Abstract
Amala Okafor’s legal and policy analysis reframes maternal health in Nigeria and Africa as a justiciable right, confronting one of the continent’s most glaring indicators of systemic governance failure, public health neglect, and legal under-enforcement. In Nigeria, which bears a disproportionate share of global maternal deaths, the crisis stems not from inevitable tragedy but from preventable causes rooted in weak institutions, chronic underfunding, socio-cultural barriers, and, critically, the absence of enforceable accountability mechanisms. Unlike developed nations where maternal mortality often reflects mere systemic fragmentation within otherwise robust frameworks, Africa’s challenge reveals deeper structural deficiencies that demand urgent rights-based intervention.
Okafor argues affirmatively that state failures to deliver accessible, adequate, and timely maternal healthcare constitute clear violations of constitutionally enshrined socio-economic rights, statutory obligations under frameworks like Nigeria’s National Health Act, and regional human rights instruments such as the African Charter on Human and Peoples’ Rights. By synthesizing domestic jurisprudence with continental precedents, the analysis charts a transformative pathway: elevating maternal health from vague policy aspiration to concrete legal entitlement through strategic litigation, judicial benchmarks, and multi-stakeholder accountability.
Recommendations emphasize mandatory health budget allocations of at least 15% of national spending, citizen-led enforcement suits, and governance innovations to halve Africa’s annual maternal mortality burden of over 200,000 deaths. Ultimately, Okafor positions maternal health as Africa’s moral and developmental imperative, urging policymakers to wield legal muscle rather than rely on goodwill to save lives and build equity.
Keywords: Maternal, Health, Right, Africa, Nigeria.
Introduction
Maternal mortality in Nigeria and across Africa stands as one of the most damning and persistent barometers of systemic governance collapse, chronic public health underinvestment, and glaring legal inaction. While developed nations grapple with maternal deaths primarily through coordination failures within largely functional healthcare ecosystems, where robust funding, trained personnel, and emergency response systems mitigate risks, the African reality exposes far more foundational fractures. Here, the crisis is anchored in crumbling institutions lacking basic capacity, perennially inadequate budget allocations, often below the Abuja Declaration’s 15% threshold, entrenched socio-cultural obstacles such as gender biases and rural isolation, and above all, the profound absence of binding legal mechanisms to hold governments accountable.
In Nigeria, these failures manifest starkly. Women die from eclampsia, postpartum haemorrhage, and obstructed labour in facilities without oxygen, blood, or skilled attendants, while preventable infections claim lives that basic medical protocols could save.
Nigeria’s burden is staggering, accounting for roughly 20% of global maternal deaths despite comprising only about 2.6% of the world’s population. Maternal mortality rates remain alarmingly high, reaching approximately 814 deaths per 100,000 live births according to recent World Health Organization estimates, far exceeding sub-Saharan African averages. What renders this catastrophe morally indefensible is that more than 80% of these deaths are preventable through adequate antenatal care, skilled birth attendance, and emergency obstetric services.
This persistence raises a crucial legal question: does the state’s chronic failure to ensure accessible, quality, and timely maternal healthcare violate the justiciable rights to life, health, and human dignity?
This study answers that question in the affirmative. It argues that maternal mortality should no longer be viewed merely as an unfortunate public health outcome but as a violation of legally protected rights capable of judicial enforcement. Drawing upon the Constitution of the Federal Republic of Nigeria 1999, particularly Sections 17 and 33, the National Health Act 2014, and regional instruments such as the African Charter on Human and Peoples’ Rights, the study develops a rights-based framework for accountability. It also relies on domestic and continental jurisprudence, including decisions of the African Commission and African Court on Human and Peoples’ Rights, to demonstrate that strategic litigation can transform maternal health from a policy aspiration into an enforceable legal entitlement.
The study proposes the use of class actions, judicial orders compelling minimum healthcare standards, mandatory reporting on maternal mortality, and judicial supervision of government obligations as mechanisms capable of driving systemic reform. By establishing enforceable legal benchmarks aligned with Sustainable Development Goal 3.1, the study contends that litigation can serve as a catalyst for reducing maternal mortality while strengthening democratic accountability and equitable governance across Africa.
This study adopts a doctrinal legal research methodology. It relies primarily on constitutional provisions, statutory instruments, judicial decisions, and regional and international human rights instruments relating to maternal rights in Nigeria and Africa. Both primary sources, including the Constitution, the National Health Act 2014, the African Charter on Human and Peoples’ Rights, and relevant case law, and secondary sources, including scholarly literature, policy documents, reports of international organisations, and public health data, are examined. The study evaluates whether maternal mortality constitutes a violation of legally protected rights and considers the extent to which strategic litigation can be employed as a tool for accountability and improved maternal health outcomes.
Structural Determinants of Maternal Mortality
Maternal mortality in Nigeria cannot be understood solely through a legal lens; it is deeply intertwined with structural and socio-economic realities.
A. Financial Barriers
Nigeria’s healthcare system is heavily reliant on out-of-pocket payments. For many women, the cost of antenatal care, delivery, and postnatal services is prohibitive, leading to delayed or complete absence of medical intervention. This financial burden continues to prevent timely access to essential maternal healthcare services, particularly among poor and vulnerable populations.
B. Infrastructure and Human Resource Deficits
Many healthcare facilities across Nigeria lack basic medical equipment, essential medications, and adequately trained healthcare personnel. The situation is even more severe in rural communities, where access to skilled birth attendants and emergency obstetric care remains extremely limited. These deficiencies significantly increase the likelihood of preventable maternal deaths.
C. The “Three Delays” Framework
The persistence of maternal mortality is frequently explained through the “Three Delays” model, which identifies three critical points at which failures occur:
1. Delay in deciding to seek healthcare.
2. Delay in reaching an appropriate healthcare facility.
3. Delay in receiving adequate medical care upon arrival.
Each of these delays reflects systemic failures that can and should be addressed through comprehensive legal and policy reforms.
Taken together, these delays demonstrate that maternal mortality is not merely a medical phenomenon but a manifestation of broader governance failures. Their continued existence underscores the urgent need for stronger legal frameworks and institutional reforms capable of addressing the structural deficiencies that continue to endanger pregnant women.
Constitutional Foundations: Expanding the Right to Life
A. Section 33 and the Evolution of Judicial Interpretation
Section 33 of the Constitution of the Federal Republic of Nigeria guarantees every person’s right to life. Traditionally, this provision has been interpreted narrowly, focusing primarily on protection against unlawful or arbitrary deprivation of life. More recently, however, Nigerian courts have adopted broader interpretations that recognise the right to life as extending beyond mere survival to include conditions necessary for meaningful human existence.
A significant illustration is found in Gbemre v. Shell Petroleum Development Company Nigeria Ltd., where the Federal High Court held that environmental degradation threatening human survival constituted a violation of the constitutional right to life. This decision marked an important doctrinal shift by recognising that the right to life imposes positive obligations on the state to preserve life, rather than merely refraining from unlawfully taking it.
Similarly, in Attorney-General of Ondo State v. Attorney-General of the Federation, the Supreme Court affirmed that constitutional provisions may impose enforceable duties on government authorities where matters of public welfare are involved.
Applying these principles to maternal healthcare, it becomes arguable that a healthcare system which consistently fails to prevent foreseeable maternal deaths arising from the absence of basic medical services constitutes a violation of the constitutional right to life. Maternal mortality should therefore be understood not merely as a public health outcome but as evidence of constitutional failure.
B. The Challenge of Non-Justiciability and Its Circumvention
One of the principal obstacles to enforcing socio-economic rights in Nigeria lies in Chapter II of the Constitution, which contains the Fundamental Objectives and Directive Principles of State Policy. These provisions are rendered non-justiciable by Section 6(6)©, meaning that courts ordinarily cannot enforce them directly, despite their inclusion of important obligations relating to health and social welfare.
Nevertheless, this limitation is not absolute. Nigerian jurisprudence increasingly demonstrates that where socio-economic rights intersect with enforceable fundamental rights, particularly the rights to life, dignity, and equality, courts are prepared to intervene. This judicial development becomes even more significant when read alongside the domesticated African Charter on Human and Peoples’ Rights, which provides an independent legal basis for enforcing health-related rights in Nigeria.
The African Charter: A Direct Legal Basis for Maternal Health Claims
A. Domestication and Legal Status
The African Charter on Human and Peoples’ Rights occupies a unique and significant position within Nigerian law. By virtue of its domestication through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Charter has the force of law and is directly enforceable before Nigerian courts.
The Supreme Court affirmed this position in Abacha v. Fawehinmi, holding that the provisions of the Charter are binding and may be invoked to enforce the rights contained therein. This landmark decision effectively bridges the gap created by the non-justiciability of Chapter II of the Constitution by providing an enforceable legal framework for the protection of socio-economic rights, including the right to health.
B. Article 16 and the Right to Health
Article 16 of the African Charter guarantees every individual’s right to enjoy the best attainable state of physical and mental health and places a corresponding obligation on States to take the necessary measures to protect the health of their people. Unlike the socio-economic provisions contained in Chapter II of the Nigerian Constitution, this right is directly enforceable before Nigerian courts.
Accordingly, maternal mortality may properly be framed as a violation of Article 16 where the State fails to provide:
1. Adequate healthcare facilities;
2. Access to skilled medical personnel; and
3. Essential maternal healthcare services.
In addition, Article 4, which guarantees the right to life, and Article 5, which protects the right to dignity, reinforce this legal framework. Together, these provisions establish a comprehensive rights-based foundation upon which systemic failures in maternal healthcare may be challenged through litigation.
Statutory Framework
The National Health Act and Its Limitations
A. The Promise of the National Health Act 2014
The National Health Act 2014 represents one of Nigeria’s most important legislative efforts to regulate and strengthen the country’s healthcare system. Among its most significant innovations is the establishment of the Basic Healthcare Provision Fund (BHCPF), intended to finance essential healthcare services, particularly maternal and child healthcare.
The Act seeks to achieve several important objectives, including:
1. Improving access to primary healthcare services;
2. Providing financial risk protection for vulnerable populations; and
3. Strengthening healthcare infrastructure throughout the country.
If fully implemented, these measures have the potential to significantly reduce preventable maternal deaths while improving access to quality healthcare for women across Nigeria.
B. Implementation Failures and Accountability Gaps
Despite its progressive legislative framework, the National Health Act continues to suffer from significant implementation challenges that have limited its effectiveness.
These challenges include:
1. Inadequate funding: Allocations to the Basic Healthcare Provision Fund are frequently insufficient or released inconsistently.
2. Weak oversight: Existing mechanisms for monitoring and ensuring the proper utilisation of healthcare funds remain ineffective.
3. Fragmented governance: Coordination among the Federal, State, and Local Governments remains poor, leading to duplication of responsibilities, administrative inefficiencies, and service delivery gaps.
4. Limited enforceability: Individuals who suffer from failures in implementing the Act have few practical legal mechanisms through which they can compel government authorities to comply with their statutory obligations.
Collectively, these deficiencies undermine the effectiveness of the National Health Act and contribute significantly to the persistence of maternal mortality across Nigeria. While the legislation establishes an important policy framework, its objectives cannot be realised without stronger enforcement mechanisms, improved institutional accountability, and sustained political commitment.
Litigation as a Mechanism for Systemic Change
A. The Potential of Strategic Litigation
Strategic litigation presents a powerful mechanism for improving maternal health outcomes by transforming preventable maternal deaths from public health concerns into legally enforceable rights violations. By framing maternal mortality as a breach of constitutional and human rights obligations, litigants can compel government accountability while driving meaningful policy reform.
Such litigation may seek a range of judicial remedies, including:
1. Declaratory relief establishing the legal obligations of government authorities;
2. Injunctive orders compelling improvements in maternal healthcare delivery; and,
3. Monetary compensation for victims and their families where systemic failures have resulted in preventable deaths.
Beyond providing relief to individual claimants, strategic litigation has the potential to generate broader institutional reforms by compelling governments to fulfil their constitutional and statutory responsibilities regarding maternal healthcare.
B. Comparative African Jurisprudence
Comparative jurisprudence from across Africa provides persuasive guidance on the justiciability and enforcement of socio-economic rights, particularly the right to health. Courts and regional human rights bodies have increasingly rejected the notion that socio-economic rights are merely aspirational policy objectives. Instead, they have recognised that governments owe legally enforceable duties to take reasonable measures to safeguard the health and welfare of their citizens.
A significant illustration is Purohit and Another v. The Gambia, in which the African Commission on Human and Peoples’ Rights held that Article 16 of the African Charter imposes positive obligations upon States to ensure access to adequate healthcare services and to protect vulnerable groups from conditions that threaten human dignity and well-being.
Although that case concerned mental healthcare, its reasoning applies equally to maternal healthcare. The Commission emphasised that governments have a duty to establish effective healthcare systems, and failure to do so may amount to a violation of the African Charter. Where inadequate facilities, shortages of skilled personnel, or lack of access to essential services result in preventable maternal deaths, similar legal principles become applicable.
An even more direct connection between maternal mortality and state accountability emerged in Centre for Health, Human Rights and Development (CEHURD) and Others v. Attorney General of Uganda. The litigation arose following the deaths of two women during childbirth that were attributed to deficiencies in public maternal healthcare services.
Although the case was initially dismissed under the political question doctrine, the Supreme Court of Uganda ultimately held that allegations involving constitutional violations arising from poor maternal healthcare were justiciable and therefore capable of judicial determination. This landmark decision established that courts possess an essential role in reviewing governmental failures affecting healthcare rights and ensuring constitutional accountability.
Further support is found in the jurisprudence of the Constitutional Court of South Africa. In Minister of Health v. Treatment Action Campaign (No. 2), the Court ordered the South African Government to expand access to antiretroviral medication for the prevention of mother-to-child transmission of HIV.
The Court held that government health policies must satisfy the constitutional standard of reasonableness and confirmed that courts are empowered to determine whether public authorities have fulfilled their constitutional obligations. Importantly, it rejected the argument that limited financial resources automatically excuse governmental inaction where human lives are at stake.
Collectively, these decisions demonstrate an emerging continental consensus that the right to health carries binding legal consequences. They further establish that courts can function as catalysts for systemic reform in healthcare delivery.
For Nigeria, these comparative authorities provide persuasive guidance for recognising maternal mortality not merely as a public health challenge but as a legal wrong involving violations of the rights to life, dignity, and health. They therefore offer valuable precedents for strengthening a rights-based approach to maternal health litigation.
Policy and Legal Reform: Towards a Rights-Based Framework
A meaningful response to maternal mortality in Nigeria and across Africa requires more than policy declarations. It demands a deliberate transition to a rights-based framework founded upon enforceability, accountability, and institutional effectiveness. Such a framework must operate simultaneously at constitutional, statutory, institutional, and administrative levels so that maternal healthcare is recognised as a binding legal obligation rather than a discretionary governmental policy.
A. Constitutional Reform and Interpretation
At the constitutional level, meaningful reform need not begin with formal constitutional amendment, although such reform remains desirable in the long term. More immediately, Nigerian courts should continue adopting progressive and purposive interpretations of existing constitutional rights.
The constitutional right to life under Section 33 should be interpreted broadly to include access to essential maternal healthcare, particularly where preventable maternal deaths result directly from systemic failures within the healthcare system.
The Federal High Court has already demonstrated such interpretive evolution in Gbemre v. Shell Petroleum Development Company Nigeria Ltd., where environmental degradation threatening human survival was recognised as implicating the constitutional right to life. Extending this reasoning to maternal mortality would therefore represent a logical development of Nigerian constitutional jurisprudence rather than a departure from established legal principles.
Similarly, the doctrine of non-justiciability under Section 6(6)© should no longer be viewed as an insurmountable obstacle to enforcing socio-economic rights. Nigerian courts have increasingly demonstrated a willingness to circumvent this limitation by linking socio-economic interests with enforceable civil and political rights. Maternal healthcare, when considered through the interconnected rights to life, dignity, and equality, falls comfortably within this evolving constitutional framework.
The judiciary must therefore assume a more proactive role in enforcing health-related rights. Courts should be prepared to grant declaratory relief, mandatory injunctions compelling governmental action, and, where appropriate, recognise state liability arising from systemic neglect. Judicial restraint in matters of policy should never extend to circumstances in which governmental inaction results in preventable loss of human life.
B. Strengthening Statutory Enforcement
While progressive constitutional interpretation provides the normative foundation for recognising maternal health as a justiciable right, statutory reform remains essential to ensure effective implementation. Although the National Health Act 2014 represents a significant legislative milestone, its provisions require substantial strengthening to achieve meaningful enforcement.
First, the Act should be amended to impose clear and enforceable legal obligations upon government authorities at the federal, state, and local levels. Many of its existing provisions are framed in aspirational language, lacking the mandatory force necessary to compel compliance. By introducing explicit statutory duties relating to maternal and primary healthcare, individuals and civil society organisations would be empowered to hold government institutions accountable through judicial proceedings.
Second, the law should establish meaningful sanctions for non-compliance. Government agencies that fail to implement statutory responsibilities, particularly those relating to the Basic Healthcare Provision Fund, should be subject to administrative penalties and, where appropriate, legal liability. Without effective consequences, statutory obligations risk becoming merely symbolic.
Equally important is the promotion of transparency in healthcare financing. Persistent opacity in the allocation and utilisation of public health funds undermines efficiency, accountability, and public confidence. Legislative provisions requiring periodic public disclosure, independent financial audits, and public access to healthcare expenditure data would significantly improve oversight while reducing opportunities for mismanagement and corruption.
C. Institutional and Financial Reforms
Legal reform alone cannot substantially reduce maternal mortality unless accompanied by corresponding improvements in institutional capacity and sustained financial investment.
One of the most pressing challenges confronting maternal healthcare in Nigeria is chronic underfunding. Increasing public expenditure on the health sector should therefore be regarded not merely as a policy preference but as both a legal obligation and a moral imperative.
Greater investment should be directed towards strengthening primary healthcare facilities, which constitute the first point of contact for the majority of pregnant women, particularly those living in rural and underserved communities. Improving these facilities would significantly reduce delays in obtaining medical care while enhancing maternal health outcomes.
Simultaneously, sustained investment must be made in the training, recruitment, and retention of healthcare professionals. The continuing shortage of skilled birth attendants remains one of the leading contributors to preventable maternal deaths. Addressing this challenge requires expanding training opportunities while improving remuneration, working conditions, and professional incentives to encourage healthcare workers to remain within Nigeria’s public health sector.
Institutional reform should also prioritise improved coordination among the Federal, State, and Local Governments. The present fragmentation of responsibilities frequently produces administrative inefficiencies, duplication of functions, and service delivery gaps. Establishing clearer institutional responsibilities together with stronger intergovernmental collaboration would contribute significantly to a more coherent and effective healthcare system.
D. Data, Monitoring, and Accountability
A rights-based approach to maternal healthcare must be supported by comprehensive systems for data collection, monitoring, and accountability. Reliable and accurate information is indispensable for identifying service gaps, evaluating policy effectiveness, measuring progress, and informing evidence-based decision-making.
Accordingly, Nigeria should establish comprehensive and standardised national systems for collecting maternal health data across all regions of the country. These systems should be fully integrated into the national health information framework and supported by adequate financial resources and technical expertise.
The law should also require periodic public reporting of maternal health indicators, including maternal mortality rates, causes of maternal deaths, and disparities based on geographical location and socio-economic status. Such transparency would strengthen public oversight while enabling civil society organisations, researchers, and the media to hold government institutions accountable.
Finally, independent oversight bodies should be established and vested with sufficient investigative and supervisory powers to monitor compliance with legal obligations, conduct audits, investigate systemic failures, and recommend corrective measures. Their operational independence should be guaranteed to minimise political interference and preserve institutional credibility.
Conclusion
Maternal mortality in Nigeria and across Africa represents a profound failure of law, public policy, and governance. The continued occurrence of preventable maternal deaths reflects not merely limited financial resources but, more fundamentally, inadequate legal enforcement and weak institutional accountability.
By firmly grounding maternal healthcare within constitutional and human rights frameworks, and by utilising both domestic and regional legal mechanisms, it is possible to transform the prevailing approach to maternal health. Rather than treating maternal healthcare as a discretionary policy objective, governments must recognise it as a binding legal obligation requiring respect, protection, and fulfilment.
Only through this reconceptualisation can Nigeria and other African countries begin to remedy the systemic failures that continue to claim the lives of countless women during pregnancy and childbirth.
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References
1. WHO, Global Health Expenditure Database (2023).
2. Federal Ministry of Health, National Strategic Health Development Plan (2018).
3. Thaddeus S and Maine D, “Too Far to Walk: Maternal Mortality in Context” (1994) Social Science & Medicine.
4. Constitution of the Federal Republic of Nigeria 1999 (as amended), section 33.
5. Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others (2005) AHRLR 151 (NgHC 2005).
6. Attorney-General of Ondo State v. Attorney-General of the Federation (2002) JELR 42378 (SC).
7. Constitution of the Federal Republic of Nigeria 1999 (as amended), section 6(6)c.
8. Chidi Odinkalu, “The Impact of Economic and Social Rights in Nigeria” (2004).
9. African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria 2004.
10. Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228.
11. African Charter on Human and Peoples’ Rights 1981, Article 16.
12. African Charter on Human and Peoples’ Rights 1981, Articles 4 and 5.
13. National Health Act 2014.
14. National Health Act 2014, section 11.
15. World Bank, Nigeria Health Financing Report (2018).
16. Alicia Ely Yamin, Power, Suffering and the Struggle for Dignity (University of Pennsylvania Press, 2016).
17. Purohit and Another v. The Gambia (2003) AHRLR 96 (ACHPR 2003).
18. Centre for Health, Human Rights and Development (CEHURD) and Others v. Attorney General, Constitutional Appeal No. 1 of 2013 (Supreme Court of Uganda, 19 August 2020).
19. Minister of Health and Others v. Treatment Action Campaign and Others (No. 2) 2002 (5) SA 721 (CC).
This article first appeared in the African Journal of Law, Political Research and Administration. To view the official journal publication, please click here.