UNIVERSITY OF LAGOS
FACULTY OF LAW
COURSE CODE:
PUL 323
COURSE TITLE:
MATRIC NO:
HUMAN RIGHTS II
180601144
ASSIGNMENT
Take any 5 articles in the Protocol to the African Charter on Human and People’s Right on the
Rights of women and identify how each of the articles are relevant in Nigeria
THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S
RIGHTS ON THE RIGHTS OF WOMEN: RELEVANCE IN NIGERIA
The Protocol to the African Charter on Human and People’s Rights on the Rights of Women,
widely designated as the “Maputo Protocol”, was adopted by the continental organization on the
11th of July, 2003 in Maputo, Mozambique and became effective on 25th of November, 2003 in a
bid to advance the rights of women. Unfortunately, Nigeria is merely a signatory to the
international instrument and has not initiated any real effort to domesticate its provision within the
municipal laws.
This article purports to specify five articles that are pivotal to the rights of women in Nigeria
considering the frequent infringement of these rights within the Nigerian milieu. To begin with,
the provision of Article 2 of the Protocol which imposes a duty on States Parties to ‘combat all
forms of discrimination against women through appropriate legislative, institutional and other
measures’ reiterates the constitutional provision of the right to freedom from discrimination. This
discrimination is usually evidenced in customary laws which has often been declared as repugnant
to natural justice. This can be seen in such cases as Uke v Iro1 where the Nnewi Customary law
prevented women from giving testimonies on real property; Mojekwu v Mojekwu2, where the OliEkpe custom of Nnewi allowed the brother of a deceased to inherit the latter’s property if the
deceased’s surviving wife bore no son for him and the more recent case of Ukeje v Ukeje3, where
an Igbo Customary Law espouses male primogeniture by allowing only the eldest male to inherit
family property.
Discrimination is also evident in such statutes as the Police Act4 where married women are
prohibited from enlistment into the force, pregnant unmarried policewomen are discharged from
duty, and the derogatory requirement that a policewoman obtains written permission from the
commissioner before getting married. Auspiciously, in the recent case of Olajide v The Nigerian
Police Force & 2 Ors5 where the claimant was discharged from the force on being pregnant, the
National Industrial Court, per Honorable Justice Damulak, held that the particular section of that
1
[2001] 11 NWLR (Pt. 723) 196
[1997] 7 NWLR 283
3
(2014) 11 NWLR (PT. 1418) 384
4
Sections 118(g), 124 & 127 Cap P19 Laws of the Federation of Nigeria, 2004
5
NICN/AK/14/2021
2
Police Act was unconstitutional, null and void as it was discriminatory against women. The Labor
Act6, without valid justification, precludes women from being employed in night work in public
or private industrial or agricultural workplaces except for nurses and women holding management
positions and not being involved in manual labor.
Article 5 makes it imperative for state parties to ‘prohibit and condemn all forms of harmful
practice which negatively affect the human rights of women and which are contrary to recognized
international standards’ It proscribes, inter alia, Female Genital Mutilation or Female Circumcision
without any therapeutic reasons. Currently, the VAPP Act7 is the only federal law that has
criminalized female circumcision or female genital mutilation. The protocol is required to further
decrease the already diminishing rate of female circumcision. Harmful traditional practice also
includes such traditional practice as forcefully shaving the head of a widow; as seen in Onwo v
Nwafor Oko8, requiring a widow to drink a deceased husband’s bathwater amongst others.
The Protocol, by Article 6, encourages party-states to ‘ensure that women and men enjoy equal
rights and are regarded as equal partners in marriage’. The protocol highly recommended
monogamy, however, where polygamy, either infinite or limited, is practiced, women should be
afforded equal stances with their male spouse. Moreso, consent of both parties, particularly, the
woman is required. She is also expected to have attained the age of 18 years. This invalidates the
customary marriage requirement of parental consent given on behalf of a tender-aged female in a
child betrothal. Favorably, the Child’s Right Act9 has done justice to this issue; albeit, the Act is
only applicable to 24 states of the federation and the Federal Capital Territory. The Protocol, if
adopted, would make compulsory, the registration of marriages, particularly customary marriages
because of the unwritten nature of customary law. Moreso, it will be accepted law that a woman
needs not to change her maiden name. This provision is relevant because, under Nigerian
customary law, women are often seen as commodities; the requirement of the bride price to
celebrate a customary marriage is a pointer to this fact. Moreso, women are not treated as a feme
sole on the ownership of property. Also, the general populace assumes that a married woman must
change her maiden name to those of her husband obviously because of the patriarchal nature of
6
Section 55(1) & (7); Cap. L1 Laws of the Federation of Nigeria, 2004.
Section 6; Violence Against Person (Prohibition) Act, 2015.
8
(1996) 6 NWLR (pt. 456) 584
9
Sections 21, 22 & 23 Child’s Right Act 2003
7
the society. Despite the inequality present therein, the customary law marriage remains the most
highly celebrated form of marriage in Nigeria.
Article 7 prompts states parties to enact legislations ‘to ensure that women and men enjoy the
same rights in case of separation, divorce or annulment of marriage’. This is vital because
customary law may be dissolved by non-judicial means. Usually, this non-judicial divorce may be
given effect unilaterally, hence, it is not uncommon to find a man driving away his wife from their
matrimonial home or a grossly ill-treated woman running away from her matrimonial home and
moving back to her parents to terminate the marriage. In such a case, her father or guardian refunds
the bride price paid in respect of the marriage10. The unwritten records inherent therein have been
addressed by the protocol which requires a judicial order for valid dissolution of marriage. With
regards to custody and responsibilities towards children, ‘the interest of the children shall be given
paramount importance’. The customary provisions which allowed a man custody of children that
were not biologically his merely because of the failure of his spouse to refund the bride price have
been held to be repugnant11
Lastly, Article 9 provides that state parties should take positive action to promote participative
governance, the equal participation of women in the political life of their countries and to ensure
increased, effective representation and participation of women at all levels of decision-making.
Politically, in Nigeria, women have rarely been given the opportunity actively participate in the
decision-making process and political activities of the country. This particular provision, therefore,
calls for the introduction of a positive affirmative action clause by state parties in their legislative
enactments.
There are several other provisions that are salient to women’s affairs and which spans across the
civil, political, social, economic and cultural rights of women as well as special provisions for the
aged and those living with disabilities, nonetheless, the provisions discussed in the article are of
utmost importance to some of the pressing issues currently bothering the advancement of the rights
of women in a large democratic setting like Nigeria.
10
Nwangwa v Ubani (1997) 10 NWLR (Pt. 526) 559 at pp. 569-70
Edet v Essien (1935)12 NLR 4; in Mariyama v Sadiku Ejo (1961) NRNLR 81, an Ebira customary law
which grants custody of a child born within ten months of divorce, to the former husband whether or not
he is the legitimate father of the child was held to be repugnant.
11