NIGERIA MASTERWEB DAILY NEWS

*Dear God, is it a crime to be borne a woman?

( A Critical analysis of Constitutionally Guaranteed Discriminatory Laws against Women )

By Olugu Ukpai

Professor Martha Nussbaum in her classical work Gender, Justice, Development and Rights submit that “women in developing world face numerous problems because of their sex.” Nigeria is one of the developing nations alluded to by the human right and constitutional lawyer. While there are sufficient international instruments designed to secure equality for women, the challenge lies in deciphering means of making the provisions within these instruments a reality. Although Nigeria has ratified major regional and international instruments proscribing gender discrimination, paradoxically, the constitution contains discriminatory provisions whilst legislations that overtly discriminate between sexes are rife. I argue that the first step towards surmounting the discrimination surrounding women’s rights issues is by repealing these discriminatory laws enshrined in the Nigerian Constitution, placing men and women at par by way of appropriate legislative measures backed by judicial interventions where cases of violation of the legislations to that effect arise. The philosophy underpinning my argument lies in basic constitutional principles that must be respected and implemented by the governments, as a minimum standard of what respect for human dignity requires. ( Continues below….. )

This article is divided into two parts. The first part examines some equality provisions of the Constitution, while the second part is a critical analysis of salient features of some discriminatory legislations, customs and practices that affect Nigerian women in the law in practice. But first, I will start by defining the working concept of the article. What is discrimination? Convention on the Elimination of All forms of Discrimination against Women (hereafter, CEDWA) defines discrimination against women as “any distinction or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, and civil or any other field.”

Domestic guarantees of equality

The 1999 Constitution of the Federal Republic of Nigeria prohibits discrimination on grounds of sex. Section 42 (1) provides that: A citizen of Nigeria of a particular community, either ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject: or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

(c) Section 17 (1) The State social order is founded on ideals of Freedom, Equality and Justice. Section 17 (2a) every citizen shall have equality of rights, obligations and opportunities before the law.

The Law in practice: Constitutionally guaranteed discriminatory legislation against women

Antithetical to constitutional non-discriminatory guarantees against discrimination, the Constitution itself contains provisions that discriminate against women, and administrative regulations and practices exist which breach these guarantees with impunity. More so, it can also be argued that the Constitution is interpreted as prohibiting discrimination in the public sphere, or by state agents, thus leaving no room for redress where discrimination is perpetuated by non-state actors. There is no known case where the Nigerian Constitution was relied upon to challenge human rights violations of women by a private person. These legislations that will be examined are some examples of statutes that have been in force since independence and/or colonial era and have not been changed, updated or reformed. For instance, most of the common law in force in Nigeria is that in force in England before 1900. This is inconsistent with the characteristic of law. Margaret Davis maintains that law should be in flux, flexible, and not static, enabling it to respond to changes in the society.

The Constitution provides in Section 26(2) that a woman who is or has been married to a citizen of Nigeria may be registered as a citizen of Nigeria, but silent as to whether a woman married to a foreign national can confer Nigerian nationality on her foreign husband. It implies that a woman is incapable to confer Nigerian citizenship on her foreign husband, and this provision exist despite the fact that such provisions have been identified and repealed as discriminatory in other parts of African nations such as South Africa and Botswana, to mention but a few. This is also in direct infringement of Article 9(1) of CEDAW, which posits equality for women in matters pertaining to nationality.

Discriminatory provisions also exist in many public law statutes. For instance, Section 353 of the Penal Code, which applies to the Southern States in Nigeria, provides that an indecent assault against a man is a felony, punishable by three years in prison. But Section 360 holds that the same offence against females as a misdemeanour is punishable with only two years of imprisonment. It is worrisome that this distinction remains on the statute books, especially when indubitable facts exists that indecent assault is an offense that is often committed against women. Here, I have no choice other than to infer that the law implies that, the offense is of less gravity when committed against a woman. Again, this is inconsistent with the cardinal principle of criminal law which stipulates that like cases should be treated alike and all persons should be protected from harm of a similar degree. More so, these provisions are antithetical to Article 2(g) of CEDAW, which requires state parties to repeal all national penal provisions which constitute discrimination against women.

Discriminatory provisions also exist in the 1963 cap 89 Nigerian Penal Code, which is applicable to the northern Nigerian states that have not adopted Sharia law. For instance, Section 55 of the Penal Code provides that:

Nothing is an offense which does not amount to the infliction of grievous hurt upon any person and which is done by a husband for the purpose of correcting his wife, such husband or wife being subject to any native law or custom in which such correction is recognized as lawful.

Thus, the Penal Code permits husbands to use physical means to chastise their wives as long as it does not result in "grievous harm," which is defined as loss of sight, hearing, speech, facial disfigurement, or life-threatening injuries. Although the constitution provides for equality and freedom from discrimination; there are no laws that criminalize gender-based violence, while some federal laws condone such violence. It is hoped that the law makers should use the ongoing Constitutional reform project to repeal the Penal Code, because women’s rights are human’s rights.

Under the Police Act (Chapter 359, laws of the Federation of Nigeria, 1990), the provisions regulating the conduct of police officers made thereunder provide that an unmarried woman who becomes pregnant shall be discharged from the force and may not be re-enlisted without the consent of the Inspector-General (Regulation 127, Police Act, 1990). Another regulation permits a serving female police officer may only marry, with the consent of the Commissioner of Police, if she has served for at least three years and her intended husband is of good character (Regulation 124 and 125, Police Act, 1990). Here, it instructive that I pause and ask, is it a crime to be borne a woman or to be endowed with the capacity to reproduce? It is hoped that the male dominant National Assembly will find answer to this question in the ongoing Constitutional review.

Nigeria’s personal taxation laws, also contains come discriminatory laws (Personal income tax decree, Chapter 104 Laws of the Federal Republic of Nigeria, 1993). Under these laws, a married woman will only be allowed to claim tax relief based on the number of dependents she has if she can show that she has separated from her husband by deed or by an order of the High Court (Section 3 personal income law decree above). This requirement does not apply to divorced or separated men. This legislation is still based on the premise that married women and their children are maintained by their husbands. As a result, single mothers and wives who bear the main financial responsibility in a household are denied the tax relief that men are entitled to. It is hoped that the Courts should start upturning such gender discriminatory laws. ( Continues below….. )

The Marriage Act (Marriage Act, Chapter 218, Laws of the Federation of Nigeria, 1990) provides that written consent is necessary where either party to an intended marriage is under 21 years. However, this consent must be from the father: a mother’s consent is only acceptable if the father is dead or of an unsound mind (Section 118, Marriage Act, 1990). Beyond a shadow of doubt, it is clear that acceptability of the consent based on the gender of the parent is unnecessary, discriminatory and serves no known practical or legal purpose other than to perpetuate the stereotype that treats Nigerian women as chattel and second class citizens.

In conclusion, the legislations detailed above are at variance with Nigeria’s domestic and international law obligations relating to gender rights. For instance, Section 55 of the Penal Code presupposes that a wife can never be considered an equal in a marriage and ought to be expunged. Likewise, in its 2003 report to CEDAW the Nigerian government described wife as ‘the man’s property and she is generally not expected to entertain any measure of equality in whatever form’. Human dignity is firmly established as an international standard and finds expression in the major international human rights instruments. Regionally, it is provided for by the African Charter and the Protocol to the African Charter on the Rights of women, and necessarily implies that a husband cannot be permitted to legally (or otherwise) beat his wife.

More so, the provisions in the Police Act limiting the reproductive freedom of female police officers are also infringement of Nigeria’s obligations under CEDAW. Policies and practices that have an impact on women’s reproductive rights constitute a form of violence against women as well as denial of a basic freedom to choose because of their sex. These regulations do not impose concomitant obligations on men. These provisions contravenes the right not to be subjected to degrading treatment as provided for under the major international human rights instruments and is contrary to the concept of human dignity and gender justice. The Nigerian born political scientist, Professor Mojubaolu Okome, insists that ‘legal and extra-legal constrains coexist in both the letter of the law and its administration.’ She avers that ‘customs and traditions still persist which prevent the elimination of discrimination against women.’ Professor Christiana Murray, a leading human rights lawyer in her work Constitutional equality for women contend that “No nation can be free [or develop] when one half of it is enslaved. I can do no better than to finish with the 1997 judgment of the Supreme Court of Appeal (Enugu Division) as delivered by Chief Justice Niki Tobi, in Mojekwu vs Mojekwu condemning discriminatory laws and customs against women based on their sex: “…In my humble view, it is the monopoly of GOD to determine the sex of a baby and not the parents. Although the scientific world disagrees with this divine truth, I believe that GOD, the creator of human beings is also the final authority of who should be male or female. Accordingly, for …a law [customs and practices] to discriminate against a particular sex is to say the least an affront on the Almighty GOD himself... LET NOBODY DO SUCH A THING.”

*Olugu Ukpai, a Ph.D student, School of Law, University of Reading, sent in this article from UK, and can be reached at oluukpaiolu@yahoo.com

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