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CHAPTER 2;LEGAL FRAMEWORK FOR FEMALE ADOLESCENTS’ ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES
Introduction
The protection of health as a human right is fundamental for living a life of dignity and indispensable to the enjoyment of other human rights.1 Over the years the demand for the protection of female adolescents’ reproductive health rights through their access to contraceptive information and services has gained international prominence and been given a voice in various international and regional instruments that seek to recognise, guarantee and enforce equality between individuals, who, without the treaties, would be vulnerable. 2 A majority of these instruments provide for the right to health, from which the right to reproductive health care is inferred.3 Recognition of the right to health derives its origin from the Universal Declaration of Human Rights (UDHR)4 and, along with other economic, social and cultural rights, is granted legal protection by the Covenant on Economic, Social and Cultural Rights (ICESCR). 5
From the outset, it is imperative to state categorically that this does not make it a lesser right entitled to minimal protection, unlike its counterparts contained in the Covenant for Civil and Political Rights (ICCPR)6 as the distinction between the two sets of rights was eliminated at the World Conference on Human Rights where the Vienna Declaration and Programme of Action (VDPA) was adopted.7 At the conference, effort was made to focus on the ideals behind the adoption of the Universal Declaration8 and it was expressly reiterated that ‘all human rights were indivisible, universal, interdependent and interrelated’ and the international community had an obligation to treat human rights in a fair and equal manner globally.9 Based upon the foregoing, as soon as human rights treaties are ratified, state parties assume obligations and duties to respect, protect and fulfil these rights. The obligation to respect10 the reproductive rights of female adolescents requires that states refrain from restricting and obstructing adolescent girl’s access to reproductive health services or actions taken by them in realisation of their health goals.11 According to the Committee on the ICESCR, the obligation to respect requires states to desist from intruding, either directly or indirectly, upon the enjoyment of the right to health.12
The obligation to protect13 places a responsibility on states to take needed action to prevent and stop non-state actors, like health providers, from hindering the access of adolescent girls to contraceptive services and information. 14 The duty to fulfil requires states to take appropriate action to facilitate and ensure that adolescent girls, who constitute a major part of society’s vulnerable, access appropriate health care.15 The aim in this chapter is to examine the various international and regional human rights instruments relevant to the right of adolescent girls to access contraceptive information and services. From that examination it can be concluded whether human rights protection is afforded female adolescents’ who are in dire need of contraceptive information and services. To achieve the above, apart from examining the human right instruments, the comments and concluding observations of treaty monitoring committees in charge of the conventions will be considered and highlighted and, where necessary, it will be noted whether Nigeria and South Africa have ratified the instruments.Instruments to be analysed include the International Covenant on Civil and Political Rights,16 the International Covenant on Economic, Social and Cultural Rights,17 the Convention on the Rights of the Child,18 The Convention on the Elimination of all Forms of Discrimination Against Women,19 the Universal Declaration of Human Rights,20 the International Conference on Population and Development Programme of Action21 and the Beijing Declaration and Platform for Action22 at the international level. As well, the African Charter on Human and Peoples’ Rights,23 African Charter on the Rights and Welfare of the Child,24 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa25 and the African Youth Charter26 will be examined at the regional level.
International treaties relating to adolescents’ right to access to contraception
Under international law, state parties are bound by the human rights instruments they ratify. The level of incorporation and the effectiveness of such treaties, however, are determined by the status of international law in the national legal systems of the ratifying states.27 Some states28 follow the system where all laws adopted constitute part of a whole legal system and the ratification of a human rights instrument automatically makes it self-executing with a duty placed on the judiciary to ensure its application without need for passage of an act of parliament. 29 Other states follow a system which regards local and international legislations as originating from separate legal systems which gives rise to the need for the adoption and transformation of international instruments into national legislation before their application in the national arena.30 The contrast created by monist and dualist theories does not function this neatly in reality. As Killander and Adjolohoun point out, while courts in jurisdictions with a monist background are reluctant to apply directly ratified international treaties; 31 dualist countries overlook common law transformation preconditions to quickly apply and draw inspiration from international human rights law when adjudicating human rights matters.32 In Nigeria, the mere ratification of a treaty does not guarantee its implementation or enforcement as there are constitutional requirements for the incorporation of international instruments by the Nigerian legislature before domestic enforceability can exist.33 South Africa, as well, provides for the incorporation of international agreements by the legislative arm of government.34 It also gives constitutional backing for the automatic operation of self-executing treaties upon ratification by the state’s Parliament.35 Moreover, the courts are mandated to consider international law when interpreting the Bill of Rights.36
The provision of section 12 of the Nigerian constitution is noted, but it is argued that the fact that a ratified treaty has not been domesticated in the country does not prevent the courts from relying on its principles in appropriate circumstances. This position is further buttressed by the provision of the Fundamental Rights Enforcement Procedure Rules 2009 which mandates courts to respect instruments and bills of rights brought to its attention or those personally noted to further the protection of the human rights of applicants.37 Irrespective of differing positions on the status of internationally ratified documents within the two jurisdictions, the intention in this section is to analyse international conventions and declarations acceded to by Nigeria and South Africa which protect the right to health of female adolescents by accessing contraceptive services and information.
Universal Declaration of Human Rights (UDHR)
The UDHR38 was the first legal international instrument on human rights with a universal character39 that comprehensively recognised the human rights of all peoples.40 Though non-binding, the declaration has gained recognition as constituting customary international law41 that is enforced through the various international human rights treaties: foremost among which are the ICCPR and the ICESCR. 42 In the words of Singh et al, the UDHR, in giving hope to the most vulnerable and oppressed people worldwide, heralded a dawn, where a commitment based on the culture of respect and protection for the human rights of all peoples throughout the world was the norm.43
Apart from recognising that the inherent dignity and inalienable rights of all members of the human race are the foundation of freedom, justice and peace in the world44 and that all humans are born free and equal in dignity and rights,45 the UDHR recognises the protection of numerous rights, including the right to life, liberty and security of person, the right to non-discrimination, the right to dignity, the right to equality, the right to privacy, the right to information, and the right to education. 46 The UDHR provides for the right to health by stating that ‘everyone has the right to a standard of living adequate for the health, and wellbeing of himself and his family’. 47 For the effective realisation of the right to health of female adolescents, generally, and their right to contraceptive information and services, in particular, it is paramount that their rights to privacy, dignity, information and education, already recognised under the UDHR, are not only protected but fulfilled by state parties. The need to ensure that the various human rights recognised in the UDHR effectively protect individuals and that it is not merely a political declaration led to the adoption of the ICCPR and its twin the ICESCR.48
The ICCPR recognises the protection of rights which can be regarded as ‘traditional’, such as the right to life,49 dignity,50 privacy,51 information52 and non-discrimination.53 The above rights are inter-related with the right to health recognised in its counterpart, the ICESCR, and can be employed to influence and force state parties to remove barriers as well as to meet their duty to respect, protect and fulfil the reproductive and sexual health54 rights of female adolescents. For example, the constant violation of the right to contraceptive information tends to engender negative and disastrous consequences to the SRH of adolescent girls. The Human Rights Committee55 has interpreted that the right to life56 as enunciated in article six, as a ‘supreme right from which no derogation is permitted even in times of public emergency which threatens the life of the nation’.57 In relation to other rights, including the right to health, the Human Rights Committee stated that the right to life is often narrowly interpreted in a restrictive manner and urged state parties to ensure that their legislation is in line with the provisions of the ICCPR and to adopt measures that will increase life expectancy.58 The failure to access contraceptive services and other reproductive health information accounts for high maternal mortality rates and is a violation of the right to life. Where a state fails to guarantee its female adolescents access to contraceptive information and services or other reproductive health services needed by women generally, the right to life is violated. In the words of the Indian Supreme Court in Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal & Another, 59 the obligation imposed on the state by the right to life stands irrespective of constraints in financial resources.60 The court further stated that the denial of timely medical treatment necessary to preserve human life in government-owned hospitals is a violation of this right.61
Taking into cognisance the comment of the Human Rights Committee that effort should be made to avoid the narrow interpretation of the right to life, it can be argued that the protection of the right to life imposes a duty upon the Nigerian and South African States to provide access to adolescent-friendly health services through which adolescent girls can access information and services relating to contraception so as not to place their lives in jeopardy.62 Despite the fact that South Africa recognises the unqualified nature of the right to life and has put in place the necessary legislative framework which allows adolescent girls easy access to contraception and other needed reproductive health care services, reports show that few teenagers use the facilities.63 Apart from the right to life, the right to privacy64 is of paramount importance in assuring the protection of the reproductive health of adolescent girls. Today, adolescents all over the world initiate sexual relations early,65 under-lining their need to possess the capability to make decisions on matters relating to their SRH needs.66 This need is coupled with a concurrent need for privacy67 which determines whether adolescents will be willing to access available services or not.68 Despite the debate on whether adolescents require privacy rights or not, it is evident that there is a necessity to protect the privacy rights of adolescents generally and adolescent girls, in particular, especially in relation to access to SRH care services.69
This is because neglect in this crucial area may lead to unsavoury consequences. The right of adolescents to medical confidentiality was recognised in Gillick v. West Norfolk and Wisbech Area Health Authority and Another,70 where the court, in allowing the access of adolescents under sixteen to contraception, was of the view that once the adolescent is able to understand the nature of the treatment requested and there is a likelihood that she will engage in sexual activities with or without protection, then it will be in her best interests to have access to the contraceptives without parental consent.71 Currently, in a majority of African countries, Nigeria and South Africa inclusive, access to contraception by female adolescents is affected by the existence of cultural, traditional and religious beliefs which make it offensive for young girls to require contraception or family planning services, a preserve only accessible by married adults. In the few instances where contraceptive services are available, issues relating to privacy and confidentiality arise and are coupled with the reluctance of health providers to allow adolescent girls to access the services.72 Recently, the WHO issued guidelines in relation to the provision of contraceptive information and services to women and adolescent girls in which it recommended that states are to ensure that the services provided are not only sensitive to individual needs but also respect their right to dignity, autonomy and confidentiality.73 In addition to the necessity for privacy, the effective protection of the SRH of adolescent girls requires the fulfilment and respect of their right to information.74
The reason for the right to information is not far-fetched. Apart from the fact that access to appropriate reproductive health information on contraception will assist in living a dignified life,75 the possession of information on where contraceptive services can be obtained is a major means through which the need for contraception among female adolescents can be met, thereby allowing them to control their fertility and also protect themselves against STIs.
Declaration of originality
Summary
Dedication
Acknowledgements
Table of contents
Abbreviations and acronyms
CHAPTER 1 INTRODUCTION
1 Contextual background
2 Problem statement
3 Purpose of study
4 Research questions
5 Significance of study
6 Existing studies
7 Research methodology
8 Limitation of the study
9 Definition of terms
9.1 Adolescence
9.2 Contraception
9.2.1 Barrier contraceptives
9.2.2 Hormonal contraceptives
9.2.3 Emergency contraceptives
9.2.4 Intra uterine device contraceptives
9.2.5 Sterilisation
9.3 Sexuality education
9.4 Adolescent-friendly centres
10 Overview of chapter contents
CHAPTER 2 LEGAL FRAMEWORK FOR FEMALE ADOLESCENTS’ ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES
1 Introduction
2 International treaties relating to adolescents’ right to access to contraception
2.1 Universal Declaration of Human Rights (UDHR)
2.2 International Covenant on Civil and Political Rights (ICCPR)
2.3 International Covenant on Economic, Social and Cultural Rights (ICESCR)
2.4 Convention on the Rights of the Child (CRC)
2.5 Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW)
2.6 Conclusion
3 Regional treaties relating to adolescents right to access to contraception
3.1 African Charter on Human and People’s Rights (ACHPR)
3.2 African Charter on the Rights and Welfare of the Child (ACRWC)
3.3 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women Protocol)
3.4 African Youth Charter (AYC)
3.5 Conclusion
4 Other international documents on female adolescents right to access contraceptive information and services
4.1 International Conference on Population and Development (ICPD) Programme of Action
4.2 Beijing Declaration and Platform for Action
4.3 Conclusion
5 Chapter conclusion
CHAPTER 3 NATIONAL LAWS AND POLICIES ON ADOLESCENTS’ REPRODUCTIVE HEALTH
1 Introduction
2 NIGERIA
2.1 Brief historical background of the Nigerian legal system
2.2. Nigerian Constitution, 1999
2.3 Nigerian legislation
2.4 English law
2.5 Customary law
2.6 Judicial precedents
2.7 Conclusion
3 Adolescent reproductive health laws and policies in Nigeria
3.1 Child Rights Act (CRA) 2003
3.2 National Health Policy 2004
3.3 National Reproductive Health Policy 2001
3.4 National Policy on Health and Development of Adolescents and Young People 2007
3.5 National Youth Policy 2009
3.6 Family Life and HIV Education (FLHE) Curriculum
3.7 National Health Bill
3.8 Conclusion
4 SOUTH AFRICA
4.1 Brief historical background of the South African legal system
4.2 Constitution of the Republic of South Africa, 1996
4.3 South African legislation
4.5 Common law
4.6 Judicial precedents
4.7 Conclusion
5 Adolescents reproductive health laws and policies in South Africa
5.1 Children’s Act No. 38 of 2005
5.2 National Health Act No. 61 of 2003
5.3 Choice on Termination of Pregnancy Act No. 92 of 1996
5.4 National Youth Policy (NYP)
5.5 National Policy on HIV and AIDS for Learners and Educators in Public Schools and Students and Educators in Further Education and Training Institutions
5.6 National Contraception and Fertility Planning Policy and Service Delivery Guidelines 2012
5.7 Integrated School Health Policy 2012
5.8 Conclusion
6 Chapter conclusion
CHAPTER 4 THE MEANING OF AUTONOMY IN THE CONTEXT OF ADOLESCENT GIRLS’ ACCESS TO CONTRACEPTIVES
1 Introduction
2 Concept of autonomy
3 Adolescents and the need for autonomy
3.1 Consent
3.2 Confidentiality
3.3 ‘Best interests’ principle
3.4 Conclusion
4. Chapter conclusion
CHAPTER 5 TRANSLATING WORDS INTO ACTIONS:
ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES IN NIGERIA AND SOUTH AFRICA
1 Introduction
2. Adolescent girls and contraception
2.1 Married adolescents and access to contraception
2.1.1 Married adolescents and access to contraception in Nigeria
2.1.2 Married adolescents and access to contraception in South Africa
2.2 Unmarried adolescents and access to contraception
2.2.1 Unmarried adolescents and access to contraception in Nigeria
2.2.2 Unmarried adolescents and access to contraception in South Africa
2.3 Conclusion
3 NIGERIA
3.1 Realising access to contraceptive information and services by adolescent girls in Nigeria
3.2 Access to sexuality information and education
3.3 Access to contraception through health care services
3.4 Conclusion
4 SOUTH AFRICA
4.1 Realising access to contraceptive information and services by adolescent girls in South Africa
4.2 Access to sexuality information and education
4.3 Access to contraception through health care services
4.4 Conclusion
5 International best practices relating to female adolescents’ access to contraception
5.1 Introduction
5.2 Denmark
5.3 Mozambique
5.4 Conclusion
6 Chapter conclusion
CHAPTER 6 BARRIERS TO FEMALE ADOLESCENTS’ ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES AND THEIR RESULTING CONSEQUENCES
1 Introduction
2 Barriers to female adolescents’ access to contraceptive information and services in Nigeria
3 Barriers to female adolescents’ access to contraceptive informationand services
4 Consequences of barriers to access contraceptive information and services in Nigeria and South Africa
1 Introduction
2 Barriers to female adolescents’ access to contraceptive information and services in Nigeria
2.1 Introduction
2.2 Legal barriers
2.3 Socio-cultural barriers
2.4 Systemic and health provider bias
2.5 Economic and logistic barriers
2.6 Religious barriers
2.7 Demographic barriers
2.8 Conclusion
3 Barriers to female adolescents’ access to contraceptive information and services in South Africa
3.1 Introduction
3.2 Legal barriers
3.3 Socio- cultural barriers
3.4 Systemic and health provider bias
3.5 Economic barriers
3.6 Religious barriers
3.7 Demographic barriers
3.8 Conclusion
4 Consequences of barriers to access contraceptive information and services in Nigeria and South Africa
4.1 Introduction
5 NIGERIA
5.1 Consequences of barriers to access contraceptives in Nigeria
5.2 Teenage pregnancies
5.3 Abortion
5.4 HIV and STIs
5.5 Socio-economic consequences
5.6 Conclusion
6 SOUTH AFRICA
6.1 Consequences of barriers to access contraceptives in South Africa
6.2 Teenage pregnancies
6.3 Abortion
6.4 HIV and STIs
6.5 Socio-economic consequences
6.6 Conclusion
7 Chapter conclusion
CHAPTER 7 CONCLUSIONS REGARDING THE COMPARATIVE STUDY ON FEMALE ADOLESCENTS’ ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES IN NIGERIA AND SOUTH AFRICA
1 Introduction
2 Conclusions drawn from the comparative study of female adolescents’ right to contraceptive information and services in Nigeria and South Africa
2.1 Applicability of ratified human rights instruments in Nigeria and South Africa
2.2 Comparison of fundamental rights in Nigeria and South Africa
2.2.1 Comparing the right to health care in Nigeria and South Africa
2.2.2 Comparing the right to life in Nigeria and South Africa
2.2.3 Comparing the right to dignity in Nigeria and South Africa
2.2.4 Comparing the right to privacy in Nigeria and South Africa
2.2.5 Comparing the right to information in Nigeria and South Africa
2.2.6 Comparing the right to be free from discrimination in Nigeria and South Africa
2.3 Comparing the extent of children’s rights in Nigeria and South Africa
2.3.1 Autonomy
2.3.2 Best Interests
2.4 Comparing child marriage in Nigeria and South Africa
2.5 Comparing laws and policies other than the Constitution in Nigeria and South Africa
2.6 Comparing sexuality education in Nigeria and South Africa
2.7 Comparing access to sexual and reproductive health care services in Nigeria and South Africa
2.8 Comparing consequences resulting from non-access to contraceptive information and services in Nigeria and South Africa
2.9 Comparing judicial intervention in relation to the right to health care in Nigeria and South Africa
3 Chapter conclusion
CHAPTER 8 CONCLUSIONS AND RECOMMENDATIONS
1 Introduction
2 Overview of chapter findings
3 Conclusions
4 Recommendations
4.1 Nigeria
4.2 South Africa
5 Final remarks
Table of authorities
Bibliography
