Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Pushing for gender equality in Nigeria 08 Mar 2021

The appointment of Ngozi Okonjo-Iweala on February 15 as the first female and first African Director General (DG) of the World Trade Organization (WTO) is a boon to women’s empowerment efforts globally and in Nigeria. NOI – a moniker she is widely known by – began her tenure this month as head of the global organisation that deals with the rules of trade between nations.
    
Also taking place this same month is the global celebration of the United Nations International Women’s Day (IWD) on March 8. The theme for this year’s IWD is “Women in Leadership: Achieving an equal future in a COVID-19 world.” The campaign theme for IWD 2021, #ChooseToChallenge, has been trending for months ahead of this year's commemoration. The campaign calls on people to call out and challenge gender bias and inequality. It has also been promoting women's achievements to help create an inclusive world.
    
While progress has been made in reducing and eliminating gender discrimination and inequality, it cannot be denied there are still several policies, regulations, laws, behavioural patterns, cultural practices and mindsets that must be bravely challenged and removed to enable women and men enjoy the same rights and opportunities. There is a lot of work to be done in creating a more equal society for men and women in Nigeria.
    
Just a month before NOI’s appointment was announced, the Nigeria Police Force (NPF) dismissed a female constable, Omolola Olajide, for getting pregnant six months after graduating from Police College. Her action, according to the NPF, violates Section 127 of the Police Regulations. The regulation prohibits unmarried women from getting married for at least two years from the date of entry into the force. The law also bans women from bearing children until after three years of joining the security agency.
    
The Police Regulations have been at the centre of several controversies in the past. In 2012, Section 124 of the Regulations was challenged in court by the Women Empowerment and Legal Aid Initiative (WELA) for its discriminatory provision. According to the section, “A woman police officer who is desirous of marrying must first apply in writing to the Commissioner of Police for the State Command in which she is serving, requesting permission to marry and giving 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.”
    
The Federal High Court ruled that the provision was unconstitutional, null and void because of its inconsistency with the provisions of Section 42 of the Constitution, which guarantees a citizen’s right to freedom from discrimination on the grounds of his or her community, ethnic group, place of origin, sex, religion or political opinion. Section 42(a) specifically provides that a citizen shall not “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.”
    
The Police Regulations are rife with restrictions that apply only to the female gender. Apart from Section 124, which has been declared unconstitutional by the court, and section 127 on which basis Olajide was dismissed; sections 122 and 123 restrict the activities that should be given to female constables. Section 122, which deals with “employment of women police in offices” provides that: “Women police officers recruited to the General Duties Branch of the Force may, in order to relieve male police officers from these duties, be employed in any of the following office duties, namely (a) clerical duties; (b) telephone duties; (c) office orderly duties.” Section 123 states: “A woman police officer shall not be called upon to drill under arms or to take Part in any baton or riot exercise.”
    
Gender discrimination is prevalent in other agencies and organisations, apart from the police. Regulations in the Nigerian Drug Law Enforcement Agency (NDLEA) include provisions that are gender bias. Article 5 (1) of the NDLEA Order, 2002 provides, inter alia, that, “All female applicants shall be unmarried at the point of entry, and shall upon enlistment remain unmarried for a period not less than two years.” Furthermore, Article 5 (2) says, “All unmarried female members of staff that wish to marry shall apply in writing to the Chairman/Chief Executive, asking for permission, stating details of the intended husband.”
    
It is almost inconceivable to think that such regulations are still in existence in the 21st century. Many of them have remained because they have not been challenged. While Nigeria does not have a perfect legal system, there have been some notable decisions of the courts upholding women’s rights. As noted above, Section 124 of the Police Regulations, when challenged in court, was nullified.
    
Also, following the third alteration act (Section 254 (c) of the 1999 Constitution), which greatly increased the powers of the National Industrial Court of Nigeria (NICN), the court has applied international conventions for the protection of women’s rights.
    
In the case of Ejieke Maduka v. Microsoft Nigeria, which was decided in December 2013, the NICN applied the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and International Labour Organisation (ILO) Convention No. 111 to hold that sexual harassment is a form of gender-based discrimination, which violates section 42 of the Constitution. The case had to do with Maduka, an employee of Microsoft Nigeria Limited, who alleged that she was consistently sexually harassed by the company’s Country Manager and had been fired because of her objections to his unwelcome advances. It is important to highlight that apart from her role as the company’s Enterprise Marketing Manager, she was also the Diversity Champion for Women’s Rights in West, East and Central Africa for the parent company, Microsoft. Maduka’s official role as a champion of women’s right had put her in a great position to be more vocal in fighting against acts of sexual harassment.  
    
The NICN found that the actions Maduka complained about amounted to sexual harassment within the meaning of CEDAW General Recommendation and thus there had been an infringement of her fundamental right against discrimination. The court further held the companies – the parent company, Microsoft, and its Nigerian subsidiary – liable for their inaction and silence, thus failing to ensure that their employee’s fundamental right was not infringed upon. It awarded damages against both the Country Manager and the companies.
    
In another judgment delivered on November 24, 2016, the NICN also awarded damages in favour of Abimbola Yakubu and against Financial Reporting Council of Nigeria (FRCN). Yakubu had alleged in her suit that she was, at various times, subjected to sexual and seductive gestures, promiscuous and obscene talk, demands for sexual favours and indecent marriage proposals from her boss who was the 2nd Defendant in the suit. The court found that her fundamental rights to dignity and freedom from discrimination had been breached and awarded the sum of five million naira as damages in her favour.
    
Based on the disposition of the courts on the issue of gender discrimination, I am confident that if the dismissal of Olajide were to be challenged in court, Section 127 of the Police Regulations will be nullified. But I must also admit that it will not always be a smooth process; there are still cultural mindsets and judicial technicalities to defeat to get to the point where the aspirations of women and men would be valued equally.
    
For instance, in 2018, the Supreme Court failed to grant redress to a litigant seeking protection and liability for the infringement of her fundamental rights on the grounds that the issue was matrimonial in nature. Uchechi Nwachukwu had sued her husband and mother-in-law based on acts of assault, exposure of her HIV-positive status and the use of thugs to evict her out of her home, destroying her personal property and separating her from her children. The High Court of Imo State had found in her favour, stating that her fundamental rights had been breached.
    
The trial judge, rightly in my humble view, stated that: “Every individual (in section 34 of the Constitution) includes wives and I dare say wives have dignity to their person to be protected. She does not have to rush to the divorce Court under the Matrimonial Causes Act, to restore dignity to her person. The M.C.A. does not offer any protection of this nature except to make it one of the facts under which applicant can obtain or secure dissolution of her marriage or judicial separation.”
     
The appellate courts, both the Court of Appeal and the Supreme Court, however, disagreed and held that the matter was matrimonial in nature and redress could not be sought under the enforcement of fundamental rights procedure. Justice Onnoghen (now retired), while reading the lead judgment of the Supreme Court, accused the trial judge of “being driven by sentiments rather than the desire to do justice.” Unfortunately, in my opinion, it was the decisions of the appellate courts that resulted in a situation of injustice – whereby the applicant did not obtain redress for the wrongs against her.
    
It is indeed my hope that another opportunity would be presented for the appellate courts to consider the argument that the need for the protection of fundamental rights may arise from different types of relationships – such as employment, contractual, governmental or regulatory and even marriage. Indeed, the actions that can be brought under the Matrimonial Causes Act (MCA) are restricted. And as witnessed in the case of Nwachukwu, a party may not necessarily be seeking dissolution of marriage or any of the other reliefs under the MCA. He or she might simply want redress for a breach of his or her fundamental rights, which occurred or is occurring in the course of the matrimonial relationship.
    
As society evolves, laws must also be progressive. To build a more inclusive society, all forms of patriarchy that exist in Nigeria’s legal jurisprudence should be challenged and eliminated. For a more equitable Nigeria, challenges to our laws, legislations, policies, judicial precedents, cultural norms and attitudes must not be perceived as an affront or disrespect that should incur opprobrium. Instead, such objections should provide an opportunity for growth and development.
    
Happy International Women’s Day!

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.