DISCRIMINATORY PRACTICES AND THEIR EFFECTS ON WOMENS RIGHTS TO SOCIO-ECONOMIC DEVELOPMENT

BEING A PAPER PRESENTED AT A ONEDAY CONFERENCE ORGANISEDBY THE LEAGUE FOR HUMAN RIGHTS (LHR) WITH SUPPORT FROM EUROPEAN UNION (EU) ON 3RD DECEMBER 2010

Abstract
It has become generally accepted as a truism that women are discriminated against and therefore generally disadvantaged Declaration of worldwide. Human Though Rights the and Universal subsequent

international instruments like the International Covenant on Economic, Social and Cultural Rights (ICESCR) entrenched, affirm and reaffirmed the principle of equality of all as a foundation for freedom, justice and peace in the world, women have continued to suffer discriminations starting from the period predating birth through girlhood to adulthood. Efforts at creating equal opportunities for women at political, economic and social planes have not achieved desired result due to deeprooted cultural and religious abuses. This paper will attempt a quick look at socio-economic rights as enshrined in the Universal Declaration on Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), other international and domestic instruments with a view to establishing what constitute socio-economic rights. The paper will also discuss briefly the vexed issue of justiciability of socioeconomic rights with a view to establishing that such rights are enforceable in Nigeria to the extent to which there are Acts or Law of the legislature promoting them. Finally, the paper will take a critical look at various discriminatory practices against women at all levels and how they constitute blockages to the realisation of rights to social and economic development with a conclusion that there are sufficient legal instruments to challenge such discriminatory practices in Nigerian courts.

By AKINROPO OMOWARE Programme Officer (Access to Justice and Girl Child Education) Strengthening Women and Girls Rights Project of GTZ in Plateau and Borno States Address GTZ Office, No 168, Opposite Government House Junction Rayfield, Jos Plateau State Tel +234 (0)803 8087 953 +234 (0)805 3778 187 +234 (0)709 2547 319 E-mail Omoware.akinropo@gtz.de Emmylaw1@yahoo.com Akin.ropo@yahoo.com

Blog address akinomoware.blogspot.com

Introduction It is customary to start a discourse of this type with definitions and clarification of key concept, this paper takes no exception to this. The paper therefore will attempt to define and clarify what socio-economic rights are, the concept of development under human rights jurisprudence, woman, discrimination and discriminatory practices especially as it affects women. Thereafter, the paper will make an attempt to highlight how discriminatory practices constitute blockages to the realisation of socio-economic rights of women. Right to Socio-Economic Development A right may be defined as something that is due to a person by just claim, legal guarantee, or moral principle.1 For the purpose of this paper, a right is defined simply as legally enforceable claim.2 Right to Socio-Economic development on the other hand, is a coinage of convenience which evolved from economic and social rights which along with cultural rights are considered as second generation rights. These rights are distinct from civil and political rights which are classified as first generation rights. This distinction notwithstanding, the Economic, Social and Cultural (ESC) Rights are quite as important as civil and political rights. In fact it has been argued and widely accepted that the civil and political rights are meaningless without ESC rights while ESC rights are not realisable without the civil and political rights. These two groups of rights are therefore interdependent and indivisible. However, observance of the rights ESC by states by virtue of Article 2 of ICESCR is dependent on availability of resources while states are enjoined to take steps to achieve progressively the ESC rights. Economic, Social and Cultural (ESC) Rights are included in the 1948 Universal Declaration of Human Rights (UDHR) and more clearly articulated by the International Covenant on Economic, Social and Cultural Rights (ICESCR) which was
1 2

Blacks Law Dictionary, 8 Edition p. 1347 Ibid

th

adopted by the UN General Assembly on 16 December 1966 along with its twin covenant; the International Covenant on Civil and Political Rights (ICCPR). These two covenants along with the UDHR constitute what is popularly regarded as the International Bill of Human Rights.3 Among the rights articulated under the ICESCR are right to self determination, right to work, right to equal and adequate compensation, right to choice of employment, right to own property, right to adequate standards of living including rights to food, clothing and housing, right to education, right to found a family, right to science and culture. Because the focus of this paper is on right to socio-economic development, it shall concentrate more on economic and social rights though it is important to appreciate that the recognition of a culture, community or people may be very important for self confidence and for peoples ability to play a full part in society and further its development.4 Development as part of the coinage right to socio-economic development for our purpose may be explained and understood to mean a process of realization, achievement or enjoyment.5 With this definition, right to socio-economic development may therefore be understood as access, process, avenue or opportunity an individual has to enjoy or realise economic and social rights. This definition is supported by Article 1 of the 1986 UN Declaration on the Right to Development which states: That the individual is by virtue of the right to development entitled to participate and contribute to enjoy economic, social, cultural and political development in which all human rights and freedoms can be fully realised.

Ladan M. T; International Human Rights Law: Development Scope and Enforcement/Monitoring in Obilade and Nwankwo eds.; Text for Human Rights Teaching in Schools, Constitutional Rights Project (CRP), 1999, p. 67 4 The MDGs Through Socio-Economic Rights: Constitution Making and Implementation Handbook, United Nations Miillenium Campaign, 2009 p. 9 5 Ladan M. T; Human Rights and Environmental Protection in Obilade and Nwankwo eds.; Text for Human Rights Teaching in Schools, Constitutional Rights Project (CRP), 1999, p. 96

Right to Socio-Economic Development under the Nigerian Constitution Social and economic rights as articulated in the ICESCR are clearly spelt out under Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria albeit not as rights but obligations on government at all levels. The chapter titled Fundamental Objectives and Directive Principles of State Policy clearly placed certain obligations on all organs of government and all authorities and persons exercising legislative, executive or judicial powers to take steps for the realization of socio-economic development of all persons.6 Section 14(2)(b) provides that the security and welfare of the people shall be the primary purpose of government. More specifically, Section 16 provides for the economic objectives (obligations) of government as follows: 16 (1) The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution(a) Harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self reliant economy; (b) Control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity. Subsection (2) states further that the State shall direct its policy towards ensuring(a) The promotion of a planned and balanced economic development; (b) That the material resources of the nation are harnessed and distributed as best as possible to serve the common good; (c) That the economic system is not operated in such manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and
6

Section 13 of the Constitution of the Federal Republic of Nigeria, 1999

(d) That suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens. The social objectives (obligations) are stated in Section 17. Sub-section (1) states that the State social order is founded on ideals of Freedom, Equality and Justice. Subsection (2) states that in furtherance of the social order(a) Every citizen shall have equality of rights, obligations and opportunities before the law; (b) The sanctity of human person shall be recognised and human dignity shall be maintained and enhanced.7 More importantly, Sub-section (3) provides that the State shall direct its policy towards ensuring that(a) All citizens, without discrimination on any ground whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment; (b) Conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life; (c) The health, safety and welfare of all persons in employment are safeguarded and not endangered or abused; (d) There are adequate medical and health facilities for all persons; (e) There is equal pay for equal work without discrimination on account of sex, or any other ground whatsoever.8

7 8

See also paragraph (c) (e) See also paragraph (f) (h)

Providing for educational objectives (obligations), Section 18 (1) of the Constitution states that Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels. Subsection (3) states that Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide (a) Free, compulsory and universal primary education; (b) Free secondary education; (c) Free university education; and (d) Free adult literacy programme. Consequent upon the above constitutional provision, the Compulsory, Free and Universal Basic Act was enacted in 2004 giving effect to paragraph (a) and partly (b) above. From the above-stated constitutional provisions, it is convincing that the Constitution of the Federal Republic of Nigeria in similar fashion with the International Covenant on Economic, Social and Cultural Rights (ICESCR), provides all citizens, without discrimination on any ground whatsoever with reasonable access and opportunity to realise and enjoy socio-economic development. Justiciability/Enforceability Question While there are no doubts as to the provisions of international and national instruments on the ESC Rights, there has always been a question about the justiciability (enforceability) of those rights at international and national levels. According to the drafters of ICESCR, the only reason why it was separated from the ICCPR was because of enforcement. It was explained that the ESC Rights cannot be enforced as civil and political rights because their realisation depend much on the availability of resources. The drafters then thought that most states will not ratify the document if ESC rights are included in the same document with the civil and political rights, hence the separation of the two. However, realising and accepting that civil

and political rights would be meaningless without ESC rights, Article 2 (1) of the ICESCR states that each State Party to the Covenant shall take steps, individually and through international assistance and cooperation, to the maximum of its available resources, with a view to achieving progressively the full realization of ESC rights. What this means is that the ESC rights are not automatic, government at all levels must commit whatever resources is available to them to the progressive realization of the ESC rights with the view that the rights will be fully realised after a certain period of progressive and continuous commitment of available resources. It must quickly be added here that some ESC rights does not require resources for full realisation. Such rights include right to organize into a trade union, right to family and the likes. These rights are automatically enforceable and States cannot hinge its non-realisation on lack of resources. Under the Nigerian Constitution, the ESC rights provided as obligations on government also have the question of justiaciability. Section 6 (6) (c)9 provides The judicial powers vested in accordance with the foregoing provisions of this section (c) Shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution. This provision has been popular interpreted as making ESC rights, provided under Chapter II of the Nigerian Constitution as obligations to government, not enforceable through the courts. There have been several argument and advocacies by lawyers and human rights activists in favour of the enforceability of the Chapter II of the

Constitution of the Federal Republic of Nigeria, 1999

Constitution while many have called for the review of Section 6 (6) (c) of the Constitution. While this paper does not have the luxury of going into those arguments, it is important to state that Chapter II of the 1999 Constitution is enforceable albeit, like the ICESCR, the procedure for its enforcement is different from that of Chapter IV (civil and political rights). Section 6 (6) (c) of the Constitution provides for an exception for the justiciability of Chapter II i.e. where the Constitution provides otherwise. Specifically in Section 13, the Constitution provides that It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution. Is this not an exception otherwise provided by the Constitution to Section 6 (6) (c)? Even if this provision is not enough to grant such rights, it is enough to make courts entertain such issues. This is a sacred duty and responsibility placed on the courts and it does not appear the provision of Section 6 (6) (c) can relief courts of such duty and responsibility. In addition, though the provisions of Chapter II are not rights but obligations on government, corresponding rights to such obligations could be enacted by an Act or Law of a legislative assembly and such rights are enforceable. This is supported by the case of Attorney-General of Ondo State V. Attorney General of the Federation10 where the Supreme Court held that the legislature could give life to the provisions of Chapter II and make them enforceable by an Act or a Law duly passed. This therefore means that the educational objectives of free, compulsory and universal primary education in as much as corresponding rights have been created by the Compulsory, Free, Universal Basic Education (UBE) Act11, are enforceable and justiciable. Finally, Chapter 2 of the Constitution are enforceable through the African Charter on Human and Peoples Rights which contain several of
10 11

(2002) 9NWLR (Pt. 772) p.222, (2002) FWLR (Pt. 111) p.2167 2004

the Economic, Social and Cultural rights entrenched in Chapter 2 of the Constitution. The courts in Nigeria have as far back as 1990 upheld the enforceability of international treaties which has already been domesticated. 12 In Ogugu v. The State13 and later General Sani Abacha v. Gani Fawehinmi14 the Supreme Court of Nigeria upheld the enforceability of the African Charter in Nigeria same having been domesticated by the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.15 In the case of Registered Trustees of SERAP v. Federal Government of Nigeria & UBEC, delivered by the ECOWAS Community Court of Justice in Abuja on 30 November 2010 and reported in THISDAY of December 1, 2010, the regional court held that the Nigerian government is under national and international obligation to provide free basic education to Nigerians.

Women and Discrimination A woman is defined as the feminine component of the human species who, apart from serving as a vehicle for nurturing human life, is also a producer, a consumer and an equally endowed agent for fostering a wholesome political, social and economic development in society.16 For the purpose of this paper, women refers to female human beings. Discrimination on the other hand refers to the prejudicial or biased treatment of an individual based solely on their membership, whether voluntary or involuntary, in a certain group or category. It involves excluding or restricting members of one group

12 13

Oshevire v. British Caledonian Airways (1990) 7 NWLR (Pt 163) p.507 (1994) 9NWLR (Pt 366) p.1 14 (2000) 6NWLR (Pt 660) p.228 15 Cap 10 LFN 1990. See also Obiagwu E. C. Promoting Economic, Social and Cultural Rights Using Domestic Legal Mechanisms, in Nweze C. C. and Nwankwo O. (ed) Current Themes in the Domestication of Human Rights Norms 2003, pp. 163 at 169-171 16 Joy Ogwu, Women in Development: Options and Dilemmas in the Human Rights Equation; in Perspectives on Human Rights, Federal Ministry of Justice Law Review Series, Vol. 12, 1992, p. 143

from opportunities that are available to other groups. Blacks Law Dictionary17 defined discrimination as The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion or handicap. Discrimination against women can therefore be defined as biased or prejudicial treatment of female human beings based solely on their membership of that sex group. Discrimination against women is defined by the United Nations Convention on the Eradication of all forms of Discrimination Against Women (CEDAW) as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.18

Legal Protection of Women from Discrimination All human rights instruments since the popular Universal Declaration of Human Rights (UDHR) at international, regional and national levels have given the principles of equality of all human beings and non-discrimination on any ground much attention. The UDHR clearly affirms that all human beings are born free and equal in dignity and rights.19 The ICESCR and the constitutional provisions on ESC rights highlighted above all placed emphasis on equality of all and non-discrimination on the ground of sex or any other ground whatsoever. This presupposes that both men and women are entitled to ESC rights in equal proportion. This also mean that right to socio-economic development as enshrined in international
17 18

and national

Supra at p.2 Article 1 of CEDAW 1979 19 Article 1 of UDHR

10

instruments are guaranteed to men and women with emphasis on equality and nondiscrimination on the ground of sex. More importantly, Section 42 of the Constitution20 copiously provides (1) 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 (she) is such a person (a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his (her) birth. But have these legal provisions translated into equal treatment and access to rights for women?

Effects of Discriminatory Practices against Women on their Right to Socio-Economic Development It would be a very difficult task to chronicle all discriminatory practices against women, because they occur in both private and public as well as in varying degrees and dimensions. The approach of this paper therefore is to set out some basic socioeconomic rights and the common discriminatory practices which hinder women from their full enjoyment.

20

Constitution of the Federal Republic of Nigeria 1999

11

Right to Education Right to education has been identified as one of the most important socio-economic rights because of the importance of education to human development. Education is regarded worldwide as a veritable tool for the development of human beings physically, mentally and socially. When asked how much superior educated men were to those uneducated, the legendary Greek philosopher Aristotle (384-322 BC), answered, as much as the living is to the dead. Due to its importance, there are several efforts globally and nationally to make education for all achievable. Despite these efforts, many population of the world are still battling with access to education. While access to education is regrettably limited, statistics across the world21 show that more women are illiterate due to discrimination against their sex as girls. In Nigeria, there still exists serious discrimination against the girl child in the area of education. The practices of male preference, early marriage, girl child hawking and cultural misinterpretation of the role of women have created a blockage to the enjoyment of right to education. It is a trite fact that an uneducated girl child will become an illiterate woman with little access to socio-economic development.

Right to Food Right to food includes the right to be free from hunger and malnutrition.22 The importance of this right cannot be overemphasised. Food has close link with survival of human body with health implications. It has been suggested that right to life may be meaningless in the access of food.23 According to Inter Press Service, on a global scale, women cultivate more than half of all the food that is grown. In sub-Saharan

21

Global Issues Gender Discrimination throughout a Lifetime, UNICEFs 2007 report on state of the worlds children. 22 Article 11 of the ICESCR 1966 23 Socio-Economic Rights Activists Seek Constitutional Recognition for ECOSOC, THISDAY, 13 May 2010

12

Africa and the Caribbean, they produce up to 80 per cent of basic food stuff. In Asia, they account for around 50 per cent of food production. In Latin America, they are mainly engaged in subsistence farming, horticulture, poultry and raising small livestock.24 However, this statistics has not in any way enhanced womens access to food especially in sub-Saharan Africa where women and of course children are still victims of malnutrition, hunger and starvation. Scenario I
Sule, aged 60 has two wives with 9 children. He is a retired teacher whose health has deteriorated lately due to his early addiction to alcohol which he has managed to refrain from since the introduction of Sharia in his state and had since taken to smoking. His two wives and the female children farm in his farmland which he inherited from his uncle who died leaving two female children who could not inherit his land because it is a taboo for women to own land in their community. Although Sule in his magnanimity is allowing the eldest daughter of her late uncle to farm on the land in return for twenty big tubers of yam and two big fowls per annum. Sules contribution on the farm is very minimal due to his health condition; nevertheless, he has one of the best harvests in the community this year due to the efforts of his two wives and the children. Sule ordered the sale of 90% of the farm produce because he needed money to marry a third wife and take care of his health. He now eats outside because the food the wives cook at home according to him does not contain essential nutrients his body needs.....

Right to Health Health, it is said, is wealth. The ICESCR and the Nigerian constitution guaranteed right to realization of the highest attainable standard of health. 25 Womens access to health has suffered greatly due to the neglect of maternal health which has led to high maternal mortality especially in developing countries. Shockingly, it is estimated
24 25

UNICEFs 2007 report on state of the worlds children Article 12 of ICESCR 1966

13

that each year, more than half a million women roughly one woman every minute die as a result of pregnancy complications and childbirth, 99 per cent of which occur in developing countries. Nigeria is one of the countries with high maternal mortality ratio with 1 out of 13 women likely to die from pregnancy and childbirth. Yet many of the lives of many of these women could be saved if access to health care services were improved. Apart from the general neglect of maternal health care by government at all levels, certain cultural practices constitute hindrance to womens access to health care services while many of such practices expose women to health hazards. In some parts of the country, it is considered a taboo for women to deliver under a roof. Under such culture, women are precluded from delivering in a clinic. In some other places, women are barred from eating certain nutritious food which could aid their health especially during pregnancy, while in other places women are denied access to the services of male medical practitioners even in life threatening situation and when female medical practitioners are largely unavailable (due to girls lack of access to education). In addition, practices like Female Genital Cutting (FGC) and early marriage for girls with the resultant VVF have continued to create health hazards for women. Domestic violence against women which is largely seen as private matter and partly condoned by law equally poses health challenge to women. Section 55 (d) of the Penal Code allows wife beating provided it does not amount to grievous hurt. This provision offends the equality in dignity of human person as articulated by the Universal Declaration of Human Rights (UDHR) and enshrined by the Constitution of the Federal Republic of Nigeria and should therefore be expunged.

Right to Land One of the areas where women suffer discrimination is with regards to access to land especially in rural communities where farming has remained the sole occupation. Women are denied right to inherit land from either their parents or husbands. Many

14

women who farm on their husbands land lose such land at the demise of their husbands. Though Section 43 of the Constitution guarantees the right of every citizen of Nigeria to own land anywhere in Nigeria, despite judicial decisions to the fact that women can own land, very few women still have access to land. They therefore either farm on their husbands farmlands or on leased land. This has denied them control over what they produce from the farm and reduced their access to socioeconomic development. Denial of right to own land also deny women access to credit facilities from banks, land being the popularly accepted collateral for loan. This has serious effect on women in business who often lack the resources to favourably compete with their male counterpart.

Right to Shelter Economic deprivation which arises from lack of access to education, employment and land among others has left many women as squatters whose consideration for squatting is marriage to a man. Such women lose their shelter if the marriage for whatever reason ends. Even when such women contribute to the acquisition of such shelter, they are sent out to the colds, in some cases with their children, on the demise of their husbands or in the case of divorce and their contributions are usually not refunded. In fact, in some places, women are deemed as properties subject to inheritance and therefore cannot be heard laying claim to any property of the demised husband.

Right to employment and equal remuneration As part of activities to mark this years International Womens Day, the International Labour Organisation (ILO) in a report titled Women in Labour Market: Measuring Progress and Identifying Challenges noted that despite signs of progress in gender equality over the past 15 years, there is still a significant gap between women and

15

men in terms of job opportunities and quality of employment.26 The report stated further that more than a decade after the 4th World Conference on Women in Beijing adopted an ambitious global platform for action on gender equality and womens empowerment; gender biases remain deeply embedded in society and labour market. Lack of equal access to education reduces womens access to employment. Even when educated, women still suffer discrimination from employment. Most well paid employments are considered appropriate for men alone. In fact, womens place are considered to be in the kitchen (that is the home) and parents often refuse to educate their female children because they are supposed to work only in their husbands home (cooking and taking care of the husband and the children). Even where women are given access to education, the traditional role definition affects the kind of education they are given. In most cases, female students are considered appropriate candidates for areas like teaching, nursing, secretariat and clerical services and the likes while male students are considered appropriate for areas like medicine, law, engineering and the likes. Today it is considered unequal fit for a woman to become Senior Advocate of Nigeria (SAN), Medical Consultants or a senior engineer. Women also suffer high discrimination in the field of security, either in the army or the police force. When women are employed they continue to contend with discrimination at workplace; promotions and equal wages become issues to contend with. More critical is the fact that most of the contributions of women are usually unrecognised and unpaid as most are classified domestic. A woman is not remunerated for fetching water for the household but when a man does that, he gets paid (mai ruwa).

26

Vanguard of 8 March 2010

16

Scenario II Women do not work?

Source:

Draft Trainers Manual on Human Rights, Gender and Reproductive Health and Rights; GTZs Strengthening Girls and Womens Rights Project, 2010.

17

Scenario III Women do not work? and tired of going to work every day while his wife stayed at home. Mallam Audu was sick
He wanted her to see what he went through so he prayed: "Dear Lord: I go to work every day and put in 8 hours while my wife merely stays at home. I want her to know what I go through, so please allow her body to switch with mine for a day. Amen. God, in his infinite wisdom, granted the man's wish. The next morning, sure enough, the man awoke as a woman. He arose, cooked breakfast for his mate, awakened the kids, set out their school clothes, fed them breakfast, packed their lunches, drove them to school, came home and picked up the dry cleaning, took it to the cleaners and stopped at the bank to make a deposit, went grocery shopping, then drove home to put away the groceries, paid the bills and balanced the check book. He cleaned the cat's litter box and bathed the dog. Then it was already 1P.M. and he hurried to make the beds, do the laundry, vacuum, dust, and sweep and Mop the kitchen floor. Ran to the school to pick up the kids and got into an argument with them on the way home. Set out milk and cookies and got the kids organized to do their homework, then set up the ironing board and watched TV while he did the ironing. At 4:30 he began peeling potatoes and washing vegetables for soup. After supper, he cleaned the kitchen, ran the dishwasher, folded laundry, bathed the kids, and put them to bed. At 9pm, he was exhausted and, though his daily chores weren't finished, he went to bed where he was expected to make love, which he managed to get through without complaint.

The next morning, he awoke and immediately knelt by the bed and said: - "Lord, I don't know what I was thinking. I was so wrong to envy my wife's being able to stay at home all day. Please, oh! oh! please, let us trade back."

The Lord, in his infinite wisdom, replied: "Mallam Audu, I feel you have learned your lesson and I will be happy to change things back to the way they were. You'll just have to wait nine months, though. You got pregnant last night."

Right to family A primary guiding text on the right to family life is the International Covenant on Economic, Social and Cultural Rights which provides in article 10: The States Parties to the present Covenant recognize that:

18

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. The United Nations Human Rights Committee has clarified in its General Comment Number 28 that, in giving full effect to the recognition of family in the context of (International Covenant on Civil and Political Rights), it is important to accept the concept of the various forms of family, including unmarried couples and their children and single parents and their children, and to ensure the equal treatment of women in these contexts States parties to the International Covenant on Economic, Social and Cultural Rights bear non-derogable core obligations with respect to the right to family life. States are obligated to ensure: (a) Right to marry and found a family The family is recognised as the most natural and fundamental unit of society and therefore the right of all to marry and found a family is protected in human rights law. Human rights law does not dictate the types of family unit that are deemed acceptable and in the world today there are many diverse forms of families and marriages. (b) Equal rights of men and women in the family Human rights law asserts the equal rights and responsibilities of both men and women at marriage, during the marriage and at its dissolution. (c) Right to give full and free consent to marriage

19

Human rights treaties say that no marriage should be entered into unless consent is freely given by the intending spouses. Women and Family Right How have women faired in their respective families with regards to these rights? The situation in most part of the world today is such that women are not considered equal partners in their families. Today, girls are still being forced into marriages against their will and without their consent. Forced marriages for economic or cultural reasons are still being practiced in many countries in the world despite the negative impact of such on girls and women. Studies have shown that a number of health risks and prevalence of domestic violence are linked to early marriage. When married, women are hardly allowed a voice in the determination of family matters. Patriarchy which makes the man the centre-nerve of human existence permeates through all cultural practices in Nigeria. According to Mies27, literally, patriarchy means the rule of fathers. But todays male dominance goes beyond the rule of fathers, it includes the rule of husbands, of male bosses, of ruling men in most societal institutions, in politics and economies... Women do not have equal status compared to men in marital and family life. Laws and practices governing the status of women in the family often circumscribe their role in the unit and their legal capacity. The status of women is often determined by their relationship to male family members and may affect their rights and entitlements e.g. right to inherit family property. In some countries, womens rights in various areas e.g. nationality and citizenship are curtailed or denied by law upon entering a marriage. Even the Constitution of the Federal Republic of Nigeria has such discrimination under Section 26 where the right of a man to confer nationality on a non-Nigerian woman through marriage is recognized while that of a woman is
27

Mies M, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, 1986

20

not. There are also several discriminatory practices which violate the right of women to family life under our laws. For instance, Regulation 118 of the Nigeria Police Regulations made pursuant to the Police Act28, which prescribes qualification for enlistment of women into the Nigerian Police Force stated that the women must be unmarried29 Meanwhile men who want to be enlisted into the Police are not required to be unmarried. Apart from being discriminatory of the rights of women to family, this regulation is also a violation of the rights of married women to employment. Similarly, Regulation 12430 provides that A woman police officer who is desirous of marrying must first apply in writing to the commissioner of police for the State Police Command in which she is serving, requesting permission to marry and giving the name, address and occupation of the person she intends to marry. Permission will be granted for the marriage if the intended husband is of good character and the woman police officer has served in the force for a period of not less than three years. Regulation 12731 in similar fashion states that An unmarried woman police officer who becomes pregnant shall be discharged from the Force, and shall not be re-enlisted except with the approval of the Inspector-General. These Regulations to say the least are discriminatory of women and are direct affront on rights to employment and family life.

28 29

Cap 359, Laws of Federation of Nigeria, 1990 Paragraph (g) 30 Nigeria Police Regulations made pursuant to the Police Act, supra 31 ibid

21

Conclusion The question whether women have equal access to socio-economic development would not be difficult to answer in view of the many discriminatory practices against women which in turn affect their accessibility and realisation of their rights to socioeconomic development. It is my humble view that no culture or religion overtly discriminates against women, children, ethnic or religious minorities or other vulnerable groups, rather, humans inordinate greed for power(political or otherwise), wealth and pleasure often push them to stretch religion and culture to rationalise all forms of irrationality in conduct. In every culture or religion where one discriminatory practice or the other is termed religious or cultural you will find many adherents of such religion or culture (many of whom are highly placed and respected) who do not exhibit such discriminatory attitude. Yet they are not termed as unreligious or uncultured. Finally, to eliminate all forms of discriminatory practices against women, efforts must be shifted to judicial approach. Several advocacies and enlightenment has been committed to this course leading to the ratification of several international treaties with the basic principles of equality and non-discrimination. Nigeria has equally ratified several treaties on the promotion of the rights of women especially rights to equality and non-discrimination. In addition, there are adequate domestic enactments which equally entrenched the principles of equality and nondiscrimination with handful judicial authorities in consonance. What we have not done enough is challenging discriminatory practices in court. The discriminatory practice of consent of husbands before issuance of passport to married women was law until the Federal High Court in Port-Harcourt in Priye Iyalla-Amadi V Comptroller-General, Nigerian Immigration & Another, declared as unconstitutional the administrative policy of the Nigerian Immigration Service (NIS), which compelled a married Nigerian woman to produce a letter of consent from her husband as a condition for issuance of international passport. In this judgement, presiding judge,

22

Justice G. K. Olotu, said the requirement was not only a violation of section 42 (1) (a) of the 1999 constitution but was also against Article 18 (3) of the African Charter on Peoples Human Rights which disallows discrimination on grounds of sex. It must be added here that it is not only discriminatory administrative practices that can be challenged in court, discriminatory practices hinged on culture and religion can also be challenged in customary and Sharia Courts in Nigeria. For instance, the case of Garba Maina V. Hajia Falta & Anor32 where the Sharia Court of Appeal in Borno upheld the right of a woman to obtain a divorce and free herself in accordance with the procedure laid down by the Sharia, namely, by Khulu meaning, giving a lawful consideration to the husband to free herself.33 There were also several other cases pronouncing certain customary practices as discriminatory against women. 34 While it is desirable that Nigeria domesticate CEDAW, its non-domestication does not in any way limit the right of the Nigeria woman to challenge any form of discrimination against her under the constitution or domesticated treaties like the African Charter on Human and Peoples Rights which the court relied on in Amadis case.35 I hereby conclude with the words of Niki Tobi J.C.A. in Mojekwu v. Mojekwu.36 The learned jurist stated: All human beings, male and females, are born into a free world and are expected to participate freely without any inhibition on ground of sex and that is constitutional. Any form of societal discrimination on ground of sex, apart from being

unconstitutional, is antithetical to a civil society built on the tenets

32 33

BOS/SCA/CV/73/2003, Judgment: 16/5/2005 See Ladan M. T. Law and Policy on Health, HIV/AIDS, Maternal Mortality and Reproductive Rights in Nigeria, 2007 at p.170 34 Mojekwu v. Mojekwu (1997) 7NWLR (Pt. 512) p.283, Mojekwu v. Ejikeme (2002) 5NWLR (Pt. 657) p. 402 35 See also the case of Registered Trustees of SERAP v. Federal Government of Nigeria & UBEC, delivered by the ECOWAS Community Court of Justice in Abuja on 30 November 2010 and reported in THISDAY of December 1, 2010. 36 Supra

23

of democracy, which we have freely chosen as a people. We need not travel all the way to Beijing to know that some of our customs, including the Nnewi Oliekpe custom relied upon by the appellant are not consistent with our civilized world in which we live today including the appellant... I believe that God, the creator of human being, is also the final authority of who should be male or female. Accordingly, for a customary law to discriminate against a particular sex is, to say the least, an affront to God Almighty. Let nobody do such thing.

24