Lawyer’s Alert share how their legal case at the ECOWAS court will contribute to improved abortion policy and laws in Nigeria. Please note that this article discusses sexual violence.
Dorothy, a 16-year-old Nigerian girl, deserves justice. In 2019, when she became pregnant after she was raped, she sought support and services from numerous health clinics but was repeatedly denied access to an abortion. While Nigeria’s domestic laws and policies do not permit abortion except if the life of the pregnant woman is at risk, Nigeria is also a signatory to the Maputo Protocol. The Maputo Protocol, a nickname for the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, allows for access to comprehensive abortion care in the cases of sexual violence, rape, or incest, and in cases of the pregnancy endangering the life or health of the pregnant woman or foetus. States that have signed up to the Maputo Protocol must provide accessible facilities for safe medical abortion in those circumstances. Because the Nigerian state did not provide for this, Dorothy was denied access to an abortion. Even if she had been able to access one, she could have been convicted for breaking the law. Dorothy, just a girl, eventually gave birth against her will.
Litigation for human rights
Lawyers Alert, a non-partisan and non-profit legal organisation in Nigeria, has taken Dorothy’s case to the West African Regional Court, also known as the ECOWAS Court. Our goal is to compel the Nigerian government to provide comprehensive abortion care services in line with their international obligations. We are also seeking compensation from the state to Dorothy for the trauma and psychological harm she experienced. The case is presently in the ECOWAS Court, with the Nigerian government arguing that since Dorothy has already given birth, the matter is statute barred.
The matter of access to abortion care is a human rights issue. It speaks to the fundamental principle of freedom of choice over one’s body and the choice whether to become a parent. The denial of this choice erodes women’s and girls’ reproductive rights. International charters, regional statutes and protocols – all of which Nigeria has signed – validates this position. The Nigerian constitution also preserves freedom of choice. However, due to patriarchal norms, religious beliefs, and fundamentalism, legal recourse is made to ancillary laws that violate the constitution and force women to carry unwanted pregnancies to term – even in cases of rape and incest.
The decision to undertake the case stemmed from the urgent need to address escalating maternal deaths in Nigeria. Despite the existence of laws criminalising abortion, unsafe abortions continue, leading to dire consequences for women’s health and contributing to the country’s high maternal mortality rates. Lawyers Alert recognized the gravity of the situation, with an estimated 6,000 women dying annually due to abortion-related complications.
If Dorothy’s case is successful, it will significantly change the safe abortion discussion and its impact on reproductive health outcomes in Nigeria.
FACING CHALLENGES
The journey to bringing a legal case to improve access to abortion in Nigeria has not been smooth or straightforward. Systemic challenges to advocacy efforts include a lack of knowledge among civil society organisations and lawyers to address safe abortion and reproductive rights issues. Cultural and religious biases and a lack of judicial sensitisation regarding sexual and reproductive health and rights, particularly concerning the Maputo Protocol, further compound the barriers to change.
While there is a movement at the policy level to improve abortion rights, prevailing anti-abortion laws and criminal and penal codes heavily limit its impact. Some recent positive policies are widening the space for improved access, such as in Southwestern Nigeria where the Ministry of Health passed new abortion care standards and guidelines. However, these policies cannot be implemented above the existing laws restricting access to abortion. There is need to engage parliamentarians to fully understand the issue of abortion access and repeal restrictive laws.
Additionally, the lack of awareness on the Maputo Protocol and the WHO guidelines on abortion at the government level makes it difficult to advocate for change. Lawyers Alert is firmly convinced that wide-ranging sensitisation of judicial and government bodies about the WHO guidelines and Maputo Protocol will positively influence the legal framework pertaining to safe abortion.
A MULTI-LEVEL APPROACH TO JUSTICE
In light of the challenges, Lawyers Alert have implemented a multi-level approach to this case. Lawyers Alert strategically planned the the strategic impact litigation (SIL) in Nigeria to address the complex issues surrounding Dorothy’s case and broader reproductive rights challenges in the country:
- Coalition Building: Upon taking the brief, Lawyers Alert shared the facts amongst legal and human rights organisations, especially the Legal Support Network (LSN). The LSN are lawyers trained on SIL. Lawyers Alert approached them for their expertise and value they bring to the process. The sharing of information and networking with other human rights organisations developed broad support for the case, including sharing of resources.
An extended team of experts reviewed the drafted SIL, including LSN members, partner CSOs, and seasoned reproductive rights advocates. This collaborative approach ensured the legal strategy was comprehensive, well-informed, and aligned with best practices in reproductive rights advocacy.
The case has allowed for a gradual building of a coalition of civil society actors and lawyers advocating on the issue of safe abortion in Nigeria. This coalition can morph into a movement. - Identification of Relevant Legal Frameworks: Lawyers Alert conducted a thorough review of Nigeria’s Penal and Criminal Code Acts to identify sections prohibiting abortion and target them for litigation. We chose this approach to challenge the restrictive abortion laws, aligning with successful strategies employed in other countries. We wanted to ensure that we come to a favourable decision in the court, as an unfavourable decision may worsen the current legal situation.
The case seeks to operationalise the Maputo Protocol that Nigeria has signed. By using the provisions of the protocol, Lawyers Alert strategically positioned the case before the ECOWAS Court to advocate for broader reproductive rights reforms.
These approaches strategically leverage legal mechanisms, build capacity, foster collaboration, and advocate for systemic change in reproductive rights policies and practices in Nigeria. - Approaching the ECOWAS Court: Approaching the ECOWAS Court rather than national courts elevates the issue beyond the national and local courts, which can be influenced by their context. Additionally, the regional court’s decision can have a domino effect on other West African countries under its jurisdiction. A positive verdict from the ECOWAS Court can possibly improve the right to safe medical abortion across the sub-region.
By filing the case of Dorothy at the ECOWAS Court of Justice, the case urges the Nigerian government to domesticate the provisions of Maputo Protocol on safe medical abortion, to which it is a signatory. The domestication process would incorporate the provisions of the Maputo Protocol into Nigeria’s existing laws. This in turn will afford women access to safe medical abortions across Nigeria, providing more comprehensive care and support to survivors of rape and incest.
In the same vein, the success of the case could also contribute to positively transforming social and cultural barriers to abortion access, such as fear, shame, and stigma. - Informed Consent and Client Participation: Lawyers Alert obtained Dorothy’s consent for legal action, ensuring her active participation and empowerment throughout the litigation process. This approach prioritises the agency and rights of the individual affected by the legal proceedings. Additionally, this strategy allows the court to see the humanity and reality of the impact of Nigeria’s restrictive policies.
JUSTICE WITHIN REACH
Lawyers Alert held a successful moot court trial where lawyers, a sitting judge of the federal high court, civil society organisations, and the media attended. The moot court trial was a shadow proceedings of the ECOWAS Court and the likely reaction from the judges. Post the moot court trial, the team refined processes and strategies.
The formal initiation of legal proceedings marks a crucial step towards advancing and protecting reproductive rights in Nigeria, especially the right to safe abortion. This case has brought to attention issues that are prevalent in Nigeria but often overlooked. Unwanted pregnancies as a result of rape, kidnappings, robbery and banditry are prevalent, especially in Northeast Nigeria. By strategically leveraging the legal system, the suit aims to challenge existing laws and policies that infringe upon reproductive rights. This ultimately fosters an environment where women and girls can access safe and legal abortion services without fear of prosecution or stigma.
Dorothy’s case resonates with many women in Nigeria and the issue of safe abortion access is on the front burner. By seeking justice for Dorothy, positive change in Nigeria is within reach.
