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by Abigail Anaba
You may be one of those who were outraged when in 2014 Movie Director and Media Personality Kemi Adetiba, shared her experience at Spice Restaurant, Lagos, Nigeria. Ms Adetiba was initially barred from entering the facilities because of her gender. The restauranteurs said it was corporate policy to not allow a lady to be entertained unaccompanied at this eating place. Things eventually turned out well in this case, but millions of Nigerian women will not be that lucky. State policy and our legal system are already limiting what they can be and where they can go.
- No dear, you can’t be a miner: A desk job is the limit a female geologist can hope to attain if she seeks to work in the mining industry. She can admire the shiny metals on her table but she is not allowed to go underground and mine the gems herself. The Labor Act makes this clear in Part III titled, “Special Classes of Worker and Miscellaneous Special Provisions”. S 56 (1) says, “Subject to subsection (2) of this section, no woman shall be employed on underground work in any mine.”
“The ridiculous thing is that women are allowed to be trained as miners,” says Nana Nwachukwu a policy analyst and gender advocate. “If you are a geologist you are allowed to go underground for training but once you complete your training you are no longer allowed to go underground.”
Indeed, subsection two of the act states, “Subsection (1) of this section shall not apply to-
(c) women who in course of their studies spend a period of training in underground parts of a mine.”
Some have claimed that this law was created to protect women who, because of their frailty, cannot withstand the rigors of manual labor. But as Nwachukwu points out, if you consider the fact that women lift weights, dig wells and work in construction sites doing heavy lifting, you begin to wonder why this law is still in place.
- You cannot work overnight in an industry or in Agriculture: Section 55 of the Nigerian Labor Act ensures that Nigerian women don’t work at night in factories or any other organization if their work involves manual labor. The law states in subsection one: “Subject to this section, no woman shall be: employed on night work in a public or private industrial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof.”
Following the letter of this law will put hundreds of women who work the night shift in production lines in danger of losing their jobs. It also increases the cost of personnel. Factory managers would find it easier to have same employees on a roaster running various shifts and exempting some from certain shifts which usually carries double pay does not seem fair.
“The thing about some of these laws is that Nigerians do not even know they exist,” Nwachukwu opines. A visit to the Ikeja Industrial Area confirms this. Hundreds of women are working the night shift in several factories involved in production and manufacturing. A Factory Manager with one of the pharmaceutical companies that has female factory workers working at night says he has never heard of this law. He is unaware he is breaking labor laws by giving women who are capable of doing their jobs work in his factory. When told it is a jailable offence, he was even more alarmed.
- 58 says the penalty for contravening S. 55 and S. 56:
“Any person who employs a woman in contravention of section 55 (1) or 56 (1) of this Act shall be guilty of an offence and on conviction shall be liable to a fine not exceeding N100 or to imprisonment for a period not exceeding one month, or to both.”
Interestingly, nurses are exempted from this law. Section 55 (2) (1) shows they are allowed to work at night even if their work involves manual labor. Could this be because of the stereotype that women are nurses and men are doctors and those doctors and will therefore always supervise nurses?
- Pregnant without marriage? You will be kicked out of the Police Force.
For an organization charged with enforcing the law, the Nigeria Police are holding on to certain regulations which go against the rules of gender reciprocity as stated in the Nigerian Constitution. For starters, you cannot be recruited into the Nigeria Police Force if you are a married woman. Section 118(g) states: marital status-must be unmarried. Also unlike their male counterparts who can join the force at seventeen, a woman must be at least nineteen years old to be considered.
Then there are two big issues of marriage and pregnancy. A police woman “shall be subject to posting and transfer as if she were unmarried” and enjoy no special privileges says Section 125. This means that if a married police woman is transferred she will have to carry the burden of taking her family with her, if she must. The Nigeria Police does not care about family unity when a woman is the subject. Also, if a police woman gets pregnant out of wedlock, she is to be dismissed. Section 127 says about “pregnancy of unmarried women police:
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.” If you find that shocking then read Section 124:
“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.”
In 2012, Executive Director of Women Empowerment and Legal Aid Initiative (WELA) Mrs. Funmi Falana, challenged the constitutional validity of this regulation and obtained a ruling from the Federal High Court in Lagos expunging Regulation 124. However, this provision has still not been deleted from to the Nigeria Police Act. It requires action from the Nigerian legislature.
Yet, this victory at the High Court gives hope. Policies that go against the Nigerian Constitution can be expunged even if they have been signed into law. Section 1(3) says “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
“[These] enactments…are standalone Acts of the NASS which can be declared invalid by a court on account of constitutional incompatibility. In this case, falling foul of S. 42. So the Constitution can be used as an anti-discriminatory tool,” says Ebube Agboanike, a legal practitioner based in Lagos, Nigeria.
Rotimi Fawole, a Social Commentator and Legal Practitioner, agrees: “If a citizen feels [a law] goes against the constitution, the citizen can approach the court to declare the provision unconstitutional and therefore void. [The] principle is that the constitution is supreme and any inconsistent law is void to the extent of the inconsistency.”
The question then remains, where does a citizen go when the Constitution itself disappoints women?
- If you marry a Nigerian woman, you cannot become a Nigerian Citizen by Registration. The Nigerian Constitution says about citizenship by registration in Section 26 (2): The provisions of this section shall apply to- :Any woman who is or has been married to a citizen of Nigeria… (italics ours)
So what does a man who marries a Nigerian woman and wants to be a Nigerian citizen need to do? “The spouse of a Nigerian woman can explore other channels for acquiring citizenship,” Agboanike asserts. But if we go by the principle of reciprocity in gender matters, then it is clear that this is a constitutional failing. “If a man can confer citizenship on a woman [through registration] then it is only fair that the woman should be able to do the same,” Nwachukwu declares.
Still on the matter of citizenship, Section 29(1) says, “Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation.” Section 29(4) (a) and (b) then goes ahead to define ‘full age’ differently for married men, single man and single women, and married women. It says: (4) For the purposes of subsection (1) of this section.
(a) “full age” means the age of eighteen years and above;
(b) any woman who is married shall be deemed to be of full age.
Some are of the opinion that Section 29 (4) (b) can be read as a defense of child marriage. Agboanike disagrees. “29(4)(1) is for the express purpose of renouncing citizenship and cannot be read as a defense of child marriage. The Constitution does not say who a child is. Who is a child is a matter for the Child Rights Act, and the Common Law for states that are yet to domesticate the Act.”
The Child Right Act (2003) Section 21 pegs the age of adulthood at 18 and above. It says, “No person under the age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so contracted is null and void and of no effect whatsoever”
So why is “marriage age” for a “woman” distinguished from “full age” of eighteen? In effect, can a female marry under the age of 18?
“We are now entering the glorious minefield of statutory interpretation,” Fawole admits. “Someone needs to drag this all the way up to the Supreme Court before we have clarity on it,” he says.
- ?The Nigerian Constitution does not acknowledge the existence of women in relation to political positions…why else is every politician a ‘he’. Does the language employed in writing the Constitution matter? According to Nana Nwachukwu it does, “Public documents should have a gender neutral tone”. Agboanike thinks it does not matter, “Unless otherwise stated, the use of male pronouns in an enactment is taken as a reference to the female gender also.”
For example, in speaking of the position of president Section 137 of the Nigerian Constitution says: “A person shall not be qualified for election to the office of President if –
(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) he has been elected to such office at any two previous elections;”
The entire subsection goes ahead to use “he” each time the president is being spoken of. Gender advocates are of the general consensus that when language is not gender neutral it sends a message that should not be ignored. It gives the impression that the constitution is biased towards a certain gender.
Nwachukwu admits that some years ago she did think it was not important. She used to think that tone used by the law was a result of having a masculine face but as she became more self-aware, she realized that it does matter. “I saw women judges fight to be called ladies instead of ‘My Lord’. I saw women judges fight to wear trousers instead of skirts. It made me aware that women are not being counted and women who have made it into male dominated professions are made to feel lucky or privileged.” It is perhaps this privilege that blind-sided the creators of the Nigerian constitution. Some have argued that the pronouns “he or she” or “they” should be used to replace the hundreds of places that “he” alone is used in the Constitution to refer to persons of both gender. In the United States for instance, the states of Florida, Rhode Island and New York are making efforts to adjust the language of the law.
This is by no means an exhaustive list of occasions where the legal system has been unfair to the Nigerian woman. There are several others. For instance, the law states that a man cannot be convicted of rape based on the testimony of one. Section 221 of the criminal code states: “A person cannot be convicted of any of the offences defined in this section of this Code upon the uncorroborated testimony of one witness.” This makes it difficult if not impossible to obtain rape convictions as the crime does not lend itself to being witnessed by others. It also puts an unnecessary burden of proof on the victim.
Also, marital rape is not recognized as a crime in Nigeria. The law suggests that by marrying a person, the parties have given consent in advance and withdrawal of such consent amounts to withdrawal from the marriage itself. (See definition of rape Section 357)
The inconsistencies are not limited to sexual matters. If you marry and choose to retain your maiden name you may run into problems while filling out forms at immigrations. While they will believe a man who says he is married without requiring a document to prove it, they insist on a woman showing proof if she has not changed her name.
In addition, the Federal Character Act is still bugging down Nigerian citizens in general and women in particular with “State of Origin”(Part II S. 2). The call to replace “State of Origin” with “State of Residence” in official documents will be very favorable to women in intercultural marriages who choose to go and live with their husbands in another state.
Addressing these issues will require constantly putting them at the front burner of national discuss. When women are quiet, there is a tendency for policy makers to think that all is well. “We shall continue to fight,”Nwachukwu maintains. Some are therefore of the opinion that there is a need to keep the gender and equality conversations in Nigeria on policy issues and not turn these discussions into opportunities to discuss domestic chores. As headlining Nollywood Producer Uduak Isong puts it, “I like that we’re finally moving the conversation from cooking and cleaning. Progress.”
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