21ST CENTURY NIGERIA & THE U.

N CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) by Dele Peters The trend in recent years has been not just towards the expansion of rights and opportunities available to women but, also towards affording equal rights to all members of humanity irrespective of sex in general and affording better protection for the existing rights to women in particular. A host of international legal instruments 1 are thus couched in such a way as to discourage any form of sex-based discrimination.2 The Charter of the United Nations,3 for instance and
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LL.B (Hons), B.L LL.M (Lagos). Mr. Peters, formerly Senior Research Fellow and Head, Department of Public & Private Law, Nigerian Institute of Advanced Legal Studies, Lagos and also formerly the Research Assistant to the Hon. The Chief Justice of Nigeria (The Hon. Justice Muhammadu Lawal Uwais, GCON) is the Director of Studies at the National Judicial Institute, Muhammed Bello Centre, Abuja. E-mail: delepetersng@yahoo.com. An abridged version of this paper was presented as the 2010 Staff Seminar paper at the NJI Studies Seminar Series 2010 on Monday 8th November 2010 at the National Judicial Institute, Abuja. See The United Nations Charter, The Universal Declaration of Human Rights, G.A 217a(!!) , GACR, 3rd Sess The African Charter on Human and Peoples' Rights,(the Banjul Charter) 1981 OAU DOC CAB/LEG/67/3/Rev. 5, 21 ILM; Nigerias Treaties in Force 1970 1990 Vol. 4 p. 1023; the International Covenant on Civil and Political Rights, (1966) GA. Res. 2200 (XXI) UN GAOR, 21st Sess. Supp. No 16; 61 A.J.I.L (1967); including its Optional Protocols, International Covenant on Economic, Social and Cultural Rights (1966) G.A Ress 2200 (xxi), UN GAOR. 21st Sess. Supp. No. 16; the InterAmerican Convention on Human Rights (1970) 9 ILM 672 in force 1978 and the European Convention for the Protection of Human and Fundamental Freedoms, 1950, 213 UNTS 221. . Like all these international instruments, the Constitution of the Federal Republic of Nigeria 1999 in section 42 in term forbids any discrimination by reason of sex. . See Articles 3, 13(1), 55 (c) and Article 76 (c) thereof.

the Universal Declaration of Human Rights, 1948,4 affirm the principle of the inadmissibility of discrimination and proclaim that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in them without distinction of any kind including distinction based on sex. State parties to all International Covenants, Treaties and Conventions on Human Rights are, therefore, obliged to ensure the equal rights of men and women to enjoy all socio, economic, cultural, civil and political rights.5 Discrimination against women is recognised to exist and to be sometimes rather pronounced. Such discrimination ranges from economics to family life and is sometimes engendered by deep-rooted traditional beliefs and cultural attitudes. Discrimination hinders the full participation in and contribution of women to the development of their countries. It constitutes hindrance to the prosperity of the society as well as the full development and utilization of the potentialities of women in the service of mankind.6 It is in cognizance of the foregoing, among others, that the United Nations in 1979,7 passed a resolution on the Convention on the Elimination of All Forms of Discrimination Against women8 by which all State Parties agreed to pursue by all appropriate means and without delay, a policy of eliminating discrimination against women
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7 8

. See Article 2 thereof. . See Article 2, International Covenant on Economic, Social Cultural Rights and also International Covenant Civil and Political Rights, Art 2. . The role of women in national development has been accorded due recognition at different international fora. For instance, the 1992 Rio Conference on Environment and Development incorporated the women's central role in sustainable development as managers of the environment into Agenda 21; The 1994 International Conference on Population and Development in Cairo adopted women's empowerment as the cornerstone of effective and sustainable population policies while the 1995 World Social Summit on Social Development, in Copenhagen recognized gender equality as a prerequisite for the achievement of sustainable productive employment, social integration and the eradication of poverty. . G.A. Ress, 34/180 of 18th December, 1979. . 1980, 1249 UNTS. Herein called C.E.D.A.W. or the Convention.

in all facets of human endeavor. The Convention entered into force on the 3rd of September, 1981, openend for signatures on the 1 st of March 1980 and as at 29th of April 2009, there were one hundred and eighty six States Parties,10 Nigeria inclusive.11 Bearing in mind that Nigeria is a signatory to the Convention, this article examines certain provisions of the Convention and the extent of compliance by Nigeria. It also examines the role which all stakeholders - the government, the NGOs and women, can play toward the practical application and actual realization of the ideals of the Convention. The Convention The Convention on the Elimination of all Forms of Discrimination Against Women is both an international human rights treaty and a framework for ensuring that women fully participate in the development process. Essentially, the Convention is made up of thirty Articles which enumerate various rights and methods for the achievement of those rights thereby establishing not just an international bill of rights, but also providing a framework and modality for countries to guarantee the enjoyment of those rights. The Convention is itself of unique importance for it is probably the first international instrument to address issues of particular concern for women only. The Convention in its Preamble notes that notwithstanding the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women, extensive discrimination against women continues to exist. It points out that the great contribution of women to the welfare of the family and to the development of the society have not so far been fully recognized, that the role of women in procreation should not be a basis for discrimination, rather that upbringing of
9 10 11

. Art. 2 C.E.D.A.W. . See http://treaties.un.org/Pages/view visited on 10th march 2011. . See Nigeria's Treaties in Force, Vol. 2 1970-1990 Federal Ministry of Justice Lagos Nigeria, 1990 at 313. See also http://treaties.un.org/Pages/view visited on 10th March 2011.

children requires a sharing of responsibility between men and women and the society as a whole, and that a change in the traditional role of men as well as the role of women in the society and in the family is needed to achieve full equality between men and women. For the realization of these ideals and others, the Convention sets out a series of measures required for the elimination of all forms and manifestations of discrimination against women. The implementation of the Convention is monitored by the Committee12 on the Elimination of the Discrimination Against Women, consisting of twenty-three experts of high moral standing and competence in the field covered by the Convention. These experts are to be elected by States Parties among their nationals and shall serve in their personal capacity consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems. Tenets of the Convention and the Nigerian Situation Nigeria as a signatory has an obligation under the Convention to comply with all its provisions by putting in place measures and setting all necessary machinery in motion to end all manifestations of discrimination against women. Within the purview of the Convention, the phrase, "discrimination against women" is explained as encompassing any distinction, exclusion 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, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.13 Political In the field of politics, the Convention recognizes and confers on women certain political rights such as the right to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; to participate in the formation and implementation of government policies and to hold public office and perform functions
12 13

. .

Art. 17 C.E.D.A.W. Art. 1 Ibid.

of such offices at all levels of the government. States Parties are urged to adopt measures to enhance full participation of women on equal terms with men, in non-governmental organizations and associations concerned with the public and political life of the country. National Constitutions of States Parties and all other legislation are required to incorporate the principle of equality of both sexes.15 Under Article 8, women are to be afforded ample opportunity on equal terms with men to represent their government at the international level. There have been no impediments placed on the path of Nigerian women towards active political involvement in national affairs in Nigerian Constitutions, at least from 1979. It is a fundamental duty and responsibility of all organs of government and of all authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of the Fundamental Objectives and Directive Principles of State Policy.16 Accordingly, under the political objectives, national integration shall be actively promoted whilst discrimination on the grounds of place of origin, circumstances of birth, sex etc, shall be prohibited.17 On the other hand, no conscious or deliberate legislative efforts seem to have been made to stimulate better involvement of women in politics.18
14 15 16

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17 18

. Art. 7 Ibid. . Art. 2 Ibid. . See for instance, Section 13 of the Constitution of the Federal Republic of Nigeria 1999, Constitution of the Federal Republic of Nigeria (Promulgation) Act, Cap C23 1, Laws of the Federation of Nigeria, 2004. . Section 15 (2). Ibid. . See Transition to Civil Rule (Political Programme) Decree No. 1 of 1996. See also Transition to Civil Rule (Lifting of Ban on Politics) Decree No. 2 of 1996. Both Decrees contained no provision to stimulate active participation of women in the political process as a way forward to the attainment of gender equality. The existing political parties in Nigeria only pay a lip service to issues of political empowerment for women both in their constitutions and political manifestoes. On the other hand, the Constitution of the Federal Republic of Nigeria, 1999 only provides against discrimination on grounds of sex etc. It has no specific provisions to stimulate involvement of women in politics. Yet it is obvious that for all practical purposes there is no level playing ground for both men and women as regards political

In the political history of Nigeria, perhaps until of recent, women did not seem to have had fair deal or featured actively. The highest elective political office ever attained by a woman in this country before 1999 was probably that of Deputy Governor of a State. 19 However since the advent of the present political dispensation and the coming into force of the Constitution of the Federal Republic of Nigeria, 1999, there has been some noticeable improvement in the lots of women20 though it could be better. In the Armed Forces no woman was appointed as State Military Administrator, while it is doubtful if any woman has been promoted to the rank of Brigadier General or its equivalent in the other arms of the Military. In the area of appointment into Cabinet positions, the period between 1999 and 2010 has witnessed Nigerian women making great strides. Of a truth before the said period, few women were usually appointed and given such Ministries and Departments often tagged women areas such as Women and Social Development, Children
participation. . In Lagos State for instance, Alhaja Sekinatu Ojikutu was Deputy to Governor Michael Otedola before the annulment of the June 12 1993 Presidential Election. . In the current democratic dispensation Lagos, Plateau and Osun States have women as the Deputy Governors. In Anambra State, Dame Virgy Etiaba was the Deputy Governor to Mr. Peter Obi. She was later sworn in as Governor of the State following the purported impeachment of Mr. Obi which impeachment was nullified by both the Court of Appeal and the Supreme Court of Nigeria in OBI vs. INEC. Query: Court it be said that Nigeria has had a female Governor of a State? We wonder whether, in view of the judicial intervention which led to the nullification of the impeachment of Mr. Obi, Dame Etiaba could be said to have actually occupied the office of the Governor of a State. At the Federal level, within the Federal legislature, Mrs. Particia Olubunmi Etteh rose to become the first female Speaker of the House of Representatives in Nigeria. Unfror tunately, she was impeached even before she settled down in that office. Indeed, in the whole of the current House of Representatives of three hundred and sixty members there are less than thirty women as members. In the Upper Legislative Chambers, the Senate comprising of one hundred and nine members there are only nine women there as Senators. In some States of the Federation such as Ogun State and Osun State, women are the Speakers of the Houses of Assembly.

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and Education. Indeed at best they were given junior Ministerial portfolios such as Minister of State. However things appear to have changed positively. For, for the first time in the political history of Nigeria, a woman was appointed as the Minister of Finance (Dr. Mrs. Ngozi Okonjo-Iweala). Women have also held such sensitive Ministries as Solid Minerals and the besides the present Minister of Petroleum Resources, a Ministry hitherto dominated by men, is currently being headed by a woman - Mrs. Dieziani Alison-Madueke. What is more? It is imperative to stress that there is no report to the effect that these women have not performed creditably. Notwithstanding, there is no doubt that there still exists paucity of women in the Nigerian political scene. For instance, no woman has ever successfully contested for the office of the Governor of a State or the Presidency21. The paucity of women in the political and hence, decision making cadre is attributable to a number of factors. As pointed out by the 1985 Nairobi Forward-Looking Strategies, such factors include the prevailing unequal division of labor in household and child care duties, negative attitude towards women's participation in public life, the lack of tradition and will on the part of some women to become actively involved and a lack of confidence on the part of the electorate.22 There are also cultural inhibitions, which have instilled in the society the notion that the political domain is men's business and thus
21

22

. It is worthy of note that Mrs. Sarah Jubril, a notable woman political activist, has since 1999 been contesting the Presidency of Nigeria. She did same in 2003 and 2007. We should indeed point out that in all these years she never succeeded in securing the support of her political party let alone. In the recently concluded primary election of the ruling Peoples Democratic Party, Mrs. Sarah Jubril contested along with Alhaji Atiku Abubakar and the incumbent president Goodluck Jonathan. Perhaps the fact she did not win the primary of the party is not so worrisome. However the fact she scored only one vote was both alarming and politically scandalous. This is in view of the fact there many women as Party Delegates to the Convention. It meant in essence that she voted for herself and not even any female Delegate to the Convention voted for her. . Gloria J. Braxton; Women's Rights in Law and Practice: Political Participation in Women in Law; Akintunde Obilade (ed.) Southern University Law Centre and Faculty of Law, University of Lagos 1993 at p. 388.

traditionally made the field of politics as a male-dominated area. In a culture which values the male more highly than the female, women may never acquire the confidence and autonomy required to seek power and use it to improve their lot. Also societal beliefs founded on traditions that a woman's mission on earth was to serve as a mother and wife only inhibited a woman from progressing beyond the doors of her household.23 Such beliefs and other customs tend to view the combined role of a woman as a 'wife/mother' and "professional" as being contradictory.24 The fact that these customs, traditions and societal beliefs on the role of women pervade, coupled with official attitudes in the appointment of women to political offices, are indications of derogation by the government from its international obligation under the C.E.D.A.W. For under this Convention, the State is obliged to adopt measures including legislation to ensure participation of men and women on equal basis in the political affairs of the country. Economic C.E.D.A.W took cognizance of the dismal economic status of women in general and of rural women in particular, and noted the diverse areas of discrimination which hinder economic emancipation of the worlds female half. It obliged States to put in place policies towards the enhancement of economic empowerment of women. Thus appropriate measures to eliminate discrimination against women in the field of employment must be adopted in order to ensure, on the basis of equality of men and women, the same rights.25 Under Article 13, States Parties are to adopt positive measures to ensure, on a basis of equality of men and women, the same rights, particularly to family benefits, and to bank loans, mortgages and other forms of financial credit. The role of rural women especially, in the economic survival of their families and in the non-monetized sectors
23 24 25

. . .

Ibid at p. 396 Ibid. Art. 11.

of the economy is accorded due recognition by the Convention. The Convention requires the States to ensure to such women, among others, the right to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes. The right to enjoy adequate living conditions particularly in relation to housing, sanitation, electricity and water supply, transport and communications is also recognized. An increasing number of Nigerian women are taking part in economic activities, and not a few of them are taking up income earning jobs outside the home. There are a host of statutory provisions designed to protect the interest of women in particular, from discrimination while in search of economic succor and a practical application of them would meet the requirement of C.E.D.A.W. Chapter II of the Constitution of the Federal Republic of Nigeria27 deals with the non-justiciable Fundamental Objectives and Directive Principles of State Policy. The Chapter enjoins the State to direct its policy towards ensuring that all citizens, without discrimination on any ground whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunities for suitable employment,28 that the conditions of work are just and humane,29that the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused,30 that there are adequate medical and health facilities for all persons31and that there is equal pay for equal work without discrimination on account of sex or on any other ground whatsoever.32 There also exists constitutional prohibition against discrimination against a citizen on grounds of ethnic group; place or origin, sex,33 religion or political
26 27

26

28 29 30 31 32 33

. Art. 14. . Constitution of the Federal Republic of Nigeria (Promulgation) Act Cap. C 23 - 1, Laws of the Federation of Nigeria, 2004. . Section 17(3) (a) Ibid . Section 17 (3) (b). Ibid. . Section 17 (3) (c). Ibid. Section 17 (3) (d) ibid. . Section 17(1) (e).Ibid . Emphasis added. This constitutional provision against discrimination

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affiliation.34 Similarly, a Nigerian citizen shall not be denied, inter alia, on ground of sex,35 any privilege or advantage which is accorded to other citizens of Nigeria.36 The Labour Act37 makes ample provision to protect the interest of women in relation to maternity. It guarantees maternity leave38 to working pregnant women and payment of at least 50% of the basic wages while the leave lasts.39 Women are generally prohibited from being employed in night work in any public, private or agricultural undertaking40 except some female medical personnel and women holding responsible positions of management who are not ordinarily engaged in manual labour.41 In the light of this plethora of statutory provisions supposedly intended as they are, to prevent sex-based discrimination and protect the interest and economic well-being of women, the general intendment of C.E.D.A.W. seem yet to be met. The practical application of these provisions differs somehow from the law, and justification of the variation is ingrained in the law itself.42 Hence it is a situation of "apparent simplicity but underlying complexity"43 There seems to persist apparent inequality in employment opportunities
only prohibits executive administrative actions of the State. It offers no protection against gender discrimination in the private sector. . Section 42(1) Constitution of the Federal republic of Nigeria, 1999.op cit. . Section 42(1) (b). Ibid. . But see section 42(3) of the Constitution which permits discrimination of preferential treatment in respect of appointment of persons to any office of the State or as a member of the Armed Forces or the Nigeria Police Force or to an office of a body corporate established directly by any law in force in Nigeria. Cap L1 1, Laws of the Federation of Nigeria, 2004. . Section 35(1) (a), Ibid. . Section 53(1) (c).Ibid. . Section 54(1). Ibid. . Section 54(2) a & b. Ibid.. . Chioma Kanu Agomo; "Women's Rights in Law and Practice; Perspectives on Employment" in Women in Law, Southern University Law Centre and Faculty of Law, University of Lagos A.O. Obilade (ed.) 1993 at p. 369 . Norma Forde, "The Law And the Protection of Women", 8th Commonwealth Law Conference Proceedings, Ocho Rios, Jamaica September 7 - 17 1996 at p. 1.

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35 36

37 38 39 40 41 42

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available to men and women with the scale tilting in favor of men. According to statistical data from the Federal Ministry of Employment, Labour and Productivity,44 in 1988, the male/female ratio in filling of vacancies to middle level manpower requirements was 24 men to 10 women in 1985, 52 men to 9 women in 1986, 110 men to 23 women in 1987 and 304 men to 83 women in 1988. The disparity is rather on the rise, and virtually the same situation is obtainable in the high manpower cadre for the same period.45 Even in cases where women are employed, it is not unusual for discriminatory terms and conditions of employment to apply. With respect to maternity, it has been discovered that many employers, especially, in the last few years honor the provisions and pay 100% basic wage instead of 50% recommended by the Labour Act.46 This notwithstanding, discriminatory practices exist in some establishments especially, small private enterprises. Unfortunately, the courts do not seem inclined to the cause of women in this regard.47 Not many employers, especially, in the private sector, are disposed to employing pregnant women and some private sector employees know that they are not likely to retain their jobs upon return from maternity leave. In the realm of revenue law, the Nigerian law on personal income tax largely discriminates against women.48It assumes (erroneously though) that the general up keep and maintenance of the children of the marriage is the responsibility of the husband. Thus, the man is
44

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46 47 48

. See Quarterly Bulletin of Labour Statistics 1988, Vols. 3 & 4, Planning Research and Statistics Department, Federal Ministry of Labour and Productivity, Lagos. . See Agomo, op. cit at p. 370 a recent national survey however, reveals that more women than men occupy low level manpower positions. See The Nigerian Household 1995, Federal office of Statistics, Lagos, 1996, at p. 37. This dismal situation has been attributed to discrimination in educational and vocational opportunities available to women. See Agomo, op. cit . Ibid at p. 374 . See for instance, Ajiboye V. Dresser Nigeria Ltd CCHCJ/7/72. . Ayo Oyajobi, Better Protection for Women and Children in Women and Children Under Nigeria Law, Federal Ministry of Justice, Lagos, Kalu & Osinbajo (ed.) 1990 at p. 27. See also C.S. Ola, Nigerian Income Tax Law and Practice) (1985).

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given robust allowances to enable him cater for his immediate family. For a woman to claim such allowances, she must show documentary evidence that the father is not responsible for their upkeep.49 It is noteworthy that some private sector employers sometimes have different salary scales for men and women in the same profession with the same academic and professional qualifications and on the same job. The inevitable result of all these is that a married woman is not properly remunerated (with reference to her net pay) as her male counterpart in the same job notwithstanding the Constitutional requirement of equal pay for equal work. The status of the rural women in Nigeria does not seem to have substantially improved. Majority of these women are engaged in agricultural activities usually as casual workers. A recent report of the Federal Office of Statistics revealed that only 12.7% of agricultural land holders in Nigeria are women and they have no credit facilities from the formal banking and co-operative society system.50 Although under the Land Use Act, 197851, every Nigerian, irrespective of sex can apply to the Governor for a grant of a piece of land; women experience multi-tudinal problems in respect of access to land especially under the customary land tenure systems. In Igbo traditional society, for instance, generally speaking, women have no right to allocation of either communal or family land. 52 In most cases a woman only gains access to land through her father or her husband and not in her own right.53
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51 52

53

. See Communiqu issued at the end of a meeting of the Tax Board held in Ondo State on the 21st of April, 1988. . The Nigerian Household, 1995, National Integrated Survey of Households, Federal Office of Statistics, 1996 at p. 31. Cap L5 1, Laws of the Federation of Nigeria, 2004. . See, The Customary Law Manual; A Manual of Customary Laws Obtaining in the Anambra and Imo States of Nigeria (Ministry of Justice, Anambra State, 1977), paras. 46 and 47. Cf: Mojekwu vsMojekwu and Mojekwu vs. Ejikeme. The decisions in these cases have gone a long way to raise the status of an Igbo woman from near obscurity within the context of economy and property to one of almost prominence. . See I.E. Okagbue: "Igbo Customary Law and the Rights of Women in the Family" in Law, Justice and the Nigerian Society, I.A. Ayua (ed), Nigerian Institute of Advanced Legal Studies, Akoka, Lagos, at p. 213.

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Efforts have been intensified, no doubt, to lift the status of rural women through top level activities by the country's First Ladies in the form of the Better Life for Rural Women Programme of the President Babangida Military era, and the Family Support Programme under the direction of the then First Lady, Maryam Abacha. Between 1999 and 2007, Chief Mrs. Stella Obasanjo the then First Lady used her Child care Trust take care of physically challenged children while the pet project of Hajiya Turei yar Adua gave birth to the International Cancer Centre, Abuja. At the moment, the Women for Change Initiative of Dame Patience Goodluck Jonathan is being used to promote the participation of women in all areas including socio, political and economic areas. In the present political dispensation, the wives of both the President and the VicePresident are making strenuous efforts to lift the status of women especially in the area of child care and prohibition of trafficking in women and children. Nonetheless, the spirit of C.E.D.A.W. especially, in the realm of equal economic opportunities for men and women on the same parameter, in addition to better living conditions for rural women, appears yet to be met. Socio-Cultural C.E.D.A.W. seeks the modification of social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary practices, which are based on the idea of the inferiority of women to men.54 States parties including Nigeria, resolve to adopt policies and take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women,55 and to initiate legislation to suppress all forms of trafficking in women and exploitation of prostitution of women.56 Culture is a dynamic reflection of a people's way of life derived from their attitudes, values, beliefs, customs and life styles. In Nigeria, many aspects of the peoples culture constitute a threat to the
54 55 56

. . .

Art 5 (a) C.E.D.A.W. Art. 2 (1) Ibid Art. 6.

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full empowerment and integration of women in the scheme of development.57 Certain cultural beliefs and indigenous practices in Nigeria, as in some other African countries, tend not only to reduce the status of women to a subordinate and subservient position, but also affect their psyche, their health in their near total subjugation. Domestic violence which is sometime narrowly construed as wifebeating is one of them. Women suffer a lot of violence in the hands of their husbands and partners. Yet some thirty-six years after political independence Nigeria has no national policy on violence against women.58 Worse still, some penal legislation in Nigeria seems to lend support to this inhuman practice. For under the Penal Code,59 it is a defense to a charge of assault brought against the husband that the couple is subject to any native law and custom that permits the chastisement of women.60 Unfortunately, the law enforcement authorities are more often than not reluctant to take action in cases of domestic violence against women referring to such violence as `domestic cases' with rationalization on the privacy of the marriage relationship.61 But domestic violence is not just limited to spousal abuse or wife-beating alone. It necessarily includes a wide range of culturally specific customary and traditional practices and indigenous beliefs ranging from minor ones to some major societal beliefs. It includes such harmful traditional practices as nutritional taboos, female genital mutilation and non-spaced pregnancy. Some cultures and customs in Nigeria forbid women, especially pregnant women from eating certain food items such as eggs, beans and palm oil. In some other customs, women are forbidden from eating snail. These taboos are hinged on
57

58 59

60 61

. Evelyn Onyekwere, Culture-Base of Women's Rights, Partnership for Development, a quarterly publication of the U.N System in Nigeria Vol. No. 2, October 1995, at p. 25. . Ibid. . Penal Code (Northern States) Federal Provisions Act Cap. P3 1, Laws of the Federation of Nigeria, 2004. . See section 55(1) (d) ibid. . See Evelyn Onyekwere op. cit. and see also Isabella Okagbue; Women's Rights are Human Right, Nigerian Institute of Advanced Legal Studies, Lagos 1996 at p. 13.

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the need not to offend the gods. To the extent that these are injurious and harmful to women's health in that they deny women nutritionally reliable food items, they are discriminatory. Polygamy is yet another custom worth commenting on. C.E.D.A.W. did not address the issue of polygamy per se perhaps for political reasons so as not to offend some powerful Arab nations whose support for, and ratification of the Convention was courted. Notwithstanding this, it seems the custom of polygamy and its practice is of concern to women and can be brought within the ambit of Article 6 of the Convention which calls for suppression of all forms of trafficking in and exploitation of women. There are principally two forms of marriage existing in Nigeria. One is statutory under the Marriage Act,62 which is essentially monogamous.63 The other is the Customary Law Marriage (including Islamic Law Marriage).64 While Islamic Law allows a maximum of four wives at a time to a Muslim subject to prior fulfillment of certain conditions,65 there is no limit to the number of wives allowed under native law and custom.66 It seems that no custom in Nigeria allows a woman a plurality of husbands.67 The socio-economic,68 and health69 consequences of polygamy have
62 63

64

65

66

67 68

69

. Cap. M6 1, Laws of the Federation of Nigeria, 2004. . See s. 35 ibid. See also section 370 of the Criminal Code Cap. C38 1 Laws of the Federation of Nigeria, 2004. . See s. 2 of the Native Courts Law of the Northern Nigeria which provide inter alia that 1 native law and custom include Muslim law. Besides, "Islamic Law and the various tribal laws are treated alike." See Park; The Sources of Nigerian Law, (1963) p. 65 - 82. . See-Quran 4:3, See also Abdulmalik Bappa Mahmud; "Marriage Contract, Dissolution of Marriage, Idda Maintenance and Custody of Children under the Shariah" in Marriage Laws of Nigeria, Aguda & Adi, Nigerian Institute of Advanced Legal Studies, Lagos 1981 at p. 81. . See Onigu Otite, "Marriage and Family System in Nigeria; International of Sociology of the Family, 1991 Vol. 21 (Autumn p. 15, See also The Local Government (Declaration of Tiv Custom and Marriage Law) Order 1985 section (1). . See section 9(2) ibid . See Oyebanji, "Proposals for Reform of Marriage Laws in Nigeria" in The Marriage Laws of Nigeria. Aguda and Adi (ed.) Nigerian Institute of Advanced Legal Studies, Lagos 1981 at p. 153. Dennis Pauline, Women of Tropical Africa, (1963) at p. 9 and also Andreski. The African Predicament (1968) at p. 159 - 164. . See Sunti Solomon, "Religions Beliefs and HIV/AIDS/STD health" in

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been well documented70. Suffice it to say however, that not only is it a discriminatory custom but also one which dehumanizes and subjugates women.71 The profundity of annihilation of women under the guise of culture cum custom and/or religion cuts across all ethno-tribal boundaries in Nigeria. Rights of Muslim women in Northern Nigeria are continuously being violated by their fathers, husbands or brothers as the case may be, under the pretext of religious practices.72 Hon. Justice Chukwudifu Oputa once narrated the story of a fabulously rich Igbo woman in Oguta, Eastern Nigeria thus: "Her name was Ikpeaku Ifeoba. One day she threw a challenge to her husband that they both compare their wealth and possession to find out who was richer. It took Ikpeaku Ifeoba hours on end to narrate and recount all she owned. It took the husband one split second to narrate his. "But I own you - need I go further?"73 The above aptly describes the status of women under Igbo custom and notwithstanding the impact of modernity and education, the status of women under Yoruba custom and culture does not appear
AIDS/STD Health Promotion Exchange 1996 No. 2 at p. 2 of. Said H. Kapiga, et al. "Risk Factors for HIV Infection Among Women in Dar-er-Salaam Tanzania" J.A.M.A. 7, No. 3 (1994) 301 309 See also, Dele Peters Esq.; HIV/AIDS: Can the Law Help? (1999/2000) The LASU Law Journal, pp. 5682. . See Dele Peters Esq.; Feminisim and the Institution of Polygamy: a Forward-Looking Approach (1996) Nigerian Current Legal Problems Nigerian Institute of Advanced Legal studies, Lagos, pp. 1 27. . See Arthur Phillips, An Introduction Essay in Survey of African Marriage and Family Life (1953) p. XIV. See also Okagbue I.E., "Igbo Customary Law and the Rights of Women in the Family" in Law, Justice and the Nigerian Society, I.A. Ayua (ed.), Nigerian Institute of Advance Legal Studies, Lagos (1995) at p. 201. . See B. Aisha Lemu, A Degree Above Them: Observation on the Condition of the Northern Muslim Women, Gaskiya Corporation Ltd, Zaria. . See Hon. Chukwudifu Oputa, "Women and Children as Disempowered Groups," in Women and Children Under Nigeria Law, op. cit. at p. 9.

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to be better. In the event of divorce or death of the husband, the subjugation of women under the customary law goes further into the abyss of marginalization.75 Marital and Matrimonial Relations In all matters relating to marriage and family relations, the Convention advocates participation of men and women on equal basis. To this end, it urges States Parties to take all appropriate measures to ensure equality of the right of both sexes to freely choose a spouse and to enter into marriage only with their free and full consent, the same rights and responsibilities during marriage and at its dissolution, and to decide freely and responsibly on the number and spacing of their children.76 C.E.D.A.W. frowns at child betrothal and child marriage. It declares that such marriage shall have no legal effect and urges that all necessary action, including legislation be taken to specify a minimum age of marriage and compulsory registration of all marriages in an official registry.77 Child betrothal or marriage,78 the abrogation of which C.E.D.A.W. calls for, is the practice whereby the parents of a young girl promise her hand in marriage to a young boy of slightly older age at the request of the parents of the young boy. That seems to be the original concept of child betrothal in the traditional African setting. The idea is to signify interest in the young female often as a means of strengthening existing cordial ties between the families of the female child and the male. This arrangement sometimes matures into actual marriage, but sometimes it does not. However, this seemingly well-conceived African tradition is presently being abused and its practice differs markedly from its original intention.
74

74

75

76 77 78

. See C.A. Johnson. "Is a Woman a Hat in Customary Law"?(1986) The Legal Practitioners Review Vol. 1 at p. 18. . See I.E. Okagbue; op. cit. at pp. 213 - 215, and see generally, Dr. O. Ajai & Toyin Ipaye (ed), Rights of women and Children in Divorce, Fredrich Ebert Foundation, 1997. . Article 16 (1) C.E.D.A.W. . Article 16 (2) ibid. . See generally Akin Ibidapo-Obe," Sex, Marriage and Succession Law and African Womanhood" (unpublished) at p. 12 - 14.

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In the northern part of Nigeria for instance, it is not uncommon for young girls sometimes of between nine and twelve years old to be carried, without prior notice or warning to a man's house as a `sadaga' bride not even knowing to whose house they are being taken. 79 Some of such girls are beaten and bruised to force them to marry some rich or important men with whom their parents want to form an alliance or connection.80 In some cases, such men are as old as the young girls' fathers if not older. Thus as far as a child betrothal or marriage under the guise of religious practices is concerned, not only is the right and best interest of the child not considered, her consent is also irrelevant. The practice of child betrothal is also acknowledged as prevalent among the Ibibio of South-Eastern Nigeria,81 and under some recognized customs in Igboland, it seems child marriage is accorded recognition.82 Some legislative efforts have been made in these jurisdictions however, to curtail the prevalence of child marriage by stipulating a minimum age at which a valid customary marriage can be contracted83. However, the inept disposition of law enforcement authorities towards the law, coupled with inadequacy of sanctions84 for its breach has made the provisions less meaningful. Child marriage is tantamount to child abuse, trafficking in children and a violation of the inalienable rights of the girl-child in

79 80 81 82

83

84

. B. Aisha Lemu, op cit at p. 3. . Ibid. . See Akin Ibidapo-Obe; op cit at p. 12. . See Para. 272, The Customary Law Manual; A Manual of Customary Laws Obtaining in the Anambra and Imo States of Nigeria Ministry of Justice, Anambra State, 1977 cited by Okagbue I.E. op cit at p. 202. . See The Age of Marriage Law 1956, Cap 6 Laws of Eastern Nigeria 1963. The minimum age in respect of either party is 16 years. . Penalty for which is six months imprisonment or a fine of 200 Naira only. The law also considers marriages involving a party below the stipulated minimum age as void. See sections 7 and 3 respectively, of the Age of Marriage Law 1956 op. cit.

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particular . In spite of some socio-economic and health hazards86 sometimes associated with child - marriage (especially in respect of the girl-child), the government is either nonchalant or unable to check this malaise. Surprisingly justification has been postulated in certain quarters for the prevalence of this custom.87 One other aspect of the traditional Nigeria society which parties to the Convention seek appropriate measures against within the institution of marriage and family life is in the area of family planning especially as pertaining to women in the rural areas. The problem posed here is engendered by the desire of an average Nigerian man for a male child resulting in some cases in non-spaced pregnancy. The Nigerian society is essentially a patri-lineal Society. Emphasis seems to be placed more on the male child than on the female for, among other reasons, the preservation of the family name and the continuance of the lineage. It is thus usually thought that once a female child attains womanhood, she gets married and her status in relation to her family changes. Without a male child, a woman may not have firmly established her stay in her matrimonial home. Therefore, in order to satisfy her husband's desire, her husband's family and the society generally, for a male child, a woman is turned
85

85

86

87

. Not too long ago, the Nigerian media was a washed with reports of a distinguished Nigerian Senator of the Federal Republic of Nigeria and a former Governor of Zamfara State Alhaji Ahmed Sanni Yerima of having married a 13yr old Egyptian child bride. The investigation still continues. Yet this came after an accusation in 2006 that this same distinguished Senator married a 15-year old child bride. See http://en wikipedia.org visited on 13th March 2011. See also Nigeria Protest over Senators child bride BBC News. 200-04-28. . The possibility of a halt in the education of the child and pregnancy in the sexual union seem apparent vesica vaginal fistula (VVF), an injury which results from obstructed prolonged labour, may occur. This is a common complication with very young mothers having their first babies when the growth of the pelvis is still incomplete. Though there is no data on the prevalence of VVF in Nigeria, available evidence indicates that in certain parts of Nigeria, it is quite a common problem. See Okagbue I.E. op. cit. at p. 203. . See Akin Ibidapo-Obe op.cit at p. 12. Not too long ago, a Distinguished Senator of the Federal republic of Nigeria was alleged to have paid a mouth watering sum of money as dowry on and married a thirteen year old Egyptian girl.

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to `a baby manufacturing machine' giving birth almost every year88 until the much priced and sought after male child arrives. Ironically, a man is under no reverse pressure from his wife, her family or the society at large if his wife continuously gives birth to male children. But non-spaced pregnancy in the reviewed circumstance is not peculiar to rural women alone. A female colleague once recalled to the writer how "relieved" she was when her last child happened to be a boy "after many girls." In some cultures, the conferment of certain social status and privileges on a woman is a function of the number of her children. So that upon the birth of her tenth child, the woman is conferred with a traditional title with some customary and traditional privileges attached thereto.89 These multifarious pressures from the husband, the in-laws and the tradition at large apart from their effect on population, have an adverse effect on the health90 of the woman in general and her reproductive health in particular in that her resistance in such situations is considerably weakened. Unfortunately, attempts in the recent past to formulate a national family planning policy of four children per woman appear to have been largely unsuccessful. All these problems are further compounded by the fact of inadequate health-care facilities and the deteriorating state of the available ones. Those who suffer most by this deterioration are usually women and children.91 Issues in Education The Convention in Article 10 enjoins all State Parties to adopt all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education. It particularly urges parties to ensure on a basis of equality of men and women, the same conditions for career and vocational
88

89 90 91

. See Jadesola Akande. "Giving Public Voice To Women", being text of a Lecture delivered at the Request of the Association of British Council Fellows at the Nigerian Institute of Advanced Legal Studies on March 19th, 1996 at p. 13. . See Agomo, op. cit. at p. 369. . See Article 12. . Jadesola Akande, op. cit.

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guidance, for access to studies and for the achievement of diplomas in educational institutions. Thus equality shall be ensured at all levels of education and in all types of vocational training. The Convention calls for an end to any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging co-education and other types of education which will help to achieve this aim.92 In addition, it enjoins States Parties to make available equal opportunities to both sexes to benefit from scholarships and other study grants,93 and also obliges parties to reduce female student drop-out rates and organize programmes for girls and women who have left school prematurely.94 The imperativeness of family education is equally stressed. This, the Convention states should include a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children.95 How far has Nigeria fulfilled these lofty ideals? Under the 1999 Constitution,96 education is classified as being within the legislative competence of the States and Federal government.97 The Constitution further enjoins the Federal Government to direct its policies towards sound educational objectives. Under its Fundamental Objectives and Directive Principles of State Policy,98 the Constitution provides thus: (1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels;
92 93 94 95 96

97

98

. Art 10 (c) C.E.D.A.W. . Article 10 (d) ibid. . Article 10 (f) ibid. . Article 5. . Constitution of the Federal Republic of Nigeria (Promulgation) Act Cap C23, Laws of the Federation of Nigeria 2004. . See Item L Paras. 27, 28 and 29 of the Concurrent Legislative List, Constitution of the Federal Republic of Nigeria, 1999 Ibid. . Section 18, Ibid.

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(2) Government shall promote science and technology; (3) Government shall strive to eradicate illiteracy, and to this end, Government shall, as and when practicable provide: (a) free compulsory universal primary education; (b) free secondary education; (c) free university education; and (d) free adult literacy programme. Unfortunately, these provisions like all others in the same Chapter of the Constitution are non-justiciable and the Courts have so held.99 The 1995 draft Constitution contained some unique provisions. For instance it recommended compulsory education up to primary school level as fundamental right100. Unfortunately, the 50 wisemen who drafted the Constitution of the Federal Republic of Nigeria, 1999 did not consider such unique provisions important enough for inclusion in the Constitution. We must stress that girls and women feel the negative impact of lack of free compulsory education much more than boys and men. This is because customs and traditions regard investment in girls and women education as a waste of resources. The young girls of today are the women, wives and mothers of tomorrow. The type of treatment meted out to young girls in the past is a reflection of the status of the women of today. In the same vein, the recognition and treatment of the girls of today may equally determine the state of Nigerian women in the future. There appears to be general lack of enthusiasm in investment in the education of a girl child except of course in the Eastern part of Nigeria where more female children are being sent to school while
99

100

. See: Archbishop Olubunmi Okogie v. A.G. of Lagos State, (1981) 2 CLR, 337. . Section 45, 1995 Draft Constitution of the Federal republic of Nigeria.

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their male counterparts are withdrawn to engage in trading. This nonchalant attitude towards the education of the girl-child is rooted in the "cultural tradition that an educated girl is a bad investment for her immediate family or an unnecessary outlay because she will eventually marry and go and serve her husband.102 A one time college Principal103 once expressed her thoughts and observations on the treatment of her school girls in the following words: (1) I saw intelligent girls from good families taken away from school by force or by strategy, thus depriving them of access to knowledge. (2) I saw other girls go through with schooling in the sense that they were physically present, but with the firm belief instilled into them that their education was a bad thing. Naturally, their progress was nil. They would fail all subjects every year and draw hardly any useful knowledge from all their years in school. (3) I saw a few very intelligent girls on completion of their secondary school married off against their will to uneducated or less educated men whose strong desire was to lock them up and prevent any further education from reaching them. A recent nationwide study104 revealed that female children always accounted for less than 45% of the total enrolment at the primary school level between 1988 and 1992.105 The same study showed that between 1984 and 1991, the percentage of female pupils enrolled in secondary institutions in the country ranged between 41.2% and

101

101

102 103 104 105

. See generally, The Rights of the Child in Nigeria Ayua and Okagbue (ed) Nigerian Institute of Advanced Legal Studies. Research Series 2, 1996 . Ibid. . B. Aisha Lemu, op. cit. at p. 2. . The Rights of the Child in Nigeria, op. cit. . Ibid at p. 49.

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43%.106 A possible result of this is that uneducated girls eventually become uneducated wives and consequently uneducated mothers. There is very little likelihood that an uneducated, illiterate woman can breed a super intelligent child, heredity notwithstanding, because even if the child has inherited high intellect, the fact that it is not nurtured during its formative years definitely reduces its performance ability. 107 For, as a Yoruba proverb translated literally goes "what can a slob procreate but another slob?" Towards Full Implementation There seems to be little doubt that the present situation in Nigeria is a far cry from the intendment of the Convention. The problem is further compounded by the fact that government officials in the discharge of their duties do not help the situation of women.108 Nigeria has ratified the United Nations Convention on Women but has not been able to fulfill most of the goals and ideals contained in that document. Human rights of women are still been violated with impunity and surprisingly, such violations are usually not viewed as human rights violations per se.109 Issues bordering on domestic violence, spousal abuse and sexual harassment readily come to the fore here.
106 107

108

109

. Ibid at p. 49. . Jadesola Akande. Giving Public Voice to Women op. cit. at p. 10. See also World Bank Development Brief No. 2 (October 1992) noting that it is now an accepted fact worldwide that educated mothers are better equipped than their uneducated counterparts to raise children, and, in the process, train them. . For instance, a married woman applying for a Nigerian International Passport requires a letter of consent from her husband as one of the conditions for obtaining same. The Nigerian Police would also not allow a woman to stand surety in an application for bail even where the liberty of her husband is at stake. There appears to be no tenable explanation for this. See M.N. TilleyGyado; "What Shall We Do With Repugnant Customs" in Law, Justice and the Nigerian Society I.A. Ayua (ed) Nigerian Institute of Advanced Legal Studies, Lagos 1995 p. 218 at p. 226 . See generally, Isabella Okagbue; Women's Rights Are Human Rights, Nigerian Institute of Advanced Legal Studies, 1996

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The absence of democratic structures complicates this situation because it is generally accepted that the most benevolent military government, without an accountability mechanism, cannot adequately promote or protect human rights110 including implementation of the rights of women as contained in international instruments to which the State is a party. As a prelude therefore, to go beyond mere ratification of the Convention on Women to implementation and actualization of its ideals we postulate the following roles to be played by all stakeholders - government the NGOs and women themselves. The Role of Government It is not unusual for government to be expected to play a major, if not dominant role in the realization of the international human rights ideals contained in international treaties, protocol, conventions etc, to which the State is a Party. More than one reason can be advanced for this proposition. First, a State is not under compulsion to ratify or sign an international treaty, protocol or convention. But once it voluntarily does so, the State is obliged to honor its international obligations under such documents as a member of the comity of nations. Besides, compliance with international treaties and conventions requires intimidating resources (both human and material) which it seems only the State can boast of. Each of the arms of Government - the Executive, Legislature and Judiciary, has very important roles to play if Nigeria is to rise to the standard expected under C.E.D.A.W. The present democratic government should muster enough political will and be responsive to need of the female members of the society through legislation. Thus government should consider seriously, enactment of legislation to outlaw111 such customary and
110

111

. Bolaji Owasanoye; "Human Rights and the Status of Children in Nigeria Four Years to the Millennia; Goals for Role Actors",(unpublished) Staff Seminar Paper delivered at the Nigerian Institute of Advanced Legal Studies, Lagos on the 4th of December 1996 at p. 20. . Mrs. Maryam Abacha - Wife of the then Head of State and Chairperson of the Family Support Programme, had once indicated that legislation might be required to eradicate some outdated and unhealthy cultural practices in the

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traditional harmful practices,112 constituting obstacles to the spirit of the Convention. In addition, the government should consider abrogation of all such laws,113 in our jurisdiction which lend credence to or permit the subjugation and oppression of women thereby rendering the full realization of the tenets of C.E.D.A.W. impossible. It has been argued elsewhere114 that culture, traditions, social habits and values die hard and that the abrogation of any of these norms through legislation may be of little success. However, the efficacy of legislation in this context is more effective when the services of the mass media are utilized. The power of the media in building or destroying can hardly be faulted. Therefore, whoever controls the media, not only has great power but a very heavy duty and even heavier responsibilities. It is submitted that adequate dissemination of information on the existence of such legislation through the means of mass propaganda of which the government has substantial control can encourage the catalysts for change. To promote the cause of women and thereby meet its international obligation under C.E.D.A.W. the government could also resort to adoption of affirmative action. There exist, for instance, negligible number of female appointees at the national and states executive council. No woman has been elected as Executive Governor
society if persuasion fails to achieve this goal. See The Guardian December 27, 1996. . These include but are not limited to non-spaced pregnancy, early marriage, wife beating, nutritional taboos, female genital mutilation. . Section 55 of the Penal Code Cap. 62 Laws of Nigeria 1963 provides that in a charge of assault against a husband, it is a defense to him that the couple are subject to a native law and custom that permits the chastisement of women. In some areas in the Eastern part of Nigeria, `reasonable chastisement' of the wife by the husband is permitted by law for certain offences. See The Customary Law Manual obtaining in the Anambra and Imo States of Nigeria (Ministry of Justice, Anambra State 1977) paras. 341 and 342. Related offences include laziness and wastefulness. Some of the harmful traditional practices envisaged here include harmful widowhood rites, early marriages, Oli-Ekpe custom, Nrachi custom and so on. . See Hon. T. Akinola Aguda; Nigeria in Search of Social Justice Through the Law, Occasional Paper 1, Nigerian Institute of Advanced Legal Studies, Lagos, 1986 at p. 9.

112

113

114

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of a State not to talk of a woman being elected as President or Vice President. The number of women on ambassadorial postings to foreign missions is also negligible. It is suggested that the government should adopt measures and promote policies directed at enforcing gender equality in this area. Towards this end, the government could reserve a certain percentage of appointments for women, such as appointments to the national executive council, states executive councils as well as the judiciary. However, it is not sufficient for this policy to be adopted. It must also be diligently pursued as there is no dearth of qualified women to take up such appointments. Unfortunately, there is no provision in the Constitution of the Federal Republic of Nigeria, as amended for the observance of gender equality in elections to various elective offices - legislative and executive. A probable result of this is that women's interests are not properly represented and their voices not heard loudly enough. This is reminiscent of happenings worldwide.115 As the country embarks on a process of constitutional amendment it is suggested that a provision reserving at least a third of the seats in the National Assembly and State Houses of Assembly to women should be included.116 The establishment of the Federal Ministry of Women's Affairs and Social Development to address issues of specific concerns for women is a step in the right direction. It must be stressed however, the imperativeness of adequate funding for the Ministry to execute its projects and fulfils its mandate otherwise its activities may be thwarted by poor funding. The Ministry should, among other things, undertake or sponsor research institutions to undertake in-depth study of those areas of the Nigerian cultural life and identify those customs and traditions which ought to be abrogated by legislation. The judiciary in the performance of its interpretative functions
115

116

. Worldwide, only 14 women lead Parliaments, while only 4 out of 124 single-chamber Parliaments - in Denmark, Finland, Norway and Sweden have more than 30% of elected members being women. See The Guardian, December 24 1996 at p. 10. . India for instance, with 39 women deputies in her 545 seat Lower House of Parliament has already proposed a bill on gender equality in the Parliament to accord women better representation. See The Guardian, ibid.

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has an important role to play in ensuring realization of the human rights regime created by the Convention. This role in fact becomes more imperative in the application of the `Repugnancy test117 in deciding the validity of rules of customary law. More than four decades after the case of Edet v. Essien,118 it was held in a case,119 that the presumption in Ishan customary law that the man to whom a woman is married is the father of a child born during the subsistence of the marriage which has not been dissolved even where the father is known is NOT contrary to the rule of natural justice equity and good conscience. And yet in another case,120 Omo-Eboh J. held that the Adeje custom whereby a father is compelled to return his married daughter, on whom he has taken bride price, to her husband, is not repugnant to natural justice, equity and good conscience. It is submitted that if these cases, especially the latter had been viewed within the purview of human rights violation the decision would have been different. The courts should hold a presumption, albeit rebuttable, that our municipal law will be consistent with our international obligations.121 T.A. Aguda had proffered useful suggestions on what ought to be attitude of the courts to international conventions, treaties etc. While sitting on the Final Court of Appeal of Botswana in Attorney-General v. Unity Dow122 His Lordship opined thus: `If it (the international convention, etc) has been signed but not incorporated into domestic law, one must accept the
117

118 119 120 121

122

. See section 22(1) of the High Court Law of Eastern Nigeria (1955) No. 27. Section 34(1) High Court Law of Northern Nigeria (1955) No. 8. Section 12(1). High Court Law of Western Nigeria (1955) Cap. 44 and section 26 (1) of the High Court Law, Lagos Law 1973 Cap. 53. . (1932) N.L.R. 47. . Ejanor v. Okenome (1976) B.D.S.S.J. (Special Edition) 78. . Erurhobare v. Otebrise (1971 U.I.L.R. (part 1) 33. . See Lord Scarman in A.G. V. British Broadcasting Corporation (1981) A.C. 303 at 354. . C.A. No. 491 3334, July 1992 at p. 8533 cited in Individual Rights Under The 1989 Constitution, Ajomo & Owasanoye (ed) Nigerian Institute of Advanced Legal Studies, Lagos 1993 at p. 78.

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position that the Legislature or the Executive will not act contrary to the undertaking given on behalf of the country by the Executive in the Convention, Agreement, Treaty, Protocol or other obligation.' It has also been suggested that even where the State has not acceded to an international treaty or convention, it may nonetheless serve as an aid to the interpretation of domestic law if such international treaty or convention is recognized by the vast majority of States.123 The rationale being that in the absence of express words, Parliament would not have wanted a decision maker to act contrary to such a treaty.124 It is suggested that Nigerian Courts should further pursue the principles enunciated by the Court of Appeal in the landmark case of Chief Gani Fawehinmi v. Gen. Sani Abacha and 3 Others125 whenever called upon to pronounce on issues bordering on gender equality and/or the human rights of women. It is instructive to point out that indeed the Judiciary in Nigeria appears to be gradually rising to be pro-womens rights in the determination of cases bordering on the rights of women. Mojekwu Vs Mojekwu126 was a case that bordered among others, on the inheritance rights of women in Nnewi under a native custom prevalent and accepted in that community. The appellant in that case had appealed against the judgment of the lower court. He had argued in this appeal that by virtue of Oli- Ekpe custom of Nnewi under which males and not females inherit the fathers property, he as the only surviving male of the family was entitled to inherit the property in dispute. At the trial, a witness who claimed to be a titled man in Nnewi had testified for the appellant as follows:
. Ibid. See also The Vienna Convention on the Law of Treaties; Article 25. . See Bird's Galore Ltd v. Attorney-General and Another (1989) L.R.C (Const.) 928, per Baker 1. at p. 939. 125 . CA/L/141/96 (unreported. See The Guardian, December, 17 1996, where the court held that no government will be allowed to contract out to legislation its international obligations under international treaties, conventions etc. 126. (1997) 7 NWLR Pt. 512 283
123 124

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Under our custom; if a man dies leaving a male issue, the property belongs to the male child. If on the other hand, the man has no male issue; his brother will inherit his property. If the male issue who survives the father dies leaving no male issue, the fathers brother will inherit the property. If on the other hand, the deceaseds brother dies leaving (sic) sons, the sons will inherit the property of the dead cousin. In particular the diokpala i.e. the eldest son of the Uncle will inherit the property. If a man dies and subsequently his only son and brother die, if the late brother has sons, the 1 st son of the late brother will inherit all the property. We call the 1st son of the late brother Oli-Ekpe, i.e. he inherited the property of his relation. The Oli-Ekpe inherits the land, the wives of the deceased and if the deceased had daughters he will give them in marriage. He the Oli-Ekpe in other words inherits the assets and liability (sic) of the deceased.127 The Court of Appeal dismissed the applicants claim holding that it being a court of equity as well as a court of law would not back a custom, Oli-Ekpe, in the instant case, which permits the son of the brother of a deceased person to inherit the property of the deceased to the exclusion of the deceased female child. The court stressed that Nigeria is an egalitarian society where civilized sociology does not discriminate against women. The court stressed further that day after day, stories abound of customs, which discriminate against women and this put them in an inferior position as regards men. In concluding, the Presiding Judge of the Court, Niki Tobi, J. C. A (as he then was) said: We need not travel al the way to Beijing to know that some of our customs, including the Nnewi Oli-Ekpe custom relied upon by the appellant are not consistent with our civilized world in which we all live today, including the appellant. In my humble view, it is the monopoly of God to
127

. Ibid.

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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 and female. Accordingly, for a custom or customary law to discriminate against a particular sex is to say the least an affront on the Almighty God Himself. Let nobody do such a thing. On my part, I have no difficulty in holding that the Oli-Ekpe custom of Nnewi, is repugnant to natural justice, equity and good conscience.128 We should point out that apart from inheritance rights, customs and traditional practices have also impinged into other spheres of life. For instance, in Uke Vs Iro129, the appellants who had lost at both Customary Court and the Customary Court of Appeal in a claim for declaration of title to land had further appealed to the Court of Appeal. At the Court of Appeal, the appellant had argued inter alia that the trial court erred in law to have allowed a woman to adduce evidence before it. For, as the appellant argued, by Nneato Nnewi Custom, a woman cannot give evidence in relation to title to land130. Relying on the relevant provisions131 of the Constitution of the Federal Republic of Nigeria, 1999 and the case of Mojekwu Vs Mojekwu132, the Court dismissed the appeal. The Court pointed out that the rights of all sexes are protected under the Constitution which is the organic law of the land and that 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 of all sexes under law. Pats Acholonu, J. C. A (as he then was) stressed thus:

128 129 130 131

132

. Ibid. (2001) 11 NWLR Pt. 723 at page 196. Emphasis added. . See Section 42 (1) Constitution of the Federal Republic of Nigeria 1999. Laws of the Federal republic of Nigeria, 2004 . (1997) 7 NWLR Pt. 512 at page 283

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Any customary law which flies against decency and is not consonant with notions, beliefs or practice of what is acceptable in a court where the rule of law is the order of the day shall not find its way in our jurisdiction and should be disregarded, discarded and dismissed as amounting to nothing133 On the validity of custom, which relegates a woman to the status of a second-class citizen, His Lordship saidAny law or custom that seek to relegate women to the status of a second class citizen thus depriving them of their invaluable and constitutionally guaranteed rights are laws and customs fit for the garbage and should be consigned to history The Court of Appeal further noted that: It is apostasy to say that a woman cannot be sued or cannot be called to give evidence in relation to land subject to customary rights of occupancy A custom which strives to deprive a woman of constitutionally guaranteed rights is otiose and offends the provisions that guaranteed equal protection under the law . It offends all decent norms as applicable in a civilized society134 The introduction of Sharia into the criminal justice system in some States in the Northern part of Nigeria has witnessed more and more women being adversely affected. The case of Safiyat Hunseini Tungar135 provides a clear instance of how religious laws negatively affect gender rights and the intervention of an appellate sharia court.
133 134 135

. At page 202 At page 203 See the details of this case as reported in The Guardian Vol. 18, No.8,527 of Tuesday March 26th, 2002 pp 1-2 under the caption Court Saves Safiyat From Death by Stoning.

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The case is also instructive in other respects especially with regards to how the apex Sharia court in Sokoto State decided the appeal. Safiyat had been arraigned before and convicted at the Gwadabawa Upper Sharia Court on a charge of fornication. The case for the prosecution was that the accused had a child without being married. The accused, Safiyat, had consistently maintained that a man she named but who denied the allegation raped her repeatedly. By the rule of practice and procedure in Sharia, she must produce four witnesses to support her claim against the named man. Since she could not produce such number of witnesses, the man was acquitted while she was sentenced to death by stoning. Her appeal against both the conviction and sentence was allowed. The Sharia Court of Appeal comprising of four Khadis held unanimously that the death sentence was unconstitutional and that the trial court lacked jurisdiction to entertain the case. .The Court pointed out that pregnancy was not a proof of adultery. The Sharia Court of Appeal held further that in any event, the State Sharia law was applied retrospectively in this case. This is because the offence was allegedly committed at about 12th December, 2000 while the State Sharia Bill was signed into Law on the 25th January 2001 with a commencement date of 31st January,2001. She was thus discharged and acquitted. One cannot but commend both the ingenuity and boldness of the Khadis who presided over this case. While not pronouncing on the mischief and harm, which the application of the Sharia would have caused, in the instant case, the Khadis found a way to protect rights and save lives. It is also instructive to note that even though the State government was and is still bent on enforcing Sharia in the State, the Khadis nonetheless exercised their independence. No doubt, this is a positive development in Islamic legal jurisprudence, which hopefully would be emulated by other Sharia courts especially of appellate jurisdiction. Yet in another case136, the Court of Appeal was emphatic when it said as follows It is however a matter of grave concern whether it is not time that courts of law consider the predicament and
136

Mojekwu v.Ejikme (2001)1 CHR 179

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deprivations of widows in the hands of in-laws in the guise of customary law with a view to upholding the evidence of DW2 which is similar to inheritance under Islamic Law. Certainly, 21st century Nigeria which is a question of less than a month from now, should not tolerate the evidence of DW3. It is discriminatory and therefore against the provisions of the Nigerian Constitution and CEDAW137 This case is important in some respects. For it is instructive to point out that perhaps for the first time in Nigeria the court made reference (albeit passing) to CEDAW. Indeed, the case of Mojekwu v Mojekwu though a reflection of the spirit of CEDAW, that U.N document was neither referred to nor mentioned in the course of judgment. One can only hope that the current shift in judicial attitude to womens rights as exemplified by these decisions will be continued. The Role of Non-Governmental Organizations NGOs have strategic roles to play towards the entrenchment of gender equality in the Nigerian body polity and the elimination of all forms of discrimination against women. NGOs are not as such inhibited by civil service bureaucracy and ethno-tribal cum religious considerations which sometimes clog the wheel of progress in governmental circles. The impact of NGOs is being felt in advocacy and capacity building for women through seminars, workshops and training. However, beyond this, NGOs can better and further address the present marginalized status of women. One obvious way of doing this is by aggressive mobilization of women for political involvement even as Nigeria undergoes transition to civil rule. The suggestion here is not just for women to be encouraged to vote in elections, but to be active members of political parties and vocal participants in the political process. Unfortunately, none of the registered political parties is headed by a woman. This notwithstanding, it is suggested that NGOs working in gender-related issues can, acting collectively, negotiate a better deal for women in the current and future political
137

At p 219, per Tobi J.C.A (as he then was)

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dispensation. NGOs should also widen their scope of activities and establish Legal Aid Clinics to provide free legal services to women thereby assisting them in securing justice. Such Legal Aid Clinics should, where the need arises, be ready to litigate issues of specific concern to women in court provided it offers the best option out. Experience has shown that when human rights of women are impinged upon, such infractions more often than not go unmitigated. This may be due in part to the present state of our economy and high cost of litigation. It is our opinion that the International Federation of Women Lawyers (Nigerian Branch) and such other like-minded non-governmental organizations should rise up to the occasion. The Role of Women The U.N. Convention on the Elimination of All Forms of Discrimination Against Women is essentially an international bill of rights of women and a framework for women's participation in the development process. It is a platform upon which women can realize gender equality with their male counterparts. As the Convention was designed for their sole benefit, women invariably have some role to play towards the evolution of a Nigerian Society free from sex based discrimination. Irrespective of the negligible proportion of educated and highly placed women in the Nigerian society,138 they can individually and collectively bring to the fore both the State and private acts that run counter to the tenets of C.E.D.A.W. especially as pertain to rural women in particular. As individuals, women in such professions as Law are in a vantage position to pursue a path that will lead eventually to elimination of all forms of discrimination against women. For women, especially in private legal practice, this can be realized by offering to handle in court, free of charge, any issue bordering on sex based
138

. See Jadesola Akande op. cit. (noting that less than 10% of the total population of women of about 40 million in Nigeria are educated and occupying some notable position of authority both in the public and private sector).

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discrimination against women. Collectively, women can form strong pressure groups and put pressure on the government to formally remove all such `officially' approved discrimination against women such as in the areas of tax relief, issuance of Nigerian passports and the issue of women standing surety for bail, among others. Besides, the mission statements of women organizations such as the International Women Society, International Federation of Women Lawyers, Nigerian Medical Women Association and so on, should include determination of the status of women in Nigeria to the standard encapsulated in the U.N. Convention on Women. We have pointed out the travails of Mrs. Sarah Jubril in this presentation. Suffices to say that as long as women would not be prepared to support their folks in search for a political space any agitation by them may be regarded as merely gimmicks. Conclusion This article has examined some of the provisions of the U.N. Convention on Women and has noted that in the last eleven years or thereabout since the advent of the current political dispensation there has been some noticeable improvement in the status of women. We note in addition that notwithstanding these improvements, there are still existing, numerous traditional, customary and sometimes, official prejudices against women. These prejudices, we note, pervade almost all strata of the Nigerian society. The Government has a very important role to play here. The Nigerian government must desist from paying lip-service139 to the cause of women. Beyond the establishment of the Federal Ministry of Women's Affairs and Social Development, some more concrete and practical steps ought to be taken. The government should adopt a policy of appointing women into bodies where sensitive and far reaching decisions are made. Although there are some women in the
139

. There is, for instance a National Policy on Women was adopted in July 2000. The Policy among others provides for affirmative action to increase the total women representation in Government to 30%. See Nigerias First Report on the Implementation of the Beijing Platform for Action and the Commonwealth Plan of Action, Federal Ministry of Women Affairs, April, 2004. http:// www.commonwealth.org.shared asp.

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National Assembly, the percentage is certainly less than twenty percent. Besides, none of these female members of the National Assembly occupy any noticeable sensitive positions. The same is the position within the hierarchy of the various political parties in the country. Again, it is noted that indeed there is no woman as a member of the National Council of State. Within the Judiciary, it is positive news for women. Unlike in the time past, there are many women serving as Judicial Officers presently. Indeed in a particular State Judiciary, about sixty percent of the Judicial Officers there are women. There are also many State Judiciaries being effectively and efficiently headed by women140. The number of women on the Court of Appeal Bench has increased considerably while at the apex Court - the Supreme Court of Nigeria -two women141 are currently Justices of the Court. Both the Executive and the Legislative arms of the government may wish to emulate the development within the Judiciary as relates to raising the status of women. Affirmative action142 is a policy that has found acceptance among the comity of nations. There is certainly no reason why this policy can not be adopted in Nigeria if it is part of what it will take to better the lot of Nigerian women. It is also our opinion that legislation could be effectively used to end practices that are harmful and prejudicial to the empowerment of Nigerian women as some jurisdictions in the country are currently doing. This is becoming noticeable in the area of legislating against harmful traditional practices such as early marriages and female genital mutilation. As an adjunct to all these, we deem economic empowerment of women imperative if Nigeria is to meet the standard set by CEDAW. We have noted the apparent inequalities in economic opportunities
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142

. For example Chief Judges of Lagos, Oyo, Sokoto, Zamfara, Bayelsa, Akwa Ibom, Cross Rivers States are women. . Hon. Justice Mariam Aloma Mukhtar, JSC CON and Hon. Justice A. A. Adekeye, JSC CON. . Affirmative Action refers to special measures used as a tool for correcting the gender imbalance of roles in societies. It is a form of positive discrimination, which is not a permanent, but a mere temporary measure, aimed at leveling the ground for political participation for men and women.

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available to both men and women. The government is in a vantage position to adopt deliberate measures and policies to lift the status of women economically. The Family Economic Advancement Programme and the Family Support Programme of the past Military administrations were perhaps steps in the right direction. The current State Economic Empowerment Development Strategy (SEEDS) and the various poverty alleviation programmes of the Federal Government have capacity to galvanize the economic status of the Nigerian women. This is however subject to the proviso, that the fund meant for these programmes is so utilized. The foregoing notwithstanding, it is not impossible to find an economically independent woman groaning under the yoke of tradition, culture and customary beliefs. This thus raises the question as to whether or not women are in fact a homogenous group with similar aims and objectives or whether some are in fact satisfied with the status quo. All these added together is a restatement of the imperatives of improved literacy among Nigerian women. Finally, the need for empowerment of and improvement in the status of women cannot but be restated. Women are the other half of men, and hence half of humanity. Thus, as long as women are continuously oppressed by traditional attitudes and sometimes by official State policies, men are morally bound to rectify the situation so as to make the world a better place to live in.

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