Oluremi A Savage-Oyekunle
 LLB LLM (Lagos State) LLD (Pretoria)
 Lecturer, Lagos State University, Lagos, Nigeria
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 Annelize Nienaber
 BHons (Wits) LLB LLM LLD (Pretoria)
 Professor of Law, Department of Public Law, University of Pretoria, South Africa
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 Edition: AHRLJ Volume 17 No 2 2017
  Pages: 475 - 526
 Citation: OA Savage-Oyekunle & A Nienaber ‘Adolescents’ access to emergency contraception in Africa: An empty promise?’(2017) 17 African Human Rights Law Journal 475-526
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Governments have committed themselves at international human rights fora to prioritising programmes aimed at adolescents’ development and wellbeing, particularly their educational and health needs. Such programmes include those focused on adolescents’ sexual and reproductive health, and are aimed at enabling adolescents to manage in a positive manner their awakening sexuality. African countries, too, have focused their efforts on adolescents. Despite commitment by governments, an alarmingly high rate of unintended pregnancies among Africa’s adolescents persists. These unintended pregnancies are associated with a low level of contraceptive use, especially among adolescent girls who face significant discrimination and inequality when accessing contraceptive information and services, including specific information on where and how to access emergency contraceptives. This situation flies in the face of the realisation that unconditional and unhindered access to emergency contraceptives is an important tool to protect adolescent girls from sexual ill-health and maternal mortality and morbidity. In light of obstacles in the way of adolescent girls’ access to emergency contraception in the African region, the comments of the various treaty-monitoring bodies are highlighted in the article in order to strengthen arguments in support of African adolescents’ access to emergency contraception. Additionally, mechanisms which may be adopted to overcome obstacles that hinder adolescents’ access and use of emergency contraceptives are examined in order to determine whether they may be beneficial in ensuring African adolescents’ access to emergency contraception. Although the study is comparative in nature, specific attention is paid to Nigerian adolescents’ access to emergency contraception.

Key words: sexual and reproductive health; adolescents; access to emergency contraception; maternal mortality

1 Introduction

Governments the world over increasingly realise the necessity of paying attention to the rights and needs of adolescents. Consequently, they have committed themselves at international human rights fora to prioritising programmes aimed at adolescents’ development and wellbeing, particularly their educational and health needs.1 Such programmes include those focused on adolescents’ sexual and reproductive health,2 and are aimed at enabling adolescents to manage in a positive manner their awakening sexuality. African countries, too, have focused their efforts on adolescents and, consequently, various African regional human rights instruments3 emphasise the right of adolescents to access sexual health care information and services, including those relating to emergency contraception.

Adolescents in sub-Saharan Africa face numerous sexual and reproductive health hazards, including unintended pregnancies; unsafe abortions; and sexually-transmitted infections (STIs)4 as a result of their involvement in early - and often unprotected - sexual activity.5 In addition, approximately 40 per cent of all pregnancies worldwide are unintended, with higher unintended pregnancy rates in African countries.6 In a review of the sexual and reproductive health and rights of adolescents in nine countries in sub-Saharan Africa,7 it was noted that adolescents in the region are particularly vulnerable to sexual and reproductive health issues such as high adolescent birth rates.8 According to the review, sub-Saharan Africa contributes over 50 per cent of the global adolescent birth rate, as well as over 23 per cent of the burden of diseases associated with pregnancy and child and maternal ill-health.9 Consequently, these adolescents’ education and livelihood options are negatively affected.10 Unintended pregnancies among adolescents, therefore, represent a major health challenge in many African countries.

The high level of unintended pregnancies in Africa is associated with a low level of contraceptive use in the region, especially among adolescent girls who not only face significant discrimination and inequality when accessing contraceptive information and services, including particular information on where and how to access emergency contraceptives,11 but who also frequently are victims of sexual assault and violence. 12

The poor sexual health outcomes associated with adolescence in sub-Saharan Africa are discouraging as, in theory, adolescents are ‘protected’ and guaranteed access to contraceptive information and services, including emergency contraceptives.13 While emergency contraception does not protect against STIs, unhindered access to it is an important tool in the prevention of unintended pregnancies among adolescents - especially pregnancies resulting from sexual violence - and consequently lends protection against sexual ill-health and maternal mortality.14

In relation to emergency contraception, specifically, Williams reports that the dearth of knowledge about relevant sexual and reproductive health care services by women and adolescent girls in sub-Saharan Africa indisputably hinders the demand for emergency contraception as women’s awareness of this contraception continues to be below 10 per cent in Senegal and Zambia.15 According to Williams, even in countries such as Kenya, where reports reveal high levels of awareness of the method, the actual use of emergency contraception remains low.16

Because of these alarming statistics, African governments have resolved to integrate emergency contraception into their family planning service delivery policies and guidelines,17 and many governments offer the contraceptive method in public sector services.18 Further, adolescents’ access to emergency contraception is premised on the obligation of state parties to human rights instruments to guarantee to adolescent girls the right to enjoy the highest attainable standard of health through their access to sexual health care services and information and, indeed, their right to choose their preferred method of contraception.19 Also based on the provisions of human rights instruments, African governments are compelled to ensure that emergency contraceptives not only are accessible, but that they are affordable and readily available to adolescents.

Despite these guarantees in human rights instruments,20 emergency contraception remains largely inaccessible. In light of this, the article analyses obstacles in the way of adolescent girls’ access to emergency contraception in sub-Saharan Africa, specifically focusing on the access to emergency contraception of adolescent girls in Nigeria. Selected comments by treaty-monitoring bodies, including those of the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), are analysed in order to support arguments for African adolescents’ access to emergency contraception in the promotion of their rights to sexual and reproductive health care. In addition, methods that may be adopted in overcoming obstacles to the use of emergency contraceptives are examined in order to determine whether they may be helpful in ensuring adolescents’ access to emergency contraception on the African continent.

Below we begin with a description of emergency contraceptives and their use.

2 What is emergency contraception?

Emergency contraceptives are contraceptives that can be used to prevent pregnancy during the first few days after intercourse.21 Often referred to as the ‘morning-after pill’, emergency contraceptives prevent ovulation or fertilisation and are intended for emergency use following unprotected intercourse, contraceptive failure or incorrect use,22 rape or coerced sex.23

The emergency contraceptive pill may be taken up to 72 hours24 after unprotected sex, but is more effective when used within the first 24 hours after sexual intercourse.25 While emergency contraceptives should not replace the oral contraceptive pill which is taken daily, the emergency contraceptive pill may be taken by any girl or woman in order to avoid an unwanted pregnancy.26

In use since the mid-1960s, emergency contraception initially was developed to treat rape victims in order to prevent unintended pregnancies.27 In the early 1970s, the Yuzpe regimen - a combination hormone formula - replaced the high-dose oestrogen emergency contraceptive methods of the 1960s and became the gold standard of treatment for post-coital contraception.28 During this period the copper intra-uterine device (IUD) was also introduced and used by health care providers as the only non-hormonal method of emergency contraception to date.29 Although it is an effective form of emergency contraception as it is able to prevent pregnancy for up to five days after unprotected intercourse, the copper-releasing IUD usually is not recommended for use in adolescents. 30

Regarding the importance of emergency contraception, the Planned Parenthood Organisation explains that it provides women (and adolescent girls) with a second chance to prevent pregnancy in cases of unanticipated sexual activity, contraceptive failure or sexual assault.31 Likewise, Babatunde remarks that emergency contraception is a safe, effective and relatively inexpensive means of preventing unplanned pregnancies after unplanned or unprotected sexual intercourse.32 According to him, especially because of their earlier and often unplanned initiation into sexual activities, the use of emergency contraceptives in adolescence is particularly appropriate as adolescents often engage in sporadic and occasional sexual encounters which pose a serious challenge to their sexual health. 33

In addition to providing a second chance to prevent unwanted pregnancies, emergency contraception has been proven safe and effective. It has no long-term effects on the health of the adolescent girl or woman, and does not affect future fertility or increase the risk of ectopic pregnancies.34 The Planned Parenthood Organisation explains that two factors influence the effectiveness of the use of emergency contraception, namely, the length of time that elapses after unprotected intercourse; and at which stage during the menstrual cycle of the woman or adolescent it is used. When taken during the first few days after unprotected intercourse this form of contraception is most effective. Also, the closer a woman is to ovulation at the time of unprotected intercourse the less likely the method is to succeed.35 However, emergency contraception is not as effective as the consistent use of other regular contraceptive methods,36 neither does it protect against STIs and HIV.37

We now move on to present a brief outline of guarantees in human rights instruments of the SRH rights of adolescents. Because of the focus of the article, we highlight the rights of female adolescents.

3 An overview of adolescents’ sexual and reproductive health rights

    [A]s a matter of policy, the sexual and reproductive health of adolescents matter because they comprise almost one half of the world's population. As a matter of international human rights law, adolescents have reproductive and sexual health rights.38

The period of adolescence is critical: Adolescents transition from being dependents to being providers; and adolescents’ health and sexual choices during the period to a large extent shape their futures.39 In fact, improvements in the sexual and reproductive health status of a region over time depend on the degree to which governments invest in adolescent sexual health.40 The situation is particularly tendentious in the case of adolescent girls as they are constantly faced with peer pressure to engage in early sexual relations,41 and also often are victims of sexual violence.42

Internationally, apart from the Universal Declaration of Human Rights (Universal Declaration) and other human rights instruments generally recognising the right of everyone to the highest attainable standard of health,43 children’s rights to sexual and reproductive health were given the status of legally-binding international law with the adoption by the United Nations (UN) Convention on the Rights of the Child (CRC) on 20 November 1989.44 In 1994, at the International Conference on Population and Development (ICPD),45 governments from all over - including Africa - acknowledged the need to recognise adolescents’ sexual and reproductive health rights.46 Following the lead of the ICPD, several additional international declarations have urged governments to commit to the realisation of adolescent sexual and reproductive health rights through their access to quality sexual and reproductive health care services.47

According to Durojaye the adoption of a rights-based approach to realise the rights of adolescents to emergency contraception is necessary as it creates an avenue for holding governments accountable for the fulfilment of adolescents’ sexual rights under international and regional human rights law. 48

In Africa the right of adolescents to sexual and reproductive health care - specifically their right of access to emergency contraception - may be inferred from the right to health as recognised in article 16 of the African Charter on Human and Peoples’ Rights (African Charter),49 and articles 14(1), 14(2)(b) and 14(2)(f) the African Charter on the Rights and Welfare of the Child (African Children’s Charter).50

Additional rights that are necessary for the enjoyment of adolescents’ rights to access emergency contraceptives include the rights to equality (non-discrimination); life; dignity; privacy; information; and education,51 also guaranteed in these instruments. Particularly, article 11(2)(h) of the African Children’s Charter makes provision for the ‘direction of the education of children towards their understanding of primary health care’. This provision is such that it may be interpreted to accommodate giving adolescent girls information regarding emergency contraceptive services, as the provision of advice on family planning and contraception constitutes a part of primary health care services. Also, the right to privacy protected in the African Children’s Charter52 is of paramount importance in guaranteeing the protection of the sexual health of adolescent girls in the region. This is so because assurances that their privacy will be protected positively influence adolescent girls’ readiness to access emergency contraception where available.53

In addition to the above, the African Children’s Charter contains three major guarantees which influence adolescent girls’ access to emergency contraception in Africa: the best interests of the child;54 the right of the child to participate in decisions affecting them;55 and the ‘evolving capacities of the child’ concept.56 With the inclusion of these provisions, the Children’s Charter demonstrates an acceptance that adolescent girls not only mature at different rates, but that they attain various levels of competence and insight as they grow. Also, it is these levels of competencies that must be considered when adolescent girls require confidential information on emergency contraception or about the services themselves.

Despite these admirable provisions, a major criticism of the African Children’s Charter is that it fails adequately to protect the rights of female children in the region because of the gender-insensitive manner in which some of its provisions are couched, thereby trivialising ‘adolescent girls’ sufferings’.57 The adoption in 2003 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),58 which focuses on issues that hitherto have not been addressed, and which indirectly domesticates the Beijing Declaration and the ICPD

Programme of Action in the African region,59 was aimed at correcting criticisms of gender insensitivity levelled against the African Children’s Charter. The African Women’s Protocol did this through its proactive inclusion of adolescent girls as among the women whom it protects.60 Viljoen notes that although the African Women’s Protocol was drafted as an addition to the African Charter, unlike its international counterpart, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Women’s Protocol expands on the protective scope of women’s rights as it addresses concerns that are particular to African women. 61

Article 14 of the African Women’s Protocol protects the sexual and reproductive health of all women and affirms their right to reproductive choice and autonomy.62 In relation to adolescent girls’ rights to access emergency contraceptive information and services, it recognises the rights of adolescent girls to control their fertility;63 to choose any method of contraception;64 and to access family planning education.65 It also recognises the obligation that African governments adopt all appropriate measures to provide adequate, affordable and accessible health services and information.66 Thus, with the inclusion of these provisions, the African Women’s Protocol actively promotes the recognition of adolescent girls’ rights to access information and services on emergency contraceptives in order to prevent unplanned pregnancies.

4 Nexus between adolescents’ sexual and health rights and their access to emergency contraception

As explained above,67 the connection between good sexual health practices by adolescents and their access to sexual and reproductive health care information and services - especially contraceptive information and services, including emergency contraceptives - has received increased attention during over recent decades, with international and regional bodies pledging their commitment towards the recognition of adolescents’ rights to access sexual and reproductive health care as a means of fulfilling other rights and meeting development needs.68 Thus, attention to the sexual and reproductive health of adolescent girls is closely associated with the need to eradicate poverty and inequality which affect many girls, as a lack of access to sexual and reproductive health care education - including important information on where to access emergency contraceptives - cause female adolescents to bear the brunt of society’s negligence by giving birth to unplanned and unwanted children.69

The importance and relevance of realising adolescents’ sexual and reproductive rights in the context of reducing poverty are similarly recognised in the AU Commission’s Continental Policy Framework for the Promotion of Sexual and Reproductive Health and Rights in Africa (Continental Policy Framework).70 The Continental Policy Framework expressly recognises the connections between poverty and sexual and reproductive health, as well as their importance to sustainable development. 71

In sub-Saharan Africa, as in the rest of the world, the protection of adolescents’ sexual and reproductive health through their access to contraceptive services and information (including emergency contraception) not only generates concern among stakeholders, but also continues to be a constant subject of government policies and programmes due to the spread of HIV and unintended teenage pregnancies in many African countries.72 These stakeholders either canvass for the restriction of adolescent girls’ access to contraceptives and other sexual and reproductive health care information or services, or champion the increase of their access to the life-saving information and services.73

An important issue connected to adolescent girls’ sexual health and rights to access emergency contraception relates to the recognition of their autonomy.74 Representing an increasing segment in many societies,75 adolescents encounter various transitions, including the development of the identity; the acquisition of skills; and a move towards social and economic independence.76 In addition, increased physical and sexual maturity leads to the start of sexual activity.77

However, the initiation of sexual activity, especially in Africa, gives rise to problems associated with adolescents’ rights to access emergency contraception, in particular, and contraceptive information and services, in general. This is so because various stake-holders, including parents, tend to fight for control over the right to determine adolescents’ sexual health needs, thus putting them in danger of sexual ill-health and unplanned pregnancies.78 Tied to this struggle for control is the realisation that it is in the best interests of adolescent girls to recognise their autonomy and for them to access emergency contraceptives in confidential and adolescent-friendly environments in order to guarantee good sexual health outcomes.79

In Gillick v West Norfolk and Wisbech Area Health Authority & Another,80 the court held that a doctor would not be acting unlawfully if he gave contraceptive advice or treatment to an adolescent who is ‘Gillick competent’.81

Another means of achieving adolescent girls’ access to emergency contraceptives involves the adoption of approaches that guarantee access to factual sexuality information coupled with access to affordable and accessible emergency contraceptive services in general.82 In a review of emergency contraception literature from various countries - including developing countries - Family Health International notes that in all countries there is little awareness of the existence of emergency contraceptives.83 Even in countries where this concept is known, knowledge regarding its accurate use is low. In Tanzania, for example, although government policies support the use of emergency contraception and advise that the pills should be made available at every level of the health system, the use of emergency contraception remains low due to a lack of knowledge about their availability.84 In fact, in a Nigerian study adolescent girls identified their peers and friends as their major source of information on emergency contraception - not government health initiatives.85

In Uganda, although emergency contraception was re-introduced in 2007 after a period of government restriction,86 more than two-thirds of Ugandan women and adolescent girls have never heard of it, and consequently its use remains very low.87 This lack may be the result of the fact that Uganda has banned comprehensive sexuality education in its schools due to religious and societal opposition.88 Uganda further has a very high unsafe abortion rate which contributes to the high maternal mortality rate in that country.89 Emergency contraception may help reduce the rate of unwanted pregnancies, so reducing the high rate of unsafe abortions.

The same problem of access to accurate knowledge about emergency contraceptive use is observed in Nigeria and Ghana, where only 12 per cent and 11 per cent respectively of adolescents know the correct time frame for starting emergency contraception.90 In South Africa, even though several contraceptive methods are available withour charge at public hospitals - including emergency contraceptives - its utilisation among sexually-active adolescents remains relatively low.91

Restricted access to sexual and reproductive health care services, generally, and contraceptives (including emergency contraception), in particular, negatively impacts adolescents. This negative impact is seen in higher rates of unwanted pregnancies among adolescents.92 In a community-based study on abortion prevalence rates in Nigeria, it was revealed that a third of the women who obtained abortion procedures were adolescents who, due to the stringent anti-abortion laws in the country,93 end up patronising quacks under unsafe conditions.94 Also, in Côte d’Ivoire where restrictive abortion laws are in place, it was revealed that 70 per cent of abortions are carried out on girls and women aged 13 to 24, with the agreement of their parents or partners and upon payment of huge sums of money to health-care providers who do so illegally.95 In that country, those who cannot afford this expense are compelled to undergo backstreet abortion procedures which often have disastrous consequences.96 It is necessary to highlight that even in countries in Africa where abortion is legal, such as in South Africa,97 young women still face barriers which cause them to undergo unsafe procedures. 98

Adolescents not only experience unplanned and unwanted pregnancies, but also early child bearing which is linked to increased maternal mortality and morbidity rates.99 Especially in the African region early pregnancy is a major cause of death and illness among adolescent girls between the ages of 15 to 19 years, who experience disabilities associated with early sexual initiation, pregnancy and child birth due to their lack of physiological development, and emotional immaturity making them unable to adequately care for a child.100 These drawbacks underscore the urgency of guaranteeing adolescents’ access to accurate information on contraceptives - including emergency contraceptives - and quality adolescent-friendly sexual health care services.

Nevertheless, as shown above, adolescents possess only limited knowledge about contraceptives, generally, and emergency contraceptives in particular. It has also been shown that they lack access to sexual health care services or do not feel comfortable using these.101 A gradual increase in the age at which young people get married has also ensured that greater numbers engage in premarital sexual intercourse and, therefore, leads to an increase in unwanted pregnancies.102 According to the Demographic and Health Surveys (DHS) in Ghana,103 Kenya104 and Namibia,105 the proportion of currently-pregnant women under the age 20 who reported that their pregnancies were mistimed or unplanned was 42 per cent,106 52,7 per cent107 and 30,2 per cent108 respectively.

Given the high levels of unwanted adolescent pregnancies in Africa, it is self-evident that emergency contraception is an under-utilised method of primary pregnancy prevention, especially given its potential to reduce the number of unplanned pregnancies and, therefore, unsafe abortions.109 Ojule et al remark that emergency contraceptives have a considerable role to play in reducing the rates of unwanted pregnancies and unsafe abortions.110 However, low literacy levels, limited access to emergency contraceptive services and traditional beliefs that impede the use of modern contraceptive methods pose considerable challenges to their promotion.111

Sexual violence against women and female adolescents is one of the most pernicious consequences of the continued presence of economic, social and cultural inequalities between men and women.112 According to available data from the World Health Organization (WHO), one-third of women world-wide will experience violence in their lifetime; an estimated 7,2 per cent of women will be sexually assaulted and many more will experience unwanted sex from an intimate partner. Compounding the trauma of sexual violence and rape are fears of and unwarranted exposure to the risk of pregnancy and exposure to STIs and HIV.113

In Africa and the rest of the world, adolescents are constantly subjected to various forms of sexual violence in their homes, schools and communities. In Kenya, the African Child Policy Forum in a 2010 survey discovered that schools were the second-most common location for the perpetuation of sexual violence against girls aged 13 to 17. In Sierra Leone , 30 per cent of reported rapes were school-related. Similarly, in Swaziland it was revealed that one-third of adult women experienced some form of sexual violence as an adolescent.114 Plummer and Njuguna note that constant sexual abuse is a significant problem in many African countries, with girls experiencing sexual violence at a younger age than boys.115 Female victims have a higher risk of experiencing unplanned pregnancies and HIV. 116

While some African countries have developed policies for the management of sexual assault and to provide post-rape care,117 others do not have specific guidelines that may be followed in treating victims of sexual violence.118 Specifically in relation to Nigeria, there is no policy (whether local or national) that addresses the clinical management needs of rape survivors in that country.119

The administration of emergency contraceptives has consistently been identified as one of the minimum core requirements for the post-rape care of victims of sexual violence, as up to 5 per cent of sexual assault victims fall pregnant as a result of the assault.120 Consequently, as a matter of respect for the human rights of female adolescents and a public health imperative, it is essential that emergency contraceptives are readily available in emergency health care facilities. However, while HIV prevention treatments tend to be readily available, emergency contraception often is inaccessible despite the reality that the risk of an unintended pregnancy occurring is as high as the risk of HIV infection.121 A case in point is that of the Democratic Republic of the Congo (DRC) where, despite high rates of sexual violence, access to emergency contraception is absent from key national health policies, and is not used in post-rape care.122 This is so despite the fact that the WHO’s Global Guidance on Sexual Violence recommends the provision of emergency contraceptives as an integral part of prompt and comprehensive women-centred sexual and reproductive health care.123

5 Challenges to adolescents’ access to emergency contraception: A case study of Nigeria

5.1 Introduction

The provision of detailed and accurate sexual and reproductive health care information and services is a significant factor in ensuring that the sexual and reproductive rights of people are fulfilled.124 Ensuring that female adolescents in Africa have access to complete information on contraceptives (including on emergency contraception) and other sexual and reproductive health issues from an early age facilitates the development of their autonomy which, in turn, allows them to make informed choices about their sexual health later in life.125

In particular, guaranteeing adolescents access to various emergency contraceptive options is germane to their enjoyment of the right to sexual and reproductive health care as guaranteed in various human rights instruments. The Committee on the Rights of the Child (CRC Committee) has often reiterated that the obligation to respect, protect and fulfil the rights of children includes a duty to ensure that adolescents not only have access to available sexual and reproductive health information which is essential for their health and development, but also that they have access to available contraceptive methods of appropriate quality according to their evolving capacities.126 Regrettably, however, adolescent girls encounter numerous challenges in obtaining factual information about emergency contraception and where to access these pills,127 and thus are adversely affected.128

5.2 Challenges

A number of challenges hinder adolescents’ access to emergency contraceptives. First are laws and policies restricting adolescents’ access to the medication. According to Gupta, although the majority of governments that are state parties to conventions guaranteeing the right to health and thus the right to sexual health care information and services, in compliance with their obligations, seek to fulfil the rights of women and female adolescents to sexual health care, in many of these countries the choice of whether to use emergency contraceptives or not is not in women’s hands.129 Hurdles are placed in their way by anti-choice parties who seek to block access to the emergency contraceptives by all means, thereby forcing governments to declare them to be abortifacients.130

The existence of clear policies on emergency contraception promotes their use and availability. If this type of contraception is not included in family planning programmes and are available on prescription only, health care providers are at a loss: It is only through the existence of clear provisions regarding their availability and use that health care providers are able to recommend emergency contraceptives to adolescents who need them. For example, emergency contraceptives are neither included on the DRC’s Essential Medicines List, nor in that country’s national health policies, despite the fact that the DRC has a very high rate of sexual violence.131 In Nigeria, although registered, emergency contraceptives are not included on the country's Essential Drugs List.132

It should be noted that it is very important that emergency contraception be accessed on an over-the-counter-basis. This need is because the requirement for a prescription entails the adolescent making two trips: first to the hospital to get a prescription; and, second, to a pharmacist to buy the emergency contraceptives. This demand creates unnecessary obstacles and significantly encroaches on the use of emergency contraception during the 'safety window'.133 In R (Smeaton) v Secretary of State for Health,134 the courts in the United Kingdom held that the sale of emergency contraception was not prohibited by the Offences Against the Person Act135 and, therefore, refused an application that its over-the-counter sale be restricted. In that case, the claimant challenged the prescription of the morning-after-pill on grounds that using the pill would cause miscarriages, and that its use would be an offence under the 1861 Act. In reaching the decision that the morning-after-pill was not an abortifacient, the judge explained that ‘[t]he 1861 Act was an “always speaking” Act, and was to be interpreted according to current understanding and not as in 1861’. The judge in fact noted that136

    [t]here would in my judgment be something very seriously wrong, indeed grievously wrong with our system ... by which I mean not just our legal system but the entire system by which our polity is governed if a judge in 2002 were to be compelled by a statute 141 years old to hold that what ... millions, of ordinary honest, decent, law-abiding citizens have been doing day in day out for so many years is and always has been criminal. I am glad to be spared so unattractive a duty.

In addition, the limited availability and the high cost of emergency contraception are barriers that prevent adolescents’ use of the contraception. Adolescents will forgo the use of emergency contraception where it is not readily available at public health centres and can only be accessed from expensive private sources.137

Furthermore, another impediment which affects access to emergency contraceptives involves the use of ‘conscience’ clauses138 that allow health care providers (and pharmacists) to refuse to provide emergency contraception pills and other contraceptive methods to adolescents and women because of their religious inclinations. This loophole significantly affects adolescents’ ability to access emergency contraceptives within the 120-hour time frame when they are most effective.139

Another challenge faced by adolescents who access emergency contraception relates to their lack of knowledge about the various types of contraceptives, including emergency contraceptives. Hooja and Mital state that although adolescents may be aware of the existence of emergency contraceptives, they generally are not properly informed as to the correct time frame for starting treatment.140 In fact, even though adolescents may have heard about emergency contraceptives, their use as a method of birth control after unprotected sexual relations is very low due to misconceptions that range from viewing them as an abortifacient to a belief that they will make them infertile.141 Babatunde et al are of the opinion that the low prevalence rates of contraceptive use (including that of emergency contraception) may also be tied to poor societal attitudes towards adolescent sexuality in African communities.142 Isa et al in a study of the unmet need for emergency contraceptives among female adolescents in the Niger Delta also note that young women seeking to access sexual health care services (especially for contraception) face social and cultural obstacles which make it difficult for them to access effective contraception, thereby exposing them to the risk of unsafe abortions.143 According to Amnesty International, the lack of access to information on sexual and reproductive health rights combined with women’s low socio-economic status within the family and society at large, among others, are dominant factors undermining their right to exercise autonomy over their own sexual and reproductive health.144

Even where knowledge exists about the existence of emergency contraception, the capacity of adolescents to give consent to medical treatment is another problem affecting their uptake of emergency contraception and other sexual and reproductive health care services.145 In addition, unfriendly and judgmental attitudes among health care providers negatively affect adolescents’ access to emergency contraceptives. According to Family Health International, in Zambia and Zimbabwe, adolescents see health care providers in government hospitals as unwelcoming and judgmental.146 These health care providers not only make adolescents feel embarrassed, but they strip them of their right to privacy as their services are not rendered in a confidential environment.147

In addition, as a result of socio-cultural beliefs, health care providers, parents and even policy makers fear that adolescents’ use of emergency contraception will lead to their engaging in unprotected sexual intercourse more readily, thereby limiting their use of regular contraceptive methods.148 However, it is important to stress that this belief is unfounded as studies on emergency contraceptives reveal that their use does not necessarily expose adolescents to greater risks of STIs and HIV infection, as those who use emergency contraception are not less likely to use other methods of contraception. Instead, adolescents’ access to emergency contraception may provide them with an opportunity to learn about the availability of regular contraceptive methods. 149

Other challenges affecting the use of emergency contraceptives by adolescents in Africa include inconvenient operating hours at adolescent-friendly clinics; adolescents having to travel long distances to access emergency contraceptive services; and the fact that the majority of health care providers are not properly trained in the provision of emergency contraceptives.150

Another important hurdle to the uptake of emergency contraception is the fact that in many African countries these contraceptives are accessed in the private health care service only, causing them to be more expensive than other contraceptive methods. In Kenya, for example, private sector pharmacies account for as much as 94 per cent of emergency contraceptive sales.151

Below we examine Nigerian adolescents’ access to emergency contraception as guaranteed in the Nigerian Constitution, legislation and policies. We briefly investigate the realisation of those guarantees in adolescents’ access (or lack thereof) to emergency contraception in Nigeria.

5.3 Nigerian adolescents’ access to emergency contraceptives: A case study

As the country with the largest population on the African continent, Nigeria’s population totals over 182 million people,152 and adolescents represent over 22 per cent153 of this total. As is the case with their counterparts in the rest of Africa and the world, Nigerian adolescents often are sexually active at a young age.154 This activity comes with the risks usually associated with adolescent sexual behaviour, including unplanned and unwanted pregnancies.155

The large number of adolescents in Nigeria, coupled with the fact that many of them are sexually active, makes it critical that their sexual health is protected through their unhindered access to emergency contraception and other sexual health care services and information.156

Despite the large number of adolescents in the country, access to quality and affordable sexual health care information and services remains out of reach for those adolescents who need it most.157 This fact is the result of religious and socio-cultural factors,158 and is despite the fact that the Nigerian Constitution159 guarantees adolescents’ rights, including their right to life,160 dignity,161 privacy,162 information163 and non-discrimination.164 All of the aforementioned rights are pivotal in ensuring the protection of adolescent sexual and reproductive health, including their access to contraception, also emergency contraceptives.165

In addition, Nigeria is a party to several international and regional human rights instruments,166 and has domesticated the African Charter167 which guarantees the right to health in article 16. This factor makes it possible for courts to rely on the African Charter’s provisions in order to ensure that adolescents access emergency contraceptives and other crucial sexual health care services. 168

Further to the international human rights instruments and constitutional guarantees mentioned above, Nigeria’s legislation169 and policies170 have a direct bearing on adolescent girls’ access to emergency contraceptive information and services. The Child Rights Act171 mandates that in matters concerning children, their best interests should be the primary consideration with guidance and direction provided to them according to their evolving capacities.172 With regard to the right of adolescents to sexual health; the Child Rights Act recognises numerous rights, including the rights of children to enjoy the best attainable state of physical, mental and spiritual health; the rights to privacy; the rights to equality; the rights to dignity; and the rights to education, among others.173 The inclusion of these rights in the Child Rights Act174 is to be welcomed, as adolescents not only deserve the adoption of precautionary measures to ensure their survival and socio-economic development,175 but they also require adequate access to affordable emergency contraceptives and other sexual health care information and services in a confidential environment with unbiased health care providers in order to allow them to make informed choices about their sexual health.

Recently, the Nigerian National Health Act176 was enacted. This Act, aimed at guaranteeing access to basic health care services in the country, provides a framework to be used to periodically effectively monitor, plan, finance and appraise health care services.177 Apart from specifically determining that health care providers under no circumstances are to refuse emergency treatment,178 the Health Act includes provisions on making accessible to patients relevant information on their health,179 and assures that patient privacy and confidentiality are constantly maintained (except in situations where to do so will prove impossible).180 Although the Act does not specifically refer to adolescents, adolescents form a part of the larger patient group which it seeks to protect. Thus, the enactment of the Act is a step in the right direction, especially for adolescents who face obstacles when seeking to obtain emergency contraception and other sexual health care information and services at government hospitals, such as a lack of privacy.181

In addition to the above, Nigeria has adopted several policies182 aimed at promoting adolescent wellbeing and development, and which have a direct influence on their access to sexual health care information and services, including emergency contraceptives in an adolescent-friendly environment. The National Health Policy183 provides for a system where health care service delivery is the joint responsibility of the three tiers of government that are primarily responsible for health care services delivery in three (primary, secondary and tertiary) levels in the country.184

Local government councils are not merely responsible for the primary health care centres in the various communities with support from their respective state ministries of health, but they are also responsible for the provision of the first level of care, immunisations and family-planning services.185 Although the three levels of government have the responsibility for a particular level of health care, they are not precluded from providing services in either of the other two levels of care.186

Noting that Nigeria’s maternal mortality rate is among the highest in the world, the 2004 Health Policy187 sets targets that are of relevance to adolescent girls, such as reducing the maternal mortality rate by three-quarters and halting the spread of HIV by 2015.188 Strategies for the achievement of these goals include ensuring capacity building of health care providers and the availability of materials (including emergency contraceptives) necessary for the provision of efficient sexual health care services.

A new National Health Policy was drafted in 2016189 in order to achieve universal health coverage and other health-related sustainable development goals. The 2016 policy notes that access to primary health care is the fulcrum of the Nigerian health care system and highlights that health care services rendered at these primary health care centres are generally poor and do not instil confidence in the public. This lack is mainly because of fragmented systems for the distribution of medicines, including contraceptives generally and emergency contraceptives in particular. 190

Additional policies of relevance to adolescents’ access to emergency contraception in Nigeria are the National Reproductive Health Policy and Strategy191 (which provides for actions by the government to ensure adolescents’ access to sexual and reproductive health care services including emergency contraceptives);192 the Family Life and HIV Education (FLHE) Curriculum,193 introduced as a result of the realisation that adolescents are involved in unsafe sexual practices (despite widespread censure of adolescent sexual relations), and the necessity to restructure the existing family life education curriculum in order to allow for sexuality education at the different educational levels in the country.194 The aim is to reduce misinformation, to strengthen positive attitudes and to increase adolescents’ skills in making informed decisions in relation to their sexual health.

Despite these laudable policies, the main criticism is that the policies are poorly implemented;195 they are unrealistically ‘watered

down’; and they merely serve as ‘guidelines’ for the implementation and provision of health care services and, as such, are not justiciable.196

5.4 Nigerian adolescents’ access to emergency contraceptives

Several reasons have been advanced for the rise in adolescent sexual activity in Nigeria. Some attribute this escalation to the collapse of traditional customary principles,197 whereas others are of the view that adolescents engage in sexual activities in order to gain economic benefit.198 Kroone asserts that a major explanation for the increase in adolescent sexual relations is the fact that young people marry later in life as they spend many years studying. Nigerian adolescents’ adoption of Western ideas and thoughts is also to blame.199

In some cases adolescent sexual activities are a result of peer pressure, but in the majority of instances, sexual activity among adolescents occurs due to the desire to satisfy their curiosity and, therefore, are a matter of choice.200 More often than not, adolescent girls in Nigeria are victims of sexual violence201 in most cases perpetrated by persons in positions of trust.202 Adolescent sexual relationships often are impromptu203 and, consequently, carry the risk of unwanted teenage pregnancies.204 This is why knowledge and information about emergency contraceptives and other important sexual health care services are so desperately needed.205

In a study on the use of non-conventional methods such as emergency contraception in Nigeria, Ajayi et al discovered that even in situations where adolescent girls were aware of emergency contraception, their rate of utilisation remains low due to misinformation and misconceptions about emergency contraception.206 The belief that emergency contraception is an abortifacient reveals a major misconception about this contraception among adolescents: a further cause of it not being used.207 In fact, due to misinformation, adolescents prefer to use unconventional ‘contraceptive’ methods as a substitute to using recognised emergency contraceptive pills and resulting in great harm.

It is necessary to emphasise that ensuring Nigerian that adolescents have information about where to access emergency contraceptives is particularly crucial as the termination of unplanned and unwanted pregnancies is illegal in the country, except in situations where the woman’s or adolescent girl’s life is in danger.208 At present, illegal and back street abortions209 are major contributors to the high mortality and morbidity rates in the country.210

The available data on the sexual and reproductive health outcomes of Nigerian women and adolescents is not encouraging:211 The country contributes 10 per cent of the world’s maternal deaths.212 According to the Demographic and Health Survey of Nigeria, the country not only has a maternal mortality ratio of 576 maternal deaths per 100 000 live births, but the lifetime risk of maternal death indicates that one in 30 women in the country will suffer death related to pregnancy or childbearing.213 Adolescent girls contribute to Nigeria’s high maternal mortality rate as the high rate of unintended pregnancies among the group is a public health crisis (as it is worldwide),214 and adolescent pregnancy is the main reason for death and ill-health among girls between the ages of 15 and 19.215 The consequences mentioned above necessitate that Nigerian adolescents gain wider access to information regarding emergency contraceptives and their use, as well as to information about places or centres where emergency contraceptives and other sexual health care services are available free of charge (or at affordable prices) in the manner envisaged under the African Women’s Protocol216 and the ICESCR.217 Generally, Nigerian adolescents experience the same challenges when accessing emergency contraception as their counterparts in the rest of Africa. 218

Similar to the situation those in Nigeria, adolescents in Ethiopia experience poor sexual and reproductive health outcomes as a result of their limited knowledge about sexual health and their limited access to relevant information. This is particularly due to a belief that it is not appropriate to publicly engage in discussions about sexual relations.219 However, in order to address these problems, the Ethiopian government recently published several new policies, including the National Adolescent and Youth Reproductive Health Strategy,220 which specifically address the sexual and reproductive health needs of Ethiopia’s young population, as well as the National Comprehensive Reproductive Health Services for Adolescents and Youth Provider Training Curriculum.221 These measures were undertaken in order for Ethiopia to align itself with the WHO Guidelines which emphasise the right of young people to privacy, confidentiality and respect when accessing sexual and reproductive health care services, and assuring the provision of comprehensive and integrated sexual and reproductive health services by a non-judgmental, trained health-care provider.222

Understanding that the mere formulation of policies is not sufficient to combat the formidable barriers impeding its adolescents’ ability to access sexual and reproductive health services, the Ethiopian government, in partnership with non-governmental organisations (NGOs), also adopted an integrated health care services approach whereby the provision of different health care services is integrated into various youth-friendly sexual and reproductive health care services, including contraception and post-abortion care services in order to maximise adolescents’ access to quality health care.223

The adoption of the Integrated Family Health Programme in Ethiopia encourages adolescents to visit health facilities where emergency contraception services are offered alongside other, more general health services, thereby reducing the stigma and embarrassment young people experience when accessing sexual health services. The Integrated Family Health Programme notes in its end-of-programme report that Ethiopia’s adoption of adolescent and youth-focused interventions has greatly assisted in increasing access to sexual and reproductive health-related information and services for more than 14 million young persons.224

In addition to the measures mentioned above, and acting upon the realisation that religious leaders hold great sway in traditional Ethiopian society, including their giving advice on sexual and reproductive health issues such as family planning, religious leaders were enlisted to incorporate sexual and reproductive health advice in their routine religious messages. 225

5.5 Strategic interest litigation as a tool to demand accountability

It is increasingly being recognised that the courts are an important avenue for attaining higher standards in the enforcement of the sexual and reproductive health rights of girls and women. In fact, national courts often are approached by human rights advocates to assist in bridging the gap between international human rights standards and the reality lived by women.226

Recognising the importance of adopting a strategic litigation approach, Roa and Klugman227 note that strategic litigation228 is invaluable in raising awareness - domestically or internationally - about various rights, including sexual and reproductive health, as well as the obligation on states to respect, protect, fulfil and promote these rights. This approach is a means of ensuring state accountability as attention is drawn to the plight of the most vulnerable in society who, for several reasons, may not have access to that which is guaranteed in international human rights instruments.

As pointed out above, adolescent girls in Nigeria continue to be vulnerable to sexual and reproductive ill-health, including maternal mortality and morbidity. Their access to emergency contraception and other life-saving sexual and reproductive health services is impeded, despite the country’s human rights obligations according to regional and international instruments, as well as constitutional guarantees of the rights to life, dignity, privacy and access to information. In the case of Nigeria and in the rest of the developing world, therefore, the use of strategic litigation may go a long way towards making governments live up to their responsibilities.

However, it is necessary to point out that the strategic use of litigation is not a new approach as it has in the past been used to hold governments accountable for human rights violations. Such instances include the South African TAC case,229 where the government’s decision to provide restricted access to Neviropine, an anti-retroviral drug, to pregnant women living with HIV was successfully challenged. Also, in the case of Environmental and Consumer Protection Foundation v Delhi Administration & Others,230 this approach was used