A feminist look at the African Commission on Human and Peoples’ Rights Decision in Communication 564 /15: Community Law Centre and three Others (on behalf of the Five Victims) v. The Federal Republic of Nigeria

By Achieng Orero

The African Commission on People’s and Human Rights (the Commission) in late 2024 published its decision in Communication 564 /15: Community Law Centre and three Others (on behalf of the Five Victims) v. The Federal Republic of Nigeria. In summary, the case was brought on behalf of five women in Nigeria who suffer from lifelong injuries such as obstetric fistulas, haemorrhage, and those who have died because of complications related to pregnancy or childbirth. The Complaint was filed against the Federal Republic of Nigeria, arguing that the State had failed to provide adequate access to comprehensive maternal services, leading to widespread numbers of preventable negative maternal health outcomes and deaths. The Complaint alleged violations of the right to life, the right to health, the right to dignity, the right to equality and non-discrimination, the right to information, and the right to remedy. The Commission interrogated each of the alleged violation of rights and came to a finding that there was no evidence before it that linked the State directly to the violation of rights. Ultimately in its findings, the Commission rejects all the arguments made in the Complaint and dismisses the complaint entirely.

This decision is an unfortunate setback for the reproductive rights of women across the continent, made more adverse by the fact that it remains binding until such time as the Commission reverses itself as there are no avenues for appeal. Maternal mortality rates in Africa are among the highest globally according to the World Health Organisation, which notes that maternal mortality in Sub-Saharan Africa alone accounted for 70% of maternal deaths globally in 2023. Most of the maternal deaths as argued by the Complainants are indeed preventable when States provide access to quality maternal health care. Adequate, acceptable and quality care regrettably remains beyond the reach of majority of women across the continent. Maternal care is characterized by widespread mistreatment and violence which has unfortunately been normalized. The UN Special Rapporteur on Violence against Women, its Causes and Consequences notes that these forms of mistreatment are widespread and systemic in nature.The report notes that there is no internationally accepted definition of obstetric violence because “…violence against women in childbirth is so normalized that it is not yet considered violence against women” and defines the term obstetric violence as violence experienced by women during child-birth. The manifestations of obstetric violence and the various forms of obstetric violence are characterised and rooted in the definitions of violence against women adopted by the CEDAW Committee. Mistreatment and violence during childbirth are meted out to women because they are women. Mistreatment and violence during childbirth are disproportionately experienced by women. Vulnerable populations, such as women of colour and low-income women, disproportionately bear the brunt of obstetric violence, yet these intersectional dimensions are often inadequately addressed in legal delineations and discourse. It is conclusive that obstetric violence is therefore a form of discrimination against women.

Obstetric violence is not only a moral and ethical issue, it is a human rights issue. A number of rights are violated by obstetric violence including the right to life; the right to the highest attainable standard of health; the right to dignity; and the right to freedom from cruel, inhuman and degrading treatment together with a raft of other rights guaranteed in international and regional frameworks. The prevalence of obstetric violence is as a result of systemic and deep-rooted barriers to equality for women in health systems. Attitudes by health workers, governmental workers and state agencies charged with providing health care are often anchored in harmful patriarchal societies, stereotypes and norms towards women.  Paternalistic approaches compounded with gender stereotypes are embedded in health systems and further exacerbate the mistreatment and violence faced by women. The power imbalance between patient-provider is often exploited in order to justify the mistreatment of women during childbirth.

The Inter-American regional human rights system has adopted language through the committee monitoring the implementation of the Belem do Para Convention as well as decided cases unequivocally recognizing obstetric violence as a form of gender-based violence and a violation of rights.[1] This recognition is critical as it establishes corresponding obligations on the State to uphold the rights of women by preventing obstetric violence and in the event, it happens, responding adequately. States are obliged by virtue of their human rights obligation to develop and implement the appropriate laws, policies and take all appropriate measures to ensure a human rights-based approach to health care is adopted. The Commission’s failure to provide a critical feminist and gendered analysis of the issues of maternal mortality and morbidity raised before it lost an opportunity to provide recourse for women across the continent. The one-dimensional approach taken by the Commission fails to appreciate the inherent bias against gendered issues and acquiesces the Respondent’s State less than adequate response to women’s health. The Commission finally fails to appreciate that the issue of obstetric violence and maternal mortality is a life-or-death issue and the disregard of the State’s obligation quite literally endangers the life of women across the continent. In making its decision, the Commission relies on incomplete analysis of the laws, accepts apologist stances on the State’s obligation and places an impossible standard of proof in requiring the complainants to draw a stronger causal link between the violations and the actions of the State.

The Commission must hasten to safeguard the rights of women and hold states accountable for manifest infringements of the rights to equality and non-discrimination for women across the continent.

[1] Serena Brigidi, et al. Joint response from Latin American, European Obstetric Violence Observatories and others organizations all over Europe to the Joint Position Statement on Substandard and Disrespectful Care in Labour – Because Words Matter, European Journal of Obstetrics & Gynecology and Reproductive Biology, Volume 299, 2024. https://www.sciencedirect.com/science/article/abs/pii/S0301211524002355.

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