without distinction of races, religion, and political belief, economic or social conditions”.5
Right to health as a fundamental human right was declared by the Universal Declaration of Human Rights (UDHR) . Women‟s right to health has been declared as human right at Beijing, China. At the Conference, delegates from 189 countries committed themselves to upholding the equal rights and inherent dignity of women through the adoption of the Beijing Declaration. The Declaration called on governments to implement measures to eliminate discrimination and violence against women and girls, recognize women‟s rights as human rights; and within this context, control all aspects of their health and fulfil their responsibilities to respect women‟s human rights and humanitarian law.8
Women and men share many similar health challenges, but the differences are such that women deserve particular attention. They experience conditions that have negative impact on their wellbeing. Some of these are pregnancy and childbirth which are not diseases, but are biological and social processes that carry health risks and require health care. Throughout human history, pregnancy and child bearing have been major contributors to the health problem and disability among women. Maternal Mortality (the death of women during pregnancy, delivery or the post partum period) is a key indicator of women‟s health status. This indicator is very high in Nigeria, as it has been observed that over the past three and half decades, Nigeria has progressively shown one of the most abysmally poor reproductive health indexes in the world. Women‟s health should not be a problem only to women themselves. It is crucial to the health of the children they bear and their fitness for their roles both in the home and in public life. This underscores the importance of providing sound healthcare for women as an investment not just for the present but also for the continuity of future generation. From the above, it is crucial that the underlying social and economic determinants of women‟s health, including education and employment, are important for the survival, growth and development of children.
Culture in Nigeria is a major culprit that adversely affects women‟s health. This manifests in various forms ranging from Female Genital Mutilation, early/child marriages, forced marriages, widowhood practices, unsafe traditional delivery practices, the preference of male children to female children, violence against women, et cetera. They contribute to the poor health index of the Nigerian women. The preference of male children to female children has direct impact on the psychological state of such female children as can be seen in this folksong: “why did you come oh girl? When we wished for a boy? Take a jar and fill it from the sea, may you fall into it and drown” The song shows the resentment of the girl child in some parts of Africa and Nigeria. The resentment places a heavy burden on the socio-economic and psychological well being of women in Nigeria.
Notwithstanding all these, there are many International and National legislation and safeguards on women‟s right to health. In Nigeria, the Constitution did not make express provisions for ensuring the right to health but under Chapter II, it provides for the social objectives of government. Chapter IV on Fundamental Rights also provides for the right to life and right to the dignity of human person. The Labour Act and the Criminal Code15 also make provisions to guarantee women‟s right to health.
There are several international instruments on Women‟s right to health, urging state parties to ensure the provision of such rights in their National Laws and to uphold the observance and protection of such rights. Some of these instruments include, but not limited to, the United Nations Universal Declaration of Human Rights (UDHR) , United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) , African Charter on Human and Peoples Rights,18 which has been ratified and domesticated by Nigeria; International Covenant on Economic, Social and Cultural Rights, Maputo Protocol on the Rights of Women in Africa . All these are considered in details in the course of the work.