Maternal Health as a Justiciable Right in Nigeria and Africa

A legal and policy analysis by Amala OKAFOR on maternal health, clinical outcomes, systemic reform, and governance frameworks, with emphasis on Nigeria, Africa, and multi-Level stakeholder responsibility.

Introduction

Maternal mortality in Nigeria and across Africa remains one of the most persistent indicators of systemic governance failure, public health underdevelopment, and legal under-enforcement. Unlike in developed jurisdictions, where the crisis often reflects fragmentation within otherwise functional systems, the African context reveals a deeper structural problem that is rooted in weak institutions, inadequate financing, socio-cultural barriers, and, critically, the absence of enforceable legal accountability.

Nigeria alone contributes a significant proportion of global maternal deaths, with estimates frequently placing it among the highest-burden countries worldwide. Yet, what makes this crisis particularly troubling is that a vast majority of these deaths are preventable. The persistence of such preventable mortality raises an unavoidable legal question: can the state's failure to provide accessible, adequate, and timely maternal healthcare amount to a violation of legally protected rights?

This section answers that question in the affirmative. It argues that maternal mortality in Nigeria and Africa must be reframed as a rights-based issue, grounded in constitutional guarantees, statutory obligations, and regional human rights law. It further contends that the combination of domestic jurisprudence and African regional frameworks provides a viable pathway for transforming maternal health from a policy aspiration into an enforceable legal entitlement.

Constitutional Foundations: Expanding the Right to Life

Section 33 and the Evolution of Judicial Interpretation

Section 33 of the Constitution of the Federal Republic of Nigeria guarantees the right to life. Traditionally, this provision has been interpreted narrowly, focusing on protection against unlawful or arbitrary deprivation of life.

However, Nigerian courts have, in certain instances, adopted a more expansive approach, recognising that the right to life encompasses conditions necessary for meaningful human existence.

A pivotal illustration is found in Gbemre v. Shell, where the Federal High Court held that environmental degradation that threatens human survival constitutes a violation of the right to life. This decision is doctrinally significant because it shifts the right to life from a purely negative obligation (i.e., the state must not kill) to a positive obligation (i.e., the state must take steps to preserve life).

Similarly, in Attorney-General of Ondo State v Attorney-General of the Federation, the Supreme Court affirmed that constitutional provisions may impose enforceable duties on government actors where public welfare is implicated.

Applying this reasoning to maternal health, it becomes arguable that a healthcare system that fails to prevent foreseeable maternal deaths, particularly where such deaths arise from lack of basic medical care, constitutes a breach of the constitutional right to life. Maternal mortality, in this sense, is not merely a health outcome but a constitutional failure.

The Challenge of Non-Justiciability and Its Circumvention

A major obstacle to enforcing socio-economic rights in Nigeria lies in Chapter II of the Constitution, which contains directive principles of state policy but is rendered non-justiciable under Section 6(6)(c). These provisions include obligations relating to health and welfare, yet courts cannot ordinarily enforce them.

However, this limitation is not absolute. Nigerian jurisprudence has demonstrated that where socio-economic concerns intersect with enforceable fundamental rights, courts may intervene. This doctrinal opening becomes even more significant when considered alongside the domesticated African Charter.

The African Charter:

A Direct Legal Basis for Maternal Health Claims

Domestication and Legal Status

The African Charter on Human and Peoples' Rights occupies a unique position within Nigerian law. By virtue of its domestication, it has the force of statute and is directly enforceable in Nigerian courts.

In Abacha v. Fawehinmi, the Supreme Court affirmed that the Charter is binding and can be invoked to enforce rights contained therein. This decision effectively bridges the gap created by the non-justiciability of Chapter II.

Article 16 and the Right to Health

Article 16 of the African Charter guarantees the right to health and obligates states to take necessary measures to protect the health of their people. Unlike the Nigerian Constitution's socio-economic provisions, this right is enforceable.

Maternal mortality, therefore, can be framed as a violation of Article 16 where the state fails to provide:

Adequate healthcare facilities;
Access to skilled medical personnel;
Essential maternal health services.

Additionally, Article 4 (right to life) and Article 5 (right to dignity) reinforce this framework, creating a multi-layered rights basis for challenging systemic failures in maternal healthcare.

Statutory Framework:

The National Health Act and Its Limitations

The Promise of the National Health Act 2014

The National Health Act represents a significant legislative effort to regulate Nigeria's healthcare system. It establishes the Basic Healthcare Provision Fund (BHCPF), which is designed to finance essential health services, including maternal and child health.

The Act envisions:

Improved access to primary healthcare;
Financial risk protection for vulnerable populations;
Strengthened healthcare infrastructure.

Implementation Failures and Accountability Gaps

Despite its progressive framework, the Act suffers from serious implementation challenges:

Inadequate Funding: Allocations to the BHCPF are often insufficient or inconsistently released.
Weak Oversight: There are limited mechanisms to ensure that funds are properly utilised.
Fragmented Governance: Coordination between federal, state, and local governments remains poor.
Lack of Enforceability: Individuals cannot easily compel compliance with the Act's provisions.

These deficiencies undermine the Act's effectiveness and contribute to persistent maternal mortality.

Structural Determinants of Maternal Mortality

Maternal mortality in Nigeria cannot be understood solely through a legal lens; it is deeply intertwined with structural and socio-economic realities.

Financial Barriers

Nigeria's healthcare system is heavily reliant on out-of-pocket payments. For many women, the cost of antenatal care, delivery, and postnatal services is prohibitive, leading to delayed or absent medical intervention.

Infrastructure and Human Resource Deficits

Many healthcare facilities lack basic equipment, medications, and trained personnel. Rural areas are particularly affected, with limited access to skilled birth attendants.

The "Three Delays" Framework

The persistence of maternal mortality is often explained through the "three delays" model:

Delay in deciding to seek care;
Delay in reaching a healthcare facility;
Delay in receiving adequate care upon arrival.

Each of these delays reflects systemic failures that can, and should, be addressed through legal and policy reforms.

Litigation as a Mechanism for Systemic Change

The Potential of Strategic Litigation

Strategic litigation offers a powerful tool for transforming maternal health outcomes. By framing maternal deaths as violations of constitutional and human rights, litigants can compel state accountability and drive policy reform.

Such litigation can seek:

Declaratory relief establishing state obligations;
Injunctive orders compelling improvements in healthcare delivery;
Compensation for victims and their families.

Comparative African Jurisprudence

Across Africa, courts and regional bodies have increasingly recognised socio-economic rights as enforceable. The African Commission on Human and Peoples' Rights has, in several decisions, held states accountable for failures in health and welfare.

The African Court on Human and Peoples' Rights further strengthens this framework by issuing binding judgments, thereby enhancing accountability beyond domestic courts.

Policy and Legal Reform:

Towards a Rights-Based Framework

A meaningful response to maternal mortality in Nigeria and across Africa requires more than declaratory commitments; it demands a deliberate shift towards a rights-based framework anchored in enforceability, accountability, and institutional coherence. Such a framework must operate simultaneously at constitutional, statutory, institutional, and administrative levels, ensuring that maternal health is not treated as a discretionary policy objective but as a binding legal obligation.

Constitutional Reform and Interpretation

At the constitutional level, reform need not necessarily begin with formal amendment, although that remains a long-term objective. More immediately, the judiciary must adopt a progressive and purposive interpretation of existing fundamental rights provisions.

The right to life under Section 33 should be expansively construed to encompass access to essential maternal healthcare, particularly in circumstances where death is preventable and attributable to systemic deficiencies.

Nigerian courts have already demonstrated the capacity for such interpretive evolution, as seen in Gbemre v Shell Petroleum Development Company Nigeria Ltd, where environmental harm was held to implicate the right to life. Extending this reasoning to maternal mortality would not represent a doctrinal departure, but rather a logical progression in constitutional jurisprudence.

In addition, there is a pressing need to revisit the doctrine of non-justiciability under Section 6(6)(c) of the Constitution. While traditionally seen as a barrier to enforcing socio-economic rights, courts can, and increasingly do, circumvent this limitation by linking such rights to enforceable civil and political guarantees.

Maternal health, when framed through the lenses of life, dignity, and equality, fits squarely within this evolving jurisprudential approach.

Furthermore, the judiciary must assume a more assertive role in enforcing health-related rights. This includes granting declaratory and injunctive reliefs that compel government action, as well as recognising state liability in cases of systemic neglect. Judicial reluctance to intervene in policy matters should not extend to situations where inaction results in preventable loss of life.

Strengthening Statutory Enforcement

While constitutional interpretation provides the normative foundation, statutory reform is essential for operational effectiveness. The National Health Act 2014, though progressive in design, requires significant strengthening to ensure enforceability.

First, the Act should be amended to include clear, justiciable obligations on government authorities at all levels. Currently, many of its provisions are framed in aspirational terms, lacking the binding force necessary to compel compliance. Introducing enforceable duties, especially in relation to maternal and primary healthcare, would enable individuals and civil society organisations to hold the state accountable through legal action.

Second, there is a need to introduce penalties for non-compliance. Government agencies that fail to implement statutory mandates, particularly those relating to the Basic Healthcare Provision Fund, should be subject to administrative sanctions and, where appropriate, legal liability. Without consequences, statutory obligations risk remaining merely symbolic.

Equally important is the need to enhance transparency in fund allocation and utilisation. The persistent opacity surrounding healthcare funding undermines both efficiency and public trust. Legal provisions mandating periodic disclosure, independent audits, and public access to financial data would significantly improve accountability and reduce mismanagement.

Institutional and Financial Reforms

Legal and policy reforms must be matched by tangible improvements in institutional capacity and financial commitment. One of the most critical challenges facing maternal healthcare in Nigeria is chronic underfunding. Increasing budgetary allocation to the health sector is therefore not merely a policy preference but a legal and moral imperative.

Greater investment should be directed towards primary healthcare infrastructure, which serves as the first point of contact for most women, particularly in rural areas. Strengthening these facilities would significantly reduce delays in accessing care and improve overall maternal outcomes.

In addition, there must be sustained investment in the training, recruitment, and retention of healthcare professionals. The shortage of skilled birth attendants remains a major contributor to maternal mortality. Addressing this requires not only increased training capacity but also improved working conditions, remuneration, and incentives to retain personnel within the public health system.

Institutional reforms should also focus on improving coordination between federal, state, and local governments. The current fragmentation of responsibilities often leads to inefficiencies and service gaps. Establishing clearer lines of accountability and enhancing intergovernmental collaboration would contribute to a more coherent healthcare system.

Data, Monitoring, and Accountability

A rights-based approach to maternal health must be underpinned by robust systems for data collection, monitoring, and accountability. Reliable data is essential for identifying gaps, measuring progress, and informing policy decisions.

To this end, there is a need to establish comprehensive and standardised data collection systems that capture maternal health indicators across all regions. Such systems should be integrated into national health information frameworks and supported by adequate funding and technical capacity.

In addition, the law should mandate public reporting of maternal health outcomes, including mortality rates, causes of death, and disparities across socio-economic and geographic groups. Transparency in this regard not only facilitates oversight but also empowers civil society and the media to hold authorities accountable.

Finally, the creation of independent oversight bodies is crucial for ensuring sustained accountability. These bodies should be vested with investigative and supervisory powers, enabling them to monitor compliance with legal and policy obligations, conduct audits, and recommend corrective measures. Their independence must be guaranteed to prevent political interference and ensure credibility.

Conclusion

Maternal mortality in Nigeria and Africa represents a profound failure of law, policy, and governance. The persistence of preventable deaths is not merely a reflection of limited resources, but of inadequate legal enforcement and institutional accountability.

By grounding maternal health in constitutional and human rights frameworks, and by leveraging both domestic and regional legal mechanisms, it is possible to transform the current paradigm. Maternal health must be recognised not as a discretionary policy objective, but as a binding legal obligation that the state is duty-bound to respect, protect, and fulfil.

Only through such a reconceptualisation can Nigeria and Africa begin to address the systemic failures that continue to cost countless women their lives.

: World Health Organization (WHO), Trends in Maternal Mortality 2000 -- 2020 (WHO 2023)

: WHO, Strategies toward Ending Preventable Maternal Mortality (2015)

: Constitution of the Federal Republic of Nigeria 1999 (as amended), s 33

: Gbemre v. Shell (2005) AHRLR 151 (NgHC)

: Attorney-General of Ondo State v Attorney-General of the Federation (2002) JELR 42378 (SC)

: Constitution of the Federal Republic of Nigeria 1999 (as amended), s 6(6)(c)

: Chidi Odinkalu, 'The Impact of Economic and Social Rights in Nigeria' (2004)

: African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap A9 LFN 2004

: Abacha v. Fawehinmi (2000) 6 NWLR (Pt 660) 228

: African Charter on Human and Peoples' Rights 1981, Article 16

: ibid Articles 4 and 5

: National Health Act 2014

: ibid Section 11

: World Bank, Nigeria Health Financing Report (2018)

: WHO, Global Health Expenditure Database (2023)

: Federal Ministry of Health, National Strategic Health Development Plan (2018)

: Thaddeus S and Maine D, 'Too Far to Walk: Maternal Mortality in Context' (1994) Social Science & Medicine

: Alicia Ely Yamin, Power, Suffering and the Struggle for Dignity (UPenn Press 2016)

: African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001) AHRLR 60

: African Court on Human and Peoples' Rights, Tanganyika Law Society v Tanzania No. 009/2011