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mainly race, ethnicity, colour, sex, language, religion, political opinion or any other status. Recognising in Zimbabwe Lawyers for Human Rights & Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, the Commission defined discrimination as: II any act aimed at a distinction, exclusion, restriction or preference on the grounds of race, colour [...J or any other status and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms ".49 135. As a result, in order to prove that there has been discrimination within the meaning of the Charter, it must be shown that the differentiation concerned the elements listed in Article 2 of the African Charter. In particular, as the African Court on Human and Peoples' Rights stated in Isiaga v. Tanzania, the right to nondiscrimination strictly prohibits differential treatment between persons in similar circumstances on the basis of one or more of the grounds listed in Article 2 of the African Charters" . It follows that, in the specific context of the discrimination described by the Maputo Protocol in its Article 2, differential treatment must be based on the sole ground of sex. In particular, the equality of women and men must be clearly guaranteed by law. 136. In this case, the Complainants point out that the patriarchal system and adherence to cultural practices subject women to daily discriminatory practices. They list a ser~es of other facto:rs that tlie}':'claim exacerbate maternal health in Nigeria. The Complainants do not show the kind of discriminatory treatment the victims have been subjected to in relation to the grounds indicated in Article 2 of the African Charter. In particular, in analysing their arguments and the evidence supporting their allegations, the Committee notes that the Complainants have not demonstrated how the patriarchal system and cultural practices have caused differential treatment of the victims compared to the treatment accorded to other similar categories in the san1e'sifu~tion as the victims. 137. The Complainants' argument that financial barriers prevent poor women from accessing antenatal and intrapartum care in Nigeria and thus make it clear that they are being discriminated against is not sufficient to find a violation of Article 2 of the African Charter or Article 2 of the Maputo Protocol. Indeed, in order to conclude that there is discrimination, the act of differentiation must be aimed at a distinction, exclusion, restriction or preference of some kind that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all right _,'-;00 ' s. In the present case, this objective is not apparent. Indeed, while f(j t!B;~ aternity services exist, it is not established that they were /1 0 articular objective of . access b y a certam. catego J~t, preventmg o i~~ I(~ 'at 138. As for the Complainants' allegatio tl) spouses of pregnant women would dis .~ " 49 Communication 50 Application donation by the omen who do not have 29/04.~ ZI:HR & IHRDA vi Zimbabwe (2006) ACHPR, para. 91. 032/2015, Kijiji Isiaga v United Republic of Tanzania (2018) AfCHPR para. 88, 26

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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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