REFLECTIONS ON GAPS IN THE 1999 CONSITUTION OF THE FEDERAL REPUBLIC OF NIGERIAAND GENDER EQUALITY.

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1 REFLECTIONS ON GAPS IN THE 1999 CONSITUTION OF THE FEDERAL REPUBLIC OF NIGERIAAND GENDER EQUALITY. Dr. Abiola Akiyode-afolabi ED, WOMEN ADVOCATES RESEARCH AND DOCUMENTATION CENTER (WARDC) ISSUE 1: PREAMBLE The Ethiopia s constitution, gives strong commitment to gender equality and human rights of women in its preamble. The Rwandan constitution provides a model example of a Preamble that ensures respect for equality, human rights and fundamental freedoms as well as international treaties. In fact, it specifies that equality between Rwandans includes equality between men and women and further incorporates a prohibition of discrimination based on gender equality. ISSUE 2 : Language Recent constitutions in Africa have moved way from using the masculine language to represent male and female to a more engendered language. In conformity with Constitutions of many civilized societies in Africa and elsewhere, the language of the constitution needs to reflect both the male and female gender. See Rwanda, Uganda and South Africa Constitution. As it is presently the pronoun he appears in the 1999 Constitution about 235 times and the word woman was used only twice {See Sections 26 (2) (a) on Citizenship and 29 (4) (b)} on deeming a married girl child as an adult. In both cases it was actually used to cause some disadvantage to and discrimination against women. Issue 3: Citizenship S6(1) Ghana constitution A woman married to a man who is a citizen of Ghana or a man married to a woman who is a citizen of Ghana may, upon making an application in the manner prescribed by Parliament, be registered as a citizen of Ghana. Uganda-S 11 (2)(a) every person married to a Ugandan citizen upon proof of a legal and existing marriage of three years or such other period provided by the parliament.

2 As section 26 (2) of the Constitution is presently, foreign men married to Nigerian women cannot acquire citizenship of Nigeria by virtue of their marriage whereas foreign women married to Nigerian women can. This issue has been challenged in court and the court held that this can only be resolved, see Vayola Sears v AG, See also UNITY DOW S CASE BOTSWANA Issue 4 Inidgeneship The controversy over indigene-ship has adversely affected women in Nigeria, more particularly women married to men in States other than their States of origin. Federal Character Commission (Establishment, etc.) Decree (1996), (No 34). Clause 11, Part 11 (Definitions, Etc.) on which the honourable CJN reportedly refused to swear in Justice Jombo-Ofo as a justice of the Court of Appeal. It states: A married woman shall continue to lay claim to her state of origin for the purpose of implementation of the Federal Character formulae at national level. The following provision should be enshrined in the constitution. The Term Indigene of a State shall mean:- i. Any Nigerian born of parents who are descendants of that State ii. A Nigerian Citizen born in a state and who spent the first five years of his/her life in that state. iii. A Nigerian citizen who has continuously resided in a state for at least 10years. iv. A Nigerian woman or man who has the right to enjoy the rights accrued to the indigenes of either her place of origin or that of her husband and vice versa. Issues 5 :Non discrimination Many constitutions frame equality provisions in the form of nondiscrimination clauses and hence it is important to stress that these provisions prohibit discrimination on the basis of sex as well as gender etc Section 9(4) of the South African constitution explicitly mentions both direct and indirect discrimination: No person may unfairly discriminate

3 directly or indirectly against anyone, making it a best practice to follow in designing similar non-discrimination clauses. Proposal (i) (ii) (iii) (iv) (v) (vi) Section 42 (1)by adding gender and disability to the listed criteria as follows: A person shall not be discriminated against on grounds of ethnic group, place of origin, sex, religion/political opinion, social or economic status, gender, disabilities or circumstances of birth There should be a new Section 42 (2) which defines discrimination as follows: Section 42 (2): For the purposes of this article, discrimination means to give different treatment to different persons attributable only or mainly to their respective descriptions by ethnic group, place of origin, sex, religion political opinion, social or economic status, gender, disabilities or circumstances of birth whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description. A new sub-section should be added to Section 42 which makes an exception for affirmative action as follows:-section 42 (3)(a): Nothing in this article shall prevent National Assembly from enacting laws that are reasonably necessary to provide for the implementation of policies and programs aimed at redressing social, economic or educational imbalance in the Nigerian society iv. A new Section 42 (3) (b) should be added as follows: The State shall ensure gender balance and fair representation of marginalized groups on all constitutional and other bodies Section 42(3), 1999 Constitution is restrictive and nullifies subsection 1 that prohibits discrimination in the area of appointments. It therefore impairs women s rights and the rights of others and thus should be expunged South Africa : Section 9(2) of the equality provision of the South African constitution states: equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or

4 (vii) advance persons or categories of persons, disadvantaged by unfair discrimination may be taken. The phrase unfair discrimination proved critical in litigation before the South African Constitutional Court. In developing equality jurisprudence, therefore, judges were required to evaluate, firstly, whether an act was discriminatory and subsequently whether this discrimination may be deemed unfair. Article 32 of the Ugandan also sanctions the establishment of equal opportunities commissions to ensure full effect. Fundamental rights Traditional/Customary Law; South Africa, Article 30 recognises the freedom of religion, belief and opinion as well as traditional or religious marriages and systems of personal and family law provided that these are consistent with this section and other provisions of the constitution. Similarly, Article 31 recognises the rights of all cultural, religious and linguistic communities to practice to practice their traditions and language provided that rights are not exercised in a manner inconsistent with any provision of the Bill of Rights. Lastly, Article 211(1) recognises the institution, status and role of traditional leadership, according to customary law and demands that the courts must apply customary law when the law is applicable subject to the constitution. Proposals for Nigeria All customary practices which dehumanize or are harmful and injurious to the physical and mental well-being of a person are prohibited just like in the Ghana Constitution Article 26 prohibit customary practices Other countries like RIWANDA, UGANDA have a section on Women s Rights The Ugandan constitution includes a separate article, Article 33, specifically outlining the rights of women. Such an explicit and expansive reference to women s rights is commendable. Article 22 not only names women and men as equal partners in all political, economic and social forums, but also provides for affirmative action, obliges the state to provide support in the form of economic and social support and protects against the undermining of these rights by customary or other systems of law

5 Employment equality; The Ugandan constitution while guaranteeing every citizen s equal right to work also provides special measures for pregnant women. Equal pay for equal work; Article 40(b) of the Ugandan constitution tasks the Parliament to enact laws to ensure equal payment for equal work without discrimination. Right to property A right to inheritance is enshrined in Article 31(2) of the Ugandan constitution. In this case, the Parliament is explicitly tasked to design legislation protecting this right. Given historical and cultural practices in the continent, it is therefore sometimes necessary to explicitly include specific provisions ensuring equal rights to property and inheritance. Affirmative Action Inclusion of Affirmative Action Policy in the Constitution Clause (b) and (d) of Article 71 of the Ugandan constitution provides a guarantee of non-discrimination, stating that - Membership of a political party shall not be based on sex, ethnicity, religion or other sectional division [...] members of national organs of a political party shall be regularly elected from citizens of Uganda in conformity with the provisions of paragraphs (a) and (b) of this article and with due consideration for gender. Article 78 then states that the national parliament shall include one woman representative for every district, while Article 180 provides that one third of the membership of each local government council shall be reserved for women. Ethiopia Constitution Article 35 specifically after declaring equal rights for men and women goes further to declare that Considering that women have traditionally been viewed with inferiority and are discriminated against, they have the right to the benefit of affirmative actions undertaken for the purpose of introducing corrective changes o such heritage. The aim of such measures is to ensure that special attention is given to enabling women to participate and compete equally with men in the political economic and social fields both within public and private organisations.

6 The 1999 constitution should provide; The State at all levels shall put in place, in the minimum, 35% affirmative action to ensure that women, minorities, people with disabilities and other marginalized groups participate and are represented in governance and other spheres of life That the affirmative action policy herein provided shall be a temporary measure to operate for not less than 10 years after which it shall be assessed to determine its continuance. Equal Opportunities The recent Kenyan constitution also goes further to affirm by its Article 21 which states that All state organs and all public officers have the duty to address the needs of vulnerable groups within the society, including women, older members of the society, persons with disabilities, children, youths The 1995 Uganda constitution also affirming women s rights states that women shall have the right to equal treatment with men and that right shall include equal opportunities in political economic and social activities Article 187(1) of the South Africa constitution provides for the establishment of a Commission for Gender Equality which must promote respect for gender equality and the protection, development and attainment of gender equality. Its powers include the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality. Proposals ii. Amend Section 147 to include No gender shall occupy less than 35% of the positions to be filled iii. Add sub-section(c) to 223 to read All party list sent to INEC should reflect a minimum representation of 35% women candidates

7 PROPOSALS FOR RECONSIDERATION AND ALTERATION TO THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 To Accommodate Deliberate Gender Responsiveness & Inclusion ISSUE ONE Conscious provisioning towards attainment of Gender equity and equal opportunities. S. 14 (3) Current reading The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies. S. 14 subsection (3), Line 3, insert the words, "GENDER COMPOSITION" immediately after the word Nigeria Line 5, insert the words ONE GENDER immediately after the word from. Altered provision to read: The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria, GENDER COMPOSITION and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from ONE GENDER, few States or from a few ethnic or other sectional groups in that Government or in any of its agencies. S. 147(3) Current reading Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this Constitution:

8 Provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each state, who shall be an indigene of such state. Altered provision to read: Provided that in giving effect to the provisions aforesaid the Option 1 President shall appoint at least one Minister from each state, who shall be an indigene of such state where no gender shall be less than ONE THIRD OF TOTAL NATIONAL NUMBER OF MINISTERS Option 2 President shall appoint at least one Minister from each state, who shall be an indigene of such state and an overall attainment of gender equity in representation ISSUE TWO Expansion of S42 (3) to accommodate the enactment of legislations for corrective measures of imbalances in opportunity and recognition of any class of persons or issue S 42 (3) Current reading Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria. Altered provision to read: Section 42 (3) (a) Nothing in this article shall prevent the National Assembly from enacting laws that are reasonably necessary to provide for any and all corrective measures to provide policies and programmes aimed at redressing social, economic or educational imbalances in the Nigerian society

9 (b) The State shall ensure the attainment of equal opportunities, protection and fair representation of marginalized groups in all facets of life and development. (4) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.