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47. If one of these criteria is lacking, the requirement to exhaust local remedies under Article 56(5) of the African Charter can therefore not be met. 48. In this Communication, the Complainants contend that local remedies are not available, effective and sufficient to provide redress due to the large number of victims, the serious and massive nature of the violations and the low income of victims who cannot access legal aid. 49. In this regard, the Commission refers to its jurisprudence on the futility of exhausting local remedies in cases of serious and widespread human rights violations. In Open Society Justice Initiative v. Cote d'Ivoire, the Commission concluded that the seriousness of the violations and the large number of victims concerned made the remedies unavailable and their exhaustion practically useless.'? 50. Regarding this Communication, the Commission notes that the prospect of success is a determining factor in the exhaustion of local remedies, given the low level of income of victims who are unable to access legal aid. 51. The Commission, also notes that one of the rights allegedly violated in the present Communication, namely the right to health-is .. included under Chapter II on Fundamental Objectives and Directive Principles of State Policy, which cannot be litigated under Section 6(6)(c)of the Constitution. 52. Section 6(6)(c) of the Constitution seeks to make economic, social and cultural rights immune froD;1litigation;however, Nigerian courts and the Commission have taken a progressive view on the litigation of such rights, as evidenced in Socio Economic Rights ~'ang AccQuntability Project v. Nigeria, in which the Commission concluded that" all the Nigerian cases cited above are aimed at establishing the fact that socio-economic rights can be litigated in Nigerian courts" .20 53. Irrespective of this, the Commission observes that Section 6(6)(c) of the Constitution, which has not been repealed or amended by the Respondent State, will have an impact on the prospect of success of cases at the national level regarding violations of economic, social and cultural rights, in particular the right to health. 9

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Communication 564/15 - Community Law Centre, University of the Western Cape & Alliance Africa v. The Federal Republic of Nigeria

ACHPR Decision

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Type of Document

Decision

Keywords

Cruel and Degrading Treatment
Equality
Maputo Protocol
Right to Health
Sexual and Gender Based Violence
Sexual and Reproductive Health Rights
Women's Rights

Case Head Notes: The Complainants state that thousands of Nigerian women have lost their lives because the Respondent State has failed to provide adequate access to maternal health care services. They emphasize that these deaths were preventable, and they note that the Respondent State's per capita health expenditure is among the lowest in the world. They also emphasize that, since only women can get pregnant, the failure to provide quality maternal care services is discriminatory, as it is a unique and important element of womens' health. The complainants also note the inter-sectional nature of discrimination in maternal health services, as poor women often have even less access to quality care services. The Commission found no violation of Article 4 as they state that it was not demonstrated that the Respondent State had sufficient resources to prevent maternal deaths, or that it had failed to take steps to improve the right to maternal health. The Commission found no violation of Article 16 because they state that the highest attainable standard of health is dependent on the economic capacity of the state. They further state that the 15% budget allocation for the health sector, which the Respondent State agreed to in the Abuja Declaration, is an expression of political will, not a legally binding instrument, and cannot be enforced against the Respondent State. The Commission found no violation of Article 14 of the Maputo Protocol because they stated that a causal link between the facts and the alleged violations was not demonstrated. The Commission found no violation of Article 5 because they stated that it was not proven that the omissions of the health service providers had a specific and well-defined objective of humiliating the victims or inducing them to act against their will. Further, they state that it was not established that the acts or omissions of health service providers created feelings of fear, anguish, or inferiority in the victims. The Commission found no violation of Article 2 because, while fees for access to maternity services exist, the Commission states that it was not established the fees were introduced with the particular objective of preventing poor women from accessing maternity services. Regarding the discriminatory requirement that women must have their husband donate blood, or, alternatively, pay a fee, the Commission stated that there was no evidence to establish a violation. The Commission found no violation of Article 3 because they state that it was not established how victims received differential protection by the law and courts of the Respondent State. The Commission found no violation of Article 9 because they state that it was not shown how the ignorance of Nigerian women about contraception contributed to the risk of maternal mortality, or that the Respondent State played a passive role in providing information. The Commission found no violation of the right to scientific progress because they state that scientific progress has to be available, and it was not established how scientific progress in the Respondent State is available and sufficient to overcome these challenges, or that, if it is available, that it has been made inaccessible to women. The Commission found no violation of Article 7 because they stated that it was not demonstrated that the victims were prevented from seizing the compentent bodies, or that they were denied such an opportunity.

Country

Nigeria

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Not Violated (ACHPR Provisions)

ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Dec 31, 2014 ~ May 23, 2023

Country Geolocation

Latitude: 9.081999

Longitude: 8.675277

Country Geolocation (linked ACHPR Decision): Nigeria

Primary Documents

Community Law Centre, University of the Western Cape & Alliance Africa v. The Federal Republic of Nigeria.pdf
English
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African Human Rights CLA 2.0

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Communication 564/15 - Community Law Centre, University of the Western Cape & Alliance Africa v. The Federal Republic of Nigeria

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