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Women’s Rights As Human Rights – A Call To End Fistula In Nigeria




Despite the gravity of fistula problem, the governments in Nigeria have not taken seriously, the obligation to create access to quality healthcare services especially for women suffering from fistula. In this piece, VICTOR OKEKE writes that governments’ failure to provide for the right to the highest attainable health care for the victims of fistula is a violation of their rights.

Obstetric fistula is a severe maternal morbidity which can affect any woman or girl who suffers from prolonged or obstructed labour without timely access to an emergency Caesarean section.

It is a devastating medical condition in which a fistula (hole) develops between the vagina and either the rectum or bladder (or both) after severe — long and obstructed — labour and delivery, when adequate medical care is not available. Most often, fistula and stillbirth go hand-in-hand.

This means that, the wall — soft tissue — of the birth canal gets compressed by the baby’s head during an obstructed labour. The pressure causes blood to stop flowing, and the tissue dies. The vagina then leaks urine and/or faeces.

Once a woman has a fistula, social problems often ensue and compound the tragedy of losing of a baby: In a typical scenario, the baby’s father then ostracizes the injured woman, even throwing her out of their home. She is devastated — physically, socially, and psychologically.

According to EngenderHealth Nigeria Country Project Manager for the USAID-funded Fistula Care Plus (FC+) project, Chief Iyeme Efem, fistula is one of the most devastating consequences of neglected childbirth and a stark example of health inequity in the world.

“The fact that fistula occurs is a clear indication that we have a very poor health system. Fistula occurring in any country is an indictment of the health system of that country,” Efem said

Although obstetric fistula has been eliminated in industrialized countries, it continues to afflict the most impoverished women and girls in the developing world, mainly those in rural and remote areas.

In Nigeria, through Fistula Care Plus- the largest U.S. government-funded effort to date to focus on treatment and prevention of fistula- EngenderHealth works alongside local and national governments to support free fistula surgeries and training surgeons, nurses, and community health workers to prevent and treat fistula. The project has helped support policy changes that tackled root causes of fistula, including lack of access to family planning and poor access to emergency obstetric care.

Eliminating obstetric fistula as a global health problem necessitates scaling up country capacity to provide access to comprehensive emergency obstetric care, treat fistula cases, and address underlying medical, socioeconomic, cultural and human rights determinants.

The availability of minimum, qualitative health care services to a vast majority of citizens must be regarded by any responsible government as one of the guaranteed fundamental human rights.

And indeed, the provision of health care delivery services in Nigeria is the responsibility of the three tiers of government; namely the Federal, the States, and the Local Governments.

The Constitution of the Federal Republic of Nigeria, 1999 has provisions which require the Nigerian government to among other things formulate policies which ensures that qualitative health care, sick benefits and other similar health care services are provided to the citizens of Nigeria.

The right to health is guaranteed by section 17(c) & (d) of the Constitution (as amended) which states:

The State shall direct its policy towards ensuring that:

(c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

(d) there are adequate medical and health facilities for all persons.

Unfortunately, these constitutional provisions are only a guide as they are non-justiciable; i.e. they cannot be brought before a Court of Law for judicial determination of the government’s compliance with the said constitutional provisions.

Lagos-based human rights lawyer, Femi Falana (SAN) is however of the view that the right to life cannot be sustained without good health. Section 33(1) of the Constitution which has guaranteed the right to life provides that “Every person has a right to life and no one shall be deprived intentionally of his right to life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

According to Falana “It seems quite clear that the Nigerian courts are reluctant to declare that the right to health a human right under Chapter 2 of the Constitution.”

But interestingly, in the case of Sunday Akinyemi v. Attorney General of the Federation & Anor. the federal high court linked the right to health to the right to life. In that case the applicant who was standing trial in a criminal case was remanded at Ikoyi prison in Lagos on the orders of the trial judge. During the trial he took ill and was admitted at the Lagos University Teaching Hospital where he was diagnosed of cancer of the colon. As the medical condition of the applicant deteriorated in prison custody he filed an application at the Federal High Court for the enforcement of his fundamental right to life. Since the defendants were not prepared to fund his foreign medical trip he prayed the Federal High Court to allow him to travel abroad for urgent medical treatment at his own expense. Notwithstanding that the applicant had been denied bail by the Lagos High Court, Justice M.B Idris of the Federal High Court said:

“There is no doubt that life is ultimate measure of all things and for that reason the right to life is unarguably the most fundamental of all liberties. Without the right to life, no other right can be enjoyed, and it is for that reason that it is guaranteed under section 33 of the Constitution, and Article 4 of the African Charter on Human and Peoples Rights.”

According to the World Health Organisation (WHO), maternal mortality rate in Africa is the highest in the world and in his statement to the UN Human Rights Council, Paul Hunt, mentioned that,’ for every woman who dies from  obstetric complications, about 30 more suffer injuries, infections  and disabilities.

Although the right of access to health has been recognized by the African Charter on Human and Peoples’ Rights African Charter), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women Protocol) and many other international human rights instruments that African states including Nigeria have ratified. Access to health care and more particularly, treatment for women suffering from fistula is a serious concern on the African continent.

The African Charter provides for the indivisibility and interdependence of human rights; both civil and political as well as socio-economic and cultural rights.

In addition, the Vienna Declaration and Programme of Action stated that, all human rights are universal, indivisible, interdependent, and interrelated. According to General Comment No.14 of the Committee on Economic, Social and Cultural Rights (the Committee), which the African Commission applied in the case of Social and Economic Rights Action Centre (SAREC) and Anor v Nigeria, the obligation to ensure reproductive, maternal and child health care is one of the minimum core obligations on the state parties under both the International Covenant on Economic Social and Cultural Rights (ICESCR) and the African Charter.

For Mr Falana “The right to health necessitates that the Nigerian government and judiciary take positive action to ensure the right to health for Nigerians. The Nigerian executive and judicial arms of government are obliged to take proactive steps in safeguarding that Nigerians have acceptable socio-economic infrastructures to live a purposeful life. When Nigeria lives up to its duty to safeguard its citizens these rights, they would have developed a knowledge based economy and a future generation.”

Mahaman Hadiza, a human right lawyer recommends that women empowerment will help fight the burden of fistula. According to her,

“Poverty is a cruel reality that affect many women in Africa and obstetric transport have been underlined as contributing to the occurring of obstetric fistula. Economic independence on men deprives women from taking the decision to consult a doctor on time or to go to hospital in addition to setting priorities that include women in rural areas, government, should grant sufferers free access to fistula surgery and empower them for social reintegration.”

Dr Lewis Wall of the Department of Obstetrics and Gynecology, Ayder Referral Hospital, Mekelle University, Mekelle, Ethiopia proposes a bill of rights for patients with obstetric fistula which he hopes, governments will adopt in a concerted effort to end fistula once and for all times.

He proposes that the bill when passed into law will read thus, “Every woman with an obstetric fistula has the right to be treated with compassion, dignity, and respect, irrespective of her socioeconomic status.”

“Every woman with an obstetric fistula has a right to privacy. She has the right to refuse to be interviewed, photographed, or displayed in any fashion without her express consent. Receiving care at any institution where patients with fistula are treated should not be contingent on interviews, photographs, or displays that are not relevant to a woman’s immediate clinical care.”

“Every woman with an obstetric fistula has the right to have the nature of her condition—its causes, prognosis, and possible treatments—explained to her fully and completely in a language she can understand. She has the right to ask questions about these subjects and to participate actively in deliberations about her care.

“Every woman with an obstetric fistula has the right to food, clothing, and shelter sufficient to sustain her basic needs while receiving care for her condition.”

“Every woman with an obstetric fistula has the right to self- determination. She has the right to be free from coercion, proselytizing, or exposure to any form of undue influence when making decisions about how, when, where, or if she is to undergo treatment.”

“Every woman with an obstetric fistula has the right to refuse treatment, to refuse to participate in research studies, and to leave obstetric fistula treatment centres whenever she chooses to do so, without penalty or retribution.”

“Every woman with an obstetric fistula has the right to receive competent care from qualified doctors, nurses, social workers, and therapists during the course of her treatment.”