PROTECTION OF WOMEN AGAINST DISCRIMINATORY LAWS, POLICIES AND PRACTICES IN NIGERIA: AN APPRAISAL

ABSTRACT

 Human rights are rights that have come to be guaranteed over time, to all men and women, irrespective of race or creed. These rights extend to even the unborn, in certain circumstances. However, in many societies, women are subject to discriminatory tendencies in the form of laws, policies and practices that derogate from their human rights, simply became of their gender. Many international instruments have been put in place to stem these negative tendencies, especially through the works of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Labour Organization (I.L.O) In Nigeria, for instance, women tend to suffer inequalities in the social, political , economic and cultural fields. This is notwithstanding the fact that there are formal provisions on the statute books that guarantees equality to all before the law. As the ‘grundnorm,’ all the Constitution made for Nigeria with their fundamental rights provisions envisage equality of all citizens, whether male or female. The Thesis finds that the envisaged equality is at best formal and not actual, even though the country is a party to international conventions and instruments that provide for equal enjoyment of human rights by both genders. Some laws, cultural practices and traditions have been fingered in restricting and derogating from the enjoyment of basic rights by women. This thesis sets out to identify derogations from women’s rights, its effects and proffer suggestions on how to curtail these gustative tendencies, with particular reference to Nigeria.

CHAPTER ONE

 GENERAL INTRODUCTION

 1.1        BACKGROUND TO STUDY

 Women  are  connected  to  other  human  beings   through  the  biologically  based  activities  of pregnancy, breast-feeding and heterosexual intercourse¹. However, throughout history, women have had to struggle against direct and indirect barriers to their self-development and their full participation in social, political, economic and cultural activities of different societies. Discrimination against women starts at birth, in the discriminatory practice of ‘son preference’. A leading Non-Governmental Organization (NGO) in Nigeria, the Civil Resources Development and Documentation Centre (CIRDDOC)² describes it as: “the practice whereby the male child is given preferential treatment over the female child. The male child gets all the attention, with time he is the one sent to school, while the girl child remains at home” ³

1. West, R.(1988). Jurisprudence and Gender. In: Freeman, MDA , Loyd’s Introduction to Jurisprudence Seventh Edition (London: Sweet and Maxwel Limited , England, pp. 431-437

2. CIRDDOC, based in Enugu Eastern Nigeria; is one of the many NGO’s active in the field of advancement and protection of woman rights in Nigeria.
3. CIRDDOC Public Education Series No. 12 (2002): Tribunal on Violations of Human Rights in Nigeria, P.14

Some Igbo customary law rules carry the practice further; when a father dies, they purport that it is only the son (s) that can inherit, the daughter(s) are treated as some form of chattel⁴:

On the international stage, discrimination against women has been noted and acknowledged. Thus, the Universal Declaration of Human Rights by the United Nations in 1948 asserts in its preamble, the “inherent dignity and of the equal and inalienable rights to all members of the

human family”⁵

As such, women human rights have been described both as rights that women have by virtue of being human, and as rights specific to women. It is therefore worth noting that in some circumstances, women suffer human rights abuses in a specific form, related to their being females. ⁶ The assertion of rights    presume their existing or probable violation and a desire to remedy or prevent violation⁷. As these rights relate to women, they have given rise to gender studies, women movements and the concept of feminism.

4. Mojekwu vs Mojekwu (1997) 7NWLR (Pt 512) p. 283
5. Emphasis supplied
6. Ilumoka, O. A. (1994) “African Women’s Economics Social and Cultural Rights –

 

Towards a Relevant Theory and Practice”. In Cook, J. Rebecca (ed) Human Rights of Women: National and International Perspectives (USA., University of Pennsylvania Press, 1994) pp. 307-325 at P.311

7. Ibid p. 307

According to Peterson and Runyan⁸, no woman is born and not all women embrace the concept of feminism. How one becomes a feminist varies with each individual, but the impetus for developing what has been termed “feminist consciousness” often arises, when a person experiences a contradiction between who that person thinks she is and what her particular society wants her to be. Feminist consciousness may also arise out of a contradiction in the opportunities a particular society professes to offer to an individual and what that individual experiences.⁹ In industrially advanced countries, for example, women are typically told that, under the law, they have equal opportunities to compete for political and economic power. In practice, however, indirect or structural barriers to full political and economic participation reduce most women’s rights and choices. On the other hand, in more traditional societies, especially those that experienced some form of colonial or neo-colonial rule, colonially imposed laws and certain cultural and religious traditions combine to deny equal opportunities to women, even under the law¹⁰. The experience in India for instance, has been lucidly described by Kirti Singh.¹¹ She asserts that while the constitution adopted at (Indian) independence contained articles mandating equality and non-discrimination on the grounds of sex, several laws that clearly violate the

8. Peterson, Y. S. and Runyan A.S. (1993). Global Gender Issues. West view Press, Colorado, USA, p.166
9. Ibid p.167
10. Ibid 167
11. Singh, K.( 1994).Obstacles to Women’s Right in India In Cook, J.R (Ed) Human Rights of Women: National and International Perspectives S.A,

University of Pennsylvania Press, 1994, PP 375-396 proclaimed principles continue to exist, especially in the area of personal laws or family laws¹²

 These laws broadly deal with¹³:

• Marriage and divorce;
• maintenance;
• guardianship;
• adoption;
• wills;
• intestacy and successions;
• joint family; and

Singh maintains that prior to Indian independence, the British colonial masters followed a policy of retaining and not repairing, the family laws applicable to Hindus, Muslims and Parsis .Family laws were therefore extremely backward at the time of independence in 1948¹⁴. She is of the opinion that the Indian state made no effort to change these laws or introduce new legislation in conformity with constitutional principles. Singh concludes flatly, that: “ The most significant barrier to women’s rights in India, therefore, is a hostile state that is not actually interested in giving them any rights”¹⁵. With  time,  there  has   developed  different  schools  of  thought  on  feminist  jurisprudence   or feminism. Cain¹⁶  offers a useful categorization into liberal, radical,  cultural and postmodern feminism.

Ibid, p. 375

3Ibid, p. 378

4Ibid, p. 380

5Ibid, p. 376

6Cain, A.P (1990). Feminism and the Limits of Equality. In: Freeman, M,D,A pp. 1149-1157

A somewhat similar distinction is made by Peterson and Runyan¹⁷ into liberal feminists, radical feminists, socialist feminists and postmodernist feminists. We need not go into the details of what these categorization or classification entails. Suffice it to say, however, that the earliest theme of feminist thinkers about law was equality with men. For liberals, equality amounts to equal opportunities, Radical feminists focus on differences between women and men, and support affirmative action to challenge inequalities. Cultural feminists also emphasize difference but view it more positively. Post modern feminist, found most often in academic circles, also want to see an end to women’s oppression in all spheres. In addition, postmodernists are critical not just of gender dichotomies and categories but also of the concept of gender itself ¹⁸.

It is important to note, however, that rights generally have never been absolute and universally applicable. In many of their struggles, for instance, African women have not necessarily acted in opposition to men as a group, even when they have organised against discriminatory practices perpetrated by males. These struggles have generally not taken the form of assertion of rights made by groups of women most affected, or by others acting on their behalf. Calls for justice and improved conditions of health, for example, have often been the basis for demanding change. Change has thus come with the organization and mobilization of women, in many cases, as a result of joint action by men and women¹⁹

• Peterson, Y. S. and Runyan A.S. cit. pp. 117-121
• For a fuller description of the different Feminist Schools of Jurisprudence, see Peterson and Runyan, op. cit.
• Ilumoka, O.A. op. cit. 319

On the contrary, the women’s rights movements in Europe and America project the concerns of privileged, middle-class women who, because of their cultural affinity with and access to centers of power, are able to make their voices and concerns heard.²⁰ One problem that feminist jurisprudence has had to contend with therefore, is the right of cultures to live according to their own value systems. How should a Western legal system respond, for example to polygamy? African women’s struggles for human dignity and well-being in its own sphere, are located in the context of political, economic and cultural domination within an unjust international system of allocation of resources. Thus, for the large majority of women in Africa whose struggle for basic needs and subsistence (along side men) prevents them from changing their lives for the better, addressing the problem of poverty is a priority human rights  issue.²¹ Ironically, the economic policies that aid, abet and compound their poverty problems are expounded by U.N agencies and countries of the Northern Hemisphere, which have constituted themselves watchdogs  against the violation of international civil and political liberties²². There is no doubt, however, that discriminatory tendencies exist, of which women are more often than not at the receiving end; in different ways, to varying degrees, within different cultures and value systems. It is against this background that the thesis sets out to consider some policies and practices which are detrimental to the full realization of women‘s right in Nigeria

• Ibid, p. 320
• Ibid, p. 321
• Ibid

1.2                              STATEMENT OF THE PROBLEM

The problem is seemingly straight forward: there is a wide gap between the law in the statute books and the law in practice, between proclaimed constitutional principles and societal practices, between agreed international instruments and municipal legislative measures. We may examine, for instance, the principles proclaimed in constitutions which is the grundnorm wherever it exists. Every nation-state has a constitution, since every country functions on the basis of certain rules and principles. Most constitutions thus affirm the right to non-discrimination on the basis of sex.

 The Indian constitution for example, adopted in November, 1949 is no exception. That constitution has a “Fundamental Rights” chapter that guarantees various rights. The rights of special importance to women are contained in Article 14²³ and Article 15²⁴ Article 14 provides that: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, while Article 15(1) expressly prohibits discrimination “on grounds only of religion, race, caste, sex, place of birth or any of them”.

In addition, Article 16(2) mandates that: “no citizen shall, on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the state”

• The right to equality
• Prohibition against discrimination

A similar situation is found with the Nigerian Constitution. All the Constitutions that have been adopted for the Federal Republic of Nigeria firmly state the right to nondiscrimination on the basis of sex. The 1999 constitution, whose provisions are identical to that of 1979, provides in Chapter IV, the inalienable rights of all citizens irrespective of sex, creed or religion. Section 41 for instance;  renders  all  laws  including customary and  religious  laws,  subsidiary legislation, regulations   and   official   government   practices   that   permit   discrimination   against    women unconstitutional. Thus Pats-Acholonu, JCA²⁵  (as he then was) while delivering the judgment of the court declared that:

The rights of all sexes are protected under the Constitution which is the organic law of the land, therefore any assertion or argument that a woman cannot give evidence in relation to title to land is oblivious of the constitutional provision which guarantees equal rights and protection to all sexes under the law.²⁶ However, the same section (41) goes ahead to make the exception contained in subsection 3, relating to appointment in the public service, armed forces and the Police Force. It is therefore no surprise that in the subsidiary legislation pursuant to the Police Act²⁷, it is stipulated that at enlistment, the marital status of a woman police officer most be unmarried²⁸

• Uke vs Iro (2001) 11.NWLR (Pt. 723) p.196
• Ibid, at p.202
• Cap 19 LFN 2004
• Regulation 118(g) of the Nigerian Police Act.

Furthermore, an unmarried woman police officer who becomes pregnant shall be discharged from the Force, and shall not be re-enlisted except with the approval of the Inspector-General of Police²⁹  The problem is starkly realized when it is appreciated that under the criminal statutes, abortion is a serious offence,³⁰  all of which tend to severely constrain a woman’s sexual and reproductive choices, in an era of biting unemployment.

Police Regulation No.124 illuminates the discriminatory tendencies contained in the law, which reveals that what the Constitution gives by the right in s. 41 (1) is taken by the left in s. 41(3).

This particular Regulation provides that:

a woman police officer who is desirous of marrying must first apply in writing to the Commissioner of Police of the State Police command in which she is serving, requesting permission to marry and giving the name, address and occupation of the person she intends to marry. Permission will be granted

for the marriage if the intended husband is of good character…³¹

The questions begging for answers are many. By what parameter did the Police as an institution of state become ‘in loco parentis’ to an unmarried woman police officer? What happens where the husband ‘approved’ by the Police authorities is objectionable to the biological parents? Will the Inspector-General or the State Commissioner of Police mandate or delegate a (superior) Police Officer to give the ‘bride’ to the approved bridegroom? What are the objective criteria for determining “good character” of a woman police officer’s suitor? Since nobody knows

• Regulation 127 Ibid
• 228 Criminal Code, S. 232 Penal Code
• All emphasis Supplied tomorrow, what happens when a suitor of “good character” becomes a husband of ‘terrible character? In any event no such conditions are imposed on the would be wives of male police officers!

The problem of discrimination against women is not restricted to employment or labour law alone or the Police as an establishment. The problem manifests in many ways, which include but is not limited to:

• injurious widowhood practices in matrimonial causes;
• inheritance and succession in family law or personal law;
• violence against women;
• female trafficking, enforced prostitution and enslavement;
• child marriage and reproductive health implications;
• discriminatory tax practices;
• son’s preference;
• work-Place discrimination; etc

Inheritance and succession under customary laws have proved particularly problematic. It was canvassed that a woman cannot be called to give evidence in relation to land subject to customary rights of occupancy. ⁽³²

32. Uke vs Iro (supra) p.196

Similarly, it was contended in another case that under the “Oli-Ekpe” customary law of inheritance from Nnewi, in Eastern Nigeria, the custom permits the son of the brother of a deceased  person to inherit his property, to the exclusion of the deceased’s female child.⁽³³⁾

1.3          OBJECTIVE OF THE STUDY RESEARCH

This thesis has, among its objectives, the following: to

• identify the constitutional provisions, laws and international instruments which relate to human rights on a universal basis;
• evaluate how much these provisions, laws and instruments are complied with and enforced, in practical terms;
• identify the laws, instruments and provisions that assure to women especially, freedom from discrimination on the basis of gender;
• highlight those policies and practices which militate against the full realization of the economic, social, political and cultural rights guaranteed to women in different societies;
• focus on the Nigerian society in particular and the manifestation of discriminatory laws, policies and practices directed against women;
• since the implementation of a law determines its efficiency, to evaluate the extent to which anti-discrimination measures are implemented; and

33. Mojekwu vs Mojekwu (supra) p. 283

• to suggest, in addition to what has been done, what other measures can be put in place to minimize, if not eradicate, discriminatory policies and practices being perpetuated based on gender.

1.4       SCOPE OF THE RESEARCH

 The study sets out to examine women’s rights as part and parcel of universally proclaimed human rights – those rights that “a person enjoys by virtue of being human” and of which women therefore are not exempted from its enjoyment.

As such, the scope of the thesis extends to an examination of municipal laws and international instruments that have come into force to protect women from discriminatory tendencies, focusing on the situation in Nigeria.

The municipal laws so examined include constitutional as well as customary and Islamic laws. The international instruments acceded to by Nigeria, which have a direct bearing on the research, were also considered. Perhaps the oldest is the Convention for the Suppression of the Traffic in Persons and the Prostitution of others, adopted in 1949^(34). This Convention has found expression in the (Nigeria) Trafficking in Persons (Prohibition) Enforcement and Administration Act 2003. Therefore, the study considered some of the policies and practices which are detrimental to the full reliazation of women’s right in the country. The study does not aim to only identify the problems that derogate from these rights but also proffer solutions.

34 Cook, J.R(ed) (1994), Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, pp. 573-575

1.5        RESEARCH METHODOLOGY

 There   are   different   types   of   research   methods,   which   include   empirical,    doctrinal    and teleological³⁵ but the researcher uses essentially doctrinal method. Doctrinal (or a priori) research involves making use of books, statements, law reports and other relevant documents to conceptualize a study and thereafter to make recommendations. This methodology has been particularly used in this study.

The primary source of research materials are legislations and decisions of superior courts of records. Secondary sources include textbooks, journals, articles and law reports. The publications by NGO’s tend to be contributions from different researchers and women advocates, compiled and edited into a (book) text.

As may be expected, different aspects of human rights issues in general, women’s rights in particular, have been tested in the courts in Nigeria; sometimes up to Supreme Court, and in many other instances , at the Court of Appeal. The Fawehinmi’s case⁽³⁶⁾ for instance, which decided on the applicability of the African Charter on Human and People’s Rights in Nigeria was considered of significant constitutional importance that it was heard by a full panel of seven Supreme Court justices.

35. Aboki, Y. (2009). Introduction to Legal Research Methodology. Second Edition. Tamaza, Publishing Company Limited, Zaria, Nigeria. pp. 2-3
36. Abacha vs Fawehinmi (2000) 6 NWLR (pt.660) p.228

Journal articles, for example, from the medical field, which describe the nexus between harmful practices suffered by women and maternal health problems provide some revealing data. Other sources include newspaper articles and materials available on the internet.

1.6       SIGNIFICANCE OF THE STUDY

The study is significant to the continuing and progressive discussion on gender issues, as it affects women. Women in Nigeria, for instance constitute almost half of the total population of the country, and a lot of concern has been raised on their behalf, of how they are short changed despite provisions in the 1999 Constitution which guarantees them freedom from any form of discrimination. Section 42 (3) of the Constitution has been a strongly contentious provision. It provides that: “nothing … shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person … as a member of the armed forces of the Federation or a member of the Nigeria Police Force…” Significantly, it has been canvassed that this provision has been used to practically discriminate against women in appointment into the Nigerian Police. It is not only in Nigeria that concerns have been raised against policies and practices that are unfavourable to women. The thesis seeks to contribute to this age-long debate.

1.7        LITERATURE REVIEW

 Human rights in general has fund particular expression in International Human Rights Law. As such, a wide spectrum of texts and materials exist on the subject, in the form of books, monographs and journals by Rebecca Cook^(37), Rebecca Wallace⁽³⁸⁾ and Christian Tomuschat⁽³⁹⁾ Professor Tomuschat discusses the idea of human rights in great detail, advancing a consist description of the concept as “rights a person enjoys by virtue of being human without any supplementary condition being required” He also described the evolution of human rights and wrote about the different “generations” of human rights, inspired by the nominative themes of the French Revolution (1789) and attributable to the French jurist, Korel vasat.

Professor Wallace on the other hand, examined the many international instruments and proceeds of conferences that have come to shape international human rights. For example, the voluminous Beijing Declaration (1995) outlining the Platform for Action for the realization of women’s right’s was considered in her textbook, clause by clause. Of particular relevance to the right of women in different societies, is the work edited by Rebecca Cook, in which factors affecting the human rights of women were considered from many countries – Nigeria, India, the Americas, etc – by different contributors, thus offering a transnational perspective.

• Cook, J.R (ed) (1994). Human Rights of Women: National and International Perspectives. University of Penusylvania Press, Philadelphio, U.S.A.
• Wallace, R. (1997) International Human Right:
• Tomnschat, C. (2003/. Human Rights: Between Idealism and Realision Oxford Dictionary Press, USA.The contribution based on African women’s economic, social and cultural rights, for instance makes the point that the human right challenges confronting women on the African continent are not necessarily the same with that in Europe and America

The contribution from India, however, reflect the opinion that in spite of constitutional guarantees, the most significant barrier to women’s rights in that country is a political system that is unwilling or uninterested in giving the womenfolk or uninterested in giving the womenfolk, any rights in areas which affect them the most marriage and divorce, adoption, wills, intestacy and succession, among others.

This present study is interested in the fact that woman suffer human rights abuses in a specific form relative to their being female. Thus Professor Ladan’s⁽⁴⁰⁾ (2003) review of the development of rights relative to reproductive health is significant. According to Ladan, the right to freedom in reproductive decision – making is related to broader principles of bodily autonomy, often referred to as the “right to physical integrity”. This principles, Ladan noted, has its roots in the right to respect for human dignity and the right to privacy. As such, harmful, practices which contribute to reproductive ill health in Nigeria were identified to include forced/early marriage, female genital circumcision (FGM), etc.

40. Ladan, M.T. (2003). An Overview of Reproductive Rights and Health (Maternal Health) in Nigeria. WACOL, Lagos Nigeria.

Evidence of the impact of early marriage on a woman’s reproductive health and maternal well being has been provided in a journal article by a team of medical researchers from a study carried out in Jos, Plateau State.⁽⁴¹⁾

 The researchers found that women who were predisposed to having obstetric vesicovaginal fistula – a medical complication arising childbirth by a woman who has been married young from (at about 14 years) and had very little or no formal education. The social consequences of the ailment on the women was described as “severe” almost 70% of the women who suffer from fistula were either divorced or separated from their husbands.

At the most fundamental level, the constitution of many countries usually have a part of it exclusively devoted to human rights. In Nigeria, for instance, Chapter IV of the 1999 Constitution provides for human rights, which include the right to life^(42),  right to dignity of human person^(f)  right to personal liberty⁽⁴³⁾  right to private and family life^(44),  and most relevant to our discourse the right to freedom from discrimination⁽⁴⁵⁾, either expressly by, or in the practical application of any law in force in the country, on the basis of the circumstances of birth, place of origin, religion, political opinion or sex.

41. Wall, L.L., Et al (2004). The obstetrics vesicovaginal fistula: characteristics of 899 patients from Jos, Nigeria. American Journal of Obstetrics and Gynecology 190:

1011-1016.

42. 33 1999 Constitution of the Federal Republic of Nigeria
43. S.35
44. S.34
45. S.42

Non-governmental organization (NGOs) have been prolific in the dissemination of literature as part of an advocacy programme, as it relates to women’s rights and perceived shortcomings. In Nigeria some of the NGOs include Women Aid Collective e (WACOL), Gender and Development Action (GADA), Civil Resources Development and Documentation Centre (CIRRDOC); to mention but a few. They have been in the forefront of organizing seminars, workshops, roundtables, etc and making the proceedings generally available to interested researchers. Thus, GADA published Phases of Women Deprivation in Nigeria (2004) and WACOL produced a report on gender equality (2008)

1.8        ORGANIZATIONAL STRUCTURE

 The thesis has been structured into five chapters. The first chapter sets out to introduce the subject, the background, its national and international, perspectives. The methodology utilized in the research, the objective, scope and significance are also contained therein.

Chapter two looks at women’s rights as a subset of human rights, the origin and philosophy of human rights in different socio-political environments, and the concept of deviation from those rights, which has engendered discrimination. Chapter three discusses the international conventions, treaties and other instruments on which international women’s rights are based beginning with the Universal Declaration of Human Rights in 1948. Chapter four examines the overview of discriminatory laws, policies and practices, their nature and manifestations. Some specific practices, like reproductive health concerns are highlighted, with an analysis of the issues involved and the problems that have arisen.

Chapter five concludes the study with a view to providing summary, findings and recommendations to the problems identified.

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