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*Ms. OKEKE UJU PEACE is a law graduate of Obafemi Awolowo University (O.A.U) Ile-Ife, called to the Nigerian bar in 2002. She obtained an LL.M in Human Rights (Specializing in Reproductive and Sexual Health Rights) from the University of the Free State, Bloemfontein, South Africa in 2008. She is a practicing lawyer, a human right activist, a reproductive and sexual health expert and a professional negotiator and a mediator. She presently works with Socio Economic Rights Initiative (SERI) as a legal and program officer. EMAIL: ujupeaceo@yahoo.com

 

A CASE FOR THE ENFORCEMENT OF WOMEN’S RIGHTS AS HUMAN RIGHTS IN NIGERIA*

 

By Uju Peace Okeke

1.0       INTRODUCTION

Nigerian women are undeniably Nigerians. The status bestow on them rights and privileges enjoyed by other Nigerians. More so, statistics reveal that they constitute 69,086,302 of Nigeria’s 140,431,790 population.[1][1] A few Nigerian women stand out as they enjoy these rights while the majority wallows in abject poverty and powerlessness. The situation raises the question of whether the greater part of Nigerian women remain helpless out of sheer laziness or they are inhibited by repressive customs, non justiceability of rights, lack of judicial activism inadequacy and non implementation of laws amongst other factors.

This study seeks to examine the enforcement of women’s rights as human rights in Nigeria. In doing this, it considers customs, constitution, laws, policies, courts’ decisions as the court is the last hope of the common man and the place of obligations-imposing international and regional treaties ratified by Nigeria. Also it examines the difficulty of proper balancing of ideals like repressive customs versus societal standards, judicial activism versus Separation of Powers, inadequacy of laws versus non exhaustiveness of laws, international versus local laws supremacy. Assessing efforts of the stakeholders in upholding women’s human rights, it asks whether the non protection of women’s rights as human rights results from insufficient legislations or inability and unwillingness on the part of stakeholders. In answering this question, it argues that protection of women’s rights is possible and identifies strategies for the enforcement of women’s rights as human rights in Nigeria.

The study does not in any way showcase Nigeria as human rights haven even for men but it reveals that women bear the greater brunt of non protection of human rights which questions the Nigerianess of Nigerian women.

2.0       HUMAN RIGHTS

Where after all do universal human rights begin? In small places, close to home so close and so small that they cannot be seen on any map of the world. Yet they are the world of individual person: the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works.  Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.[2][2]

The notion of Human rights flows from philosophical concept of natural rights based on divine injunctions. They could be said to be timeless, basic rights bestowed on human beings simply for being human by the creator himself irrespective of conceived differences like age, sex, race, ethnicity, economic status, condition of birth, nationality etc. By implication, they are everyday rights of all human beings which ought to be visible in all levels of human intervention. While these rights exist in different forms in all societies, their evolution and crystallization gained international recognition in 1948 through the Universal Declaration of Human Rights (UDHR).[3][3] Since then, the consciousness, scope and its protection is ever increasing.[4][4] The UDHR is not enforceable but its principles have attained the status of Jus Cogen in international law. The unenforceability of UDHR gives rise to the enactment of treaties upholding and advancing its standards. These international and regional treaties impose a degree of commitment on ratifying states.

 

Women’s rights as human rights connote that women as part of human race have their rights covered by the definition of human rights given by God and guaranteed under international treaties. Women’s rights are human rights peculiar to women individually and collectively. Feminists, women themselves and indeed the whole world highlight women’s rights because of the historical and traditional subjugation of women in many societies. Suppression of women persists in patriarchal societies, shrouded in cultural, structural and religious systems.

 

The UDHR has from inception envisaged women’s human rights but the articulation of women’s right framework came into being in 1979 with the International Convention on Elimination of all forms of Discrimination Against Women (CEDAW)[5][5]. As if to clear every misconception, the 1993 United Nations World Conference on Human Rights in Vienna specifically states that ‘The human rights of women and of the girl-child are an inalienable, integral and indivisible part of human rights. The full and equal participation of women in the political, civil, economic, social and cultural life at the national, regional and international levels and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.’ Consequently it behooves on governments and all Nigerians to ensure the protection of human rights particularly women’s human rights even in the small and hidden places.

3.0       LEGISLATIONS AND POLICIES ON HUMAN AND WOMEN’S RIGHTS

The Nigerian Constitution which is the grundnorm[6][6] guarantees the fundamental human rights of Nigerians. Nigeria like most progressive states adopts the UDHR, and ratifies a plethora of international and regional treaties protecting human rights generally and women’s rights in particular. These treaties include the International Covenant on Economic, Social and Cultural Rights (ICESCR),[7][7] the International Covenant on Civil and Political Rights (ICCPR),[8][8] the International Convention on the Elimination of all Forms of Racial Discrimination (CERD),[9][9] CEDAW with its optional protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (CAT)[10][10] the Convention on the Rights of the Child (CRC)[11][11] the African Charter on Human and Peoples’ Rights (ACHPR),[12][12] the Protocol to the African Charter on Rights of Women in Africa (Women’s Protocol)[13][13] and the African Charter on the Rights and Welfare of the Child (African Children’s Charter).[14][14] Nigeria applies dualist approach to international laws. By section 12 of the Constitution, treaties have force of law in Nigeria, to the extent to which they have been enacted into law by the National Assembly. So far, only the African Charter on Human and Peoples’ Rights (ACHPR)[15][15] and the Child Rights Act (CRC) are domesticated in Nigeria.

3.1       The Nigerian Constitution

The Nigerian Constitution in protecting the human rights of Nigerians divides these rights into civil and political and socio-economic. It guarantees the civil and political rights in its chapter iv and socio-economic rights in its chapter ii. The distinction lies in their justiciability. While the civil and political rights are justiciable, the socio-economic rights are not but are acknowledged as Fundamental Objectives and Directive Principles of State Policy. The constitutional provisions are discussed alongside other applicable laws and policies.

3.1.1    Civil and Political Rights

Given that civil and political rights guaranteed all Nigerians are enforceable in Nigerian courts, their enforceability vis a vis Nigerian women is herein considered.

Right to Life

This has been described as fulcrum of other rights,[16][16] a fundamental right in the absence of which other rights make no sense.[17][17] Section 33(1) of the Constitution provides that ‘every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court …’. The constitutional provision seems to be in total agreement with the importance of this right as it implies that any death not flowing from execution of court sentence is a violation of the right to life. Maternal deaths, defined as ‘the death of a pregnant woman or within 42 days of termination of pregnancy irrespective of the duration and site of pregnancy or its management but not for accidental or incidental causes’[18][18] a common occurrence in Nigeria violates women’s right to life . Contrary to the constitutional provision, these women neither committed any offence nor do their deaths result from the execution of any court sentence. Nigerian women cannot truly be said to enjoy right to life when they account for more than 10%[19][19] of the world’s maternal deaths,[20][20]  life time maternal risk is 1 in every 18, Maternal Mortality Ratio (MMR) is 1100[21][21] and for every one death, about 30 women incur infection, injuries and disability.[22][22] Noting that Maternal Mortality (MM) is not death of sick women but death of women in their prime[23][23] performing their societal expected obligations, safe motherhood should be ensured not only for the propagation of human race[24][24] but for the protection of women’s right to life.

The gravity of the violation is manifested in the fact that MM is preventable. Its persistence questions present government policies. Beyond the policies like Gender Policy and National Reproductive Health Policy, there is no national legislation on safe motherhood. In fact, only three States-Anambra, [25][25]  Rivers and Edo[26][26]  have laws prohibiting this fiend squeezing life out of productive women. Unfortunately, in these States, nobody has been prosecuted.

Unsafe abortion is another evil messenger violating Nigerian women’s right to life by sending them to untimely deaths. Abortion is necessitated by unwanted pregnancy due to unsafe sex whether resulting from violence or non-use of contraceptives. It is estimated that about 34 000[27][27] women die annually from unsafe abortion. Unsafe abortion is prevalent because Nigerian legislation criminalizes abortion[28][28] except where it is to save a woman’s life. The restrictive abortion laws do not allow for the monitoring of the process and the providers as it forces most of them underground. It is most plausible that the restrictive laws be reviewed considering the number of women losing their lives.

Life has been interpreted by the Human Right Committee to be broad[29][29] requiring positive steps. Ensuring this right for Nigerian women will require protection of unintentional loss of women’s lives in whatever form and taking steps to increase their life expectancy. The non protection of this right implies that Nigerian women are worth little attention.

Right to Dignity of human persons

Dignity, the foundation of other human rights has been held to inhere in every human being.[30][30] Section 34(1) (a) of the Nigerian Constitution provides that ‘every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or inhuman or degrading treatment…’ In the face of this constitutional provision, Nigerian women are subjected to all forms of inhuman treatment in the name of culture and religion despite provisions of section 21 of the Constitution that ‘protects preserves and promotes only cultures which enhance human dignity’. For instance Female Genital Cutting (FGC), rooted in religious and cultural beliefs, commonly practiced in Nigeria, is a degrading and tortuous act. It is a sine qua non for marriage in some parts of the country and therefore reduces women to second class citizens who need it to induce men into marrying them. FGC violates women,[31][31] demonstrating that men thrive on women’s subservience.[32][32] Again the pain from the act is nothing but torture. Besides the immediate pain, the victim may suffer perpetually, the consequences of infection and damaged reproductive organs in the form of Vesico Vaginal Fistula (VVF), infertility or even MM due to improperly managed complications during pregnancy. This harmful cultural practice is not only demeaning but dangerous. In view of its grave consequences, the pertinent question is what has the government done? There is no national legislation prohibiting this gruesome act. A few states like Akwa Ibom, Ondo, Edo, Delta, Cross River, Bayelsa, Ogun, Osun and Rivers states have enacted laws prohibiting FGC[33][33] although FGC go on in other states as well. However, FGC has neither reduced in these states prohibiting it nor has any perpetrator been prosecuted. A possible explanation is that victims are discouraged from reporting because of societal consequence as well as unwillingness of law enforcement officers to prosecute such matters still viewed as family affair and therefore within the confines of private sphere. The passage of the pending 2002 Bill on FGC by the National Assembly will empower women’s rights activists with a genuine tool while strengthening the effectiveness of the state laws.

Another cultural practice impacting on women’s dignity is son preference usual in most customs and families. A family without a son is considered incomplete. This demeans the girl child from birth as she is considered not as good as her brother. Many women, to satisfy their families, keep procreating till they give birth to sons regardless of consequences on their lives and health. In the eastern part of the country, a custom called Nrachi Nwanyi permits a man who has no son to keep one of his daughters in his family to raise male successors. This is nothing but legalized prostitution debasing women psychologically and physically. This custom was condemned by the Appeal Court in Mojekwu V. Ejikeme[34][34] but this practice persists.

Wife inheritance and other forms of widowhood malpractices practiced in many parts of Nigeria debase women by reducing them to common res. In certain communities widows are forced to drink water used in washing their husbands’ corpses to prove innocence and non complicity in husbands’ death. There is no national legislation on this but states like Edo,[35][35] Anambra, Ebonyi, Ekiti, Enugu and Imo[36][36] have laws prohibiting this. But again, none has been prosecuted and news of such wicked maltreatment constantly inundates our media.

Section 34 (b) of the Constitution provides that ‘no person shall be held in slavery or servitude…’ No other form of slavery could be worse than forced/early marriage, a daily occurrence in Nigeria. In many instances, under aged girls are withdrawn from schools for marriage where they spend their lives in situations akin to slavery. To curb this menace, Bauchi, Borno, Gombe, Kano and Niger States enacted laws prohibiting the withdrawal of the girl child from school for marriage while Cross River State has law disallowing early marriage. In fact the Child’s Right Act (CRA) passed into law in 2003 and adopted by 18[37][37] out of the 36 states of the federation addresses this issue. Section 21 penalizes marriage of girls under the age of 18 years but this happens now and again. The seemingly commendable effort of 18 states enacting Child Rights Law is nullified by the reservation on age of marriage by many states thereby stripping the law of the ability to prevent early/forced marriage, thus taking back with the left hand, freedom given women with the right hand. The enactment of this law thus appears hypocritical. Early marriage is also fueled by section 29 (4) (b) of the Constitution which provides that any woman who is married is deemed to be of full age. Though this is meant to apply to renunciation of citizenship, it is erroneously understood to mean that in Nigeria married-under-aged-girls attain full age by virtue of marriage.

Dignity entails that women must have control over their bodies but this is not so as sexual violence is rife even within matrimony. The reason may not be far from the tolerance or near zero prosecution which has not deterred perpetrators. Sexual violence increases Sexually Transmitted Diseases (STDs) and unwanted pregnancies which mostly will be aborted. Abortion is criminalized accordingly most women will opt for clandestine but unsafe abortion thereby risking their lives. It is doubly tragic and demeaning to condemn a woman to permanent disability from unsafe abortion and STD especially if she is a victim of sexual violence.

Rape of any sort is demeaning. To contain this, the law imposes life sentence on offenders yet section 357 of the Criminal Code (CC)[38][38]defines rape as ‘…unlawful carnal knowledge of a woman or girl, without her consent…or, in the case of a married woman, by personating her husband…’ Section 6 of the CC specifically provides that sexual intercourse between a husband and a wife cannot amount to rape unless there is a decree absolute or possibly a decree nisi. These permit marital rape and by implication, other forms of violence going on in marriage brought to public knowledge by the media. 

Much as violence could be a fact grounding dissolution of marriage[39][39], the law[40][40] upheld by the court[41][41] is that the violent spouse must first be convicted of violence before its consideration as a ground for divorce. Going by decided cases more men than women are violent in marriage relationships. The situation may have become hopeless for a woman who is compelled to wait till her husband is convicted of violent acts before divorcing him for example in  Pius Nweke V. The State[42][42] where a husband murdered his wife for alleged infidelity. Even if Mr. Pius had shown traits of violence before the day he murdered Mrs. Nweke, she could not have divorced him as he was yet to be convicted. This law therefore is in need of urgent review. 

In fact in the case of Akinbuwa V. Akinbuwa [43][43] the court held that minor assault of the wife by the husband for corrective purposes is tolerable. This is in line with the Penal Code[44][44] which allows for wife chastisement. These laws ostensibly do not recognize the real situation on ground raising questions of how to differentiate between violence and chastisement and why a wife must be chastised with minor assault when she is not a child. The categorization of Nigerian women as children is obvious in many official documents[45][45] and was voiced out in Dr. (Mrs.) Priye Iyalla-Amadi V. The Nigerian Immigration Service (NIS).[46][46] This is a clear manifestation of how women are viewed and treated. States like Ebonyi, Jigawa, Cross River and Lagos States have enacted domestic violence laws but it is doubtful whether these laws are presently enforceable.

 

Further, the proof of rape in our courts is extremely difficult because of peripheral elements of penetration[47][47] and corroboration. In Uphar V State[48][48] the Appeal Court not only required corroboration but widened it. The Supreme Court in Oladotun Ogunbayo V. State[49][49] confirmed this position when it held penile penetration essential and corroboration desirable. This is not only degrading on women but amounts to double jeopardy. Further, the limiting of penetration to penile to the exclusion of penetration with other harmful objects by both courts and law enforcement agents is even more demeaning. Some rapists escape punishment as at best, non penile penetration will amount to a lesser offence attracting lesser punishment.

There is what is called official rape evident in prison officials or law enforcement officers raping arrested-and-detained women is common knowledge yet the law has done nothing about this.

That our customs are not particularly favorable to women is no longer news but women with any form of disability bear a greater brunt of the disfavor. In the eastern part of Nigeria, where couples are childless, custom compels the woman to marry a surrogate wife for her husband or for herself, if she is a widow. The surrogate wife procreates and raises children on behalf of the childless woman.[50][50]This custom was pronounced repugnant to natural justice, equity and good conscience in Edet V. Essien[51][51] and Odigwe V. Aika[52][52] but it is still in practice. This custom exposes the surrogate wife to legalized prostitution which debases her person.

Right to Personal Liberty

This right and instances of its breach is provided for in section 35 of the Constitution. This right is violated by many law enforcement officials who arrest and detain women for alleged offences committed by their husbands, boy friends or sons. Worse still, they are abused and many times raped while in detention.

Many women are denied this right when they lose their husbands. They are compelled to remain in one place under unhealthy condition by the traditional authorities recognized by the law. These authorities’ times without number make use of law enforcement agents in forcing widows to do their bidding. Unfortunately these acts are not considered as contravening this Constitutional provision because they are rooted in custom.

Right to Fair Hearing

Section 36 provides for fair hearing as a right. Victims of rape are contrary to section 36 (5) not presumed innocent otherwise they will not be put to further trial by the rules of court. For instance, section 211 of the Evidence Act[53][53] admits character evidence of rape victim compelling the prosecution to prove the guilt of the accused beyond reasonable doubt and also prove the innocence and non-complicity of the victim. Practically, it seems that this offence is not intended to be penalized. The situation is worse under the sharia law where only women could be guilty of adultery or fornication even where they are raped and it results in pregnancy. In SafiyyatuHussaini T.T Udu V. Attorney General Sokoto State[54][54] the issue was not rape but the judgment of the trial Upper Sharia Court seems to suggest that pregnancy is proof of adultery, other circumstances like rape not withstanding as no step was taken to scientifically establish the paternity of the child while the alleged partner in adultery was set free because he denied responsibility. It is said that ‘the test of a fair hearing is the impression of a reasonable person at the trial whether from all observations; justice was done in the case’.[55][55] Many women who witness rape cases leave the court thinking the court could do a lot more to protect the rights of women.

Right to Private and Family life

Attempt to control human bodies is often not seen as violation of human rights and thus do not attract attention like other human rights violations. Women have no privacy as men must interfere and guide them aright as if they are unable to make right decisions on issues concerning them. This is so evident in marriages where most women are forced to marry partners chosen by male members of the family seemingly because they lack capacity to know what is good for them. Further they lack the power to decide or even contribute to the number and spacing of their children not withstanding that they bear a greater burden in procreation.

Widows are denied this right by extended family members. An average Nigerian widow does not live a private family life as she is subjected to the prying eyes of her in-laws and her decisions must be approved by them. 

Right to Freedom of Thought, Conscience and Religion

Human beings are influenced by both religion and culture manifesting in different beliefs held dear by people. Nigeria is multi cultural and religious hence the multi beliefs evident in our daily interactions which many times affect women adversely even without targeting them. Victims of forced marriage, widowhood malpractices and traditional cultural practices like FGC are compelled to obey those traditions contrary to their thoughts and consciences. In actual fact, most women have no right of thought and religion as they must adopt those of their fathers’ at birth and exchange them for those of their husbands’ at marriage.

Right to Freedom of Expression and the Press

Contrary to section 39 of the Constitution, women are traditionally meant to be seen and not to be heard. In women’s gatherings, their decisions must be sanctioned by their husbands. The interference by men is explained away as custom. Women’s opinions in many instances do not matter and this may be the reason they are excluded from decision making fora. They are forced into marriages and are compelled to undergo humiliating rituals in the name of custom without their consent. Any contrary expression is viewed as rebellion. The Media has not helped as it is used to stereotype women. Women especially the indigent and rural dwellers will only be able to exercise this right where they have access to necessary and empowering information.

Right to Freedom of Assembly and Association

This right entrenched in section 40 of the Constitution is culturally denied women. Most Nigerian women cannot associate with person/group/association disapproved by either their fathers or husbands. Men are perceived as always gathering for the right reasons unlike women. Accordingly, politics is perceived as a dirty game not meant for women. The reason is partly because they are seen as natural followers who must submit to natural leadership roles of men. Even where a few women dare, family ostracism and financial obstacle stop them from active participation. It is therefore not surprising that women representation is still 3%[56][56] despite the 35% affirmative action.[57][57] Women’s political under representation is neither the case of inability nor unwillingness on their part but that of selective exclusion by the men. The situation is well captured in a description by a thinking Nigerian ‘African tradition is full of barrages of images, beliefs, myths and rules designed to perpetually keep women subservient and to subject them to accepting male dominance of state politics. These traditions portray women as physically, mentally and spiritually weak, biologically inferior to men, limited in options, less intelligent and less competent to handle state matters.’[58][58]

Right to Freedom of Movement

This right is denied many women by landlords who refuse women as tenants except they are married and live with their husbands. Women who travel and wish to reside in areas different from where they are known are assumed to be prostitutes. This right is impeded by patriarchy and supported by law for instance in the recent case of Dr. (Mrs.) Priye Iyalla-Amadi V. Nigerian Immigration Service (NIS)(Supra) the Nigerian Immigration Service required married women to submit letters of consent from their husbands as part of requirements for processing traveling passports. This requirement had the effect of restricting this right as a married woman must obtain husband’s permission to move around. The Federal High Court did well in declaring such requirement unlawful.

Right to Freedom from Discrimination

Discrimination is a particular form of differentiation irrespective of intention.[59][59] In families, children are from childhood, taught to discriminate against women thereby making discrimination a way of life.[60][60] This gender inequality which begins at birth, affect their choices, health, autonomy through socialization that deny them access to their rights. Illustratively, at birth, a son is preferred to a daughter. While growing up the girl is considered unequal to her brother. She is deemed mature if she marries, yet inferior to her husband. Her procreative ability determines her womanhood, infertility diminishes her social worth and her reproductive right is neglected leading to her untimely death. If by chance, she outlives her husband, she as family property must pass to the next of kin.

Section 42(1) of the Constitution provides for right to non discrimination on a plethora of grounds including sex. Paragraph (a) suggests that discrimination could either be express or implicit-by the practical application of any law. It follows that all gender discriminatory customs are expressly discriminatory and are inconsistent with this provision. Unfortunately, they exist side by side revealing the insincerity of the equality gospel even as the very use of the word ‘his’ for both men and women all through the constitution reinforces discrimination.

Some Laws are expressly discriminatory like section 26 (2) (a) of the Constitution which permits a wife of Nigerian to acquire Nigerian citizenship unlike husband of a female Nigerian. This is express discrimination on ground of sex. Section 360 CC which defines unlawful indecent assault of females as mere misdemeanor attracting 2 years imprisonment while assault of males is a felony attracting 3 years imprisonment is discriminatory as it protects perpetrators (men) rather than the real victims (women). The law on wife chastisement upheld by courts is discriminatory as it reduces women to status of children. More so women do not have similar freedom of chastising their husbands.

Acts resulting from government’s inaction like MM is express discrimination as it is peculiar to women and faced by all Nigerian women at different points in their lives. When women are risking death to give life, they are entitled to have their own right to life and health protected and anything less is discrimination.

Custom that discriminatorily disinherit women either as mothers, wives or daughters under intestacy is expressly discriminatory. This is especially so in the eastern part of the country. The courts have unsettled decisions in this area. For instance, the Courts in the case of Uke vs. Iro[61][61] unequivocally held derogatory practice and customs which deprive women of constitutionally guaranteed rights illegal while the Supreme Court held in Akinnubi V. Akinnubi[62][62] that a widow under intestacy forms part of the estate of her deceased husband and therefore can neither inherit nor be appointed as co administrator. The Appeal Court pronounced oliekpe custom that disinherits women in the absence of surviving sons in intestacy discriminatory and repugnant to natural justice, equity and good conscience in the case of Mojekwu V. Mojekwu.[63][63]They also held Igbo Customary law regarding children born out of wedlock as that of the woman's family repugnant to natural justice, equity and good conscience in the case of Enendu vs. Ibezim.[64][64] Children born by husbands prior to marriage are bonafide members of the family therefore the exclusion of children born by wives prior to marriage suggests that couples are not equal within the marriage institution. These decisions are salutary and should be followed.

Nigerian women are dealt with on the basis of prejudicial stereotypes. Theoretically, they have different rights but practically these are merely honored in words as many neutral laws are by their practical application discriminatory. The law requiring corroboration and penile penetration for the proof of rape falls into this category as most victims of rape are women. More so corroboration is not required to prove other crimes and women have been known to be raped with other objects. Restrictive abortion law is another, as it discriminatorily prohibits services needed solely by women[65][65] forcing women with unwanted pregnancies to undergo hardship in the hands of quack abortion providers. This discrimination is especially grave where the abortion seeker is a victim of sexual violence which the law through its inadequacy and unenforceability did not prevent. In fact the restrictive law seems to be punishing women for sexual promiscuity thereby setting double standard-women must be chaste while men are permitted to be promiscuous.

The custom that induces women to marry surrogate wives where the marriage produces no children appear benevolent as though it is saving a woman from infertility provoked ostracism and stigma. However, a careful consideration of this apparently beneficent custom reveals that it is rooted in patriarchy and is aimed at discriminatorily shifting the blame of infertility in marriage to women.[66][66]

Right to Acquire and own immovable property

Land ownership is daunting task for women who are often seen as res themselves. Traditionally, women are only allowed family inheritance on rare occasions. Factors like son preference and child marriage make women economically dependent on men requiring financial assistance if they must own property. Most lending institutions prefer lending money to men than women. In the happenstance that a woman benefits from loan, a male guarantor among other things is required. Women can only enjoy this right if conducive environment is deliberately created for them. This some states have done by enacting the Married Women’s Property law.[67][67] The courts have also upheld the rights of married women to acquire property in Grace Madu V. DR. Betram Madu[68][68]and Mr. Olarenwaju Aderounmu V. Mrs. Olabisi Olaide Aderounmu.[69][69] These married-women-empowering laws discriminate against unmarried women as only married women have the right to acquire, hold, dispose of any property and have personal liability in contractual matters.

3.1.2    SOCIO-ECONOMIC RIGHTS

Socio-economic rights guaranteed under chapter ii of the Constitution are meant to serve as development map in the attainment of these rights. Socio-economic rights protected here are not exhaustive[70][70] but at least rights to health, education and economic emancipation are assured women. They are ideals to be pursued by every reasonable government. However, the citizens are powerless where policy makers, in the face of available resources fail to implement these polices. With the non justiceability provision[71][71], socio-economic rights will not be attainable in Nigeria even progressively and will at best remain an aspiration. A Nigerian high court summarized this position in Archbishop Olubunmi Okogie V. Attorney General of Lagos State.[72][72]

For instance the unenforceability of health is a great burden on women and one of the outcomes is MM. Nigeria’s MM is rated 2nd to highest in the whole world next to India. A close look at the picture, considering that India has a larger population reveals that in actual fact, Nigeria fares worse as  her contribution to world population is 1.7% whereas to MM is 10%. Contrary to section 17 (3) (d), access to health facilities is too far from Nigerian women, no wonder they die massively during pregnancy.

Education is the vehicle that will release Nigerian women from the grip of traditional practices and one of the best strategies for promoting women emancipation, demystifying retrogressive customs and transforming attitude towards women. The Constitutional promise of equal educational opportunities would do women a lot of good but alas this too is too far fetched for Nigerian women as many of them are forced into marriages when they should be in schools. Again, in the absence of guaranteed free education, parents and wards are forced to choose which of the children to send to school and most will gladly choose sons. In confirmation, the Federal Ministry of Education statistics puts the gross of un-enrolled out of school children at 10 million with the girl child representing 6.2 million. Following the above, female adult literacy is merely 54.6% as opposed to 70.1% male adult literacy.[73][73] The effect is that women have limited awareness of pertinent issues concerning them and are unable to decipher solutions where they are available in posters, newspapers and other media.

Women do not fare any better economically as poverty wears the face of a woman- 70% of citizens living below the poverty line are women.[74][74] Their plight is aggravated by their past neglect, cultural practices treating them as res, striping them of the right to possess property[75][75] and limiting their resort to cope with poverty.[76][76] Many women remain in informal sectors[77][77] and care economy because of early marriage which leave them poorly educated meaning that they must survive on skills if they are fortunate to acquire any and have take off capital. The efforts of Federal Ministry of Women Affairs and Social Development in skills acquisition training programs have not been of great assistance as 58.7%[78][78] of trained women acquired skills without a take off capital leaving them unable to use the acquired skills.  Sourcing private fund is difficult as facts reveal that only 21.9% of women have access to facilities (Bank loan) as against 78.1% of men.[79][79] Also women are unable to access health care because of user fees as 70-80%[80][80] of health care services are purchased using out-of-pocket payment. Poverty inhibits economic access to information and education. Even in cases of increased awareness, the information are usually available in print and other media which poor women are unable to afford especially in rural areas where only 12.5% read news papers, 8% watch television and 30.2% listen to radio.[81][81]

The effect of non justiceability of socio-economic rights on Nigerian women is aptly summarized in 1999 DFID report, ‘…the consequences of being a Nigerian woman include; deprived opportunities, limited coping strategies and safety nets and a constant threat of insecurity..’.[82][82]

3.2       The African Charter on Human and People’s Rights

The uniqueness of ACHPR[83][83] is the indivisibility of rights-first[84][84], second[85][85] and third[86][86] generation rights unlike the international[87][87] and other regional treaties.[88][88] Article 1 enjoins states to adopt legislative and other measures in giving effect to their obligations and this duty has been held by the Commission in CLO V. Nigeria[89][89] to commence with ratification. Nigeria has gone beyond ratification to domestication of ACHPR which consequence is its incorporation as part of municipal law.[90][90] Its provisions are enforceable as those of chapter 4 of the 1999 Constitution by application made under section 46 of the Constitution.[91][91] It follows that the national courts are empowered to enforce rights and obligations covered in ACHPR, put differently; socio-economic rights could be enforced in Nigeria.

 

In carrying out obligations, it imposes duties to respect, protect and fulfill also guaranteed by other treaties. In Serac V. Nigeria,[92][92] it recognized a fourth duty of promoting enjoyment of human rights. The Commission held that the duty to undertake measures involves preemptive steps to prevent human rights violations even if not caused by direct acts of government agents.[93][93]This decision empowers protection of women from women’s rights violating traditions by non government perpetrators. Duty to fulfill is a positive duty which could be interpreted to mean establishing special courts to handle violation of women’s rights.

 

 

Article 16 provides for ‘…the best attainable state of physical and mental health…’ and enjoyment of right to health was held in Purohit and Another V. The Gambia,[94][94]  to be fundamental to all aspects of life because it aids the realization of all the other human rights and freedoms.  The ACHPR provision is in line with definition proffered by the principal international health authority – World Health Organization (WHO) which defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.[95][95] Flowing from the above mental and social wellbeing of women is as important as physical wellbeing. This denotes that anything affecting a woman’s social or mental health violates her right to health. Broad interpretation of right to health was upheld in Free Legal Assistance Group Lawyers’ Committee for Human Rights.[96][96] In Serac (Supra)[97][97] Nigeria was held liable for violating inter alia, the right to life and health. Implementing these decisions locally will go a long way to improve health of Nigerian women as MM other life threatening factors will become history.  

 

Articles 17(1) and 24 provide for rights to education and satisfactory environment favorable to development. The interpretation of these will prohibit early marriage, retrogressive traditions, poverty, women’s rights violating laws and policies as unfavorable environments for women’s development

Albeit, the provisions of ACHPR are insufficient for the protection of human rights and women’s rights but will aid rights promotion. As if to cure this lacuna, articles 60 and 61of the charter, empowers Nigerian Courts to draw inspiration from international and regional human rights treaties and instruments ratified by Nigeria. This could be said to mean that all ratified-but-yet-to-be-domesticated treaties could be resorted to by the Nigerian courts in interpreting laws. For instance, inspiration drawn from the ICESCR Committee that ‘ … women’s health should be promoted all through their lives…’[98][98] will positively affect women’s health bringing to bear the four elements of right to health which are availability[99][99], accessibility[100][100], acceptability[101][101] and quality.[102][102] Inspiration drawn from CEDAW[103][103] will eradicate all forms of discrimination, stigma and stereotypes against Nigerian women and put them in a satisfactory environment for their development. These Inspirations will place education in its right position- a human right[104][104] while taking care of concerns of ICESCR[105][105] and CEDAW[106][106] in their previous concluding observations on Nigeria.

Despite the commendable view, a divergent view on the correct application of articles 60 and 61 is that Nigerian courts can only draw inspiration from such international law if it is consistent with the Constitution. This view renders socio-economic rights unenforceable and the Supreme Court seems to favor this view when it held that where conflicts arise between the Constitution and the received African Charter, the Constitution supersedes.[107][107] This holding contradicts that of the Commission[108][108] which affirms that domestic legislation must be interpreted not to conflict with obligations under the charter and negatively affects the realization of human rights and women’s rights in Nigeria.

4.0       ENFOCEABILITY OF WOMEN’S RIGHTS

The enforceability of women’s rights as human rights requires an enabling environment as well as political will of stakeholders. Enabling environment will include structures, laws and policies while the stakeholders include, government, women, law enforcement agents, media, courts, religious cum traditional rulers and women’s rights activists.   

Nigeria has several policies in this area including the constitutionally guaranteed policies. Policies demonstrate a modicum of commitment to protection of human rights. However their unenforceability renders them willing tools lacking capacity to protect women’s rights. Laws are thus preferred to policies as their implementation serve as watchdogs deterring irresponsible governments from engaging in improper acts. This fuels arguments of those who clamor for women specific legislations and justiceability of socio-economic rights. Especially as Nigerian laws on protection of women’s rights have been criticized for lacking the willingness[109][109] to promote women’s right as they are inadequate, misinterpreted and unenforceable. It is argued that despite the existence of UDHR, CEDAW[110][110] came into being. Notwithstanding the protections guaranteed women under the ACHPR, the African Women’s Protocol still was necessary. This goes to show that Nigeria specific women’s rights provisions are necessary if women are to leave vulnerability group[111][111]  and enjoy fundamental rights ordained by God and protected by international and regional treaties.  The adherents of international treaties also cling to this to call for domestication of more treaties particularly the CEDAW and African Women’s Protocol.

It is here canvassed that Nigerian laws on protection of Women’s rights may not be exhaustive with many of them in need or urgent review, yet they are sufficient albeit temporarily to change the position of women if they are implemented. The issue of implementation will arise where women’s rights activists utilize these laws to challenge women’s rights abuses. Again, the domesticated ACHPR and CRC are yet to make visible differences in the lives of Nigerians and Nigerian children. Women’s rights activists may not utilize these treaties if domesticated since they have not been able to utilize the domesticated treaties in favor of women. Therefore domesticating these treaties may still leave women’s situation at its status quo. Further, a government that fails to respect its own Constitution may also disrespect its obligations under a treaty as treaties are fraught with weaknesses, thus the inability of monitoring bodies to impose sanctions that will deter non implementation.  

This goes to show that enabling environment cannot solely protect rights of Nigerian women. A lot still depends on the stakeholders who must take the bull by the horn if women are to enjoy human rights. Unfortunately, the women do not know their rights not to talk of how to enforce them. Where they are in the know of their rights, they are bound by the culture of silence emanating from religious fundamentalism and socialization process. Issues like violence should be a public affair while tortuous acts like FGC must be reported. There is therefore need for increased female education and awareness particularly in rural areas to break barriers and tear off veils of customs inhibiting women from demanding for justice.

The government as a principal stakeholder must demonstrate political will to enforce women’s rights. This should be evident in its action towards existing repressive customs flying in the face of the Constitution, the acclaimed grundnorm. It should ensure the passage of the 2002 anti FGC bill and similar bills into law. Various levels of government have developed attractive policies and some have even gone ahead to enact laws but political will goes beyond lip service as the non implementation of the laws render them useless and mocks government’s sincerity. The instant example is the laudable policy on safe motherhood which non implementation questions commitment to MM eradication. Nigerian government must be seen as upholding the obligations voluntarily imposed on itself by ratification of international and regional treaties. There is no system of monitoring structures put in place for the promotion and protection of women’s rights while law enforcement agencies are ill equipped for their role. It is helpful that every public institution and federal agencies have sufficient capacity building on gender sensitivity. The religious cum community leaders should be engaged in deemphasizing traditional/religious discrimination violating women’s rights. The media have only given violation of women’s rights shabby attention. They may not really be blamed because they are product of patriarchy therefore do not ask the women question in reporting issues. There is also need to build the capacity of members of media to make them more gender conscious.

Women’s rights activists initiated increased awareness of women’s human rights still, the bulk of the work lies with them. They are not only to ensure favorable environment for the development of these rights, they must also engage other stakeholders and keep women’s rights in public domain if this war is to be fought gallantly and won. While appreciating their efforts, they are yet to exhaust the non discrimination provision which could be used to address a lot of challenges facing women. Many of women’s rights violating issues are judicially challengeable for instance Dr. (Mrs.) Priye Iyalla-Amadi V. Nigerian Immigration Service (NIS)‘s case exposed the discrimination inherent in NIS passport application process. Enforcement of women’s rights requires creativity as no law/treaty is exhaustive and over reliance on women specific legislations will foist on the activists a case of impossibility as they will constantly demand for laws which in Nigeria takes time while women are loosing their lives. Issues like MM, FGC, wife inheritance etc could creatively be linked to rights to life, non discrimination and other constitutionally guaranteed rights. In fact many socio-economic issues can be challenged using laws like CRA/CRL etc. They must first inundate the courts with these issues to spur judicial activism as courts may be unwilling to grant prayers not sought.  They should be able to take up governments that renege on their obligations whether local or international. For instance the provisions of CRA/CRL provide a good opportunity to demand accountability from governments. Section 15 of CRA provides for free compulsory education up to junior secondary schools for girls yet many girls of school age are either hawking or married. This section will be useful even in states that have reservation on section 18 which penalize marriage of girls under the age of 18 years. Public impact litigation is therefore a veritable tool in the hands of women’s rights activists. It is possible that many women’s rights activists lack capacity and are not accustomed to what obtains in other jurisdictions. It is necessary that the few who have sufficient capacity should train others to increase the number of people fighting this noble cause.

The Courts as the last hope of common man owe women a duty to do more in ensuring the protection of women’s rights, if law must remain a tool for social engineering. Their decisions must be seen to uphold human and women’s rights. The Court’s decision in Fawehnmi (Supra) has not helped the development of human rights and is capable of stalling the constitutional and legislative guarantee of the provisions of the African Charter, leaving it a formal paper protection.

Courts have used the excuse of the non justiceability of socio-economic rights to support the ineffectiveness of courts in protecting human rights. The situation is akin to the military era when ouster clauses ousted jurisdiction of courts. This should not be the case in democratic setting. Much as justiceability of socio-economic rights is ideal, this argument is not tenable as other nations with similar jurisprudence like India have creatively used civil and political rights to ensure protection of socio-economic rights. The right to life was used in the case of Paschim Banga KhetMazdoor Samity V. State of West Banga[112][112] to protect health. Court’s decision in AjiboyeV. Dresser NIG LTD[113][113] and similar decisions rich in creativity in favour of women ought to be upheld and advanced.

Regardless of the above, instances where Nigerian courts protected women abound for instance Justine Emenike Anagbado V. Esther Ifebube Anagbado,[114][114] Chinye A. Ezennah V. Alhaji Mahmoud I.Atta.[115][115] They have punished murder of women in Samson Emeka V. The State,[116][116] Lateef Adeniji V. The State.[117][117] The Appeal Court did not allow a man use the Bini custom of igiobe to disentitle a woman from using a property she inherited by her father’s will in Emmanuel Osaheni Egharevba V. Mrs. Comfort Oruonghae.[118][118] Unfortunately, in many of these cases, the courts based their decisions on available laws in other words; the result would have been same if men were on the receiving end. They came to their conclusions without references to treaties protecting women’s rights ratified by Nigeria or considering the special position of women. Women’s rights flow from international law and courts must be seen as upholding these rights by making reference to treaties voluntarily ratified by Nigeria. Nevertheless the Appeal Court in Mojekwu V. Ejikeme[119][119] was ground-breaking in holding women’s rights violating custom of Nrachi Nwanyi contrary to CEDAW and the Nigerian constitution. This typifies judicial activism. This decision has dialogic effect. It increases awareness and reveals judicial rejection of the custom. While recognizing principle of Separation of Powers, this decision could spur law reform in this area.   This and similar pronunciations will be necessary for enlarging women’s right jurisprudence.

However, there are also instances where the court inhibited development of women’s rights jurisprudence. In Mojekwu V. Mojekwu (Supra) Appeal Court’s condemnation of women’s rights violating custom was lauded by women’s rights activists until the Supreme Court lambasted the Court of Appeal in Mojekwu V. Iwuchukwu[120][120] for using strong expression particularly as the issue was not strictly before it. The highest Court also said that the language used by the Appeal Court could cause strong feelings for all customs failing to recognize the role of women. It is quite understandable that the Appeal Court delved into issues not strictly before it but that could be tolerated as affirmative action in favor of women in line with CEDAW. The Supreme Court being the highest court in the hierarchy of courts, in dashing the hopes of women emancipation enthusiasts seemed to be saying that customs that discriminate against women could be endured in certain circumstances. One wonders whether Nigerian courts will uphold violation of women’s right to life if for instance MM is judicially challenged. The courts many times seem to forget the dictum of late Hon. Justice Pats-Acholonu in Magit v University of Agriculture, Makurdi[121][121]

It is said that the function of the court is to interpret laws made by legislature and not to make laws. In theory, that is so. But it must equally be admitted that judges are not robots (or zombies) who have no mind of their own except to follow precedents. They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due. As the society is eternally dynamic and with fast changing nature of things in the ever changing world and their attendant complexities, the court should empirically speaking situate its decisions on realistic premise regard being had to the society’s construct and understanding of issues that affect the development of jurisprudence.

Judges should apply their great learning in ensuring the growth of women’s rights jurisprudence for protecting women and showcasing Nigeria as a nation with interest of protecting her women. They must be purposive and creative, interpreting laws in line with present realities to boost women’s reliance on the judiciary.[122][122]  

5.O      CONCLUSSION

Tell me why as a woman, I have all these burden

     When God, the Constitution and the United Nations

    All tell me you and I are equal in all respects?[123][123]

 This work attempts a perusal of enforcement of women’s rights as human rights in Nigeria.  It proves beyond reasonable doubt that women’s rights are not enforced as human rights in Nigeria. This follows the decision in Nasiru V. State[124][124]  where proof beyond reasonable doubt was held as not ‘proof beyond any shadow of doubt or ‘beyond all iota or shred of doubt’. Human rights cannot be said to be in place when the rights of women who constitute 50% of the population[125][125] are disrespected.

The work reveals that guaranteed civil and political rights have not been of great help as women specific issues are not recognized while the stakeholders are many times unwilling and unable to creatively bring them in. The non justiceability of socio-economic rights and supremacy of the constitution over treaties jeopardize human rights of Nigerians despite the Nigerian government’s association with the Vienna Declaration and program of action both of which emphasize indivisibility, universality, interdependence and interrelatedness of all human rights,[126][126] while stressing the protection of women’s human rights.

It demonstrates that women’s specific legislations are important as law is a necessary tool for the enforcement of women’s rights but the judiciary must rely on international and local laws in widening human and indeed women’s rights protection.

It establishes through evidence that the enforcement of women’s rights as human rights in Nigeria is daunting but possible if the stakeholders demonstrate willingness and ability while ensuring conducive environment. The only tolerable reason for non enforcement of women’s rights by the government (a major stakeholder) is where it is proven that its enforcement threatens public good.

Enforcement of women’s rights as human rights is significant as the opposite will stultify the attainment of Millennium Development Goals (MDGs) and general development. It is especially instructive as gender equality and women empowerment is specifically mentioned as MDG 3. The linkage between the MDGs suggests that the non realization of one of the goals, will affect the realization of the rest. Given that progressive societies are measured by how they treat women and children; power to women is indeed power to all.[127][127]







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* OKEKE UJU PEACE is a law graduate of Obafemi Awolowo University (O.A.U) Ile-Ife, called to the Nigerian bar in 2002. She obtained an LL.M in Human Rights (Specializing in Reproductive and Sexual Health Rights) from the University of the Free State, Bloemfontein, South Africa in 2008. She is a practicing lawyer, a human right activist, a reproductive and sexual health expert and a professional negotiator and a mediator. She presently works with Socio Economic Rights Initiative (SERI) as a legal and program officer. TEL: +2348023907137, +23417255379. EMAIL: ujupeaceo@yahoo.com

[1][1] Niger Watch: Nigerian Population Census: Men outnumber Women by Millions  Available at http//nigerwatch.blogspot.com2009/03/Nigerian population census (Accrssed 31st August 2009 3.52pm)

[2][2] E Chesler ‘Introduction’ in W Chavkin & E Chesler (eds) Where human rights begin 1 the author quoted Eleanor Roosevelt’s remarks at the United Nations, March 27, 1958.

[3][3] Universal Declaration of Human Rights adopted and proclaimed by UN General Assembly Resolution 217A (III) (December 10, 1948) Article 25.

[4][4] Human Rights TakingItGlobal Available athttp//wiki.tigweb.org (Accessed 11th August 2009).

[5][5] Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entry into force 3 September 1981.

[6][6] Constitution of the Federal Republic of Nigeria (Promulgation) Act, 1999, Cap C23, Vol. 3, Laws of the Federation of Nigeria, 2004 Section 1(3)

[7][7] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976.

[8][8] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

[9][9] Adopted and opened for ratification by General Assembly resolution 2106(XX) of 21 December 1965, entry into force 4 January 1969. Article 5(e) (iv) provides for ‘the right to public health, medical care, social security and social services.’

[10][10] Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987.

[11][11] Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990.

[12][12] Adopted and opened for signature, ratification and accession by Assembly of Heads of State and Government Decision 115(xvi) in Kenya 27 June 1981, entry into force 21 October 1986.

[13][13] Adopted by the 2nd Ordinary Session of the African Union General Assembly in 2003 in Maputo CAB/LEG/66.6 (2003) entered into force 25 November, 2005.

[14][14] Adopted in Addis Ababa Ethiopia in July 1990 and entry into force November 1999.

[15][15] African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10, Laws of Federation of Nigeria 1990.

[16][16] Forum of Conscience V. Sierra Leone Communication 223/98 para 20

[17][17] RJ Cook et al Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law (2003) 11.

[18][18]MT Ladan Law and Policy on Health, HIV-AIDS, Maternal Mortality and Reproductive Rights in Nigeria (2007) 79.

[19][19] Okonofua FE ’Maternal and Child Health in Nigeria’ available at www.nigeriannma.org/maternal.ppt (Accessed 28th February 2008).

[20][20] World Health Organization ‘Maternal Mortality in 2005 Estimates Developed by WHO, UNICEF, UNFPA, and The World Bank’ available at http://www.unfpa.org/upload/lib_pub_file/717_filename_mm2005.pdf (Accessed 28th February 2008).

[21][21] Ibid.

[22][22]Gendercide Watch ‘Maternal Mortality’ available at http://www.gendercide.org/case_maternal.html (Accessed 28th February 2008).

[23][23] Ibid

[24][24] RJ Cook et al (note 17 above) 34-35.

[25][25] Anambra State of Nigeria. Law/2005/04: a law to confer certain reproductive rights on women and to provide for related matters. Enacted by the Anambra State House of Assembly on 14 April 2005.

[26][26]The Female Circumcision and Genital Mutilation (Prohibition) Law 1999.

[27][27] CRR and WARDC ‘Broken Promises: Human Rights, Accountability and Maternal deaths in Nigeria’ (2008) 50

[28][28] Criminal Code Act Chapter 77 Laws of the Federation of Nigeria 1990 Sections 228-230 and 297

[29][29] UN International Human Rights Instruments, HRC/Gen1/Rev.2, 29 March 1996, at p.6.

[30][30] S V. Makwanyane 1995 (3) SA 391 (CC)  South African Constitutional Court.

[31][31] J Horn ‘Not Culture but Gender’ in W Chavkin & E Chesler (eds) Where human rights begin (2005) 37; See also United Nations Economic and Social Council Report of the Special Rappoteur on Violence against Women, its Causes and Consequences E/CN.4/2000/68/Add.5.

[32][32] C Shalev ‘Right to Sexual and Reproductive Health: The ICPD and the Convention on the Elimination of all forms of Discrimination against Women’ (2000) 4(2) Health and Human Rights 48.

[33][33] Responses to Information Requests (RIRs) available at http://www.irb-cisr.gc.ca/en/research/rir/?action=record.viewrec&gotorec=450643 (Accessed 30 September  2007); See also Report on Female Genital Cutting (FGC) available at G:\Nigeria Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC) - OnlineNigeria_com.mht(Accessed 30 September  2007).

[34][34] (2000) 5NWLR 3.

[35][35] Inhuman Treatment of Widows (Prohibition) Law2004

[36][36] Malpractices against Widows and Widowers (Prohibition) Law2005

[37][37] Abia, Anambra, Bayelsa, Ebonyi, Edo, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Osun,Oyo, Plateau, Rivers and Taraba

[38][38] Criminal Code (Note 28 above).

[39][39] Section 15 (2) (c) Matrimonial Causes Act CAP 220 Laws of the Federation of 1990

[40][40] Ibid Section 16 (1)(e).

[41][41] Otti v. Otti (1992) 7 NWLR (pt 252) 187 at 208

[42][42] (2008) Vol 1 WHRC 106

[43][43] (1998) CA/B/6/94, 13 (Court of Appeal Benin).

[44][44] Penal Code Law, 1959, Cap 89, Laws of  Northern Nigeria, 1963 section 51(1)(d)

[45][45] The Nigerian Constitution; Nigeria’s National Action Plan for the Promotion and Protection of Human Rights in Nigeria July 2009 lumps women, children and young persons together

[46][46] Reported by Gardian 19th July 2009. NIS in requiring a married woman to produce a letter of consent from her husband in processing traveling passports, argued that married Nigerian women were classified along with minors by the government of the Federal Republic of Nigeria through the NIS in the category of

[47][47] B Olateru-Olagbegi & BA Afolabi ‘Actual Women Situation in Nigeria’ available at http://www.wildaf-ao.org/fr/print.php3?id_article=46(Accessed 30 September 2007); See also Giving up Harmful Practices, Not Culture available at http://www.advocatesforyouth.org/Publications/iag/harmprac.htm (Accessed 17 September 2007).

[48][48] (2003) 6 NWLR Pt 816 at 230. The Court held that ‘there must be independent credible corroborative evidence.  The nature and content of the corroborative evidence must not only corroborate and support the claim of the prosecutrix that the accused raped her by penetrating into her vagina.  It must also unequivocally implicate the accused.’

[49][49] (2008) Vol.1WHRC 106

[50][50] National Centre for Women Development, Abuja ‘A Compilation of the Constitution, National and State Statutes and Regulations, Local Government Bye-Laws, Customary Laws and Religious Laws, Policies and Practices, and Court Decisions Relating to the Status of Women and Children, Applicable in Nigeria’ (2005) 66-67.

[51][51] (1932) 11 NLR 47 (West African Court of Appeal).

[52][52] Suit No. 4/24A/79 Unreported judgement of Hon. Justice Ohiwerei of Ubiaja Judicial Division former Bendel State of Nigeria delivered on Tuesday, 23rd day of march 1982-

[53][53] The Nigerian Evidence Act Cap 112 Laws of the Federation of Nigeria 1990

[54][54] (2008) Vol. 1 WHRC 309

[55][55] Otapo & Ors V. Sunmonu 1987 2 NSCC  p. 669

[56][56] The Nigerian NGO CEDAW Coalition: A Shadow Report  (2008) 26

[57][57] Nigerian Gender Policy 2006, 5th objective.

[58][58] A.O. Okunade (ed) Promotion of Women’s Rights Consciousness (1998) 13

[59][59] J De Waal & I Currie The Bill of Rights Handbook (2005) 243.

[60][60] Okunade (note 58 above) 2.

[61][61] (2002) FWLR PT 129 @ 1454 ratios 2 &3

[62][62] (1997) 2 NWLR 144.

[63][63] (1997) 7 NWLR Pt 512;283

[64][64] QLRN Vol 1 (1986) @222

[65][65]RJ Cook & S Howard ‘Accommodating Women’s differences Under the Women’s Anti-Discrimination Convention’ (2007) 56 Emory Law Journal 1040.

[66][66] Shalev (note 32 above) 48.

[67][67] Married Women’s Property Law of 1994 applicable in the South East; Oyo Married Women Property Law of 2000; Kaduna, Sokoto and Zamfara States Married Women Property Laws. 

[68][68] (2008) Vol 1 WHRC 255 the trial court and the Supreme Court did not allow a man reap where he did not sow by declaring the property bought within the marriage that of the woman when cohabitation ceased despite Appeal Court’s application of doctrine of resulting trust.

[69][69] (2008) Vol. 1 WHRC 283 the trial and Appeal Courts upheld the woman’s ownership of property bought in her name when she filed for divorce

[70][70] Section 15 (5) of the Constitution provides that ‘state shall abolish all corrupt practices and abuse of power, Sections 17(3) provides that ‘the State shall direct its policy towards ensuring that: (a) all citizens without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment, (b) conditions of work are just and humane…(c) the health, safety and welfare of all persons in employment are safeguarded…(d) there are adequate medical and health facilities for all persons 18(1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels…(3) government shall strive to eradicate illiteracy…’.  

[71][71] section 6(6)(c) of the Constitution provides that “The judicial powers vested in accordance with the foregoing provisions of this section -(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution…”

[72][72] (1981) 2NCLR 337 it held that the provisions of chapter II of the Constitution are not obligatory on the government

[73][73] The Nigerian NGO CEDAW Coalition (Note 56 above) 34

[74][74] Federal Ministry of Women Affairs 2006; National Gender Policy(Note 57 above) .

[75][75] Oluyemisi Obilade & Olutoyin Mejiuni ‘Poverty Alleviation through Reproductive Health Exploring Other Non-formal Alternatives’ 286-291

[76][76] A R Oyeduntan ‘Unemployment, Poverty and Drug dependency among Youths in Nigeria’ A paper presented at the Conference on 'Policy and Politics in a Globalising World, University of Bristol, UK (2003).

[77][77] P Eweama Gender Statistics in Nigeria Issues and ChallengesPaper Presented  atUN Global Forum on Gender Statistics, Accra Ghana January, 2009. Statistics have it that as at 2006, there were 68.72% men and 31.28% women in Federal Civil Service while for Federal Ministries  32.4% were women while 67.6% were men

[78][78] The Nigerian NGO CEDAW Coalition (Note 56 above).

[79][79] P Eweama (Note 77 above)

[80][80] CRR and WARDC (note 27 above) 39

[81][81] Oluyemisi (note 75 above)

[82][82] Oyeduntan (note 76 above).

[83][83] In its preamble, is convinced that ‘it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for enjoyment of civil and political rights.

[84][84] The first generation rights include right to equality before the law (Art 3) right to have ones case heard (Art 7)right to freely associate (Art 10)

[85][85] Socio-Economic rights include right to work under equitable and satisfactory conditions (Art 15) right to enjoy the best attainable state of physical and mental health (Art 16(1) right to education (Art 17 (1) right to a generally satisfactory environment (Art 24)

[86][86] Right to international Peace and Security(Ar 23)

[87][87] At the international level, there are the ICCPR and the ICESCR

[88][88] At the regions, there are European Convention and the European Social Charter and the American Convention and the ‘Protocol of San Salvador’

[89][89] Communication 129/94

[90][90] Section 1 of the Act provides that ‘the African Charter shall have force of law in Nigeria and be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria. 

[91][91] Ogugu v The state (1998) 1 Human Rights Law Report, 167.

[92][92]  (2001) African Human Rights Law Report 60 (ACHPR 2001) they explained this to mean ‘to promote tolerance, raise awareness and build infrastructure’..

[93][93] Commission Nationaledes Droits de l’ Homme et de Libertes  V. Chad Communication 74/92 para 22

[94][94] (2003) AHRLR 96 (ACHPR 2003).

[95][95] 14 UNTS 185 The Constitution of WHO was adopted by the International Health Conference, New York 19-22 June, 1945; opened for signature on 22nd July 1946 by the representatives of 61 states (official records of the World Health Organisation, no.2 p.100); and entered  into force on 7 April 1948. WHO in the preamble to its Constitution of 1946 proclaimed that ‘the enjoyment of the highest attainable standard of living is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

[96][96] Communication 25/89 health was held to include duty to provide water, electricity and adequate supply of medicine.

[97][97] Serac (note 91 above)  Nigeria caused environmental degradation and contamination in Ogoni land through its oil production and condoned violation by failing to monitor operators to ensure their compliance with the required safety measures.

[98][98] General Comment 14, UN ESCOR, 2000, Doc. No. E/C.12/2000/4 para 14 & 21 in interpreting article 12(1) of ICESCR

[99][99] Availability will mean sufficient healthcare goods and services needed by women

[100][100] Accessibility embodies four components which are economic accessibility, physical accessibility, information accessibility and non discrimination.  Economic accessibility will imply that the healthcare goods and services peculiar to women are affordable. Physical accessibility will entail that the healthcare goods and services are within easy reach of women. Information accessibility will mean that women must be aware of necessary health information. Non discrimination means that healthcare goods must be offered equally.

[101][101] Acceptability entails that they are culturally and ethically acceptable

[102][102] Quality ensures that available goods and services are of good quality

[103][103] Understanding Gender Equality ‘Women’s rights are Human Rights TakingItGlobal Available at http//wiki.tigweb.org(Accessed 11th August 2009) CEDAW is the main international human rights treaty for women adopted by the United Nations General Assembly it is often described as an international bill of rights for women. The detailed document defines what constitutes discrimination against women and sets up an agenda for international action to end such discrimination.

[104][104] CRC General Comment 1 twenty-Sixth Session (2001); CESCR General Comment 11, UN ESCOR 1999, Doc. No. E/C.12/1999/4 enjoins states to provide free compulsory primary education; CESCR General Comment 13, UN ESCOR 1999, Doc. No. E/C.12/1999/10 explains that education is a human right; article13 of ICESCR urge states to provide free, compulsory primary education, accessible secondary and higher education with a gradual introduction of free education.

[105][105] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Nigeria 13/05/98, E/C.12/Add.23.

[106][106] Concluding Observations of the Committee on the Elimination of Discrimination against Women: Nigeria 20/01/2004, CEDAW/C/2004/1/CRP.3/Add.2/Rev.1.

[107][107] Abacha v Fawehnmi (2000) 6 NWLR (PT. 660) 228

[108][108] Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) it was held that allowing national law to take precedence over International law would defeat the essence of treaty making and erase important rights provided for under the charter.

[109][109] NI Aniekwu ‘Legalising Cairo: Prospects and Opportunities for Reproductive Rights in Nigeria’ (2006) 1 & 2 CODESRIA Bulletin 49.

[110][110] Understanding Gender Equality (Note 103 above) 1.CEDAW is the culmination of over 30 yrs of work by UN Commission on the Status of Women. Their main agenda is to bring to light all the areas in which women are denied equality with men.

[111][111] S Khoza Socio-Economic Rights in South Africa 2nd ed (2007) 21.

[112][112] (1996) 4SCC37. The Supreme Court of India held that the right to life protected by article 21 of the Indian constitution was breached when various government hospitals denied a complainant emergency treatment for head injury.

[113][113] (1972) 7CC HCJ 57 (78) Court held sack after maternity leave is pregnancy related and unlawful.

[114][114] (2008) Vol. 1 WHRC 239 where a man’s attempt to divorce his wife after 6 children and active sexual life for a useless reason was refused by both trial and appellate courts.

[115][115] (2008) Vol. 1 WHRC 185. The trial court and Supreme court denied a man the pleasure of taking back landed property bought for a woman when their love turned sour for a frivolous reason of breach of promise to marry when in actual fact there was none.

[116][116] (2008) Vol. 1 WHRC 163 The Supreme Court held the accused liable for murdering a woman who died in the process of her eyes being plucked for ritual purpose, the fact that she was a prostitute not withstanding

[117][117] (2008) Vol. 1 WHRC 83 The Supreme Court held the accused liable for murder when he murdered a lady and took over her car. 

[118][118] (2008)Vol. 1 WHRC 411

[119][119] (2008) Vol. 1 WHRC 368

[120][120] (2004)NWLR Pt. 883 Pg 196

[121][121] (2005)19 NWLR PT.959 211, 259 D-E

[122][122] Abiola v FederalRepublic of Nigeria (1995) 7 NWLR pt. 455 p.8 it was stated that the courts are to enhance confidence in the administration of justice and the courts are to abstain from doing anything that will erode the root of justice.

[123][123] E Chesler (Note 2 above)1 the author quoted Eleanor Roosevelt’s remarks at the United Nations, March 27, 1958.32 the author cited the Melanesian poet Agnes Dewenis.

[124][124] (1999) 2 NWLR (Pt. 589) 161 per Afolabi Fabiyi JCA

[125][125] Okunade (Note 58 above) 3

[126][126] National Action Plan for the Promotion and Protection of Human Rights in Nigeria (Note 45 above) 4.

[127][127] Understanding Gender Equality (Note 103 above).