CHAPTER
FOUR
4.1
THE PRESENT POSITION OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW) IN NIGERIA.
Section 12(1)[1] states that;
“No treaty between the Federation and any other Country shall have the force of
law except to the extent to which any such treaty has been enacted into law by
the National Assembly.” By this constitutional provision, the making of a
treaty between Nigeria and another nation is an executive act of the federal
government while its incorporation within Nigeria requires legislative
assent. CEDAW falls under section 3(1)
(a) of the treaty (making procedure etc) Act which states that, treaties shall
be classified into (a).
” law making treaties being agreement
constituting rules which govern interstate relationship and co operation in any
area of endeavour and which have the effect of altering or modifying existing
legislation or which affect the legislative powers of the National Assembly.”
Section 3(2) (a) supra, states that
treaties falling under section 3(1) a of
the same Act shall be enacted into law. The Nigerian Government ratified CEDAW
in 1985[2], but is yet to incorporate
into our laws.
In HIGGS V MINISTER OF NATIONAL SECURITY[3],the court stated that
Domestic courts have no jurisdiction to apply a treaty nor could unincorporated
treaties change the laws of the land. They had no effect upon citizen’s rights
and duties in common or statute law. They might give rise to a legitimate
expectation by citizens that the government, in its acts affecting them would
observe the terms of the treaty. This position was also asserted by the court
in ABACHA V FAWEHINMI[4]. In one of the points
argued in the above case, it was held that.
“Unincorporated treaties cannot change
any aspect of the Nigeria law, even though Nigeria is a party to those
treaties.”
By the combed provisions of section 12
(10) of the constitution of the Federal Republic of Nigeria 1999, section 3(2)
(a) (1) of the Treaties (Making Procedure ,etc) Act and the case enunciated
above, the CEDAW Act does not have the force of Law in Nigeria even though the
country has ratified it. With the foregoing I would like to buttress the
position of CEDAW in Nigeria with regards to the political sphere in the
nation. The process of incorporation under the Nigerian constitution
specifically section 12, requires legislative assent. The bill for the
incorporation of CEDAW, into Nigerian law, is currently at the National Assembly.
With this extant non-incorporation, there exists a lacuna in the protection of
women’s rights,
The incorporation of CEDAW would
complement the general anti-discriminatory provisions of the constitution and
the repugnancy doctrine by establishing clear and uniform rules on the rights
of women and girls. This giant step will aid in the abolishing of
discriminatory laws and cultural practices that tend to keep women at an arm’s
length with their male counterparts when gender issues come to play.
LEGAL
RECOMMENDATION
This recommendation stems from the
Report of the Committee on Judiciary and Legal Reforms of the National
Political Conference (hereinafter referred to as the committee on legal reforms[5] . its duties among other
things include the examination of the legal status of women under the Nigerian
law and concluded on the following points.
1. That
section 55(1) (d) of the penal code Act, dealing with the offence of Battery
should be repealed.
2. That
section 282 of the penal code and section 357 of the criminal code Act dealing
with the offence of rape should be repealed.
3. Those
sections 353 and 360 of the criminal code Act that discriminates against women
in prescribing punishment for indecent assault on males and females
respectively should be abrogated.
4. The
review of the definition of prostitution in section 1 of the criminal code Act
was recommended.
5. Section
16(129) (c) of the Matrimonial Causes Act[6] bothering on the proof of
conviction of the respondent before cruelty of a party to marriage is established
was pencilled down for review.
6. The
committee on Legal Reform also called for the repeal of section 26(a) of the
1999 Constitution regarding citizenship by regulation for a foreign woman who
is or has been married to a citizen of Nigeria.
7. Section
221 of the Criminal Code Act, which requires collaboration before a conviction
for defilement of a girl not less than 16 years of age, could be sustained was
recommended for abrogation.
8. The
committee on Legal Reform finally called for the entrenchment of widowhood
rights in our constitution. The
presidential committee on the review of the 1999 constitution (PCRC)[7] headed by Clement D Ebiri,
made the following recommendations bothering on the rights of women.
·
The PCRC recommended the substitution of
the federal character commission with the equal opportunity commission with an
expanded mandate to accommodate the interest of all Nigerians including women,
youth, the aged, the disabled, ethnic minorities and other special interest
group.
·
Those women be allowed to have dual
nationality as a result of marriage.
That
substitution of the word “sex” as it refers to feminine in the Constitution
with the word gender.
4.2
THE CRITICISMS OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW).
After
the Equal Rights Amendment failed in the United states, feminists took their
cause to the United Nations and influenced the creation of CEDAW, a
significant, more powerful women’s right document. It was adopted by the United
Nations in 1979 and has since been ratified by 169 member states.[8]
CEDAW
was signed by president jimmy carter in 1980 but was has never been ratified by
the senate as required by the senate under the American constitution. It is
interesting to note that during the last 22 years, regardless of which party controlled either the senate or
the white house or both, the U.S. Senate has declined to ratify the treaty
because its provision run contrary to the Fundamental American notion of family
,motherhood, religion and sovereignty. They claim that CEDAW is being used as a
tool to eliminate the traditional family and its attendant gender roles,
specifically targeted is the role of motherhood. The CEDAW committee
responsible for implementing the treaty uses the treaty’s vague language to
modify acceptable roles and relationships with families and cultures by
redefining the family to conform to feminist and homosexual ideologies. The
committee seeks to dictate a new role for women throughout the world and in effect
eliminate all cultural, religious and legislative obstacles. It is predicated
that it ratified, CEDAW will become a tool in the hands of active judges to
bring about social changes. The
committee of CEDAW determines whether or not a country is in compliance with
the treaty and then issues recommendations. Compliance with recommendations can
be tied to United Nations funding. Promoters of CEDAW, have been careful to
present CEDAW as a benign treaty that simply attempts to end discrimination against
women. The language of the
convention is considerably closer to that of a political declaration than that
of an international treaty. The convention fails to address some of the more
fundamental issues such as violence against women. It does not make any
references to sexual orientation or lesbian women and apart from the reference
of Article 12 to health, no particular recognition of reproductive rights. In comparison to other treaty-based bodies,
CEDAW has remained at a disadvantage when acquiring adequate information on
violations of the rights set forth n the convention. There is a need for
greater formal and informal participation of NGOs and specialized agencies such
as the International Labour Organization. The overall position of CEDAW (again
when compared with other treaty-based bodies) represents a relatively weak
position. The committee has had to adopt a more mundane and conciliatory
stance, reasons for which include a weaker threshold of implementing authority,
limited resources in terms of time and finances, and often evident divisions
within CEDAW members themselves. CEDAW has been criticized[9] for creating a leeway for
states parties to make reservations to the convention based on cultural
affinities and religious sentiments. The ready loophole offers countries an
easy escape from the very essence of the convention. As such many countries
ratify it with a barrage of reservations sometimes quite incompatible with the
objectives of the convention. Much against the spirit of article 28(2) of the
convention;
“ A
reservation incompatible with the object and purpose of the present convention
shall not be permitted” The extensive reservations have become a major cause
for concern to the Economic and social council and a number of state parties in
recent times. Reservations create difficulties in reviewing the implementation
efforts of states. Though with the co operation of some governments, CEDAW has
been able to review the situation of women under reserved articles in a few countries.
It will suffice to say that massive reservations make the instrument
ineffective. However, an alternative opinion contends that it is more honest to
make reservations and assume conscientious responsibility for those to which a
country commits itself than to ratify it unreservedly without an iota of
commitment to the stated objectives of the treaty. In any case, states parties
are pressured to withdraw their reservations. Besides such subtle pressure and
persuasion, CEDAW has no alternative methods of enforcement.
Noting
that the convention had the greatest number of reservations[10], CEDAW called upon state
parties in General Recommendations 20 paragraph 2, to examine the validity and
the effect of reservations to the convention in the context of reservations to
other human rights treaties and to reconsider such reservations with a view to
strengthening the implementation of all human rights instruments.
Again
the lack of optional protocol to the convention that enables the hearing of
individual complaints of gender-based human rights abuses by the committee has
also been criticized. The existence of such a procedure would allow CEDAW to
consider individual cases and communicate them to the commission on the status
of women whose duty it will be to pass them to the international court of
justice at The Hague which then deals directly with the state in question. The
CSW is still in the process of considering this procedure. Meanwhile, CEDAW
called for an expert meeting to begin the drafting. A draft optional protocol
to CEDAW was recently put together by a group made up of some CEDAW members
under the auspices of the Women in the Law Project of the Law Group, Washington
DC and the Maastricht Centre for Human Rights, University of Limburg. It will
provide room for redress and make for better and wider interpretation of the
convention as to permit effective monitoring of the implementation of the
convention. The CEDAW is expected to deal with this issue in its upcoming
session. The task of monitoring the convention requires the effort of not only
the committee but also NGOs. While CEDAW document itself does not specifically
mention abortion, in its 1999 interpretation of Article 12 of CEDAW, the
committee held that
“Legislation
criminalizing abortions should be amended, in order to withdraw positive
measures imposed on women who undergo abortion”. Contrary to the claims of
CEDAW proponents, this treaty originating from the United Nations has done
little to stop the gross abuse of women by rogue regime such as Taliban,
preventing the stoning of women in Nigeria, or help women in developing
countries get much needed food and medicine. Instead, “social engineers” to
advance their radical agenda of abortion, androgyny, sexual promiscuity and
redefinition of the family.
The united family international
is of the opinion that the race for the ratification of CEDAW in the United
States is conducted by political opportunists who use CEDAW ratification as
their election year issue, not minding that it might jeopardise Americans law
and future of the family, the noble role of mothers and the life of the unborn
child. Here in Nigeria, the case is quite different the bill to domesticate the
treaty is still pending in the legislature, although the criticisms of CEDAW
could be seen clearly from the above but the positive aspects outweigh the
negative and it is the opinion of the researcher that it should be domesticated
into our laws.
4.3
IMPLEMENTATION OF WOMENS RIGHTS IN NIGERIA
On the international scene, the
need for integrating women in the development process was placed on the
international agenda in 1975,when the United Nations observed the International
women’s year. Among the many concrete steps taken in this regard, after the
1975 world conference on women, was the creation of two United Nation bodies
namely,
1. United
Nations Development Fund(UNIFEM)
2. United
Nations International Research Institute For The Advancement of Women (INSTRAW)
As a result of the energetic advocacy of
women at the first world conference on women, the United Nations Development
Fund for women was established by the United Nations General Assembly in 1976
to provide direct support to development projects for women. Originally
set up as the voluntary fund for the Decade for women, the fund was kept to
help improve the living standards of women in developing countries by
addressing their concerns through providing direct technical and financial
support and by promoting the inclusion of women in the decision making process
of main stream development programmes. In 1985, the fund an autonomous body in
association with the United Nation Development programme and was renamed
UNIFEM. Sometimes, described as a bridge between international organizations,
policy makers and disadvantaged women, UNIFEM is an aid to and advocate for women
of the developing world. Currently,
UNIFEM works at the country level through its (10) regional offices. Among its
priority area are trade and industry, credit and science and technology,
agriculture and food security, policy making and national planning. It also targets critical issues on the global
agenda, to ensure that gender is included in international policies such as
those related to refugees and displayed persons, violence against women, human
rights, global governance and environment.
UNIFEM has recently established a
women human rights programme 20, aimed at strengthening the capacity of women
organizations that work on human rights. The United Nations International
Research institute for the Advancement of women (INSTRAW) ,established in 1975
by the General Assembly on women , is an autonomous body with the United Nation
system , with a mandate to carry out research ,training and information
activities worldwide to promote women as key agents for sustainable development.
Operating from its headquarters in Santo Domingo, Dominican Republic, the
institute performs research projects to identify barriers that impede women’s
equality in the process of social, economic and political development. INSTRAW
analyses existing research materials by interacting with governmental
organizations and other entities. INSTRAW
experience has proved that the greatest problem affecting women is
invisibility. With this purpose, INSTRAW develops new ways of understanding, new
methodologies and statistics for training programmes and methods linked to
issues such as ; Economic empowerment, collection of statistics and indicators
on women’s work in the formal and informal sector . Availability of statistics
on women in the information industry , trade and services, New and renewable
sources of energy, water and sanitation and women and water management and
migration of women and methodological issues involved in the measurement and
analysis of internal and international migration[11].
In theory, and rhetoric, the
comprehensive ratification of CEDAW guarantees equal rights to women of all
races, creed and colour. The Beijing platform for Action, formulated at the
1995 fourth international conference on women, had a re-enforcement effect on
the CEDAW recommendations. When speaking of the relationship between
gender and human rights, this is a daily
realistic phenomenon and not an abstract academic concept. The removal of
gender discrimination and the promotion of gender equity remains the central
element within the scheme of any genuine societal development efforts. We need
to integrate a right –based framework into our focus; we view the pursuit of
sustainable human development as a fundamental human rights issue and are
committed to consistently relating human rights to the development dialogue.
The framework equips women with a way to define and express their experiences
of discrimination, marginalization and abuse. Women
need to understand that the task of transforming social values and creating a
culture of respect for human rights is a complex and lengthy process. Norms and
standard of human rights are a set at international forums but once this is
made, the next step is the application of these norms at the national level.
Our challenges and their solutions are interwoven along various dimensions, its
success lies on the basis promotion of social, economic and cultural
responsibilities. Our challenges are entwined with the negative side of
globalization, which has the following parameters within it, the elite,
political leaders, and corporations. Political
leaders and public institution are using trade and investment, religious and
cultural practices mechanism, official structure, and technological innovations
to promote short-term materials gains over the long-term needs of communities
and its people. The positive, step towards implementation are
divided into four;
The
first step borders on the issue of awareness. This comes through education and
deliberative communication. Awareness causes people to come to terms with the
pragmatic relevance of the struggle for rights. The drive for awareness has to
be strategic, deliberative and dynamic. In the quest to create awareness, the need
arises for a dynamic form of alliance between NGOs, academics and women
organizations. Those working in the NGOs should concentrate on the practical
work on achieving its implementation of rights, while the theoretical aspects
should be the bone of contention for the academic. At the end, the NGOs and the
academia should come together with their research and activism to come out with
a blue print in achieving full implementation.
The second level
is the implementation of rights, both on the methodology to be employed in the
application of gender rights. Dynamics of struggle for gender justice and
equity must focus on human rights obligations of individuals before it
incorporates the civil authorities.
The legal aspect is the third step
in the implementation of women’s right. Although in Nigeria, remarkable
landmark decision have been given which are favourable to women. The real
challenge is that of access to justice and lack of implementation of justice by
the relevant state authorities. The argument of culture versus right arses in
the legal terrain. The argument that gender justice is incompatible with
certain aspects of culture is a major dilemma for all of us and a principal
issue in the struggle to step- down the implementation of CEDAW at the nation
level. The
final step is the formulation of reliable proposals creating alliances and
organizing strategic programmes needed for the relevant ground work for
successful application of women’s right in our society. If the Government, NGOs
and individual can tailor their goals towards the elucidated steps above, the
assertion; “Women’s Right are Human Right” may one day
come to fruition. Under the
Nigerian Ground norm, women are entitled to all fundamental rights guarantee
therein and can challenge in court any attempt by any person to interfere with
the exercise of any of these rights. The
federal Ministry of Women and Youth Development established at both Federal and
State level, is charge with the responsibility of pursuing policies and
programmes aimed at according women their full rights to participate, in social
, political and economic matters of the nation. Other bodes other than the
ministry that were established to see to the realization of the advancement of
women include;
·
National Action Committee on Women in Politics
(NACWIP), charged with the responsibility of getting women into the active
political participation through advocacy, mobilization and fund raising activities.
·
Legal Aid Council, which provide free
legal counsel to women.
·
National technical Team of Experts
(NTTE) comprising gender desk officers from sect oral ministries and agencies
which was set up to monitor the implementation of the Beijing Platform for
Action and ensure gender main- streaming in all sectors.
·
National Consultative and Committee
(NCCC) made up of gender experts and NGOs, which has been set up at the
national level to monitor CEDAW implementation.
·
National Human Right Commission (NHRC)
which has a special Rapporteur on women and child rights attesting to the
promotion and protection of women’s rights. There
have also been coalitions of Non-governmental Organizations(NGOs) and Community
Based Organizations(CBOs) in the following ;
·
Setting up of family law centers in some
centers in some states to assis aggrieved women in the pursuit of their rights
in law courts.
·
Educating, sensitizing and promoting
women development issues.
·
Implementation of programmes for the
protection of women rights.
·
Combating trafficking in women and
children. All the activities of the organizations enumerated above have aided
in bridging the gap on discriminatory tendencies which exist in our society
today.
4.4
ENFORCEMENT OF THE CONVENTION.
The plural legal system in the
country , which enables and encourages the application of statutory law side by
side with customary law potentially undermine women’s fundamental rights as
well as the implementation of the convention in Nigeria. Having ratified the
convention, it is expected that appropriate steps should be taken to enforce
the provisions of the convention and this can only be done with the
domestication the provisions of CEDAW into our laws. Without the above in
place, the provisions of the convention cannot be successfully enforced. In
international law however Nigeria having acceded to the treaty is bound by the
provisions of the convention and although aggrieved women cannot successfully
seek redress in the courts in Nigeria, they can make a substantial case at the
international court of justice on the grounds that Nigeria has failed to comply
to the provisions of the convention. Furthermore, according to the committee to
the convention, as with the Human Rights Committee Individual Complaints
Procedure, a communication must overcome two stages. Firstly, the consideration
of the admissibility of the communication and secondly, of the merits. However
the committee may decide on the admissibility and the merits of a communication
together. The committee may also request interim measures to prevent
irreparable harm to the author of the communication[12]. In order to file a
communication, the applicant initially needs to contact the secretariat. The
secretariat may then request that the authors complete a questionnaire
concerning the case. The committee may also issue a questionnaire in order to
obtain more information from the author of the complaint.[13] Communications are
brought to the attention of the committee at its next regular session.[14]The committee may
establish a Working group or designate a Rapporteur to assist it in its
consideration of communication at any stage of the proceedings.[15] After having been
received by the committee the communications are brought to the attention of
the state part with a request for a response within 6months regarding a
complaints admissibility and merits.[16] If the state wishes the
communication to be rejected as inadmissible, any arguments should be submitted
within two months.[17] The committee may also
request further information from both the state party or the author , subject
to fixed limits[18]. A communication is held inadmissible
where;
1. The
same matter has already been examined by the committee or has been or is being
examined under another procedure of international investigation or settlement.
2. It is
incompatible with the provisions of the convention;
3. It is
manifestly ill founded or not sufficiently substantiated;
4. It is
an abuse of the right to submit a communication;
5.
The facts that are the subject of the communication
occurred prior to the entry into force of the present protocol for the state
party concerned unless those facts continued after that date.[19] In addition to this, domestic remedies must be exhausted[20]and the communication cannot be anonymous.[21] The case may be reopened
in the case of an admissibility decision if further information is provided
indicating reasons for the review of the decision.[22] When
formulating its views the committee makes use of all information available to
it, including information from individuals and the state party, as well as
organisations such as the UN and related treaty bodies.[23] Views are determined by a
simple majority and may include recommendations.[24] Individual opinions may
also be appended to the view formed on a specific communication.[25] Since it came into force
on 22 December 2000 the committee has only published its findings regarding 10
different communications. Of these, five have been held admissible for either
failure to exhaust domestic remedies or ratione
tempori. In B.j v GERMANY[26]
the communication which alleged gender based discrimination under the statutory
regulations on the legal consequences of divorce was held inadmissible both ratione temporis and for failure to
exhaust domestic remedies. In DUNG THI THUY NGUYEN V THE NETHERLANDS,[27]it
was held that there was no violation of the convention when states had separate
rules for self –employed women and salaries for women when providing maternity
cover.
In AT V HUNGARY[28] sahide Goeke (deceased) v
Austria[29] and Fatma Yildrim
(deceased) v Austria[30]the committee dealt with
cases of domestic violence, which in two of the cases had resulted in death.
The committee held on all three occasions that the state party had a duty to
protect the women from domestic violence and although provisions to do this
were in place they were not effective. The inquiry procedure provides for investigation of reliable
indications of grave or systematic violations by a state party to the optional
protocol of the rights set out in the convention. The procedure is not
applicable if the state party in question at the time of ratification or
accession to the optional protocol declared that it does not recognise the
competence of the committee, in this respect. State parties are also required
under an obligation to ensure that individuals under its jurisdiction are not
subjected to ill treatment as a consequence of communicating with the committee
pursuant to the present protocol. The
committee may then decide to conduct an inquiry to be conducted by one or more
of its members, assisted by relevant experts regarding the convention, in
accordance with any modalities determined by the committee, and invite the
government to afford its own cooperation including, if appropriate, the
provision of facilities for the conducting of one or more visiting missions.
After examining the findings of the inquiry, the committee transmits the
findings together with its comments and recommendations to the state party and
may invite it to indicate, within six months, measures taken in response
thereto. The committee may also request that a state party include details of
such measures in its report under Article 18 of the convention. For example,
CEDAW has conducted an inquiry into Mexico, as regards allegations of the
abduction, rape and murder of women in the Ciudad Juarez of Chihuahua, The
facts that are the subject of the communication occurred prior to the entry
into force of the present protocol for the state party concerned unless those
facts continued after that date. Mexico, in particular that since 1993, more
than 230 young women and girls, most of them maquiladora workers, had been
killed in or near Ciudad Juarez,. In finding allegations of these violations
CEDAW recommended inter alia, “incorporate a gender perspective into all
investigations policies to prevent and combat violence, and programmes to
restore the social fabric, bearing in mind the specific characteristics of
gender based violence against women, its
causes and consequences, and the
specific social responses that the situation requires, with a view to
eliminating discrimination and establishing gender equality”.[31]
In conclusion it should be noted
from the above that the methods in which the convention enforces its provisions
is by way of recommendations to the state party after an admissible
communication had been made to the committee of the convention. Since its 10th
session the committee has decided to adopt the practice of issuing General
Recommendations on specific provisions of the convention and on the
relationship between the convention Articles. This has been described by CEDAW
as “cross-cutting” themes. CEDAW has issued a number of comprehensive and detailed
general recommendations offering State parties guidance on the application of
the convention in specific situations. Thus, for example, its General
Recommendation No 19 (1992) considered the issue of violence against women.
General Recommendation No. 23 (1997) related to women in political and public
life and General Recommendation No.24 (1999) was concerned with women and
health. `
4.5
THE 1999 NIGERIAN CONSTITUTION AND CEDAW
Actually, the Nigerian NGO-CEDAW
Coalition also responded to the call for memoranda from the Senate Committee on
the proposed amendment of the 1999 Constitution Being the voice of women in
Nigeria, the coalition is recommending that the Constitution be re-drafted to
be more gender-sensitive because that’s the only way it can be called ‘the
peoples’ Constitution’.
Language of the Constitution;
First and foremost, it should be
re-drafted to have a more gender-neutral language. We recommend that in any
provisions relating to men and women, the masculine and feminine pronoun should
be used. This will make room for a peoples’ constitution wherein everyone is
involved. This will also remove the ambiguity in understanding and interpreting
the constitution as it relates to gender. “He”, “him” and “his” should be
substituted to read “He or She”, “Him or Her” and “His or Hers” where
appropriate.
Chapter 1(Section 1(3)[32] shows that the provision
preserves equal status for men and women only in relation to law but does not
extend the protection to practice. Although the section mentions “laws” and
“provisions” inconsistent with the Constitution it omits “practices”. There
still exists in Nigeria practices that are unjust to women. Examples include
but not limited to – obnoxious
Widowhood practices, harmful traditional
practices, etc.
We therefore recommend that the amendment
should read: “If any other law, practice or provision is inconsistent with the
provisions of this Constitution, this Constitution shall prevail, and that
other laws, practice or provision shall to the extent of the inconsistency be
void”.
Gross gender imbalance;
Chapter II captures the essence of a
state and basic concerns of Nigerian women. Most gender based social-economic
rights are encompassed in this chapter. This will make for the full
actualisation of women’s rights and make life more meaningful to the average
Nigerian woman. We recommend that the provisions of this chapter be made
justiciable.
Section 14(3)[33] shows that though the
federal character gives room for quota systems in our institutions and
agencies, there is a gross gender imbalance tilting in favour of men. We
recommend that the section be amended to include gender balance.
Section 14(4)[34] should also be amended to
read: “The composition of the Government of a State, a local government
council, or any of the agencies of such Government or council, and the conduct
of the affairs of the Government or council or such agencies shall be carried
out in such manner as to recognise the political, religious and gender
diversity of the people within its area of authority…”
Section 15(2)[35] should be amended to
include the prohibition of discrimination on the basis on gender, disability,
age, health, status and marital status.
Section 26(2) (a)[36] violates the preamble of
the Constitution which provides equality for all persons and should be amended
to grant equal eligibility for citizenship to the foreign spouses of Nigerian
women.
We therefore request the
amendment to read: “the provisions of this section shall apply to –(a) any man
or woman who is or has been married to a citizen of Nigeria”.
Also, Section 42 [37]which talks about the
right to freedom from discrimination should be amended to widen the categories
of persons to be free from discrimination. Also, the context in which
discrimination can occur should be extended to include the private as well as
the public sphere.
Provision of affirmative action in the
Constitution
There is also an urgent need for
the provision of affirmative action in the constitution. A section to read-
“Notwithstanding the provision of Section 42, Affirmative Action of not less
than 40% shall be reserved for women in spheres of societal life for a period
not less than 15 years. This shall be subject to review and assessment by the
Equal Opportunity Commission as provided by the relevant section of this
constitution”.
Women should have the right to
affirmative action for the purpose of redressing the imbalances created by
history, tradition or custom. This is currently practiced in countries like
Uganda, Rwanda, Kenya, South-Africa, etc. Nigeria as the giant of Africa ought
to set the pace while others follow.
Section 38[38] requires an additional
subsection to make reference to freedom for married women to choose their own religion
and the freedom from the obligation or force to convert to their husband’s
religion.
Section on family life
Also, the section on family life should
be added to include the right of men and women aged eighteen and above, to
marry, have a family, and also are entitled to equal rights during, marriage
and at its dissolution.
This section should also state
that the legislature shall make appropriate laws for the protection of the
rights or widows and widowers to inherit the property of their deceased spouses
and to enjoy parental rights over their children. It should also state that
marriage shall be entered into with the consent of the man and the woman
intending to marry. Importantly, it should read that it is the right of parents
to bring-up their children irrespective of marital status.
Section on women’s rights and equality
of sexes
There is need for a section on
women’s rights and equality of sexes which would include that special care must
be accorded to mothers during a reasonable period before and after child-birth.
It should also state that working
mothers be accorded paid leave. It should include the provision of Exploring
tourist Travel & Tourism Law & Human Rights. Facilities in work and
public places for the care of children below school-going age to enable women,
who have the traditional care of children, to realise their full potentials.
Among other things which are
already stated in our memorandum sent to the senate committee, this section
should state that a spouse shall not be deprived of a reasonable provision out
of the estate of a spouse whether or not the spouse died having made a will.
The National Assembly shall, as
soon as practicable after the coming into force of this Constitution, enact
legislation regulating the property rights of spouses.
With a view to achieving full
realisation of the rights referred to in Subsection (2) of this section on
women’s rights and equality of sexes, it should be stated that spouses shall
have equal access to property jointly acquired during marriage, and assets
which are jointly acquired during marriage shall be distributed equitably
between the spouses upon dissolution of the marriage.
Items to be removed from the
Constitution
A number of items need to be removed
from the constitution, and these include Section 29(4)(b)[39] which grants an underage girl who has been
married the ability to revoke her citizen even though she has not attained the
legal age of maturity which is 18 years.
Section 28[40] of the constitution
should be expunged from the constitution to allow Nigerians who wish to acquire
dual citizenship to do so. Among other things which we actually included in our
memorandum, the Federal Character Commission contained in S153(1)(C)[41] should be substituted
with an Equal Opportunity Commission with an expanded mandate to
accommodate the interest of all Nigerians including women, youths, the aged,
the disabled, ethnic minorities and other special interest groups. It should be
entrenched as an independent commission in the Constitution with certain functions
which are also contained in the Nigerian NGO-CEDAW Coalition’s memorandum sent
to the senate committee.
Lastly, the subsection endorsing the
Land Use Act in Section 315[42] should be removed unless
the act is amended. This is because the Act is injurious to women’s rights and
equal status.
[1] 1999 constitution
[2] United Nation system in Nigeria, Nigeria common country assessment,
March 2001.
[3] Times, December, 1999.
[4] (2006) 6 N.W.L.R p.228.
[5] National
Political Conference, May 2005.
[6] Cap 220 LFN, 1990
[7]PCRC was established to review the 1999 constitution because of
widespread criticisms. It had the mandate to collate the views of Nigerians and
hereafter submit a report with recommendations for further actions. This
assignment was completed on February, 2001.
[8] Article by united family International.(www.unitedfamilies.org)
visted28/06/2013.
[9] Lloyd,A. ‘’the crises of the African Woman,’’
Praxis; A Journal of Development Studies of the Fletcher School of Law and
Diplomacy. Vol.9, spring 1992.
[10] Felix D.Gaer,(eds),Advancing Womens Human Rights towards more
effective UN enforcement. The international league for Human right 51,1983).
[11] Article by Angela King (1999, January 31) - http/www/un.org/women watch/daw.(visited
august 5th 2013)
[12] Article 5 Optional protocol, Rule 63 of the Rules of procedure of
CEDAW. See also ATV HUNGARY , CEDAW
Communication No. 2/2003, UN DOC. CEDAAW/C/32/D/2/2003 (2005).
[13] Rule 58(3) of the rules of Procedure of CEDAW
[14]Rule 59 (1) of the Rules of Procedure of CEDAW
[15] Rule 62(1) of the Rules of Procedure of CEDAW
[16] Rule 69(3) of the Rules of Procedure of CEDAW
[17] Rule 69 (5) of the Rules of Procedure of CEDAW
[18] Rule 69 (8) of the Rules of Procedure of CEDAW
[19] Article 4(2) of the Optional Protocol
[20] Article 4 (1) of the Optional Protocol
[21] Article 3 of the Optional Protocol
[22] Rule 70(2) of the Rules of Procedure of CEDAW
[23] Ibid Rule 72(1) and (2)
[24] Ibid Rule 72(5)
[25] Ibid Rule 72(6)
[26] Communication NO. 1/2003
(2004).
[27] Communication No.3/2004.
[28] Communication No.2/2003
[29] Communication No.5/2005
[30] Communication No. 6/2005.
[31] CEDAW optional protocol
Article 8 Examination Concerning Gender Discrimination CEDAW A/59/38 part 2 (2004) para 268.
[32] Section 1(3), 1999 Constitution.
[33] Constitution Federal
Republic of Nigeria 1999.
[34] Constitution Federal Republic of Nigeria 1999.
[35] Constitution Federal Republic of Nigeria 1999.
[36] Constitution Federal Republic of Nigeria 1999.
[37] Constitution Federal Republic of Nigeria 1999.
[38] Constitution Federal Republic of Nigeria 1999.
[39] Constitution Federal Republic of Nigeria 1999.
[40] Constitution Federal Republic of Nigeria 1999.
[41] Constitution Federal Republic of Nigeria 1999.
[42] Land Use Act Cap L5 L.F.N.2004.