The Protocol to the Africa Charter on Human and Peoples’ Rights on the Rights of Women in Africa is a unique piece of legislation because it takes into consideration the provisions of other international instruments on human rights that touch on women’s rights, the need for equality and freedom from discrimination. It also takes into consideration the peculiar circumstances of women in Africa and their vital role in development. The protocol certainly could have been the key to a new dawn for Nigerian women, but the sad thing is that the reality seems a far cry away. You can only stare and wonder if some hearts thought before they signed.
This paper seeks to appraise the unique provisions contained in the protocol, assess the current situation of women in Nigeria and ask, ‘How far has the protocol helped the situation of women’s rights in Nigeria? What needs to be strengthened and what are the glaring gaps in implementation?’
The protocol was adopted on 11 July 2003 by the AU to strengthen the promotion and protection of women’s rights. The preamble highlights several considerations necessitating the protocol. These considerations include a recognition of Article 2 of the African Charter on Human and Peoples’ Rights, which enshrines the principle of non-discrimination. It includes Article 18, which calls on all states to eliminate discrimination against women. It also includes provisions which recognise women’s essential role in development, the principle of promoting gender equality as enshrined in the Consultative Act of the AU as well as the New Partnership for Africa’s Development. The considerations also take into account other relevant declarations, resolutions and decisions which underline the commitment of African states to ensure the full participation of African women as equal partners in Africa’s development.
By virtue of the protocol, Nigerian women are guaranteed the right to dignity; the right to life, integrity and security of persons; freedom from harmful practices which negatively affect the human rights of women; equal rights in marriage; equal rights in cases of separation, divorce and annulment; the right to equal protection and benefit of the law; the right to participate in political and decision making process; the right to a peaceful existence and participation in the promotion and maintenance of peace; the right to education and training; equal opportunity in work and career advancement; the right to health, including sexual and reproductive rights; the right to food security; the right to adequate housing; the right to a positive cultural context; the right to a healthy and sustainable environment; the right to sustainable development; widow’s rights; the right to equitable share in inheritance; the right of elderly women to special protection and freedom from violence; the right of women with disabilities to special protection and freedom from violence; the right of women in distress to special protection; and a right of remedy to any woman whose right or freedom has been violated.
The obligation of the Nigerian government under the protocol includes ensuring that women enjoy the rights mentioned above through the following actions:
(a) Enactment of appropriate legislation to combat all forms of discrimination, and specifically to prohibit all forms of violence against women; to ensure prevention, punishment and eradication of violence against women; to prohibit and punish all forms of genital mutilation; to guarantee that no marriage takes place without free will and between consenting adults; to ensure that men and women have the same right during separation, divorce and annulment of marriage; and to guarantee equal opportunity in work and career advancement.
(b) Appropriate and effective education, administration, prohibition, protection, promotion, institutional, implementation and regulatory measures.
(c) Integrating a gender perspective in policy decision.
(d) Modifying social and cultural patterns of conduct of women and men through public education, information and communication.
(e) Positive action to promote participation of women in politics and decision-making.
(f) Provision of effective remedies.
(g) Ensuring full implementation at the national level.
(h) Providing budgetary and other resources necessary for full and effective implementation.
So far, some of the positive actions taken by the Nigeria government are:
- Adoption of a gender policy in 2007;
- Establishment of science schools for girls;
- Establishment of women development centres in 36 states;
- Adoption of the Trafficking in Person’s (Prohibition) Law Enforcement and Administration Act;
- Establishment of a national agency for the prohibition of trafficking in persons;
- Adoption of a national policy on HIV/AIDS, reproductive health and female genital mutilation.
Aspects hindering the rights of women include:
- The patriarchal structure of Nigerian society;
- Failure of the National Assembly to pass the Abolition Of All Forms Of Discrimination Against Women In Nigeria And Other Related Matters Bill and failure to pass a national bill prohibiting violence against women.
- Failure of the government to domesticate the protocol or enact appropriate legislation necessary for bringing to pass its obligations and undertakings under the protocol is worrying.
The questions that come to mind are: Why did the Nigerian government sign the protocol? Did the government sign as a mere formality, knowing that the protocol could be frustrated by non-domestication by virtue of Section 12 of the Constitution? Or is there just a divorce between the arm of government that signs international instrument and the arm that domesticates these agreements? Or do we align our thinking with Richard Falk, who says: ‘For various reasons associated with public opinion and prides, governments are quite ready to endorse (even formerly) standards of human rights despite their unwillingness to uphold these standards in practice.’
The Nigerian Reality
Despite the provisions of the protocol recognising and guaranteeing rights and the obligation of the Nigeria government, the lives of Nigerian women is yet to attain a commensurate level of improvement. Women rank lower than men in all indices of development in the country.
Economic and Social Welfare Rights
Paul Ogunyomi, writing on the typologies of discriminative practices in the Nigerian workplace, identified sex discrimination as being prevalent in Nigeria. This takes the form of a woman being treated less favourably than a man on the grounds of sex, or indirectly by conditions applied equally to men and women which are detrimental to women.
Research reveals that adequate maternity leave is important to enable the women’s body to recover after delivery. A study of the Nigerian workplace has revealed that ‘â€¦gap is identified between law and practice with wide patterns of protection resulting in some women enjoying good benefits, while others are wholly or partly unprotected within the Nigeria workplaceâ€¦’
Women still have a higher unemployment rate than men. Those employed are concentrated in the informal sectors like agriculture, petty trading and services. Home-making is still not recognised or compensated.
Health and Reproductive Rights
With a maternal mortality ratio of 704 to 1,000 per 100,000 live births, Nigeria continues to have one of the highest levels of maternal mortality. Incidences of gender-based violence have health consequences and result in health complications including miscarriages, long term disabilities, unwanted pregnancies, HIV/AIDS and other sexually transmitted diseases.
Right to Education and Training
Access to education is still low, especially in the northern parts of the country where withdrawal of girls for the purposes of marriage or for care giving is still practiced. According to ActionAid, ‘â€¦educational developments in northern Nigeria is lagging behind other parts of the country on practically every indicator, number of facilities, transition rates, girls enrolment, number of teachersâ€¦The girls are hawking wares or doing household choresâ€¦Low girls enrolment is bound to aggravate gender imbalances that skews present and future opportunities against women.’ Nation wide, gender gaps still exist at the higher levels of education.
Right to Participation in Political and Decision Making Processes
Significant advances have been made in the area of women’s participation in governance, yet the political participation of women in Nigeria remains one of the lowest in the world. Women’s participation in government is still below the 35 per cent stipulated in the gender policy.
Marriage, Separation, Divorce and Women’s Property Rights
Although Article 7 of the protocol provides for both parties of a marriage to enjoy equal rights within and after the marriage, in issues of custody and access to an equitable share of the joint property deriving from the marriage, this is not the case. Three forms of marriages are recognized in Nigeria – customary, islamic and legislative marriage. The reality of women married under customary and Islamic law has not yet been affected by the protocol. A woman married under customary law is entitled to be provided with a home by her husband as long as the marriage lasts. She is also entitled to use her husband’s property, but cannot dispose of it as her own. The right to be provided with a house by her husband terminates upon divorce. Upon divorce, a woman married under customary law has no claim over a house jointly owned by her husband. Her position is not helped by the provisions of the Matrimonial Causes Act in respect of maintenance and settlement of property, which expressly excludes the application of its provisions to marriages under customary and Islamic law. However in the case of women married under law, where she is able to produce documents showing she made a contribution to the property, she is entitled to the part of the property commensurate to her contribution. Many women are denied custody and access to their children. Among those under Islamic law, child marriage is still prevalent. According to BAOBAB for Women’s Human Rights, ‘â€¦girls are often married between the ages of 9-14. The occurrence of child marriage is common.’
Violence Against Women
The protocol guarantees women freedom from violence. In reality, there is a prevalence of violence against women in our society. Violence takes several forms, including domestic violence, early and forced marriages, female genital mutilation, widow torture and inheritance related violence. There are also direct forms of violence against women in Nigeria. For instance, in discussing the impact of the activities of militias, cults and security forces on women in the Niger Delta, Emem Okon states, ‘â€¦When a culture of armed gang violence takes root in a society that does not recognise and respect women’s rights, the result is a higher level of gender-based violence against women. In this case, the proliferation of guns in the Niger Delta has increased the risk that girls and women will be targets of sexual assault.’ In another section of the same article, she stated that, ‘The consequence has been disastrous, as women have suffered massive massacre, rape, sexual abuse, social psychological traumaâ€¦aggravated poverty, unemployment, hunger, anger, low self esteem, bitterness, frustration, desperation, fear, tension and more conflicts.’
Some violence is performed by law enforcement agents. This can be direct or indirect. Direct assault by security officers is becoming prevalent. For instance, a case was brought before the Gwagwalada High Court in Abuja in which a police man raped two girls. In the Odioma community of Brass Local Government in the Niger Delta, Amnesty International reported a case where a rape victim described how she was raped alongside her mother by security officers. Two-months pregnant at the time, she lost her baby.
Access to Justice and Equal Protection Under the Law
The Constitution and certain laws in Nigeria still contain discriminatory aspects. For instance, Section 26(2) of the Constitution does not allow a Nigerian woman to transmit her nationality to her husband if he is a foreigner. Section 55 of the Penal Code applicable in northern Nigeria permits wife battery as chastisement, as long as grievous harm is not afflicted. Section 55 of the Labour Act prohibits women from working in the night.
Elimination of Harmful Practices, Culture, and Discrimination Against Women
In some parts of Nigeria, women are still regarded as part of the husband’s property and as such she cannot inherit her husband’s property, but must be inherited alongside his other property by another male of the family. Also ‘a lot of customs still continue unabatedâ€¦that infringe greatly on the human rights of women’.
According to the National Human Rights Commission (NHRC), challenges to the promotion and protection of women’s rights still include harmful tradition practices such as female genital mutilation, widowhood rites, child marriage and violence against women.
Right to Inheritance
In most parts of Nigeria, female children are still discriminated against on issues of inheritance. With the decision in Mojekwu v Mojekwu, in which the Court of Appeal declared the ‘oli-ekpe’ custom of Nnewi – which permits the son or the brother of a deceased person to inherit his property to the exclusion of his female children – discriminatory, it was expected that discrimination against women and the girl child on the issue of inheritance would end. This is definitely not the reality, probably because the decision has not gained nationwide popularity and poverty prevents women from going to court to assert their rights.
Poverty and the Right to Dignity, Food Security and Adequate Housing
One major hindrance to the right to dignity, food security and adequate housing in Nigeria is poverty. Although Nigeria is richly endowed with both human and material resources, the Nigerian government, Nigerian civil society and the UNDP all state that approximately 70 per cent of Nigerians as poor. The majority of the poor are women. Also, Nigeria does not have a social security plan for providing food and housing to the poor. This makes the situation of women precarious and exposes them to the sex trade and destitution.
The Right to A Healthy Environment and Sustainable Development
Every woman in Nigeria has a right to a healthy environment that is favourable to their development. In reality, the environment in Nigeria has not been favourable to the development of women.
According to Abiola and Iyare, ‘Since oil struck four decades ago, the ecological and environmental hazards from indiscriminate exploration have constituted an affront on the community and the survival of its peopleâ€¦the effects of oil exploration has produced debilitating effects on the peoples traditional occupation – fishing and farmingâ€¦’.
When the environment is degraded, as is the current situation in Nigeria, women are most affected because of their culturally and socially defined roles and responsibilities, because their adaptive capacity is low due to poverty and because their livelihoods are tied to the environment. In sum, any damage to the environment is damage to women as it affects their potential and their productivity.
Conclusions and Recommendations
The rich provisions of the protocol recognising and guaranteeing women’s human rights in Nigeria promises a beautiful future for women – if the government fulfills its obligations.
In light of the current realities, government should redeem its image and show its commitment by:
- Domesticating the protocol;
- Passing the bill on violence against women;
- Reviewing laws on women’s property rights and all other laws discriminating against women;
- Adequate budgetary allocations to issues that promote women’s rights and bridge gender gaps;
- Integrating women’s right issues and gender education into the school curriculum.