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Rights of children, women and minorities

This discussion is to be premised on why rights of women is given special attention, while rights of men is not. The rights of women started with the beginning of the world. The Geneva convention has a few articles relating to women. They were however found to be centered around reproductive rights of the women. As such, the objectification of women still existed.

Getting to the number of instruments to protect women’s rights today is as a result of women activists. The international covenant on civil and political rights is one of the Bill of Rights. Article 23 talks about the rights of marriageable age, and marriage with consent. Article 23(4) states that the state must ensure equal rights in marriage and divorce. Article 10 in the international covenant on economic and social rights speaks on the protection of the mother during child birth. Also in Article 7, it speaks on equal pay for equal work. Furthermore, article 23(2) talks about the right of a working mother to obtain maternity leaves and social benefits.

The argument was that from Universal Declaration of Human Rights to the Bill of Rights(ICCPR AND ICESR) did not properly talk about the rights of women, but were instead more focused on the rights of men. This led to agitation for rights which would cover issues surrounding women. They called themselves the Formal Equality Movement between 1948 to 1970. This movement was looking at the drafting of articles, amongst other things, and they were able to make a lot of progress. They got the UN to come up with a commission on the status of women in 1950. By 1952, they got the first convention of the political rights of women. They moved forward in their advocacy and came up with another convention on the nationality of married women. In 1967, there were conversations on discrimination, and so they had a declaration on the elimination of all forms of discrimination. Later on, in 1979, they came up with a convention on the elimination of all forms of discrimination against women (CEDAW). This is referred to as the bill of rights for women at the international level. In the 1980s, the period was called the period of deconstruction, and it lasted till the 90s. It focused on the criticism of the laws challenging women, along with systems and institutions and their functionality. Between 1990 to 2000, the period is called the period of reconstruction, reconceptualization and reinterpretation. During this period, the laws that were criticized previously led to the reconstruction of new laws. During this period, there was a genocide in Rwanda in which millions of people died, with women seeing a lot of terrible things. This brought of questions of whether the laws in place during that period was enough to cover the rights of women and guarantee their safety. There was also the Beijing conference in 1995, and the Vienna conference in 1993 which stated that women’s rights are human rights.

In 2000 till the present day, this period was called the period of reflections, re-evaluation and reassessment. It is based on asking whether only formalities of the laws will solve the problems, or if action is also required.

There are five critiques of why international laws did not work for women.

  1. Women were absent at the international law making level. Catherine Mackinnon said “when men sit in rooms being states, they are largely being men.”
  2. There is inadequate expertise to understate the gender situation in the UN institutions.
  3. There is lack of effective gender mainstreaming.
  4. The state institutions privilege patriarchy.
  5. Public/private dichotomy. The public issues now have more attentions than the private issues, with most of the issues being private affecting the women’s rights.

CEDAW was adopted in 1979 and was signed by quite a number of states. It is seen as a landmark convention and as a major international convention which deals with discrimination based on sex. It came as a result of about thirty years of work from 1946 to 1979. The preamble of the convention speaks on all the other international instruments. CEDAW sets out comprehensive sets of rights for women, and it looks at the rights of women from the civil, political, economic, social and cultural rights perspectives. It had two objectives, with the first being to ensure equality between sexes, while the second objective is to eliminate discrimination as an ultimate goal. CEDAW has some thirty articles which shall be grouped into four.

  • Article 1-5 speaks on the general framework of the convention.
  • Article 6-16 speaks on specific substantive issues.
  • Article 17-23 speaks on the CEDAW committee and the procedures.
  • Article 24-30 speaks on administration and interpretation.

It defines discrimination in a manner in which it talks about both the formal and the de facto discrimination.

Formal discrimination is discrimination by law, while de facto discrimination is discrimination in reality. One form through which de facto discrimination happens is through cultural discrimination of female genital mutilation, discrimination through payment of salaries, religion, politics, inter alia.

One of the contentions with the CEDAW, which is why it has not been passed in Nigeria, is the section 12 which talks about health including sexual health and the right to abort. There have also been a lot of reservations by a lot of country, as it is on record that there are more reservations concerning CEDAW than any other international law.

There is a UN CEDAW Committee, and states are expected to submit reports on it. Another shortcoming is that some people feel CEDAW is western, with African women even feeling like it was not for them as it did not address some of their peculiar issues. There was a protocol to the African Charter on Human And Peoples’ Rights which was passed in Maputo as at July 11, 2003, and it is called the Maputo Protocol. The protocol is significant in three ways.

  • it reinforces issues of human rights which other human rights instruments did not talk about.
  • It was much more explicit on the issue of sexual and reproductive rights. It talks in particular about right to medical abortion and addresses the issue of incest.
  • It was developed by African Women for Africa.

The protocol speaks on women in conflict, violence against women, rural women, women in distress, women with disabilities, inter a lot. Both CEDAW and the Maputo Protocol are relevant in Nigeria as they both address important issues in Nigeria like trafficking, female genital mutilation, child marriage, inter alia.

Prioritized issues affecting women everywhere

  1. Violence against women.
  2. Female political participation.
  3. Women peace and security.
  4. Women’s right to health.

It is established that discussions of violence against women did not manifest in CEDAW. However, the Maputo Protocol covers violence against women, even going further to define violence against women. The committee on CEDAW rectified the CEDAW inadequacies by coming up with the general recommendation 19 to bring violence against women under discrimination.

From the UN declaration on elimination of violence against women, violence against women is defined as any act of gender-based violence which results in or is likely to result in physical, sexual or mental harm or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. I’m observing the scope of violence against women, global data shows that 1 of every 3, or 35% of women globally have experienced physical or sexual violence, especially by intimate partners. Globally, as many as 38% of all murders of women are committed by intimate partners. Also globally, 7% of women report having been sexually assaulted by someone other than a partner.

Factors which cause violence include the following

  • maltreatment as a child,
  • suspicion between intimate partners
  • witnessing family violence as a child,
  • Culture, religion and socialization.

Effects of violence against women

  • health implications (physical and mental).
  • Economic costs. In countries where there is response to issues of violence, money is spent to support and compensate victims.

X and Y v Georgia (communication number 24/2009 UN documents CEDAW/C/61/D/24/2009)

This case was brought by a mother, X, and a daughter, Y, who complained of Georgia’s failure to investigate prolonged physical violence and sexual abuse suffered at the hands of their former husband and father respectively. The woman married her husband because she was raped by the man at a party. By the rule in Georgia, a raped woman will possibly be unable to get another person to marry her, and so he convinced her to marry him. After the marriage, she suffered a lot of abuse and violence. After reporting, the state did not take the matter seriously. She submitted a complaint to CEDAW, and CEDAW decided that by virtue of article 2(b-f), the state has an obligation to protect her from discrimination under article 1, and prejudice and gender-stereotyping under article 5. A recommendation was also made under general recommendation 19, which deals with violence against women.

Isatou Jallow v Bulgaria (communication number 22/2011).

A woman married a Bulgarian man and was subjected to domestic violence when she got to Bulgaria. The woman tried to get the government to do something about her issue, and the government failed. She then filed a communication.

Dorothy Njemanze and 3 ors v Nigeria

Three ladies were arrested and assaulted sexually, physically and verbally between 2011-2013 by the police and military men. They were accused of being prostitutes because they were found on the streets at night. The ECOWAS court held that the rights of the women were violated. They stated that the Nigerian government violated articles 2, 3, 4, 5, 8 and 25 of the protocol, and also violated articles 2, 3, 5 of CEDAW. The court held that branding women as prostitutes for finding them on the streets constituted verbal abuse, and the arrest and manner of treatment of the three ladies constituted gender based discrimination.

Women Advocate Research and Documentation Center and ors v Nigeria at the ECOWAS court.

Mary Sunday was living at a barracks at Ikeja, and her boyfriend insisted that she had to be pregnant before they could get married. Mary Sunday’s sister called her on the way home after discovering at a hospital that the man had low sperm count, she did not pick the call. When she finally picked the call, her husband got violent.

Professor Akindele v Federal Government of Nigeria

Articles 10 and 11 of the Maputo protocol concerns security for women. The UN resolution 1325 is on women’s peace and security and the need for women to participate in discussions on the topic.

There are factors which cause insecurity for women.

  • One of such factors is inequality.
  • Poverty.
  • Illiteracy.
  • Impunity.
  • Weak institutions. The judiciary, police, amongst others, are very weak and offer no assurance.
  • Legal framework is very weak and are not futuristic. One example is the anti-terrorism act, which only came after the emergence of Boko Haram in Nigeria.

Effects

  • Health issues.
  • Displacement.

Prosecutor v Jean Paul Akayezu ICTR 9640 2nd September 1998. The defendant was in charge of a division in Rwanda, and was part of a conspiracy to arrest some individuals during the war in Rwanda. Those people had their rights violated in several ways, and the court held him accountable. Even though it was not proven that he was directly involved, he was in charge of the district and had a responsibility to protect human rights in the district. He was found guilty of crimes against humanity.

Right to Health of Women

Article 18 of CEDAW speaks on right to health, just as the Maputo protocol does. African governments had the Abuja Declaration 2001 where every government in Africa was asked to commit at least fifteen percent of their annual budget to support the health sector. In the whole of sub Saharan Africa, Nigeria has the highest maternal mortality ratio, with only India being ahead of Nigeria in the world.

Karen Noenia Llantoy v Peru UN document CCBR/C/55 2003

In this case, the human rights committee explained that forcing a woman to carry a pregnancy against her will constitutes inhuman and degrading treatment under article 7 of the ICCPR. It particularly notes that this will be the case where such a pregnancy is potentially harmful to the health and life of a woman and the government has failed to guarantee her safe abortion.

Da Silva Pimentl v Brazil

This was a decision by the senior committee Number 17, 2008. In the case, the senior committee held that a state could be in violation of the right to non discrimination for failing to prevent maternal death of a poor indigenous woman living in rural areas without access to reproductive health services. The woman in this case was living in a poor rural area, had complications, and was being taken to the city when she died. The argument was that the state was responsible for her death for failing to provide a health center around her.

Rights of Children

Parents have the power of life and death of the children. However, activists have come up to push that the right of the child must be protected even if it is against the wishes of the parents.

From then, the child began to be considered as a human being in its own right in England. During this period, for the first time in Europe, laws were passed against child labour. By the 20th century, children then became subjects of human rights law.

In 1999, the League of Nations created a committee for the protection of children. Five years later, it adopted the Geneva declaration on child rights. After the Second World War, there were other declarations of the rights of a child such as the UDHR which covers motherhood and childhood in 1948, and in 1959, the UN adopted a declaration on the rights of a child. In 1979, it was declared the international year of a child. In 1989 of November 20, the convention on the right of a child was unanimously adopted by the UN general assembly.

The convention on the rights of a child is a human right treaty which sets out the civil, political, social, economic and cultural rights of children. The convention has fifty four articles that cover all aspects of a child’s life. It also explains how adults and governments must work together to make sure all children can enjoy all the rights.

Article one of the convention states that every human being under the age of eighteen is a child unless the age of majority is attained earlier under the domestic law applicable to the child.

There are four special rights protected in the CRC.

The first is in article 2, and covers non discrimination. Article 3 talks about the best interest of the child. Article 6 concerns the right to life, survival and development of a child. Article 12 covers the right of a child to be heard. Article 3 covering the best interest of a child, is the primary article being used to interpret the convention.

The optional protocol added to the uniqueness of the convention. The first optional protocol is on the involvement of children in armed conflicts. Under this protocol, it is expected that the state should increase the minimum age for children to join armed forces from fifteen to about eighteen. The second protocol is on the sale of children, child prostitution and child pornography. It protects children from exploitation, being sold and also from illegal adoption. Another protocol allows children to submit a complaint to the United Nations when their rights have been violated.

The African Charter on the rights and welfare of a child was adopted to accommodate the socioeconomic and cultural context of the African Child. The charter challenges the traditional values which conflict with children’s rights such as child marriage, parental rights and obligations towards the child and children born out of wedlock. The charter overrides custom, tradition, belief and religion which are not in consonance with the rights of a child, whereas the child rights convention only caters for the general protection of rights.

Criticisms of the Convention on the Rights of a Child.

  1. The convention on the rights of a child did not cover the situation of children living under apartheid while the African Charter does.
  2. CRC did not emphasize on factors affecting the female child by the female genital mutilation and all of that, while the African Charter does.
  3. CRC did not emphasize factors putting the female child at a disadvantage beyond the traditional issues, while the African Charter talks on practices prevalent in Africa which affects the female child.
  4. The CRC did not discuss socio-economic conditions such as illiteracy and low level of sanitary condition which threaten the survival of children and pose specific problem in Africa while the African Charter does.
  5. The CRC does not cover the communal nature of the African society, while the African Charter does.
  6. The CRC did not address the issue of child soldiers, while the protocol to the CRC spoke on fifteen years of age as the age to let children join armies. The African Charter provides that children should not be soldiers.
  7. The CRC did not articulate the role of the family, including the extended family, in the upbringing of a child, while the African Charter on the rights and welfare of children covers it.

The African Charter on the Rights and Welfare of a child is an instrument keeping with African traditions and values and well-suited to its unique social, economic, political and cultural environment.

Locus Standi

The right of access to the court, as is known, is not an absolute right. The fact that there are mechanisms in place for the accessibility of courts does not automatically translate it into an absolute right. As such, there are some limitations to this right. Some of the limitations are as follows:

  • The doctrine of state immunity.
  • The limitation laws/statutes of limitation. The action may become statute barred if it is initiated too long after the period laid down by the statute such as the three months provision in the public officers protection Act.

Broadly, locus standi can be defined as the existence of the right of an individual, or a group of individuals, to bring an action before a court for adjudication. It is usually used interchangeably with terms like standing to sue. Generally, locus standi may be classified as a generic term as it covers the rules or principles which the court will use in identifying the persons competent to address the court for redress or to institute a matter. The person bringing an action must show that they have locus standi.

What is the importance of the doctrine of locus standi in a democratic setting like Nigeria? In any democracy, there should be in place a system of separation of powers which advocates the division of functions between the three arms of government. Such a system prevents the abuse of powers through checks and balances which makes each arm of government accountable to each other. One of the most important forms of accountability is legal accountability, whereby the actions of the legislature and executive are subject to the judiciary through judicial review. Therein lies the importance of locus standi in any democratic society.

Generally, the test of standing at common law is the “sufficient interest test” which was laid down in the case of Inland Revenue Commissioners v National Federation of Self employed small business Ltd 1982 AC 617 at 6580. The sufficient interest test is intended to sufficiently cover all classes of those who might apply and yet permit a level of flexibility in some particular cases to determine whether or not sufficient interest was in fact shown. Traditionally, the doctrine of locus standi seems to have emanated from the desire of courts, especially in common law countries, to restrain themselves from having to pronounce frequently on the constitutionality of statutes and the various acts of the executive, to ensure the smooth running of government, and to ensure that there is a need for self-restraint amongst the wielders of power.

It is important for the judiciary to achieve a balance, such that a restrictive approach to the interpretation of standing will inevitably lead to a limitation of judicial review, which will in turn lead to abuse of power and infringement of fundamental human rights. However, a liberal interpretation could lead to the opening of floodgates for litigation.

Problems which arise from a restrictive interpretation of locus standi

Most commonwealth systems have adopted the sufficient interest test to determine who has locus standi. Most persons with sufficient interest in the circumstances of the case have the standing to bring an action. However, in some jurisdictions, this test has been interpreted to mean that only those who have a personal right may bring an action. It refers to those whose rights have been directly infringed by the executive or laws of the legislature, and only they can bring an action for judicial review, using the restrictive interpretation. What this has done is that it greatly restricts access to justice, and therefore the accountability of government. This is quite important as the overarching framework of government in the twenty-first century include accountability, transparency and good governance. Giving only those with a personal right the standing the sue greatly reduces the number of people who may bring actions against the government.

  1. It creates an undue reliance on the resources, financial or professional capacity of a few people, or single person, to bring an action. This is always a burden, even where the system of legal aid is functioning.
  2. The person with standing has to actually want to bring the matter to court. This may lead to intimidation. The result is that under a restrictive locus standi regime, fewer cases are brought to court, thereby reducing the incentive for government to adhere to the principles of good administration, which include good governance, transparency and accountability.
  3. Apart from the obvious consequences of weakening constitutional prospectives, a restrictive interpretation of locus standi may not be a sound policy in the economic sense because when government is not accountable, the resulting inefficiencies and failures of good administration costs the government and the taxpayers dearly. Therefore, it should be the judiciary’s duty to protect private individuals from the legal encroachment from the individual rights in addition to preventing meddlesome interlopers from bringing actions.

“The problem with standing to sue in Nigeria” - a very good article online, which is an overview of all the cases on locus standi in Nigeria. By Tunde Ogowewo. Published in 1995, in the Journal of African Law, volume 39, number 1.

Olawoyin v AG of Northern Region

Senator Adesanya v The President of the federal republic of Nigeria & another.

(Mohammed Bello JSC’s dissenting judgement). In the case, the appellant challenged the constitutionality of the appointment of Justice Ovie Whiskey as the chairman of the electoral body. The court held that he had no locus standi. Justice Bello, in his dissenting judgment, said that section 6(6)(b) vests the judicial powers in the courts. Although the powers appear to be wide, they only pertain to the civil rights and obligations of a person who invokes the jurisdiction of the court. In other words, standing will only be accorded to a person who shows that their civil rights and obligations have been violated, or an in danger of being violated. The appellant has not alleged that the action of the respondent has in any way affected the appellant’s civil rights and so lacks locus standi.

Subsequent decisions of the courts, including the Supreme Court, followed the narrow interpretation of locus standi for a while. However, there was a difference in latter cases. In AG Kaduna v Hassan, Oputa JSC departed from the narrow approach. There was also a dissenting opinion in 1992 by Ayoola JSC in F.A.T.B v Ezegwu. In 1998, Ayoola set the pace right in NNPC V FAWEHINMI, where it was stated that section 6 of the constitution which vests judicial powers in the courts and defines the nature and extent of such judicial powers does not directly deal with the right of access of individuals to court. The main objective of section 6 was said to be to leave no doubt of separation of powers between the judiciary on the one hand and the other arms on the other and in other to obviate any claims by other arms or even attempts to share the judicial powers of the courts. He went on to state that the purpose of section 6 was to define the judicial powers vested in the court and was not supposed to be for the determination of locus standi.

In 2000, in the case of Owodunni v Registered Trustees of the Celestial Church - Ayoola JSC’s opinion was accepted.

Donald Ghemre v Shell - the court gave a declaratory judgement and accepted that the plaintiff had locus standi to sue for himself and on behalf of his committee.

The center for oil pollution watch v NNPC(2019) - the Supreme Court, in accordance with its duty of expanding the scope of the law, expanded the meaning of locus standi which was quite restrictive. In the case, there was a shift in the jurisprudence of the judiciary in Nigeria with regards to the requirement and the interpretation given to locus standi. The appellant sued the respondent at the federal high court for the alleged neglect of NNPC’s pipeline. A community alleged that NNPC had neglected its duty to ensure that the pipelines were regularly maintained. There was oil spillage which affected the community. The defendant stated that even if it was negligent with the pipelines, the appellant could not sue because it was not a member of the community and had not shown sufficient damage. The trial and appellate courts held that there was no locus standi and struck out the suit. The Supreme Court invited some senior lawyers as amicus Curia to assist it in coming to a decision as regards the locus standi. The court held that the appellant had the right to institute the action as an NGO. The court further held that there is nothing in the constitution which states that the AG is the only person is may institute public interest litigations such as in the instant case.