Reducing Maternal Deaths in Nigeria: Interrogating the Applicability of The Right to Health

Reducing Maternal Deaths in Nigeria: Interrogating the Applicability of the Right to Health

Oluseyi Olayanju*

Faculty of Law Lagos State University

^*Corresponding author

DOI: https://dx.doi.org/10.47772/IJRISS.2025.9020269

Received: 01 February 2025; Accepted: 11 February 2025; Published: 18 March 2025

ABSTRACT

Statement of Problem: Nigeria is one of the countries with the highest maternal mortality rate in the world. The persistence of maternal mortality globally has been linked to violations of various human rights of women, particularly, the right to health, guaranteed by various international and regional human rights instruments. There is an ongoing global campaign for the human rights approach and especially the right to health framework to be adopted by countries for addressing various public health issues including maternal mortality. This has also led to high incidence countries being criticized for not complying with the directions of the right to health framework relevant for securing the maternal health of their citizens.

Objective: This article interrogates whether the applicability of the right to health to achieve the reduction of maternal mortality in Nigeria is beyond arguments.

Methodology and Findings: This research employed the desk or library-based methodology and highlighted some problems associated with the protection of the right. These problems relate to issues such as the content of the right, its legitimacy, nomenclature, lack of an identifiable scope thus making it a mere conglomeration of other rights, lack of a philosophical foundation, impracticability, and lack of indicators to determine state compliance.

Conclusion: Thus, it is the argument of this paper that these concerns raise questions with respect to the applicability of the right for the reduction of maternal mortality in Nigeria.

Keywords: maternal mortality, right to health, international human rights

INTRODUCTION

The international human right to health framework or the right to health approach has been held out by international organizations, (WHO 2009; OHCHR & WHO 2008; Puras 2015) researchers, (Mann et al., 1994; London 2008) and various other stakeholders as being useful to ensure that the health-related needs of people are made visible. It is also used to provide indicators of underlying health or health care system conditions that may lead to human rights violations and also a negative impact on the health of people.  From as early as the 1980s, the connection between maternal mortality- a largely preventable public health issue- and human rights, has been made. A vast amount of the literature on this issue recommends that maternal mortality (MM) interventions be based on a human rights approach of which the right to health (RH) is a prominent feature (OHCHR 2010; Cook 1994; Cook, Dickens & Fathalla 2003; Ali, Suhail & Ali 2017; Mittenburg et al., 2016; WHO & EPMM 2015; UNCHR 2013).

Nigeria holds an unenviable record of being one of the largest contributors to the MM numbers in the world (Roser & Ritchie 2020). The country has ratified several international and regional human rights treaties guaranteeing the right to health and this has influenced the recurrent recommendation from various stakeholders that the country give effect to its right to health obligations in respect of maternal mortality (Agbakwa 2004; Obadina 2019; Obiajulu 2015).  In the same vein, Nigeria’s non-compliance with the dictates of RH in relation to maternal health has attracted censure and condemnation (Aniekwu 2006; Lawoyin, Lawoyin & Adewole 2007; Okwor 2009; Okonofua and OmoOghoja 2010; MacArthur Foundation 2006).

However, a major concern, rarely raised by these critics is that there are inherent problems associated with the protection of this right. This research aims to highlight these problems. The research question for this study is: What inherent challenges may impact the applicability of the right to health for maternal mortality reduction in Nigeria?

The methodology is desk based and relies on information and data from already existing sources such as books, journal articles, reports from published studies, websites of human rights organizations, and other published materials. Being interdisciplinary research, the reviewed materials are drawn from different fields including human rights, international law, public health and epidemiology.

This research is subject to certain limitations. Firstly, the human rights-based approach (to maternal mortality) comprises the legal approach that is, standards of the internationally agreed human rights, like the right to health and the right to life, and the development centered approach promoted by development agencies. The investigation in this paper is fixated on one of the rights that make up the legal aspect, the right to health. This right is focused on because the standards it guarantees are most closely related to the causes of maternal mortality and the interventions recommended for the reduction. Additionally, sexual and reproductive health of which maternal health is a component, is an integral part of the right to health. Investigating other relevant human rights or the development centred aspect will require more space than an article of this length can address judiciously. Secondly, the determination of whether the compliance of any country or Nigeria has been affected by the findings of this study is not within the purview of this paper. That task deserves a dedicated investigation which will be the subject of subsequent endeavors.

This paper sets out with a discussion of maternal mortality, including the causes. It follows up with a brief introduction of the right to health and in accordance with the stated aim of the paper, presents some of the problems associated with the nature and the implementation of the right as evident from the literature reviewed. It closes with the conclusion

Maternal Mortality: Meaning, Prevalence and Causes

A maternal death is defined as the death of a woman while pregnant or within 42days of termination of pregnancy irrespective of the duration and site of the pregnancy from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes (UNFPA et al., 2023).

Maternal deaths are categorized into direct and indirect maternal deaths. Direct maternal /obstetric death refers to the death of a woman due to obstetric complications of the pregnant state (pregnancy, labour, and puerperium); from interventions, omissions, incorrect treatment; or from a chain of events resulting from any of the above. Indirect obstetric death is the death of a woman resulting from previous existing disease or disease that developed during pregnancy and was not due to direct obstetric causes but was aggravated by physiological effects of pregnancy (UNFPA et al., 2023).

Maternal mortality is the primary health problem of women in developing countries between the ages of 15-44 (World Bank 1993). However, presently the risk of MM is highest among adolescent girls under 15 (UNFPA et al., 2023). The maternal mortality rate (the number of maternal deaths in a population that occur during a given year per 100,000 live births.) varies widely among regions, with developing countries bearing the highest burden. Even within regions, individual country rates vary. According to the latest estimates dated 2020, the estimated number of maternal deaths globally in that year was 287,000, approximately 800 per day (WHO 2024). Ninety four percent of this number occurred in low- and middle-income countries.

Sub Saharan Africa is home to 12 of the 13 countries with very high MM ratios. Due to the diverse sources of data and methods used in measurement, the actual number of maternal deaths in Nigeria has been described as difficult to pinpoint, however, the United Nations Population Fund places Nigeria on top with an uncertainty interval of 793 – 1565 (UNFPA 2023).  Three countries- Sudan, Chad and Sierra Leone- were labelled as extremely high. Yet India and Nigeria reportedly had the highest maternal mortality ratios in 2020 with 24000 and 82000 respectively.  Maternal mortality ratio (i.e the number of maternal deaths during a given time period per 100 000 live births during the same time period) within geo political zones in Nigeria vary. The Northern ratios are worse than that of the South (Meh et al., 2019), and in the South, it is lowest in the South West (Sageer et al., 2019). Additionally, some states in the North, like Zamfara and Kano, actually have rates that are higher than that of the national average.

The causes of maternal mortality are grouped into direct and indirect factors. The direct factors feature only medical complications while the indirect factors comprise some medical conditions and non-medical factors. Globally, 75% of the medical causes are accounted for by five major complications: haemorrhage (severe bleeding), sepsis (infection), unsafe abortion, pre-eclampsia and eclampsia (hypertensive disorders), and prolonged or obstructed

Labour (WHO 2024). The five main medical causes of maternal deaths globally are the same in Nigeria as well. However, just as the MM ratio vary widely among the different parts of the country, the causes also differ in rank among states / geopolitical regions of the country.

The indirect medical causes such as anaemia, diabetes, malaria, cardiovascular disease and sexually transmitted infections such as HIV-AIDS are described as indirect because they increase the chances of a woman dying or becoming ill from pregnancy or childbirth. The non-medical causes are complex and variously described. Although the narrow definition of MM supplied by the medical field barely takes these into account, they are however causes because their presence often set the course for maternal death.  In literature, words like social, cultural, economic, legal or even policy/political factors can be used to group them broadly.

One of the means to explain the relationship between non-medical factors and the eventual medical factors that cause maternal deaths is the three-delay model (Maine 1991).

The first, the delay in deciding to seek the necessary medical care in the case of an obstetric emergency stems from the circumstances of the woman herself. The second is the delay in reaching an appropriate facility and the third delay has to do with receiving adequate care when a facility is reached. The reasons behind each of the three delays can be found among the non-medical causes that have been identified in the literature. The reasons for the first delay may be lack of funds, non-recognition of an emergency due to low educational level or lack of access to information or need for authorization due by gender inequality (Okonofua 2017). The second delay is attributed to government’s inaction or inadequate action such as bad policies that concentrate medical facilities and personnel in urban areas. The third delay may be due to shortages in skilled staff or non-professional attitude of medical staff.

The Right to Health

The phrase ‘right to health’ is a shorthand phrase to capture the various phraseologies by which the right is known in different international and national legal documents (Leary 1994). These phrases include ‘right to health protection’, and ‘right to healthcare’. Although the contemporary origins of the right is traceable to the human rights movement that followed the end of the Second World War, the origins of the right go as far back as the 19^th century and the historical cooperation between states to prevent and control epidemics. Post Second World War, the promotion of a health right was contained in the UN Charter (UN Charter, art. 55), the WHO constitution (WHO Constitution, preamble) and the Universal Declaration of Human Rights (UDHR); (UDHR art. 25).

Legal Sources of the Right to Health

Since the adoption of the UDHR, many other instruments, both binding and non–binding, have codified the right or some aspects of it, thereby clothing it with legitimacy. On the international level, the provision in the International Covenant on Economic Social and Cultural Rights (ICESCR) is the only one of general applicability, that is, it applies to all classes of persons and all regions. Being one of the first two binding human rights instruments adopted right after the UDHR, it is the first and most important document to provide for the right to health. Its provisions were influenced by the contents of the UDHR and the WHO Constitution. Article 12 of the Covenant states that ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Other international provisions guaranteeing the right of health to certain categories of persons include Article 24(1) of the Convention on the Rights of the Child, (UN Convention on the Rights of the Child 1989) and Article 12 of the International Convention on the Elimination of Discrimination Against women (CEDAW).

At the regional level, the sources of the right to health include the African Charter on Human and Peoples Rights (African Charter 1982), the European Social Charter (ESC 1961), the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Protocol 1988) and the European Convention on Human Rights and Biomedicine (1997) the Protocol to the African Charter on the Protection of Women’s rights (AU, Maputo Protocol 2003) and the African Charter on the Rights and the Welfare of the Child (1990).

DISCUSSIONS OF THE CHALLENGES

The discussion is approached from two angles: one, the challenges that stem from the nature of the right and two, from the mechanisms available for its implementation.

Criticisms in Respect of the Nature of the Right to Health

The Human Rights Heritage

The right to health is a human right. Human rights are described as moral rights which people have by virtue of being human. Many of these rights also enjoy legal protection by various legal regimes. By virtue of their origins, they are designed to ensure that the vulnerable are protected from the more powerful, including states. It is no secret however, that the concept is as attacked as it is accepted, and so despite almost a century of universal recognition of human rights, the concept is still subjected to opposition. The origins, the notion, as well as some provisions in particular instruments have continuously been criticized (Renteln 1988). Amongst these criticisms are contentions that human rights are an imposition by the West due to links between the rights guaranteed and historical struggles for liberties in the West, such as the adoption of Magna Carta (1215), the English Bill of Rights (1689), the American Declaration of Independence (1776) and works of western philosophers such as John Locke, Immanuel Kant and Jeremy Bentham (Tasioulas 2014).  It is also contended that human rights embody values which are not common to all societies of the world leading to calls for the cultural relativism of human rights (Renteln 1988). The fact that many African and Asian states were under colonialism when the UDHR was adopted and were not involved in the drafting is also often cited as a reason (Osiatynski 2004).

It has been pointed out that these colonized states ratified the Declaration upon independence and also ratified the ICESCR and ICCPR among other actions with which they have shown support for the human rights regime. (Osiatynski 2004). Notwithstanding, scholars have maintained, concerning Africa, for instance, that values like communalism, being duty-oriented and harmonious living make the individualistic, rights focused and combative human rights incompatible with Africa (Ake 1987; Cobbah 1987). The subsequent adoption of the African Charter which spotted ‘peoples’ rights as well as correlative duties of members of the community emphasized these sentiments. Scholars have also refused to come to an agreement on the justification for protecting human rights; therefore nature, human needs, human dignity, rationality and self-evidence are all various grounds that have been advanced by some and argued against by many others (Tasioulas 2014).

Criticism in Respect of the Nomenclature

Although the term RH has come to be recognized as the right relating to health sought to be protected by the WHO and other international human rights organizations, the term or appellation ‘right to health’ is variously criticized. The reason for the interest is because, arguably, the label will influence the nature and meaning given to the right  The name by which a right is codified may have has implications even for its justiciability because it relates to the identity and scope of the right. For instance, if the right enshrined is the right to medical care, litigating other RH obligations under that right may meet a stumbling block. Although the phrase ‘right to highest attainable standard of health’ is widely employed in treaties including the ICESCR, critics point to a lack of specificity; they ask: ‘what is that standard?’(Lie 2004) Thus, scholars have argued that the ‘right to medical care’, or the right to healthcare are better terminologies (Elzuwey 2013), although these have also been judged inadequate (Toebes 1999; Leary 1994)/ Indeed in respect of many health issues, including MM, the literature shows there is a focus on curative or healthcare intervention (Johnson 2010), thereby revealing a preference for the healthcare interpretation. However, this conception of RH is detrimental to the potential of the right to reduce preventable MM, the occurrence of which is as much a product of the societal conditions that women experience as their lack of access to healthcare

A Right Considered Lacking in Foundation         

Critics, who are preoccupied with the issue of the foundations of RH, protest that there are no philosophies or theories supporting or justifying the protection of the right, the only basis is that it has been included in legal documents (Venkatapuram 2010; Daniels 2008; Chapman 2015). The implication of this, they argue, is that it makes it difficult to delineate the scope of the right and even priorities the different aspects of the right in the face of competing claims for resources. A theoretical or philosophical basis is important. As an example, one could point to the post-colonial African leaders’ rejection of all notions of human rights on the basis of it being a continuation of imperialism (Carey 2002). The availability of an objective foundation may have been beneficial for the human rights arguments at a time when the African nationalists were opposing anything that had the semblance of colonialism. Even now, it may improve many non-western and some western countries’ attitude to the relatively newly recognized sexual and reproductive rights, and women’s SRHR in particular, the realization of which are crucial for MM prevention.

The lack of an Identifiable Scope

The scope of the right to health is broad. Besides healthcare, it encompasses other socio- economic entitlements (like food, housing and water which are also guaranteed human rights) necessary to ensure good health. According to Mohammad, Karim & Tomassy (2019), this definition virtually links the right across all aspects of human existence and confirms the fundamental nature of the right. Additionally, this interpretation of the right emphasizes that it requires more than access to healthcare to realism the right to health. This conception of the right is supported by the UDHR which lists medical care as one of a non-exhaustive list of determinants. Art 25 provides

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control

Subsequent clarifications of the right such as General Comment No 14 of the Committee on Economic Social and Cultural Rights (UNCESCR 2000) have also highlighted this feature. Although, this broad interpretation is not surprising considering the interdependence, indivisibility and interrelatedness of human rights, it however creates the impression that it lacks specificity in scope and thus difficult to give effect to (Toebes 2012).

Second Class Right

As a right in the economic, social and cultural rights (ESCR) bracket, RH is considered second generation or second class (OHCHR 1996). As a result, it is less supported in some quarters than its civil and political rights (CPR) counterparts referred to as ‘first generation rights’ (Vasak 1997). The divide between the two classes of rights was buttressed by the adoption of two different covenants to protect each class of right (OHCHR 1996). Historically also, the guarantee of ESCRs mostly supported by the Eastern bloc (Mohammad, Karim & Tomossy 2019), have been fraught with many arguments while the CPRs, having been recognized earlier due to earlier rights struggles in the West, enjoyed more support than ESCRs. Thus, the constitutions of many countries include CPRs which are justiciable while ESCRs are either absent or non -justiciable.

Illegitimate and a threat to the Classic Idea of Human Rights

The right to health is a social right (Council of Europe 2023; Kinney 2001) which refers to rights or claims for the provision of necessities or physical things that make for human well-being or underpin an adequate standard of life (Subramaniam 2008). Although they are guaranteed to everyone, they are of particular importance to disadvantaged and underprivileged groups who usually lack basic provisions (O’Connell 2012). Some critics insist that such rights on account of their subject matters can only have a moral basis (Breakey 2015). Therefore, it has been argued that the idea that individuals are entitled to social and economic rights is at variance with the contemporary neo-liberal market-based policies (Cole 2013) The twist is that neoliberalism itself finds support in the classic idea of human rights which is against totalitarianism and threats to human liberty. In this traditional view, lack of market competition is injurious to individual freedom and a manifestation of autocratic political power (Whyte 2019).

Unclear Standards of Measuring Progressive Realization

Social and economic rights obligate governments to provide interventions ranging from regulating markets to the actual provision of free or subsidized basic social services. As a result, these social rights, are allowed to be progressively realised. Article 2(1) of the ICESCR from which the phrase emanates states:

Each State Party … undertakes to take steps, … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Considerations in respect of the availability of resources and the needs and interests of the right holders and the state made the adoption of progressive realization inevitable. In a bid to clarify the nature of responsibility it entails, there have been various elaborations of the interpretation of the progressive realization doctrine (Limburg Principles). Besides the General Comment by the CESCR to clarify state obligations on ESCRs (UN CESCR 1990), other experts such as the International Commission of Jurists have also provided clarifications in respect of implementing and identifying violations of ESCRs (Maastricht Guidelines 1997). These clarifications notwithstanding, the doctrine is still considered incapable of being used to determine the level of the compliance of states with their ESCR obligations. It still raises questions like: how is it measured? Within what length of time? How does a state show that it is making provision to the maximum of its resources when there are other competing claims and human rights supposedly do not have a hierarchy? Does it protect everyone, even those who have the resources? And so on.

A Right Considered Impractical

The practical implication of the right evokes comments that the right is unrealistic. One such comment stems from the claim of the right to universal applicability; that is, like all human rights, RH should be guaranteed everywhere and to everyone in the world. On this point, even supporters of the right, such as Wolff (2013), admit that the resources for meeting the dictates of RH for everyone in every nation, especially in the poorer countries, is a difficult, if not impossible, issue.

Challenges in Respect of Enforcement Mechanisms

At the international level, in a bid to improve on enforcement, an optional protocol similar to that of the first Optional Protocol of the International Covenant on Civil and Political Rights, was added to the mechanisms for monitoring the states’ implementation of the Covenant’s rights. The Optional Protocol of the ICESCR brought about three additional means by which the right may be monitored (OP-ICESCR art. 2, art. 11, art 10). The CEDAW had earlier on adopted an optional protocol with similar jurisdiction (OP- CEDAW 1999).

In Africa, the African Court of Human Rights (African Court), and national courts are the main human rights enforcement mechanisms. The Court is empowered to hear and give binding decisions in respect of all cases submitted to it concerning the interpretation and application of the Charter, the Court’s Protocol and every other human rights instrument the state has ratified (African Court Protocol, art. 2, art.4, art. 9). Additionally, based on other provisions of the Protocol, the Court’s jurisdiction is categorised as adjudicatory, advisory and conciliatory. (Eno 2002). The continent also has a peer review mechanism which predates the UN’s Universal Periodic Review (UPR). The African Committee of Experts on the Rights and Welfare of the Child is also the world’s first body empowered to receive complaints on violation of children’s rights (Gill, Bandone & Calvieri 2013).

While the number of monitoring procedures may be considered quite adequate, their operations have nevertheless generated considerable criticism. The Treaty Monitoring Bodies (TMBs) are primarily tasked with ensuring that states fulfil their obligations in relation to the rights guaranteed in their covenants. The TMB’s procedure whereby they issue Concluding Observations has been faulted for not having clearly identifiable standards by which state performance is measured. Their approach has been principally described as ‘ad hoc’ (Lougarre 2016). It has been suggested that this lack of predictability results in incoherence and inconsistency which has implications on the legitimacy of their pronouncements as a valid source of state obligations (Moeckli 2018).

The ability of the OP-ICESCR to make any difference to the realization of ESCRs especially in states which have never been known to be ESCRs supportive has been doubted (Smyth 2012). This may not be unconnected with the long-held objection to the ability of courts to adjudicate on ESCRs as the individual communications procedure is seen as similar to courts. Presently only 26 states have ratified the OP-ICESCR and this shows limited support (UNTC 2023). The CEDAW’s optional protocol is even much weaker because it has an opt out clause whereby a country at signing or ratification may indicate non acceptance of the inquiry procedure.

The UPR’s interest in ESCRs is also limited. There are various reasons for this including the fact that the Non-Governmental Organizations focus less on ESCRs as well as a general mindset that ESCRs are more within the discretion of states. (Centre for Economic and Social Rights 2016). The office of the Special Rapporteur on RH also faces challenges. While in office, Paul Hunt reported that funds as well as refusal by countries being investigated to cooperate with factfinding missions hamper the potential of the office to contribute to the enforcement of RH (Hunt 2006).

The non-binding nature of the resolutions of the African Commission requires a strong and influential commission to command compliance. Unfortunately, the Commission is not powerful. One of its weaknesses is its subservience to the AU executive (Durojaye 2021), while another, is the lack of enforcement mechanisms. As a result, it relies on states to voluntarily comply with its recommendations and compliance does not occur often (Okoloise 2018). The African Court on the other hand is hampered by the need for states parties to ratify the Court’s Protocol in order to give individuals and non-governmental organizations (NGOs) access to the Court (Ugochukwu 2018).

The recognition of human rights at the international or regional level, is for implementation at the domestic level. But the applicability and enforceability of international instruments within most national legal systems is not automatic as states in the exercise of their sovereignty determine their countries’ mode of receiving international law. While some legal systems referred to as ‘monist’ allow treaties to become directly enforceable once ratified, dualist systems like Nigeria require such treaties to first become domesticated by a local law (Cassese 1986; Nigerian Constitution, s. 12). Although states are not expected to act in contradiction to the object and purpose of the international laws they have ratified (UN VCLT art.2), non-domestication may mean non-fulfilment. Consequently, holding governments accountable to the plethora of obligations contained in instruments necessary for maternal health is a Herculean task as international instruments on women’s rights, also sexual and reproductive health rights, are some of the least domesticated. The Maputo Protocol is a case in point. Although 44 out of 55 member states have ratified or acceded to it, a report to commemorate 20 years of its adoption revealed that the submission of reservations by states as well as slow implementation hamper the efficacy of the instrument (SOAWR 2023).

 CONCLUSION

To reiterate the aim of this paper: it investigates whether the applicability of the RH for the achievement of the desired reduction of preventable maternal mortality in Nigeria is beyond dispute and as a result, there must be no gaps in Nigeria’s compliance. It was shown that this objective is a response to human rights experts, and various maternal health stakeholders who often recommend the adoption of the human rights based approach or the right to health framework to drive the reduction of maternal mortality in high incidence states, including Nigeria. They equally criticize any perceived or actual non-compliance of these states with the recommendations of the RH framework that are relevant to MM reduction.

The problems highlighted show that it may be important to look beyond Nigeria as the sole culprit in the matter of apparent non-compliance, as the existence of various shortcomings and unresolved criticisms against the nature of the right and its implementation may impact upon the ability and willingness of states, including Nigeria, to adopt its standards. As noted above, it is not within the remit of this paper to consider the effect or non-effect of these criticisms or shortcomings on Nigeria’s compliance hence, the non-consideration.

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