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?’
Introduction
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 ‘…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
workplace…’
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, ‘…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 teachers…The girls are hawking wares
or doing household chores…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 unabated…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
people…the effects of oil exploration has produced debilitating effects on
the peoples traditional occupation – fishing and farming…’.
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.

Olawale David Oyinlade (Blogger, Advocate, Young Positive Change Maker, Passionate
about Transparency & peace building in Africa, Writer, Founder of Change & Resolute All Youths CRAY)