MDG 5, HUMAN RIGHTS, AND MATERNAL HEALTH IN AFRICA
after General Comment No. 14.203 The Maputo Protocol toes the expansive
path paved by the CESCR by imposing upon States Parties an obligation to
ensure respect for, and promotion of, women’s right to health, including
sexual and reproductive health.204 Women’s right to health is defined under
the Protocol to include, inter alia, the right to control their fertility; the right
to decide whether to have children, the number of children, and the spacing
of children; the right to choose any method of contraception; and the right
to have family planning education.205 This treaty provision has been
confirmed by the African Commission on Human Rights, which not only
affirms that “women in Africa have the right to the highest attainable
standard of health, which includes sexual and reproductive health and
rights”206 but forcefully elevates maternal mortality to a priority human
rights concern deserving of regional assault and expurgation.207
Consistent with the ICESCR, the Protocol, in addition to requiring States
Parties to take measures to provide optimal access to health services, also
mandates the establishment and strengthening of existing pre-natal,
delivery, and post-natal health and nutritional services for women during
pregnancy and while they are breast-feeding.208 In what is seen as a radical
departure from prevailing orthodoxy, the Protocol is the first regional or
international human rights instrument to recognize the right to abortion.209
This elevation of abortion to the status of a human right has been lauded as
commendable based on the widespread assumption that abortion-induced
morbidities and mortalities are astronomically high in Africa.210 This
notion is generally blamed on stifling restrictive anti-abortion legal
frameworks in many of these countries.211 However, this assumption, as
previously pointed out, lacks solid evidentiary support; in fact, abortion-related maternal mortality in Africa is the least anywhere in the world, at
203. See General Comment No. 14, supra note 149.
204. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, supra note 17, art. 14( 1).
206. African Comm’n on Human & Peoples’ Rights, General Comment on Article 14
( 1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa para. 5 (Nov. 6, 2012), http://www.achpr.org/news/2012/11/d65/.
207. See generally African Comm’n on Human & Peoples’ Rights, Resolution on
Maternal Mortality in Africa (Nov. 10 – 24, 2008), available at http://www.achpr.org/
208. Protocol to the African Charter on Human and Peoples’ Right on the Rights of
Women in Africa, supra note 17, arts. 14( 2)(a)-(b).
209. Id. art. 14( 2)(c).
210. See Comm. on the Rights of the Child, Rep., 21st Sess., June 4, 1999, para. 30,
U.N. Doc. CRC/C/15/Add. 107 (Aug. 24, 1999).
211. See Haddad & Nour, supra note 73, at 124.