Discriminatory Practices and Their Effects on Women's Rights to Socio-Economic Development

7/31/2019 Discriminatory Practices and Their Effects on Women's Rights to Socio-Economic Development

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DISCRIMINATORY PRACTICES AND

THEIR EFFECTS ON WOMENS

RIGHTS TO SOCIO-ECONOMIC

DEVELOPMENT

B E I N G A P A P E R

P R E S E N T E D A T A O N E -

D A Y C O N F E R E N C E

O R G A N I S E D B Y

T H E L E A G U E F O R H U M A N

R I G H T S ( L H R )

W I T H S U P P O R T F R O M

E U R O P E A N U N I O N ( E U )

O N 3 R D D E C E M B E R 2 0 1 0

B y

A K I N R O P O O M O W A R E 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

[email protected]

[email protected]

[email protected]

Blog address

akinomoware.blogspot.com

Abstract

It has become generally accepted as a truism that women

are discriminated against and therefore generally

disadvantaged worldwide. Though the Universal

Declaration of Human Rights and subsequent

international instruments like the International Covenanton 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 deep-

rooted 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 alsodiscuss briefly the vexed issue of justiciability of socio-

economic 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.
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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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

1Blacks Law Dictionary, 8

thEdition p. 1347

2Ibid


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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.

3Ladan 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. 674

The MDGs Through Socio-Economic Rights: Constitution Making and Implementation Handbook, United

Nations Miillenium Campaign, 2009 p. 95Ladan 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


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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 nationalprosperity and an efficient, a dynamic and self reliant economy;

(b)Control the national economy in such manner as to secure themaximum 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 economicdevelopment;

(b)That the material resources of the nation are harnessed anddistributed as best as possible to serve the common good;

(c)That the economic system is not operated in such manner as topermit the concentration of wealth or the means of production

and exchange in the hands of few individuals or of a group; and

6Section 13 of the Constitution of the Federal Republic of Nigeria, 1999


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(d)That suitable and adequate shelter, suitable and adequatefood, 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. Sub-

section (2) states that in furtherance of the social order-

(a)Every citizen shall have equality of rights, obligations andopportunities before the law;

(b)The sanctity of human person shall be recognised and humandignity 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 discriminationon 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 areadequate facilities for leisure and for social, religious and

cultural life;

(c)The health, safety and welfare of all persons in employment aresafeguarded 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

7See also paragraph (c) (e)

8See also paragraph (f) (h)


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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

discriminationon 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


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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

9Constitution of the Federal Republic of Nigeria, 1999


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

112004


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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

12Oshevire v. British Caledonian Airways (1990) 7 NWLR (Pt 163) p.507

13(1994) 9NWLR (Pt 366) p.1

14(2000) 6NWLR (Pt 660) p.228

15Cap 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 169-17116Joy 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


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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 and national

17

Supra at p.218Article 1 of CEDAW 1979

19Article 1 of UDHR


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instruments are guaranteed to men and women with emphasis on equality and non-

discrimination 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 merelyby 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 socio-

economic rights and the common discriminatory practices which hinder women from

their full enjoyment.

20Constitution of the Federal Republic of Nigeria 1999


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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

21Global IssuesGender Discrimination throughout a Lifetime, UNICEFs 2007 report on state of the worlds

children.22Article 11 of the ICESCR 1966

23Socio-Economic Rights Activists Seek Constitutional Recognition for ECOSOC, THISDAY, 13 May 2010


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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.24However, 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

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

24UNICEFs 2007 report on state of the worlds children

25Article 12 of ICESCR 1966

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 nutrientshis body needs.....


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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


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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 socio-

economic 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


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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).

26Vanguard of 8 March 2010


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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.


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Scenario III

Women do not work?

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:

Mallam Audu was sick and tired of going to work every day while his wife stayed at home.

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 gothrough, 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."
http://www.unhchr.ch/html/menu3/b/a_cescr.htmhttp://www.unhchr.ch/html/menu3/b/a_cescr.htmhttp://www.unhchr.ch/html/menu3/b/a_cescr.htmhttp://www.unhchr.ch/html/menu3/b/a_cescr.htm


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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 andmarriages.

(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
http://www.unhchr.ch/html/menu2/6/hrc.htmhttp://www.unhchr.ch/html/menu3/b/a_ccpr.htmhttp://www.unhchr.ch/html/menu3/b/a_cescr.htmhttp://www.unhchr.ch/html/menu3/b/a_cescr.htmhttp://www.unhchr.ch/html/menu3/b/a_ccpr.htmhttp://www.unhchr.ch/html/menu2/6/hrc.htm


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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

27Mies M, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, 1986


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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.

28Cap 359, Laws of Federation of Nigeria, 1990

29

Paragraph (g)30Nigeria Police Regulations made pursuant to the Police Act, supra

31ibid


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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 socio-

economic 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 non-

discrimination 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,


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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

32BOS/SCA/CV/73/2003, Judgment: 16/5/2005

33See Ladan M. T. Law and Policy on Health, HIV/AIDS, Maternal Mortality and Reproductive Rights in Nigeria,

2007 at p.17034

Mojekwu v. Mojekwu (1997) 7NWLR (Pt. 512) p.283, Mojekwu v. Ejikeme (2002) 5NWLR (Pt. 657) p. 40235

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 ofDecember 1, 2010.36

Supra


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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.

Discriminatory Practices and Their Effects on Women's Rights to Socio-Economic Development

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