Revisiting The Lacunae In The Legal Framework On Reproductive Rights In Nigeria

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:57:24.998149+00:00

Updated: 2026-08-26T17:09:39.825+00:00

REVISITING THE LACUNAE IN THE LEGAL

FRAMEWORK ON REPRODUCTIVE RIGHTS IN NIGERIA

Dr Lilian Akhirome-Omonfuegbe, Senior Lecturer. Ag. HOD Department of Public Law, Faculty of Law, Benson Idahosa University, Benin City, Edo State, Nigeria. Mrs. I.G Elijah_Ojete, Lecturer 11, Benson Idahosa University, Benin City, Edo State, Nigeria.

ABSTRACT

Nigeria has demonstrated capacity for Gender Specific Laws as can be seen in some existing legislations and policies addressing Reproductive health in Nigeria. However, there is an undeniable gap between existent laws and implementation. The subject of Reproductive rights is a global concept with some countries actively enacting laws that specifically protect the rights of women. By adopting the doctrinal methodology, an examination of the extant laws and structures in place on reproductive health and rights in Nigeria, reveals the obvious lack of a holistic framework for the implementation, enforcement, and protection of these rights specifically. Though issues of reproductive health pertain to both male and female gender this paper finds that the female gender in Nigeria is the most suppressed and disadvantaged in terms of enforcement of rights.

Hence in a quest to strengthen and broaden the legal framework on the enforcement and protection of women reproductive rights, it is submitted that, enacting a national reproductive health law by the National Assembly, demonstrates willingness and capacity for protection of women’s rights. Consequently, amending the constitutional provisions and other federal and state legislations on reproductive health and proper implementation of national reproductive health policies is a fundamental requirement in promoting the course of advancing reproductive health rights in Nigeria. Keywords: Gender Specific Laws, Reproductive Rights, Reproductive Health

1.0 Introduction:

Succinctly put, reproductive rights besides embracing the woman’s right to maternal healthcare, right to birth control, freedom from coerced sterilization and contraception, freedom from female genital mutilation and right to protection from sexual offences; includes her right to equal access and opportunities along with the men in society. Many civilized countries, have enacted laws and established institutions in recognition of women’s rights. For example in 2017, Germany enacted the Pay Transparency Act which inter alia promotes compliance with the constitutional requirement of equal pay between men and women in the same line of work. 1 Thus it is unconstitutional in Germany for salaries to differ based on the gender of the workers.

This is remarkably different from what obtains in Nigeria, as there is insufficient legal framework for the enforcement and protection of women’s reproductive rights. At best, the few existing policies and regulations merely reiterate the importance of women reproductive rights without providing a mechanism for their protection and enforcement. This is perchance attributable to the feelings women reproductive rights evoke as they stretch beyond legal matters into the purview of the social, cultural, economic and political. As observed in a study of women’s reproductive rights in Nigeria, culture and religion shapes the value of individuals and influences government policies in the area of reproductive rights. There is therefore an urgent need for the enactment of comprehensive legislation safeguarding Reproductive health and safety.

This paper submits that the previously jettisoned Gender and Equal Opportunities Bill 2016 should be speedily passed. The bill had earlier been introduced on June 15th 2016, to reflect amendments on the concerns of the senators when it was previously presented. The Gender and Equal Opportunities Bill 2016 if passed, addresses many of the challenges faced by Nigerian women. It tackles socio-cultural impediments that prevent Nigerian women and girls from reaching their full potential. It seeks to promote equal opportunities and advance the reality of the full enjoyment of human rights by women and *Dr Lilian Akhirome-Omonfuegbe, Senior Lecturer. Ag. HOD Department of Public Law, Faculty of Law lakhirome@biu. edu. ng +2348124726858 Mrs. I. G Elijah_Ojete, Lecturer 11, ielijahojete@biu. edu. ng +2348052421098.

girls.2 It is a gender specific law and will be beneficial to women as it will give effect to certain parts of the constitution like PART II (solving the problem of non-justiciability). Additionally, it will give effect to The Convention on The Elimination of all forms of Discrimination Against Women (CEDAW)and The Additional Protocol on Women’s Right to The African Charter 2003(Maputo protocol), which are without a doubt important instruments in the promotion of women’s rights. This topic of discourse will be taken in four parts- Part I is the introduction to the discourse, Part II will unravel the legal framework on reproductive rights in Nigeria, Part III will discuss the lacunae in the legal framework and Part IV makes recommendations to address the challenges and Part V is the conclusion of the work.

2.0 Existing Legal Framework on Reproductive Rights in Nigeria;

The obvious dearth of laws on Reproductive health and rights in Nigeria is contributory to the challenges encountered in the protection of women’s rights. The current situation is that the content and meaning of National and International Human Rights laws have been adopted to address matters pertaining to reproductive health and rights. In terms of scope, there are two main sources of reproductive health instruments namely, domestic and international. Both instruments are relevant to reproductive health and applicable to Nigeria, containing state obligations and specific actions required to be undertaken by governments and other stake holders in order to ensure the progressive realization of the components of reproductive health and rights. Nigeria has a plethora of domestic laws inadvertently addressing Reproductive Health Rights within the legal system.

Many of these Laws make no direct provision on Reproductive Rights but protect human rights generally, which by analogy are also applicable to protection of Reproductive Rights. This clearly demonstrates the willingness of the government to protect these rights as well provide citizens with access to healthy reproductive lives and cater to their wellbeing. 2 https://nigeria. unfpa. org/en/news/statement-gender-and-equal-opportunities-bill [Accessed 31st March 2025].

2.1 The Constitution of the Federal Republic of Nigeria 1999 (as amended);

The Nigerian Constitution protects international human rights actively but is passive on gender specific human rights obligations. 3 Chapter IV of the Constitution contains general provisions on human rights as seen in Sections 33- 46. Though not gender specific some of these provisions can be extended to protection of Reproductive rights. Nevertheless the constitutional provisions put human rights obligations into operation and are evidence of government’s capacity and willingness to progressively achieve the realization of reproductive rights. 4 The Constitution provides that the security and welfare of the people shall be the primary purpose of government. 5 This is in consonance with the scope of reproductive health which includes ‘a state of complete physical, mental and social well-being‘.

Thus, catering to the Reproductive well-being of individuals is imbedded in their security and welfare. Furthermore, under the social objectives and directives policies,6 the government is obligated to direct its policies in ensuring adequate medical and health facilities for all. 7 This also resonates with the scope of Reproductive health and rights which covers access to acceptable, affordable and safe methods of regulating fertility and right to access appropriate medical services. It further provides that children, young persons and the aged shall be protected against exploitation and against moral or material neglect8. This section 17 furthermore, encourages the evolution and promotion of family life9.

In the above mentioned Sec 17 (3) (b) we see the provision that the working conditions should be just and humane and there should be adequate facilities for leisure, social , religious and cultural life- this provision if properly harnessed, will cater to the reproductive health and rights needs of working class mothers. Sadly, our Section 17 is non- justiciable – meaning that these provisions are not obligatory on the government which is a set-back on the efficacy of that constitutional provision. 3Nkolika Ijeoma Aniekwu. Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria:Ambik Press 2011)103 4Ibid 104

5 Sec 14 (2) Constitution of the Federal Republic of Nigeria 1999 (as amended)

6Sec 6 of the Constitution make this provision non- justiciable and thus unenforceable in court. 7Ibid (n.8) Sec 17 (f) 8Ibid Section 17(f) 9Ibid Para (h)

Another provision which resonates with the core of reproductive health is the provision on right to life. The Constitution provides that; Every person has a right to life and no one shall be deprived intentionally of his life, save in execution of a court sentence in respect of a criminal offence of which he has been found guilty in Nigeria. 10 This paper posits that the rights to good healthcare, amenities, safe motherhood are all essentials for protecting the Right to Life. Access to information and education on preventable diseases that can shorten the life span of women and children is essential in protecting the right to life. Thus governments all over the world are tasked with the responsibility of protecting the right to life by taking positive steps to provide adequate health facilities, especially for women and children.

However, despite the obvious lack of specific gender protective provisions in the Constitutions some of the sections address issues which by implication pertain to women’s wellbeing. Some of which are discussed below; The Nigerian Constitution’s provision on right to dignity of human person in section

34 can be construed to also apply to reproductive rights- as it stands against all acts of torture

or degradation of a human. 11 In Uzoukwu v Ezeonu (1991) the Court of Appeal defined Torture to include mental harassment and physical brutalization while inhumane treatment characterizes any act without feelings for the sufferings of the other. 12 Thus all cases of gender based violence and abuse including sexual harassment in work places fall in this category. Additionally stigmatization of women living with HIV/AIDS, stigmatization of rape victims, ostracizing young girls with VVF in rural areas all amount to breach of their rights to dignity of human person, which is in fact an infringement of their reproductive health rights. Section 37 of The Constitution of the Federal Republic of Nigeria provides for the right to private and family life.

This provision provides for the protection of the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. As noted earlier in this work, Reproductive health implies that people should be able to have 10Ibid (n. 13) Sec 12 (2) (a) 11Ibid (n. 8) Sec 34, this includes gender based violence and unlawful widowhood practises as seen in some states in Nigeria.

126 NWLR, Pt 200, 708 at 764-778

satisfying, safe and free sexual life that is not impeded by custom or gender. Reproductive health rights therefore implies the right of couples to decide freely and responsibly on the number, timing and spacing of their children and have the information, education and means to do so; attain the highest standards of reproductive health and make decisions about reproduction free of discrimination, coercion and violence. 13 Thus, this right includes the right of a woman to procure information discreetly on her reproductive life, enhance her sexual life without fear of her private sexual activities being posted online or put in the public domain without her consent, as a means to shame her.

The right to privacy involves obligation to respect physical privacy, including the obligation to seek informed consent to HIV testing and to safeguard privacy of information, including the need to respect confidentiality of all information relating to a person’s HIV status. The individual’s interest in his/her privacy is particularly compelling in the context of HIV/AIDS, firstly, in view of the invasive character of a mandatory HIV testing and, secondly, by reason of the stigma and discrimination attached to the loss of privacy and confidentiality if HIV status is disclosed. The right to freedom of thought, conscience and religion are all in tandem with the objectives of reproductive rights. 14 This provision impliedly protects the rights of a woman to safe abortion where necessary and her choices should not be jettisoned based on societal or general beliefs.

At the core of feminist legal theory and the reproductive health discourse is the assertion that a woman has the right to choose to bear a child or not. 15 While some countries like Nigeria still criminalize abortion and condemn it on grounds of religion or morality except in circumstances to preserve the woman’s life (this exception has been argued to be too narrow) some countries have done the right thing by legalizing abortion. In the United Kingdom, the circumstances in which abortion is legal include when there is risk to a woman's physical or mental health. 16 The 1967 Abortion Act took the concept of wellbeing further, by indicating that an abortion was lawful if ‘the risk caused by continuance of the pregnancy outweighs the termination of the pregnancy, or if continuance of the pregnancy will constitute injury to the physical or mental health of the pregnant woman’.

There is an implicit recognition that it is not 13Ogugua Ikpeze “Customary Perspective on Reproductive Health Rights” Journal of Health Law and Reproductive Rights (JHLRR)4-5” 57 14Sec 38 of Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that; “Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief....... ’’ 15Nkolika Ijeoma Aniekwu. Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria:Ambik Press 2011) 101

16 Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990)Sec 1 (1) (a)

always possible to separate the mental or physical health effects of abortion from a woman's wider social circumstances – such as her income, her housing situation, her support network. Doctors may take all this into account in determining whether to authorize an abortion. 17 The provision in Section 38 of The Constitution of the Federal Republic of Nigeria can also be implied to protect women who choose to reproduce through IVF, or women who choose to freeze their eggs for future use for reproduction when they find a sperm donor, such choices should not be frowned on simply because they do not align with religious or cultural beliefs of some. Section 42(1) Constitution of the Federal Republic of Nigeria provides for freedom from discrimination.

This provision clearly reiterates the essence of reproductive rights which is adverse to all forms of deprivation or discrimination on grounds of gender.

2.2. The Administration of Criminal Justice Act 2015 (ACJA);

The ACJA came into being in May 2015; it has 495 sections and is divided into 49 parts. The ACJA merges the main provisions of the two principal legislations, CPA and CPC into one principal federal Act which is intended to apply uniformly in all Federal Courts across the entire Federation. It provides a uniform system for criminal justice administration in both Northern and Southern Nigeria today. It is imperative that it is adopted by all states in the federation. This can be regarded as gender specific as it touches on some specific areas under Reproductive rights. It also makes provisions for protection of children where the need arises. This paper will highlight some of the gender specific provisions of the ACJA with regards to bodily search of a woman.

The Act provides that the search of a woman shall be made decently and by another woman unless when it is practically impossible for the search to be carried out by a person of the same sex. 18 This provision contemplates a situation where a search by a person of same sex is impossible. 19 This provision re-enforces the respect of a woman’s right to dignity and leaves no room for indecent harassment which could occur whereby a woman is being searched by a male officer. Section 12(3) ACJA provides that where a suspect enters a house or place in the actual British Pregnancy Advisory Service “Britain's abortion law” https://www. bpas. org/getinvolved/campaigns/briefings/abortion-law/ accessed August 31 2020 18Sec 9(3) The Administration of Criminal Justice Act 2015

19 This provision re-enforces the hitherto provision of Sec 6(2) of the CPA and Sec 44(3) of the CPC

occupancy of a woman who by custom or religious practice does not appear in public, the person making the arrest shall: (a) Before entering the house shall give notice to the woman that she is at liberty to withdraw. (b) Afford the opportunity and facility for withdrawing, but the notice shall not be necessary where the person making the arrest is a woman. Implicit in this provision is a woman’s right to private and family life which includes the privacy of citizens, their homes, and thus they should not be barged in on by the police, under the guise of carrying out arrest or other official duties. Section 191 ACJA provides that; A woman who has contracted a valid marriage shall have in her own name

against all persons including the husband of the marriage, the same remedies and redress by way of criminal proceedings for the protection and security of her person or her own separate property as if such property belonged to her as an unmarried woman. The implication of this provision is that a married woman who is in an abusive relationship will be able to enforce her ownership over property and thus economic deprivation (which makes many women remain in abusive relationships), will not deprive her from fleeing such an abusive relationship. This provision will also protect women in situations where the customary widowhood practice of the diseased man’s relative taking all his property from his widow prevails. The Act provides that the sentence of death in the case of a pregnant woman will be suspended until the baby is delivered and weaned.

20 This impliedly includes the right of access to appropriate health care services that will enable such a woman to go safely through the pregnancy till childbirth and provide her with the best chances of having a healthy infant. Section 415 (1- 4) outlines the protocols to be followed where a woman convicted of 20Sec 404 ACJA

a capital offence is alleged to be pregnant or who subsequently becomes pregnant. The court shall before sentence is passed, determine the question of whether or not she is pregnant. Section 466 of the Act further makes provision that the supervising officer in respect of female convict shall be a female. This also further protects the woman’s right to dignity and protects her privacy when necessary. A very laudable provision is that a court can order a defendant to pay compensation to

the victim.21 It goes further to provide that after conviction, irrespective of the sentence given, the court can order that restitution be made or compensation be paid to the victim or his estate. This impliedly includes payment of hospital bills, fees for counselling and restitution of rape or abuse victims where applicable. The ACJA has clearly made valuable contributions by its reinforcement of the rights of women as contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and even the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).Being a federal law it is necessary for states to domesticate the ACJA to drive its impact home. Some states in Nigeria have already taken appropriate measures to domesticate the act. Such states include, Edo State, Lagos State, Enugu State and Ekiti State.

2.3. Violence Against Persons Prohibition Act 2015 (VAPP ACT);

This Act contains provisions which clearly and specifically protect the female gender in certain circumstances. It prohibits all forms of violence against persons in public and private life and goes further to provide remedies for victims in addition to punishment for offenders, providing succour to a victim of violation is a very positive step. In time past, emphasis was on punishment of the offender with no provision for restitution of the victim.

22 Section 1 of VAPP Act broadens the definition of rape as “the intentional penetration of the vagina, anus or mouth of another person with any other part of his or her body or anything else without consent or consent is obtained by force or by means of intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any 21Ibid sec 319 and sec 321 22Research abounds on the effect of gender based violence on the victims ranging from physical to psychological effects.

substance or additive capable of taking way the will of such person”. 23 The Act provides for a punitive measure of life imprisonment (various other imprisonments) for anyone found guilty of this offence under the Act. The Act additionally recognizes the offence of ‘spousal battery’,24 this is the intentional and unlawful use of force or violence on a person, unlawful touching, beating or striking of another person against his or her will with the intention of causing bodily harming is guilty of an offence punishable with 3 years’ imprisonment or fine of N200,000. The Act further prohibits the offence of forceful ejection from home,25deprivation of liberty (psychological violence),26 forced financial dependence or economic abuse,27forced isolation28and emotional, psychological and verbal violence. 29 It must also be noted that the Act prohibits harmful traditional practices.

All traditional behaviour, attitudes or practices, which negatively affect the fundamental rights of women, girls, or any person and includes harmful widowhood practices, denial of inheritance or succession rights, female genital mutilation, forced marriage, forced isolation are regarded as offences punishable with 4 years or N500,000. 00 fine or both.

2.4 Trafficking In Persons (Prohibition) Law Enforcement and Administration Act 2003;

This is another praise-worthy effort by the Nigerian Government at enacting a gender specific law. This Act prohibits and prescribes punishment for trafficking in persons particularly women and children, and establishes an agency NAPTIP, charged with the responsibility of investigating and prosecuting offenders as well as counseling and rehabilitation of trafficking victims.

2.5 International Laws;

Nigeria is party to several International instruments that guarantee Reproductive Rights such as; 23Rape is no longer restricted to just penetration by genitals

24 Sec 19 Violence Against Persons Prohibition Act 2015

25Ibid sec 9 26Ibid sec 10 27Ibid sec 17 28Ibid sec 13 29Ibid sec 14

2.5.1 The African Charter on Human and Peoples Rights;

This was adopted at the 18th Conference of Heads of States and Governments of Organisation of African Union in Banjul in July 1981. It has long been domesticated and made part of Nigerian Laws in the case of Gani Fawehinmi v Abacha30 it was incorporated as The African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap 10 LFN

2004. This charter deals with gender issues and prohibits gender discrimination.

2.5.2 The Additional Protocol on Women’s Right to The African Charter 2003;

This was adopted by the African Union in Maputo, Mozambique. It is a key instrument in the advancement of Reproductive and sexual health. It was a direct response to women’s needs and sets out specific standards and measures for the recognition and protection of women’s rights. It also contains provisions on the elimination of harmful traditional practices. 31 Article 5 provides for elimination of harmful traditional practices against women. Article 14 specifically provides for the Health and Reproductive rights of women. Article 20 and 21 provide for protection of widows rights. However it is yet to be domesticated by Nigeria and as such does not form part of our laws. Nevertheless it is binding on all states that have ratified it. This was applied in the case of Dorothy Njemanze & 3 others v. Federal Republic of Nigeria(2017).

32 It was a case of gender based violence against four women in Nigeria by the agents of the Nigerian government. Judgment was given in favour of the plaintiffs. This is significant because it is the first ever pronouncement of a regional court of law on Women’s human rights based on the provisions of Maputo Protocol.

2.5.3 The Convention on The Elimination of all forms of Discrimination Against Women

(CEDAW);

It was signed by Nigeria in 1985 and ratified without reservations, yet has not been domesticated as is required by Section 12 of the Constitution. Thus it does not form part of our municipal laws. This is sad considering that the CEDAW is a gender specific instrument. 30(1996) 9 NWLR (pt 475) 710 31Nkolika Ijeoma Aniekwu. Reproductive Health Law; A Jurisprudential Analysis of Gender Specific Human Rights for the African Region1st ed. (Nigeria:Ambik Press 2011) 101 32suit No: ECW/CJ/APP/17/14

The Convention is the only international instrument that takes the understanding of human rights from being gender neutral or gender blind to being women focused, recognising the specific and differential needs of women on the basis of biology and gender or social construction. The Convention brings about a convergence between an international treaty with women’s law leading to equality and justice for women. It demands not only the prohibition of discrimination against women but also places positive obligations on the State for the fulfillment of women’s right to equality. It requires measures that will help women overcome the residual impact of past or historic discrimination against women.

It is therefore not only about eliminating individual acts of discrimination but also about taking insightful initiatives to transform institutional practices to respect, protect and fulfill women’s equality rights. 33 Sadly, many of these international laws are yet to be domesticated in Nigeria.

2.6. State Laws;

Several States in Nigeria have gone ahead to enact specific laws protecting women’s health. Some of these are; i. Prohibition of Infringement of a widow’s and widower’s Fundamental Human Rights Law No. 3, 2001, Enugu State. ii. The Female Circumcision and Genital Mutilation (Prohibition) Law of Ogun State 2000. iii. Malpractices against Widows and Widowers (Prohibition) Law 2004 Anambra State iv. Law on Female Genital Mutilation (Prohibition) 1999 Edo State v. Inhuman Treatment of Widows (Prohibition) Law 2004 Edo State. vi. Abolition of harmful Traditional Practices against Women and Children 2000, Ebonyi State. vii. Gender and Equal Opportunities Law No. 7 of 2007, Imo State. 33Shanthi Dairiam “International Norms and the Realization of Women’s Human Rights: The Role of Civil Society Organizations”. pdfhttps://www2. ohchr.

org/english/bodies/cedaw/docs/CEDAW30thAnniversaryEvent_ShantiD ariam_E. pdf accessed July 12 2020

viii. Reproductive Health Service Law No. 3 of 2003, Rivers State. The existences of these laws reiterate the willingness and commitment on the part of Government on protection of women’s reproductive health and rights. This shows that it is practicable to take it a notch higher by enacting gender specific laws which will further promote and protect these rights.

3. The Lacunae in the Legal Framework on Reproductive Rights in Nigeria

4. Recommendations:

1. The enforcement of women’s reproductive rights can no longer be left to judicial

interpretation. There is need for legislative reform and the need for the enactment of specific Reproductive Health Laws. Legal reforms should be directed at safeguarding women’s rights, prohibit and penalize sexual harassment, sexual assault and gender based violence – The VAPP Act is a good step in this right direction and more states should domesticate this law.

2. To strengthen Nigeria’s legal framework, International laws such as CEDAW, The

Additional Protocol on Women’s Right to The African Charter 2003 should be domesticated to aid its enforcement and implementation by the courts.

3. There is an urgent need for the enactment of comprehensive legislation that will

promote Gender Equality which is a key component of Reproductive Rights. Thus, the Gender and Equal Opportunities Bill 2016 should also be speedily passed.

4. Government and stakeholders should sponsor more women empowerment programs,

to eliminate poverty which is a key element that fosters abuse of women’s rights. Civil society groups and NGOs must also be proactive in their support for women.

5. Conclusion

Evidently, legislations and policies are in place to protect Reproductive health in Nigeria. However it is undeniable that there is a gap between existent laws and implementation. Recognizing ones rights is one thing and enforcing it is another, knowing that you have a right to enforce, is yet another and understanding how to go about it is also another thing. In the past

decades, feminist scholars have clamored for the incorporation of gender specific policies in our laws. The setbacks they have encountered on this journey are largely due to lack of comprehension of the scope of reproductive rights and that Reproductive rights are indeed rights that need to be protected. Another impediment is the patriarchal nature of the Nigerian society where women are believed to exist solely for the benefit of men. This explains why concepts like marital rape as described in the VAPP Act has received backlash from the male folk. The rejection of the Gender and Equal Opportunities Bill by the National Assembly is also a sad reflection of the dominant role of patriarchy and sentiments in Nigerian governance. This paper reiterates the need for specific legislation which will guarantee various aspects of reproductive rights.

Conclusively, enacting a National reproductive health law by the national assembly, as well as amending the constitutional provisions and other federal and state legislations on reproductive health and proper implementation of National reproductive health policies, is a fundamental requirement in promoting the course of advancing reproductive health rights in Nigeria.