Introduction
Sexual and reproductive health and rights (SRHR) is still a difficult and controversial topic in Nigeria. Restrictive laws, cultural beliefs, and poor enforcement have slowed progress. Nigeria has committed to protecting SRHR through international agreements like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Maputo Protocol, and the Sustainable Development Goals (SDGs). However, Nigeria has not fully adopted key parts of the Maputo Protocol that protect women’s reproductive rights.
In Nigeria, the constitution guarantees rights to life, dignity, and liberty, which could encompass SRHR. However, the non-justiciability of the right to healthcare under Chapter II, s17(3)(c), along with the interplay of customary, religious, and statutory laws, creates legal uncertainty. Additional challenges such as lack of awareness, judicial reluctance to address controversial cases, and cultural barriers that reinforce stigma and discrimination further hinder access to SRHR.
The Violence Against Persons (Prohibition) Act (VAPP) of 2015 is also key law in Nigeria that criminalises harmful practices such as female genital mutilation (FGM) and abusive widowhood rites, safeguarding individuals’ bodily autonomy. By prohibiting FGM and widowhood-related abuse, the Act acknowledges the need to protect people from gender-based violence. While significant, the VAPP Act does not address reproductive rights such as access to safe abortion, highlighting the ongoing need for more comprehensive reproductive health legislation.
To fix these issues, Nigeria needs better laws, education campaigns, and stronger institutions. Strategic litigation is a powerful way to push for change, forcing courts to address gaps in SRHR protection. Combined with policy advocacy and court reforms, legal action can challenge the systems holding back progress.
The fight for reproductive justice in Nigeria is urgent. Women and girls should be able to exercise their rights without fear of stigma, discrimination, or punishment. This article looks at the legal and cultural challenges litigating sexual and reproductive health rights and explores how legal reform can drive lasting change.
Challenges In Litigating Sexual and Reproductive Health Rights in Nigeria
1. The Legacy of Colonial-Era Legislation in SRHR Litigation
Nigeria’s legal system continues to rely on colonial-era statutes that fail to reflect contemporary human rights norms. The Criminal Code (applicable in Southern Nigeria) and the Penal Code (applicable in Northern Nigeria) criminalise abortion except when necessary to save the mother’s life. These laws, inherited from British colonial rule, were historically designed to control population growth and labor supply rather than safeguard women’s reproductive autonomy.
Judicial conservatism has further entrenched these restrictions. In Patience Ekpenyong v. State, for example, the court upheld strict criminal penalties for abortion, reinforcing the restrictive stance. The persistence of such jurisprudence reflects the difficulty of shifting legal interpretations toward a rights-based approach.
2. The Maputo Protocol: Nigeria’s Unfulfilled Commitment
Adopted in 2003 by the African Union and ratified by Nigeria in 2004, the Maputo Protocol remains the most comprehensive regional legal framework protecting women’s rights. It explicitly mandates state parties to guarantee women’s reproductive rights under Article 14, which provides for:
· Access to safe and legal abortion in cases of sexual assault, rape, incest, or where the pregnancy endangers the physical or mental health of the mother.
· The right to control fertility and freely choose contraceptive methods.
· Protection against HIV/AIDS and access to appropriate healthcare services.
The Protocol is uniquely tailored to address challenges faced by African women which are often overlooked in broader international treaties. However, while ratification signifies formal commitment, implementation is another matter. Nigeria has failed to fully domesticate Article 14, leaving many of its provisions without legal backing in this jurisdiction; creating a gap between Nigeria’s international obligations and its domestic legal framework.
3. Lack of a Justiciable Right to Health
Unlike the fundamental human rights outlined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, the provisions in Chapter II, specifically section 17(3)(c), which requires the government to ensure “adequate medical and health facilities for all persons,” cannot be enforced through the courts. This gap in the legal framework creates a loophole, enabling the government to avoid accountability for its shortcomings in providing reproductive healthcare services.
4. The Role of Religion and Culture
Religious and cultural beliefs deeply influence Nigeria’s approach to reproductive rights. Many policymakers cite religious justifications for restricting abortion, contraception, and comprehensive sexuality education. Harmful practices such as female genital mutilation (FGM), early marriage, and denial of contraceptive access persist in some communities despite being outlawed by the Violence Against Persons (Prohibition) Act (VAPP), 2015.
Without cultural and religious buy-in, legal reforms face significant resistance. This underscores the need for community-driven advocacy to shift deeply ingrained perceptions about women’s bodily autonomy.
How Has Litigation Advanced SRHR in Nigeria?
Given these challenges, strategic litigation has become a powerful tool for holding the government accountable in advancing sexual and reproductive health rights (SRHR). While there have been successful cases affirming SRHR over the years, significant barriers persist, and the fight for their full recognition and enforcement continues.
In 2000, in Georgina Ahamefule v. Imperial Medical Centre & Dr. Alex Molokwu, a woman living with HIV was denied access to healthcare services, prompting a legal challenge. The court held that her right to health, as guaranteed under Nigerian law, had been violated by the denial of medical care. This decision affirmed that access to healthcare is a fundamental right and that discrimination based on health status constitutes a breach of that right. To date, the government has not appealed the judgment, and it stands as a significant precedent in protecting the health rights of people living with HIV in Nigeria.
In Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal (2001), the Nigerian Supreme Court upheld a patient’s right to bodily autonomy, focusing on the importance of informed consent in medical treatment. The case involved a medical practitioner performing a procedure without the patient’s full consent. The Court ruled in favor of the patient, affirming that bodily autonomy is a fundamental right. This decision reinforced the legal basis for reproductive choice and set a precedent that healthcare providers must respect patients’ rights to make informed decisions about their bodies, particularly in relation to medical procedures.
However, debates around bodily autonomy continue to persist, especially within religious and cultural circles. Despite previous judgments affirming the constitutional right to health and bodily autonomy, courts have interpreted the law inconsistently in similar cases, highlighting the limitations of using litigation to advance and protect reproductive rights.
In Amina v. The State, Amina Lawal was sentenced to death by stoning by a Sharia court in Katsina State for alleged adultery after giving birth outside of wedlock. The case attracted significant national and international attention, prompting widespread advocacy from human rights organisations. Her conviction was overturned on appeal in 2003, based on legal arguments that challenged both the evidentiary basis and the procedural fairness of the trial. The case underscored the persistent tension between religious legal frameworks and women’s reproductive rights in Nigeria, particularly in relation to bodily autonomy, consent, and access to justice.
Further litigation continued in Adegoke v. State (2008), where a woman sought legal action after being denied the right to terminate her pregnancy under medical advice. The court’s decision affirmed the right to abortion in specific circumstances, such as when the mother’s life is at risk, though the ruling did not extend this right to other situations, reflecting the legal limitations on SRHR in Nigeria.
A breakthrough of some sort came in 2017 with the landmark case Dorothy Njemanze & 3 Others v. Federal Republic of Nigeria. The ECOWAS Community Court of Justice ruled that the arrest and abuse of women by Nigerian authorities constituted gender-based discrimination and a violation of their rights. This case highlighted systemic issues faced by women and underscored the need for legal reforms to better protect SRHR.
Most recently, in November 2023, Lawyers Alert, a Nigerian legal advocacy group, filed a groundbreaking case at the ECOWAS Court of Justice, challenging Nigeria’s restrictive abortion laws. It was the first-ever challenge of its kind, addressing the government’s omissions and actions that hinder access to SRHR justice.
These cases collectively demonstrate the growing role of the judiciary in advancing reproductive rights, even in the absence of direct constitutional protections.
Opportunities for Advancing SRHR Litigation in Nigeria
Despite existing challenges, strategic litigation presents opportunities for advancing sexual and reproductive health and rights (SRHR) in Nigeria. Key avenues include:
- Advocacy for the Justiciability of Right to Health
Advocacy efforts must focus on legal reforms that explicitly recognise the right to health as enforceable, ensuring that the government has clear obligations to provide adequate healthcare services.
- Invoking the Maputo Protocol
Nigerian SRHR lawyers should push for the domestic application of the Protocol’s SRHR provisions, particularly its recognition of the right to safe abortion in cases of rape, incest, or health risks. - Public Interest Litigation
Civil society organisations can use public interest litigation to challenge restrictive SRHR laws, drawing on successful strategies from other African countries such as Kenya and South Africa. - Engagement with Regional Courts
Nigerian lawyers may explore avenues at the ECOWAS Court of Justice, which has been receptive to human rights claims, to seek broader enforcement of reproductive rights. - Judicial Training and Advocacy
Training judges and lawyers in a rights-based, gender-sensitive approach to SRHR cases is essential for effective legal outcomes. - Community-Led Legal Strategies
Integrating local customs and community-based advocacy into litigation strategies can strengthen public support for sexual and reproductive health and rights (SRHR) reforms. - Sensitisation on Sexual and Reproductive Health Rights: Young women and girls, especially at the grassroots level should be reached and educated about their rights to bodily autonomy. Interventions should also adopt an intersectional approach, addressing and dispelling myths and social conditioning surrounding bodily autonomy and SRHR.
Conclusion
In conclusion, the struggle for sexual and reproductive health and rights (SRHR) in Nigeria remains difficult with legal, cultural, and institutional challenges. However, strategic litigation offers a powerful avenue for reform. By leveraging international frameworks like the Maputo Protocol, advocating for the justiciability of the right to health in the constitution, and pushing for broader judicial and policy reforms, advocates can create a more inclusive and just legal environment for women and girls. While deeply rooted cultural and religious beliefs pose significant barriers, community-driven approaches and public interest litigation have the potential to shift public opinion and influence legislative change. Ultimately, a sustained effort in litigation, advocacy, and legal reform can bridge the gap between Nigeria’s international commitments and domestic realities, ensuring that SRHR are not only recognised in law but fully realised for all Nigerians.
References
Cases
Adegoke v. The State (2008)
Amina Lawal v. The State (2003)
Dorothy Njemanze & 3 Others v. Federal Republic of Nigeria (2017), ECW/CCJ/JUD/08/17
Georgina Ahamefule V. Imperial Medical Cen& Dr. Alex Molokwu (2000)
Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal (2001) 7 NWLR (Pt. 711) 206 and (2001) 3 S.C.N.J. 1.
Patience Ekpenyong v. State (1975)
Legislations:
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979.
The Constitution of the Federal Republic of Nigeria (CFRN) 1999, as amended.
The Criminal Code of Nigeria, 2004.
The Maputo Protocol, 2003.
The Penal Code of Nigeria, 1963.
The Violence Against Persons (Prohibition) Act (VAPP), 2015.
Articles
Ayanleye, O.A. (2013). Women and reproductive health rights in Nigeria. OIDA International Journal of Sustainable Development, 6(5), 127-140. Retrieved from OIDA. (Accessed 1 April, 2025)
Afya na Haki (AHAKI). (2023). The role of African judges in shaping policy on sexual & reproductive health & rights using an Africentric approach. Retrieved from AHAKI. (Accessed 2 April, 2025)
Afya na Haki (AHAKI). (2023). Lawyers Alert in ECOWAS Regional Court Against Nigeria for the Restrictive Abortion Law Against Victims of Sexual Violence. (Accessed April 3, 2025)
Izevbuwa, O.G., Ngwoke, R.A., & F., Adeghe I. (2023). The role of law in advancing the reproductive health and rights of women in Nigeria. Retrieved from ResearchGate (Accessed 3 April 2025).
Ogedegbe, A.E., Adeagbo, O., Yankam, B.M., Badru, O., Gadanya, M.A., & Bain, L.E. (2023). Two decades of women’s sexual and reproductive health and rights in Nigeria: Successes, challenges, and opportunities. Retrieved from AJRH. (Accessed 1 April, 2025)
Olayanju, O. (2023). The prospects of litigation to secure maternal health in Nigeria: Does SERAP v Attorney-General Lagos have any value? African Human Rights Law Journal, 23(2), 278-302. https://doi.org/10.17159/1996-2096/2023/v23n2a3. (Accessed 1 April, 2025)
