CHAPTER
TWO
LITERATURE
REVIEW
2.1 WHAT IS HUMAN RIGHT
The
words “human rights have a definitional problem. Many jurists and human rights
activist have tried without generally acceptable success to evolve at precise
and comprehensive definition. Any discussion on human rights issues raises
emotion. As long as the phrase “human right” remains more definition would so
long remain varied and inaccurate.
The
concept of human rights arises from the intrinsic nature of man. He is a human
being endowed by God with certain inalienable rights. As a complete whole he
alone stands for and he alone is responsible for his actions. He is equal to
his next-door neighbor1.
The
notion of the in alienable rights of man remains with us today and a local
expression of it was kindly put across by Eso J.S.C. when he declared what a
fundamental rights is in the case of Ransom Kuti v Attorney General of the
Federation2
(1985) 2 NWLR (part 6) 211 CA, as “a right which stands above the
ordinary laws of the land and which is antecedent to the political society. It
is a pre-condition to civilized existence. Cranston,
gave what many people regard as a better definition of human rights when he
wrote that;
“Human
right is something of which no one may be deprived without great affront to
justice. There are certain deeds which should never be done, certain freedoms
which should never be invaded, something’s which are supremely sacred3.
According
to Dowrick, human rights are; those
claims made by men, for themselves or on behalf of other men, supported by some
theory which concentrates on the humanity of man, on man as a human being a
member of human kind4.
Also, Prof. Osita Eze defines human
rights as:
As
representing demand or claims which individuals or groups make on society, some
of which are protected by law and have become part of lex lata, while others
remain aspirations to be attained in the future5.
According
to Okpara, Okpara human rights “are the universally accepted principles and
rules that support morality and that make it possible for each member of the
human family to realize his or her full potential and to live life in an
atmosphere of freedom justice and peace6.
Human
rights according to, Eseni Azu Udu could be defined “as those rights or claims
that are inherent man. Therefore associated with the nature of man7.
Furthermore,
the HELSINKI ACT defines human right as “the right to be free from governmental
violations of the integrity of the person, the right to the fulfillment of such
vital needs as food, shelter, health care and education, and the right to enjoy
civil and political liberties8.
The
very specificity of the concept of “human rights” is that they belong to the
individual in his quality as a human being who cannot be deprived of his
substance in any circumstances. Human rights are thus intrinsic to the human
condition9.
Human
rights further refer to the concept that every member of the human race has a
set of basic claims by virtue of his or her humanness10.
2.2 EQUALITY AND NON-DISCRIMINATION
The
principles of equality and non-discrimination represent the twin pillars upon
which the whole edifice of the modern international law of human rights is
established.
Equality
and non-discrimination are in themselves controversial terms with immense
uncertainly as to their precise scope and content.
Thus
to one authority ‘equality is a notion exposed to different philosophical
interpretations, it’s meaning in the various legal system is not always the
same11.
Secondly, there is a substantial debate
as to the means of creating real and meaningful equality. Thirdly, it is
important to note the various definitions of equality and discrimination
according to international conventions. Article 2 of the women’s convention
represents what has been aptly describe as the core of the convention,12 According to this article state parties
condemn discrimination against women in all forms and agree to eliminate
discriminations. The agreement is to eliminate discriminations ;by all
appropriate means and without delay.
Such
forms of discrimination has defined in Article 1, of CEDAW13
the term discrimination against women” shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enforcement or exercise by
women, irrespective of their marital status, on a basis of equality of men and
women of human right fundamental freedoms in the political, economic, social,
cultural civil or any other field.
Discrimination
is defined as differential treatment, especially a failure to treat all persons
equally when no reasonable distinctions can be found between those favored and
those not favored14.
It
can also be defined as the practice of treatment a particular group less fairly
than others15.
The
constitution16 provides in section 42
that a citizen of Nigeria of a particular community, ethnic group, place of
origin, sex, religion or political opinion shall not, by reason only that he is
such a person
Other
relevant constitutional provision were made under chapter 2, titled fundamental
objectives and directive principles of state policy, these provisions in
chapter 2 are however non-justifiable. They include section 17 (9) which
guarantees equality of rights, obligations and opportunities before the law and
section 17 (3) (9) which ensures that all citizens, without discrimination on
any group whatsoever shall have the opportunity for securing adequate
livelihood as well as adequate opportunity to secure suitable employment.
Furthermore
it should be noted that the convention states that the full and complete
development of a country, the welfare of the world and the cause of peace
require the maximum participation of women on equal terms with men in all fields16.
The
human rights of women and of the girl child are an inalienable, integral and
inadmissible part of universal human rights. The full and equal participation
of women in political, civil, economic, social and cultural life, at the
national, regional and international levels, and eradication of all forms of
discrimination on grounds of sex are priority objectives of the international
community17.
On
equality, the World conference on human rights argues the full and equal
enjoyment by women of all human rights and that this be a priority for
governments and for the United Nations.
Furthermore,
it underlines the importance of the integration and full participation of women
as both agents and beneficiaries in he developmental process, and reiterates
the objectives established on global action for women towards sustainable and
equitable development set forth in the RIO declaration on environment and
development and chapter of Agenda twenthy one -18
9
2.3 THE RIGHTS OF WOMEN AND THE HUMAN RIGHTS
REGIME
It
is imperative to reiterate that human rights pertains to those rights that
every human being possesses and is entitled to enjoy simply by virtue of being
human. These rights are predicted on the fundamental principle that all persons
possess an inherent human dignity and that they are entitled too enjoy these
rights regardless of sex, color, language, national origin, age, class or
religious or political beliefs. Therefore, human rights apply to both man and
women equally19.
Basically,
women’s human rights are those rights that apply to both women, and men, and
are contained in general human rights instruments t with: the international
convent on civil and political rights (ICCPR) the international covenant on
economic, social and cultural rights, (ICESR) among others, which entrench rights exercisable by
all without discrimination of any form20.
There
are also some those that are specific to women or those that need to be
enlarged to suit women’s situations. Such rights are found in specialized
instruments like the convention on the elimination of all forms of
discrimination against women (CEDAW) yet, there are some others that are still
evolving. This category of rights is yet to be defined and included
comprehensively in the general human rights instruments for instance, some
reproductive rights of women21
At
the evolution of the human rights system, the focus of human rights was on
civil and political rights rather than economic, social and cultural rights
that have prevailing influence on women.
The
issue of the rights of women remains highly derisive in most societies and
regions of the world. Those divisions are reflected in the developing norms of
the international law of human rights. Discriminating practices and violations
of the rights of women are historical as well as a contemporary phenomenon22.
Gender
equality was neither promoted by religious ideologies, nor was it advocated by
philosophers of the enlightenment. It is ironic that in the great resolutions
in France, the United States and Russia, champions of equality had a limited
vision on matters of women’s right and gender-based equality23.
Women
face discrimination, intimidation, harassment, torture and physical abuse not
simply by state organs but also by their own family and other non-state organs.
A major problem which has led to a regular impact on the position of women is
the reluctance of international human rights law to intervene in what is
perceived as private (as opposed to the public matters24. Attempts to combat discrimination and
violence against women in the private domain have raised substantial
opposition. Intrusion into private and family life is not revealed as desirable
for law enforcement bodies.
In
most cases such intrusion are seen as contrary to cultural, religious and
social values prevalent in many societies25.
Within the sanctity of the home, women, in many parts of the world, are
regularly subjected to mental and physical violence, or sexual abuse of the
nature of incest, rape, ‘dowry deaths’, wife battering, genital mutilation,
prostitution and forced sterilization26.
In social structures like the aforementioned women undergo a persisted cycle of
rejection, subordination and shame in most cases from their husbands. Women
face multiple disadvantages based on the grounds such as race, religion,
national and social origin27.
Although
it is encouraging to note that the United Nations has undertaken positive steps
to combat discrimination against women. The United Nations convention on the
Elimination of all forms of discrimination against women, it’s focus prohibits
discrimination in “any other field”.28
Although
difficulties have arisen in enforcing the norm of non-discrimination in the
domestic or private sphere such difficulties are apparent in the large number
of reservations to significant provisions contained in the convention, e.g.
Article 16 Women and girls are frequent targets of violence and sexual
humiliation in times of war and conflict, conflicts such as those in the former
Yugoslavia and Rwanda graphically reflects the targeted rape of women from the
opposing religious or ethnic grouping as a war tactic. As the trial chamber of
ICTR in the trial of Jean Paul Akayesu29.
2.4 THE ROLE OF THE UNITED NATIONS
The
United Nations charter contains a number of references providing for gender
equality and non-discrimination. According to Article 1 (3) of the charter one
of the purposes of the United Nations is
“To
achieve international co-operation in solving international problems of an economic, social, cultural,
or humanitarian character, and in
promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to sex.
Soon
after the establishment of the United Nations, the United Nations’ Economic and
Social Council, in accordance with Article 68 of the charter, setup a
commission on the status of women (CSW), CSW is one of the nine ECOSOC
functional commissions30.The
CSW was established as a functional commission of the ECOSOC to prepare
recommendations and reports for the council on promoting women’s rights in
political economic, art and educational fields31.
The
commission also makes recommendations to the council on urgent problems
requiring immediate attention in the field of women’s rights. The object of the
commission is to promote the implementation of the principle that men and women
shall have equal rights. Its mandate was expanded in 1987 by the council in its
resolution 1987/22.
Following
the 1995 fourth World Conference on women, the general assembly mandated the
commission to integrate into its work programme a follow up processes to the
conference in which the commission should play a significant role regularly
reviewing the critical areas of concern in the platform for Action. EISOSOC
resolution 1996/6/6 additionally altered the terms of reference of CSW by
broadening its mandate to include “emerging issues, affecting equality between
women and men”.
The
commission, which initially began with 15 members, now consists of 45 members
elected by the Economic and Social Council for a period of four years. Members
who are appealed by governments, are elected on the following basis; 13 from
African States, 11 from Asian States, four from Eastern European States, nine
from Latin American States and Caribbean States, and eight from Western
European and other states. The commission meets normally on an annual basis for
a period of eight working days.
The
status of the members of the CSW resembled that of the former commission on
human rights (in the sense that members act as representatives of states rather
than in their personal capacity) and as in the case of the human rights
commission the course of the proceedings and their outcome reflected the
governmental stance on human rights issues32
unlike the former human rights commission, the CSW has not been able to develop
its role much further than promotional educational and standard-setting
activities. Indeed, for sometime the future of the CSW remained under threat
and there has been a pronounced resistance to the idea of expanding the scope
and authority of CSW to receive and consider petitions similar in nature to
those received under ECOSOC 1503 procedure33. The specifically of the work of CSW, with an
exclusive focus of women’s human rights also generated some concern, and as we
shall notice in due course there have been attempts to maintain gender equally.
Notwithstanding
its limitations the CSW should be accredited and commended for its contribution
to establishing new standard setting mechanisms. A number of international
connections were formulated under the sponsorship of CSW including the 1952
convention on the political rights of women,34
the 1957 convention on the Nationality of Married Women35 and the 1962 convention on consent to marriage,
minimum Age for marriage and Registration of Marriages36 the most significant achievement of
the commission remains its role in the drafting of the convention on the
elimination of forms of discrimination against women (1979)37 The convention was the culmination of
more than thirty years of work by the United Nations commission of the status
of women (CSW).
Among
International human rights, treaties, the convention takes an important place
in bringing the female right of humanity into the focus of human rights
concerns.
The
contemporary women’s right movement on the other hand, is shaped by various
factors including the emergence of the UN human rights system. The UN human
right system emerged at the very foundation of the UN itself in 1945. These
foundations of the UN human rights system preceded the Emergence the women’s
rights movement and this explains why women were essentially excluded from the
process of defining the rights and creating the evolving structures for monitoring
and enforcing the rights.
2.5 CONVENTION ON THE ELIMINATION OF ALL FORMS
OF DISCRIMINATION AGAINST WOMEN: PROVISIONS AND COMMITTEE
The
convention on the elimination of all forms of discrimination against women and
hereafter the women’s convention) was adopted by the general Assembly of the
United Nations on 18 December 1979 and came into force on 3rd
September 1981. The declaration on the Elimination of All forms of
discrimination against women was adopted in 1967. it constitutes a
comprehensive attempt at establishing Universal standards on the rights of
women the convention is one of the widely ratified human rights treaties, and
can be regarded as a milestone towards
reaching the goal of standard-setting for gender-based equality. In the
preamble to the convention, the state parties acknowledge the fact that
“extensive discrimination against women continues to exist”38 the preamble also acknowledges the
detrimental effect that discrimination has on the development of nations,
thereby linking gender equality with development. The family as well as the
society is hampered by the denial of women’s full and adequate participation in
the political, economic, social, legal and cultural activities. Significantly,
within the preamble there is the recognition of a link between gender-based
discrimination and exploitation for political and economic goal. The convention
is an international human rights document that establishes the universality of
the principle of equality of rights between men and women, and amongst women
inter se39. The convention
establishes an independent expect body, the committee on the elimination of all
forms of discrimination against women made up of twenty three individuals to
monitor the implementation of the convention the General Assembly further
adopted an optional protocol to the convention. This protocol permits the
committee to receive and consider communications from women or group of women
who alleges that they are victims of gender discrimination within the
jurisdiction of state parties to the protocol. The protocol was adopted on
October 6, 1999 and entered into force on December 22, 2000 [40].
Noting
the adverse impact of harmful cultural practices and traditions on the status
of women, the preamble of CEDAW rightly points to the following….A change in
the traditional role of men and as well as the role of women in society and
into family is needed to achieve full equality of men and women” therefore,
CEDAW strongly targets cultural patterns that define roles for sexes especially
in the provisions affirming the equal rights and equal responsibilities of both
sexes in family life41 in
respect of the above, state parties to the convention have the obligation to
endeavor towards the modification of social and
cultural patterns of individual conduct in order to eliminate:
“Prejudices
and customs and all other practices which are based on the role of the
inferiority or the superiority of either of the sexes or on stereotyped roles
from42” it is important to note that the
convention does not expressly include the expression “violence against women”.
This is a reflection of the fact that at a time the convention was drafted the
issue of violence against women was not regarded as a significant issue on the
international agenda. It was through the COMMITTEE’S GENERAL RECOMMENDATION 12
AND 19, respectively dated 1989 and 1992, (which would be discussed in details
later) that this omission was corrected.
The
committee recommended that state parties should adopt measures addressing
gender-based violence as well as report on such measure.
Nevertheless,
the convention, provides a comprehensive framework for challenging the various
forces that have created and sustained discrimination based upon sex,
therefore, indirectly providing a framework for addressing gender-based
violence43.
PROVISIONS
OF THE CONVENTION
The
provisions of the convention spans a broad spectrum of political, cultural,
legal, health, and socio economic and educational rights of women. A total of
130 countries have ratified or acceded to it and Nigeria is one of them.
Nigeria ratified it in 1985 [44]. The
first 16 article of the convention spells out the substantive provisions of the
convention which can be classified as follows;45
Article
1: Definition
of discrimination.
Article 2-3, legal and policy
measures to eliminate discrimination and advance women’s equality to repeal all
national penal provisions which constitute discrimination against women.
The
provisions of Article 2 are particularly valuable in identifying and
establishing a regime of non-discrimination and gender equality. As we shall
see in due course, the women’s convention has started dealing with individual
communications under the optional protocol to the convention.
Article
4: Affirmative
action for practical advancement of women’s status, to enshrine the principle
of equality of men and women in their national laws and to ensure the practical
realization of this principle, to establish legal protection of the equal
rights of women through national tribunals or other public institutions.
Article 5: Sex stereotypes; to modify
the social and cultural patterns of conduct of men and women which are based on
the idea of inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women. India is one of the states which has made
a declaration in relation to Article 5 (a) represent ting tension, and male
hegemony within the society. The Indian declaration notes:
“With
regards to articles (5a) - - - of the convention on the Elimination of All Forms of Discrimination India declares
that it shall abide by and ensure
these provisions in conformity with its policy of non-interference in the personal
affairs of any community without its
initiative and consent”.
Other
states that have entered reservations to Article 5 (a) are Niger 46
Malaysia,47 and New Zealand-Cook
Island.48
In
addition to the practices of female genital mutilation and polygamous marriages
the committee has expressed its concern over a range of approaches. There are
however, practices over which it has not been possible to formulate and firm
views, it is debatable for example, whether such practices as wearing of
headscarves as compulsory discs code to ensure women’s modesty contravenes the
provisions of this article. Conversely, it remains highly problematic, the
approach adopted in several states whereby there is a banning of headscarves
for women or other religious symbolism in educational institutions or other
public institutions49. in
the case of LEYLA SAHIM V TURKEY 50, the
European court of Human Rights did not find a violation of Article 9 of the
European convention of Human rights when the Turkish state had denied access to
university facilities to a female medical student vehicle wearing the hijab
(the headscarf) in accordance with her religious convictions. In a further
disappointing stance, the United
Kingdom’s house of Lords held that insistence on wearing a jilbab because of
enhanced covering for women was rather a right recognized under Article 9 of
the European court of human right, nor was that a pre-requisite for
establishing an Islamic right to identity. The role and stance which is
increasingly being adopted by overzealous courts raise tensions; the potential
for conflict remains over the right to manifest one’s religious beliefs
vis-Ã -vis Article 5 of the women’s convention.
Article 6; Trafficking and exploitation
of women to take all appropriate measures including legislation to suppress all
forms of traffic in women and exploitation of prostitution of women51. In condemning such activities it
requires state parties to take all appropriate steps to steps to end
trafficking in women and exploitation and prostitution of women. In its General
Recommendation 19, the convention has noted that poverty and unemployment as
well as armed conflicts encourage for such activities as trafficking in women
and the committee has also expressed concern at the newer forms of
exploitation, sex tourism, exploitation, of migrant women workers and marriages
of women from poorer countries with foreign and wealthier men from developed
states. In order to combat the evil trafficking of women, the international
community has adopted a number of specific international instruments. These
include the convention for the suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of others 1949 [52]
Article 7 and Article 8 Provision for
political and Public Life for women. State Parties are required to take all
appropriate measures to Eliminate discrimination against women in political and
public life53. This Article attempts
to ensure that women have a right to vote, and have a right to be elected to
office with participating rights in policy formulation, at all the governmental
levels. Majority of state accord equality to women in public life there remain
unfortunate remnants of legislature enactments and administrative policies
barring women from political participation at the governmental level. Examples
of discrimination practices could be found in state laws excluding women from
public offices, exclusion from voting rights for example the position of Saudi
Arabia, and exclusion from religious courts, the position in Israel.
The
convention has shown concern on the low level of women in public offices and women
in ministerial post it has elaborated on the provisions of the convention
through its General recommendation No. 23 (1997) on women in political and
public life54.
According
to Article 8, state farmers are under an obligation to take all appropriate measures
to ensure that women have the opportunity to represent their government at
international levels.
It is General Recommendation on the
Implementation of Article 8, the committee notes that:
State
parties take further direct measures in accordance with Article of the
convention to ensure the full implementation of Article 8 of the convention and
ensure that women are on equal terms with men and without any discrimination
the opportunities to represent their government at the international level and
to participate in the work of international organizations55.
Article
9:
Right to Nationality; the Article emphasizes equal rights for women in
acquiring changing and nationality-state parties are require to ensure that
“Neither marriage to an alien nor change of nationality by the husband during
marriage shall automatically change the nationality of the wife, neither should
as are suit of such marriage render her stateless or impose on her the
nationality of the husband”56
Article
10:
women frequently suffer from in equality of opportunities in Education and
national and professional training. The issue prevalent in Nigeria and the girl
education is looked upon as a waste of resources whereby girls are supposed to
be trained only to become dutiful wives and mothers, the convention attempts to
eradicate such discrimination.
Article
11:
Deals with elimination of discrimination at the workplace and in the field of
employment. The Article recognizes the right to work as an inalienable right of
all human beings states parties undertake to adopt all appropriate measures to
ensure equal opportunities in employment and to provide a free choice of
profession and security and a right to protection of health and to safety in
working conditions.
According
to Article 11 (2) state undertake to prohibit dismissal on grounds inter-alia
of pregnancy. In particular, pregnancies must not constitute an obstacle to
employment and should not constitute justification for loses of employment.
Lastly emphasis should be placed on the link between the fact that women often
have less access to education than men and certain traditional cultures which
compromise the opportunities for the employment and advancement of women57.
Article
12: of
the convention deals with the important subject of equality in healthcare,
including family planning assistance. In General recommendation 24, CEDAW has
urged state parties to report on their health legislation and policies for
women. They are required to provide information on health conditions, conditions
hazardous to the health of women and on related diseases. This includes the
measures taken in order to eliminate female genital mutilation and about the
efforts of HIV/AIDS on the situation of women.
Article
13:
Represents important provisions related to economic and social rights. It
emphasis equality of rights, particularly the right to family benefits, the
right to bank loans, mortgages, other forms of financial credit and the right
to participation in recreational activities.
Women
often suffer from inequalities to obtain benefits, loans and credit from
governmental agencies, banks and building societies. The provisions of the
Article aim, interalia, to prevent sex discrimination in the payment of social
security’s and similar benefits.
In
Broeks v Netherlands,58 MS
Broeks appealed to the Human Rights committee under the first optional protocol
claiming violations of Article 26 of ICCPR and Article 9 in conduction with
Article 2 and 3 of ICESCR. Mrs. Broeks was dismissed by her employer because of
illness. At first, she received payments as unemployment benefits, but the
Dutch government discontinued these since she was not the breadwinner in her
household as was required by the Netherlands unemployment Benefit Act. The
human Rights Committee found violations of Article 26 of ICCPR, because the
statute was discriminating in its treatment of women vis-a vis men, and no
grounds could be ascertained to justify such as distinction between men and
women.
Article 14 [59] deals with the specific position of
rural women.
State
parties shall take into account the particular problems faced by rural women
and the significant roles which they play in the economic survival of their
families including their work in the non-monetized sectors of the economy, and
shall take all appropriate measures to ensure the application of the provisions
of the present convention to women in rural areas.
1. State
parties are expected to take the following measures to eliminate discrimination against rural women.
a. To
participate in the elaboration of and implementation of development planning at all levels.
b. To
have access to adequate health care facilities, including information counselling and services in
family planning.
c. To
benefit directly from social security programmes
d. To
obtain all types of training and education, formal and non- formal, including that relating to
function at literacy, as well as,
inter-alia, the benefit of all community and extension services, in order to increase their technical proficiency.
e. To
organize self help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment
f. To
participate in all community activities
g. To
have access to agricultural credit and loans, marketing faculties, appropriate technology and equal treatment in land and agrarian reform as well as in land
resettlement schemes
h. To
enjoy adequate living conditions particularly in relation to housing sanitation, electricity and
water supply, transport and communications.
Article
15:
Equality before the law in matters of civil law must be accorded to women,
including the legal capacity to contract, to own and to administer property, to
move and to choose a residence and domicile.
Under
this Article states parties are obliged to ensure the conformity of their
national legislation with this rule. In addition, any contract or legal
document whose effect is directed at restricting the legal capacity of women to
contract.
There
have been complex issues emerging particularly from property and land rights,
and inheritance, with reliance being placed on customary laws or religious
values to justify the refusal to bring about equality of treatment.
Women
are in many traditions and cultures excluded or denied equal distribution of
property or land upon divorce or death of a partner such practices have been
the object of criticism by the convention. In General Recommendation 40/21 on
Equality in marriage and family Nations, the convention notes that law which
grant men a larger share upon divorce
are discriminating.
In
the case of ERUWA v ERUWA, 60 The
High Court held that an unmarried women is entitled as of right to the portion
given to her by her father,, or property that is partitioned that devolves on
her by inhentance. Furthermore, in the case of CHINWEZE V MASI 61,
the issue was whether the property in dispute was part of the estate of
the late Mrs. Elizabeth Chinweze and could thus be inhented by her children. In
this case, the children of the deceased died intestate, the interest in No.5
Ogui Road Enugu did not ensure to her estate but instead, it accrued to her
half sister as the surviving joint tenant, the supreme court held that under
customary law, a wife has only a lifee interest in the property of her husband.
Article
16;
Provides for Marriage ands family relations; state parties agree to undertake
all appropriate measures to Eliminate discrimination against women in all
matters relating to marriage and family relations.
Assurances
are provided by states that men and women shall have the same right to enter
into marriage, the same right to freely choose a spouse and to enter into
marriage only with their and full consent. In the case of MOJEKWU v EJIKEME, 62 the Nrachi Nwanyi custom which enables
a man to keep one of his daughters unmarried perpetually under his roof to
raise issues especially males, to succeed him was before the court for
determination.
The
court of Appeal, overruling the decision of the lower court, held that the
Nrachi custom of Nnewi is inconsistent with public policy, repugnant to natural
justice, equality and good conscience.
According
to Article 16 (2) ‘the betrothal and the marriage of a child shall have no
legal effect, and all necessary actions, including legislation, shall be taken
to specify a minimum age per marriage and to make the registration of marriages
in an official registry compulsory.
In
General Recommendation 21, CEDAW notes that an examination of state parties
report discloses that there are countries which, on the basis of custom,
religious beliefs or the ethnic origins of particular groups of people permit
forced marriages or remarriages. 63
There
has also been an alarming rate of Reservation by state parties, particularly
regarding Article 2. These reservations often state that compliance with the
provisions may conflict with a commonly held vision of the family based, inter
alia, on cultural or religious beliefs or on the country’s economic or
political status.
The
viewpoints of the state representatives and the state reports reveal that the
rights contained in this Article conflict directly with existing cultural and
religious norms. While many Islamic states questions the compatibility of the
Sharia, vis-Ã -vis the provisions of Article 16, Islamic states are by no means
the only ones to have entered reservations.
THE
COMMITTEE ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
(CEDAW)
Part
V, Article 17 of the convention establishes the committee on the Elimination of
Discrimination against women (CEDAW), a body of 23 experts. CEDAW is elected by
state parties with individual members to serve in their personal capacity.
The
committee is elected by state parties for four-year terms. CEDAW members are
required to be of high moral standing and competence in field covered by the
convention.64
Historically
the convention committee secretariat, unlike other treaty-based committees, was
not provided by the office of the high commission of Human Right. However, as
of 1 January 2009 all responsibility for servicing the convention has been
shifted to the office of the high commissioner for human rights.65 Like the human Rights committee and
the Economic, social and cultural Rights committee, expenses of the convention
are borne from the UN budget, prior to 1994 the committee used to meet in New
York and although the New York sessions were much more publicized. Since its 13th
session in 1994, the committee’s sessions have mostly been held in New York.
However, as noted above, in January 2008 the secretariat of the convention
moved to Geneva, which has allowed a greater number of sessions to be hold in
Geneva.66
According
to Article 20, the committee is required to meet for a period of not more than
two weeks, every year. However, the rapid expansion of the state membership
meant that more time was needed to consider state reports. In the light of
unexpected workload, the General Assembly since 1990 has also allowed the
committee to meet on an exceptional basis for an extra one week per year. The
sessional meeting of the committee has been held on January and June of each
year.
However,
in 2008 the committee held three sessions due to the General Assembly in
Resolution 62/2/8 having extended the meeting time and for 2008/2009.
State
representatives are engaged in what the committee calls constructive dialogue.
This allows the experts to question Government delegates wi0th regards to both
the legal and practical position of implementation endeavours in that country.
However, a fair assessment of the situation of affairs is not possible without
alternative information from NGO’s and other United Nations Agencies.
Through
the committee various issues like violence, acid attacks forced marriages
trafficking and among others were, brought under state responsibility to
prevent, prosecution and punishment. Through these women groups gained the
needed impetus that enable them campaign successfully at the World Conference
on Human Rights in Vienna, for the recognition of violence against women as a
violation of their human rights, a right not expressly provided for in the
original text of the convention.
These
efforts led to the appointment of special Rapporteur on violence against women
in 1994 67. The new special rapporteur is Rhadika
Coomaraswamy from Sri Lanka. Her functions include inter alia consulting and
liaising with other UN agencies, Human Rights treaties bodies especially the
convention on the elimination of all forms of discrimination against women and
the CSW. In her fact finding functions she can receive allegations directly
though she cannot investigate them, she can ask governments to respond to such
allegations. Her mandate touches on issues such as wife battery, female genital
mutilation, rape, special and religious laws affecting women which are all
prevalent in Nigeria.
Only
recently, the United Nations Commission on Human Rights appointed Rukiya
Hussien-Aden as the focal point for women at the centre for human Rights in
Geneva Switzerland.
Until
recently the convention has not had a judicial or Quasi-judicial function. Its
sole task, previously was reviewing the state reports but this has changed
significantly since the optional protocol came into operation. The committee’s
main task was one of implementing the convention, an exercise, thus far,
conducted within the framework of reporting procedures68.
Finally,
it is important to note that the task of monitoring implementation of the
convention is entrusted in the committee on the Elimination of discrimination
against women (CEDAW).
2.6 SIGNATURE, RATIFICATION, ACCESSION,
RESERVATION AND SUCCESSION
SIGNATURE:
This
occurs when a state party gives its consent to the text of the treaty by
signature in defined circumstances noted by the article. Where the treaty
provides that signature shall take effect through consent, or where it is
otherwise established that the negotiating state had agreed that signature
should have that effect, or where the intention of the state to give, that
effect to the signature appears from the full powers of its representative or
was expressed during the negotiations.
Although
consent by ratification is probably the most popular of the methods adopted in
practice, consent by signature does retain some significance, especially in
light of the fact that to insist upon ratification in each case before a treaty
becomes binding is likely to burden the administrative machinery of government
and result in long delays. Accordingly, provision is made for consent to be
expressed by signature.
The
act of signature is usually a very formal affair. Often in the more important
treaties, the head of state will formally add his signature in an elaborate
ceremony. In multilateral conventions a special closing session will be held at
which authorized representatives will sign the treaty.
However,
where the convention is subject to acceptance, approval or ratification,
signature will become a mere formality and will mean no more than that, the
state representatives have agreed upon an acceptable text, which will be
forwarded to their particular government for the necessary decision as to
acceptance or rejection69.
RATIFICATION;
The
device of ratification by the competent authorities of the state is
historically well established and was originally devised to ensure that the
representative did not exceed his powers or functions with regards to the
making of a particular agreement. Although ratification (or approval) was in
years past a function of the sovereign, it has in modern times been made
subject to constitutional control.
The
advantages of waiting until a state ratifies a treaty before it becomes a
binding document are basically two fold, internal and external. In the letter
case, the delay between signature and ratification may often be advantageous in
allowing extra time for consideration, once the negotiating process has been
completed.
By
providing for ratification, the feelings of public opinion have an opportunity
to be expressed with the possibility that a strong negative reaction may result
in the state deciding not to ratify the treaty under consideration.
In
some cases, signature to treaties may be declared subject to acceptance or
approval.70
ACCESSION:
This
is the normal methods by which a state becomes a party to a treaty it has not
signed. Consent by accession is possible where the treaty so provides, or the
negotiating states agree or subsequently agree that consent by accession could
occur in the case of the state in question.
Important
multilateral treaties often declare that specific entities may accede to the
treaty at a later date. For instance, the 1958 Geneva conventions on the sea
provided for accession by any member states of the United Nations or any of the
specialized Agencies of the United Nations.71
The
implication of accession is that it carries the same force with ratification. A
newly independent state may, by means of a declaration of succession, express
the desire to remain bound by the treaty which applied to its former territory.
It may also make a declaration of provisional application of the treaty while
examining them prior to accession or succession by her legislature.
RESERVATION: A
state may make reservations in order to exclude or modify the legal effect of
certain provisions of the treaty, such reservations must not run contrary to
the essential principle of the convention72. This means that where a state is satisfied
with most of a treaty but is unhappy about one or two particular provisions, it
may, in certain circumstances, wish to refuse to accept or be bound by such
provisions, while consenting to the rest of the agreement for example, the
significant number of reservations on the convention on the Elimination Against
all forms of discrimination against women (CEDAW) which include not just
religious grounds, but also as in the case of the United States, constitutional
practices protecting private sphere. Further noted cwas reservations to article
(2) of the Women’s convention – the core norm of obligation of the convention
is regarded as challenging to the convention.
The
capacity of state to make reservations to an international treaty illustrates
the principle of sovereignty of states, whereby a state may refuse its consent
to particular provisions so that they do not become binding upon it. On the
other hand, of course, to permit a treaty to become honey combed with
reservations by series of countries could well jeopardize the whole exercise.
It could seriously dislocate the whole purpose of the agreement and lead to the
some complicated inter-relationships amongst states.
SUCCESSION:
If
a state changes its personality so as to become a different state,
international law may in some circumstances treat the different state as a
successor state. A successor state is a legal continuation of the pervious
state, bearing the same rights and duties as its predecessor.
Therefore,
the continuation or the clean slate principle was as a result of the various
forms by which succession can be achieved.
Therefore,
the ‘clean state’ principle has been applied to ensure that states emerging
from colonial rule are not bound by unwanted treaties trust upon them by their
previous rulers.
Thus
a common practice has been for such state to lodge a declaration with the
Secretary General of the UN acknowledging the provisional communication of application
of treaties until the new state informs the depositary of the definitive
position. Since treaties are based on consent, it is understandable that in
such situations bilateral arrangements are generally open to negotiation as
desired. For example, the coalescence of North and South Yemen was more an
allegation of equals. Hence treaties would continue to apply to the successor
state, at least in respect of the respective former parts of the territory
where a territorial effect was involved73.
2.7 THE OPTIONAL PROTOCOL
The optional
protocol came into force on 22nd December 2000 very often human
rights treaties are followed by “optional protocol” which may either provide
for procedures with regard to the treaty or address a substantive area related
to the treaties. Optional protocol to human rights treaties are treaties in
their own right and are open to signature, accession or ratification by
countries who are party to the main treaty.
The optional protocol to CEDAW includes:
The
communication procedures: it gives individual and groups the right to complain
to the Committee on the Elimination of Discrimination against Women when their
rights have been violated. The complaint however must be in a written form.
The inquiry procedure;
1)
It enables the Committee on the
convention to conduct inquires
into grave abuse by parties to the Optional Protocol
2)
It allows investigation of substantial
abuses of Women’s human right by an
international body experts.
3)
It is useful where individual
communications fail to reflect the systematic
nature of widespread violations to be investigated where individual or groups may be unable to make communications (for practical reasons
or because of fear of reprisals).
4)
It gives the Committee of the convention
an opportunity to make recommendations
regarding the structural causes of violations.
5)
It allows the Committee on the
convention to address a broad range
of issues in a particular country.
Until
the entry into force of the Optional Protocol, the convention on the elimination
of all forms of discrimination against women (CEDAW) was enforced in two ways.
The report procedure
State
parties have no submit a national report to the Committee within one year of
accession or ratification of CEDAW and thereafter every four years or when the
Committee requests for it.
The interstate procedure
Article
29 states that two or more parties can refer disputes about the interpretation
of CEDAW to arbitration, and if the dispute is not settled, it can be referred
to the International Court of Justice.
Other ways in which Women’s right
monitored by the United Nation include:
The CSW Communication Procedures
The
CSW can receive communications about discrimination against women.
Special Rapporteur on violence against
women.
The special Rapporteur was appointed in
1994 by resolution 1994/45 of the Commission on Human Rights. They consider
issues on violence against women; it established procedures to seek information
from government concerning specific cases of alleged violence.
Essence of the optional protocol
1)
To improve on and add to existing
enforcement mechanisms for
women’s human rights.
2)
To improve state’s individual
understanding of the convention.
Under
the communication procedure, the Committee will be able to say what is required from states in individual circumstances.
3)
To stimulate States to take steps to
implement the convention. The
optional protocol should encourage states to implement CEDAW to avoid complaints being made against them. The possibility of complaints might also be
an incentive for states to provide
more effective local remedies.
4)
To stimulate changes in discriminatory
laws and practices. Under the Optional Protocol, the Committee would be able to
request the state party concerned to take specific measures
to remedy violations of CEDAW.
The request might include the amendment
of legislation, stopping discriminatory practices, implementing affirmative action measures.
5)
To enhance existing mechanism for the
implementation of human rights within
the United Nations system.
6)
To create greater public awareness of
human rights standards relating to
discrimination against women.
The
Optional Protocol requires states to publicize it and its procedures.
Communications and Inquiries under the Optional Protocol will receive publicity
which will increase public awareness of CEDAW and the optional protocol. The
Nigerian Government ratified the CEDAW convention in 1985 singed the Optional
Protocol on the 8th of September 2000 and ratified and acceded to it
on 22nd November, 2004. This means that they are meant to respect
provisions of CEDAW and its optional protocol.
1 Okpara; O., Human Rights, law
and Practice in Nigeria vol 1, Abakaliki, (Publicom International (NIg)
Ltd, 2007) pg 40.
2 (1985) 2 NWLR (part 6) 211 CA
3Cranston, M.
Human Right: Real and supposed in Raphael (ed) political theory and the Rights
of man, Bloomington,
1967, p. 52.
4 Dawrick, F.E. (ed) Human Rights, problems, prospects and texts,
West mead, UK: Saxon House, 1979, pp 8-9
5 Eze; O. human right in
Africa; selected problems (Lagos, Macmillan, 1984), p.5.
6 Okpara O. human rights, law and practice in Nigeria, Vol 1, Abakaliki,
(Publicom International (Nig) Ltd, 2007) pg. 40
7 Udu; E.A. human rights in Africa, Lagos (Mbefi and Association
(Nig) Ltd, 2001) pg 4.
8Helsinki is the
capital of Finland, the Helsinki act is the final act of the conference, Helsinki on August 1, 1975 by the UnitedState of America,
Canada
and 33 other countries. See, Udu, E.A. OP, Cit P, 5.
9 International human rights law and the role of the legal
profession: A general introduction, human rights in the administration of
Justice, a publication of human rights library, University of Minnesota,
available at http://human rights law.
Law.monash.edu.au/monitoring/admchp4.htm/,visited on 21/6/2013.
10 Palley; C. The United Kingdom and human rights, (London; Sterens
and sons and sweet and Maxwell, 1991) p. 51.
11 Loner group rights and discrimination, above n, 1 aat p. 30
12 U.N. DOC CEDAW/C/SR 35,
13 Convention on the elimination of all forms of discrimination
against women
14 Garner; B.A. Black’s law dictionary, 7th edition
15Oxford Advanced Learners Dictionary 6th Edition.
16 Section 42.
16 preamble to the convention
on the elimination of All Forms of discrimination against women, 1979
17 Part 1 Para 18, Vienna Declaration and programme of Action, adopted
following “United Nations World Conference on human rights”, Vienna, June 1993.
18 31.I.L.M. 814 (1992).
19 Udu; E.A. OP Cit pg 188
20 Scholar; M. and Flowers; N. women’s human rights; step by step
facilitator’s guide, published by women, law and development international,
units 1-3
21 Ibid.
22 Shuler (ed) freedom from violence women’s strategies from Around
the World (1992)
23 Olumpede Gouge ‘The rights of women’ (Pythia, 1989), Robison (ed),
Mary Shelley: collected Tales and stories (John Hopkins University Press, 1976)
24 Engle, after the collapse of the public/private distinction:
strategizing women’s right in dallmeyer ce.d), Reconcieving reality: Women and
International Law (American society of international law, 1993) at p 143.
25 Bryrnes, women, feminism and international human rights law:
methodological myopia, fundamental flaws or meaningful marginalization’12 ayil
(1988-89) p at 215.
26 See CEDAW, General Recommendation no 14 female circumcision (ninth
session, 1990) UN doc A/45/38.
27 Human Rights committee General comment no28,para
30:www,unhchr.ch/doc.nsf(last visited 21st June 2013).
28 Article 1 convention on the Elimination of All Forms of
Discrimination Against Women (1979)
29 Prosecutor v Jean Paul Akayesu, Trial chamber, case no(ictr;96-4-7)Para 449. http://69.94.11.53) default.htm (last visited
21 June 2013)
30 Article 2, 3, 13, 137 and 141 treaty Establishing the European
community as well as the draft of the European constitution
31 By its resolution 11 (11) of 21 June 1946
32 ECOSOC Res E/1979/36; Davidson, Human Rights (open university
press, 1993) pg 21
33 Ibid.
34 193 United Nations, Treaty series 135 entered into force 7th
July 1954.
35 309 United Nations Treaty series 65, entered into force 11 August
1958
36 521 United Nations Treaty series 231 entered into force 1964.
37 United Nations Treaty Series vol 1249 p, 13
38 The Preamble to the convention
39 Nwankwo; O. convention on the elimination of all forms of
discrimination against women (CEDAW) made simple, (Nigeria: peculiar instincts, 2004)
p 6.
40 HUamn Rights in the Administratiiion of Justice, (A Publication of
human rights Library, university of Minnesota, chapter 2, available at http://humanrights.law.monash.edu.au/monitoring.admchap2.htm/
Visited 21/06/2013.
41 Article 16 convention on the elimination against all forms of
discrimination against women (CEDAW)
42 Article 5 (a) Convention on the elimination of all forms of
discrimination against women (CEDAW)
43 Oyajobi, A.V. human rights law and practice journal, vol
3 (1993) pg 9
44 Ibid
45 Assessing the status of women, law and public program, centre for
population and family health (Columbia University, 1988) pg 48.
46Niger’s
reservation states that “the government of Niger expresses reservations with
regard to the modification of social and cultural pattern of conduct of men and
women”
47Malaysia’s reservation is based upon the subject to the Sharia principles on
division of inherited properties
48 The Cook island reserve the right not to apply Article 2 (f) and
Article 5 (a) to the extent that customs governing the inheritance of certain
cook Islam chieftaincy titles may be inconsistent with these provisions
49 Richard K. Garner International
law (Pearson Education Limited) England 2003
50 (2007) 44 The European court of Human Rights.
51 It is on the strength of
this provision that Nigeria
enacted the Prohibition of Traffic in Persons Act, 2003
52 Convention for the suppression of the traffic in persons and of the
exploitation of the prostitution of others 96 UNTS 271, entered into Force 25
July 1951
53 The Convention on the
Elimination of all Forms of Discrimination Against Women; Article 7 and 8;
General Recommendation No 8 (Implementation of Article) in United Nations
compilation of General comments p, 206
54 CEDAW. General Recommendation no 23 women in public and political
life (16th session, 19979); www.un.org/womenwatch.daw/cedaw/recommendations/recomm.htm/recomm23
(last visited July 2013)
55 CEDAW, General recommendation No 8 Implementation of Article 8. UN.
DOC A/43/38
56 Article 61)
57 David Rehman; International
human rights law (Pearson education limited) England 2003/2010, pg 528; The
Rehman; D. General comment, the committee on the economic, social and cultural
rights the right to work, General comment NO 18 Adopted on 24 November 2005,
E/C.12/GC/18.6 (6 February 2000) para 6 and 7.
58 Communication No/72/1984
(9 April 1987) UN Doc supp No 40
(A/42/40) at 239(1987).
59 Cook; women’in joyner (ed),
United Nations and International Law (Cambridge University press 1997) pp
181-207 at p199
60 (2002) 4 R.C.H.R. 536.
61 (1989) 1 N.W.L.R. (Pt. 97)
254
62 (2002) 5 N.W.L.R. (Pt. 657)
403
63 CEDAW General Recommendations No 21, Equality in
Marriage and Family Relations www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htmrecomm
21 (last visited 25 June 2013) per) 16
64 Article 17 (1)
65 Release of information by
the Division for the Advancement of Women (May 2009)
66 DAVID REHMAN, International human rights law; (Pearson
education limited) England 2003, 2010, pg 538
67 Wallace; R, International
human rights; Texts and Materials, (London
sweet and Maxwell) 1997, pg 29
68 Oyajobi; A.V. human rights
law and practice vol 3 (1993) pg 10.
69 Malcolm N. Shaw; International law (fourth edition) CambridgeUniversity press, 1997 pg 639
70 Ibid pg 640
71 For example, Article 26 and
28 on the Territorial sea and Contiguous zone
72 J. K. Gamble, Reservations
to Multilateral Treaties; A microscopic view, 196
73 Aust, A. Mordern Treaty law and Practice (Cambridge university press, 2000) at pp,
307-308
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