Expert advisory on litigating obstetric violence in africa

Johannesburg, south africa

7 – 8 March 2023

Introduction

 

ISLA conceived this project as part of a coalition with KELIN Kenya and Dulla Omar Institute at the University of Western Cape. The overall objective was to build on its existing work on using strategic litigation as a tool for social change by specifically developing litigation strategies for the protection of women from obstetric violence.

In this meeting, a group of experts drawn from legal academia, medical practice and human rights law practice met to engage in intensive facilitated discussions on the definition of obstetric violence; the applicable litigation frameworks that enable victims of obstetric violence to advance their rights through holding states responsible for the acts of violence occasioned to them and shared comparative experiences that are emerging from across the globe.

The objectives of this strategic consultation included:

• Developing a shared knowledge on identification and naming of the various manifestations of obstetric violence;
• Sharing Knowledge that will help ISLA and other feminist lawyers draft effective briefs on obstetric violence;
• Documenting ways in which potential feminist legal victories on obstetric violence can become sustainable; and
• Creating a repository of information for those who seek to litigate on obstetric violence.

Some key takeaways from this two day session included the following:

 

1.1.   Defining Obstetric Violence

1. Compromise between narrow and broad focus in Obstetric Violence

Obstetric Violence includes a narrow focus which ignores the impact of behaviours and institutional structures; a broader focus which views Obstetric Violence as synonymous with disrespect, abuse, and mistreatment during birth; and a broader reproductive health focus which understands that Obstetric Violence goes beyond physical abuse and includes subtle manipulation and oppressive use of silence, discrimination, coercion etc. in defining obstetric violence. A compromise should be reached between these different focuses before a definition of Obstetric Violence can be finalised.

1. Decolonise Obstetric Violence Language

It is important to decolonise the language used to define Obstetric Violence with the understanding that the world is changing and appreciating the different political understandings that different jurisdictions have. This can be achieved by critically examining the differences between the Latin American context and the African context in order to determine how the Latin American framework can travel to Africa.

 

1. Pulling together law and politics

When discussing the language that should be used to define Obstetric Violence, it is important to consider the following: the gender stereotypes in Africa and how they filter into Obstetric Violence e.g. you are a woman; you should endure the pain because this is what you are meant to do; and the racial and poverty connotations and neglect. Instead of viewing the law and politics as separate bodies, it is important to pull them together.

 

1.2.   Medical Negligence Framework

1. Standard of comparable professional standards

The medical negligence framework operates as a tort where certain elements of negligence need to be satisfied. There must be a legally recognized harm and when proving negligence, the measurement is based on the standard of comparable professional standards.

 

1. Burden of Proof

Medical negligence is limited because it puts the burden of proof on the complainant. It is up to the complainant to show that the healthcare provider is responsible for the injuries sustained by the complainant.

 

1. Clash between public health and human rights

It is important to understand that human rights and public health frameworks are different and often clash because they serve different purposes, and one is centred around collaborating and the other is for confrontation., however, when the two are infused they have potential.

 

1.3.   Strategic Litigation

The panel of experts agreed that Obstetric Violence has to be moved beyond the medical negligence framework to a human rights and a Violence Against Women framework. The medical negligence framework, on its own, is not sufficient to litigate Obstetric Violence. However, the addition of the VAW framework will offer more in terms of the duty to protect and in establishing state responsibility. It is important to establish the rights that exist that can be used to litigate Obstetric Violence and once the right has been established, the next stage is to determine the framework that will be relied upon to litigate Obstetric Violence. Therefore, using both the Sexual and Reproductive Health and Rights and the VAW frameworks presents several advantages and strengthens legal strategies, promotes human rights-based approaches and enhances advocacy efforts to litigate Obstetric Violence.

 

1.4.   Legal Gaps

The panel of experts identified the following legal gaps and challenges that need to be responded to:

1. State obligation gaps: failure of States to create policies and laws that protect women from experiencing Obstetric Violence;
2. Lack of a clear, comprehensive policy frameworks on Obstetric Violence;
3. Inability for the courts to see the gendered nature of Obstetric Violence;
4. Inability of many of victims to recognise the violation;
5. Insufficient jurisprudence to explain the duty to protect in private health facilities and the connection to Obstetric Violence; and
6. The delayed court processes or

 

The reflections drawn from this Expert Advisory will inform ISLA’s work moving forward as follows:

• Short term Impact: Develop an extensive internal report on particularly naming Obstetric Violence; and
• Mid to Long Term Impact: Potentially developing the internal report into an Advisory Opinion, to be submitted to the African Court on Human and Peoples’ Rights and African Commission on Human and Peoples’ Rights); general comments or model law.

ISBN 978-0-6397-2058-6

INITIATIVE FOR STRATEGIC LITIGATION IN AFRICA

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