Learning from the Indian Judiciary: New Directions for Securing Nigerian Women’s Right to Dignity

Introduction

Human dignity is an important concept within the transnational vocabulary of constitutionalism and human rights (V. C. Jackson, 2004). It became an international constitutional concept after World War II and to date, it remains dynamic, with no specific definition but represents a symbol of demand for individual value, freedom, equality and dignity. (Paust, 1984) describes human dignity as “the dignity, honor and value of each person” as defined through time. Human dignity is also perceived as being “grounded in a concept of autonomy that holds at its core a valued moral center that is equal for everyone (men and women)” (Glensy, 2011). But put simply, this paper defines the right to human dignity as the right to be treated honourably and not to be humiliated.

In Nigeria and India, even globally, (Ortabag, Ozdemir, Bebis, & Ceylan, 2014), women suffer varying degrees and patterns of human indignity: abuse, discrimination, and humiliations including physical assault and trafficking (Monde-Anumihe, 2013), psychological assault, invasion of sexual independence (Metcalf, 2006), marital rape (Chika, 2011; B. Ghosh, 2013; Onyejekwe, 2013; Ray, 2014) and domestic violence arising from ancient patriarchal mindsets (Makama, 2013) which are usually dominant in the family (B. V. Babu & Kar, 2009) and in social values and structures (Gangoli, 2012), traditional customary practices (Chika & Nneka, 2014) and beliefs in socio-religious mythology (Ojilere, 2008) like wife inheritance and other obnoxious widowhood rites (U. P. Okeke, 2010) as well as caste-related discriminations (B. V. Babu & Kar, 2009; Bob, 2007), which are not so common in Nigeria (Leith-Ross, 1937).

Notably, in India and Nigeria, certain abuses of women’s dignity vary according to education, economic, social status or caste similar to the outlawed Osu/Outcast system in Eastern Nigeria where certain class of people are still demeaned as descendants of “customary slaves” (Dike, 2002; Ejidike, 1999). Thus, Indian women of backward castes, little or no education, or those engaged in farming or small business and with very low income are more vulnerable to most types of violence. (B. V. Babu & Kar, 2009).

These practices violate the right to dignity of women guaranteed by section 34 of the Nigerian constitution 1999 and Article 21 of the Indian constitution 1950. Unfortunately, while judicial activism (P. Ghosh, 2013) and other legal measures for protecting the dignity of women in India are advancing (Bhat, 2014), the same cannot be said of Nigeria (Ndulo, 2011) where inherent constitutional inhibitions (Chiroma, 2010), legislative bottlenecks (Dada, 2012) and mixed judicial attitude to fundamental rights enforcement¹1 combine to threaten the quest for equality and right to dignity of women (Dada, 2013; Okogbule, 2005). This paper thus examines the basic protections in Nigeria and India and recommends reforms.

The authors’ objective is to show that basic constitutional, legislative, and judicial advances necessary to guarantee the protection of women’s right to dignity in Nigeria are weak and needs to borrow from the advances in India. The authors however concede that the implementation of these laws in the seemingly unchanging Indian social context remains the bane of these legal advances.

This research is doctrinal, qualitative, and based purely on library research covering books, statutes, law reports, and internet sources from renowned databases and websites. To realize the set objective, the authors will highlight certain obvious and salient gaps in the 1999 Nigerian Constitution, the Fundamental Rights (Enforcement Procedure) Rules, the National Gender Policy and the Nigerian Criminal jurisprudence, especially the non-criminalization of marital rape in Section 6 of the Nigerian Criminal Code which defines unlawful carnal knowledge as “carnal connection which takes place otherwise between husband and wife,” thereby affirming the patriarchal notion of wives being their “husband’s property” (Abayomi & Olabode, 2013; Arinze-Umobi, 2008). All these will be assessed vis-à-vis the relevant provisions of the Indian Constitution, the right of access for the enforcement of fundamental rights in India and more particularly the judicial innovation and activism of Indian courts in protecting women’s right to dignity according to in ternational law, whereby states recognize, respect and reflect human rights in the national constitutions, legislations and institutions. (Henkin, 1989). The scope of this paper however, does not cover all the socio- economic causes of indignity or violence against women in India or Nigeria. This is an area for further study.

This research is premised on previous findings of popular violation of women’s dignity in Nigeria (Adefi, 2009; Bassey, 1995; Chegwe, 2009; Coker, 2013; Idowu, 2013; Ojilere, 2008; Ukwueze, 2008), where even the CEDAW is judicially unenforceable because by Section 12 of the Nigerian constitution, international treaties are non-binding until they are domesticated into local legislation by parliament. Nigeria’s Representative on the CEDAW Committee regretted that Nigeria is “notorious for violating international agreements” (Nwankwo, 2013). Nigeria’s Minister of Women Affairs and Social Development, Hajia Zainab Maina, expressed worry that violence against women is on the increase, “yet nothing was being done to alleviate the challenges” (Maina, 2013). Even Nigeria’s National Gender Policy, 2006 which has been applauded (Sehinde, 2013) because it takes a cue from CEDAW, is also not implementable for various socio-political reasons (Adesola et al., 2013). The Fundamental Rights (Enforcement Procedure) Rules 2009 which replaced the earlier Enforcement Procedure Rules of 1979 is not even a pure and proper legal document (Duru, 2012; Nwauche, 2010), and these Rules were so “unpleasant” that suggestion was made to adopt “mediation” (a form of alternative dispute resolution) to circumvent the Rules (Nwafor, 2009).

Common Forms of Abuse of Women’s Dignity

Most acts which violate women’s dignity in Nigeria and India are rooted in ancient patriarchal mindsets, customary law and socio-religious mythology (P. E. Okeke, 2000).

While Indian women suffer discrimination and humiliation associated with caste, Nigerian women live in a “man’s world” where native culture requires them only to be seen and not heard. For instance, marriage or close social affinity is forbidden between a person of lower caste and one of higher caste in India. And among the Ibos in Eastern Nigeria, it is socio-culturally forbidden taboo for a Freeborn to marry an Osu/Outcast. Women cannot inherit or alienate land under Ibo customary law (P. E. Okeke, 2000). In Nigeria, it is also a permissible socio-religious practice for a Muslim man to confine his wife to purdah (house imprisonment) to shield her from the public (Omvedt, 1986).

Among the Hindus of India the ancient suicidal practice of Sati, that is, self-immolation (an archaic Hindu custom which coerced Hindu widows to set themselves ablaze upon the death of their husbands by jumping into their husbands’ funeral pyre) (Omvedt, 1986) has been outlawed, except for die-hard adherents who still practice Sati as a voluntary act. Historically, this practice also prevailed among Egyptians, Greeks, Goths and Scythians, who buried wives, mistresses, servants and possessions with dead family members so that they could continue to serve them in the next life.

Sex selection and son preference, which often leads to the abuse/killing of girls or the abortion of female foetuses, sexual violence, rape,³ bonded/forced labour (“Maid in India: Young Dalit Women Continue to Suffer Exploitative Conditions in India’s Garment Industry”, 2012), and dowry-related violence/murder which may ensue if a woman’s in-laws consider the “groom’s price” paid by her family as inadequate (Standish, 2014) have also been officially outlawed, dire attachment to ancient status quo still threaten the implementation of laws against dowry and sex selective abortions in India. Similar die-hard social beliefs also undermine the law on non-discrimination against the Osu/Outcasts in Eastern Nigeria.

However, making short-term quick gains is difficult in vast country like India, particularly in rural areas where most people are ignorant, illiterate and conservative. For these people, various multi-dimensional approach including education and public awareness campaigns will take time to bear results. Understandably, in the field of public law, the struggle for the rule of law is long and arduous but one must not give up on these people. Patience and perseverance are key tools for tackling this kind of problem.

In Nigeria the commonest indignities include widowhood rites, wife beating, wife confinement, wife donation, widow inheritance (Durojaye, 2013: Essien & Ukpong, 2013), female genital mutilation, forced child marriages, son preference (Nnadi, 2013) – which often lay the foundation for psychological violence, mental torture, marital rape, polygamy and wife abandonment – denial of inheritance and proprietary rights, and the chattelization of women and girls (arising from the mandatory “bride price” for customary law marriages and practically, for statutory marriages too).

The typical Nigerian society recognizes a man’s headship, which includes authority to dominate, threaten, own, beat up or even rape his wife because she is his property for which he paid bride price and more so, marital rape is not criminalised because Section 6, of the Criminal Code (applicable in Southern Nigeria) defines “unlawful carnal knowledge” as carnal connection which takes place otherwise than between husband and wife. However, it is a taboo for a woman to stand up to or beat her husband for whatever good reason (Adefi, 2009). The Nigerian man is society’s-acknowledged Breadwinner and God-made head of the family, even if he is an economic liability and his woman’s income actually runs the family (Adefi, 2009) because by patriarchal presumption, the man owns the woman and everything she owns since she is incapable of an independent personality (Omonubi-McDonnell, 2003). She also has no right of succession to her deceased husband’s or father’s estate because customary law considers her a part of the estate to be inherited by the males. (Omonubi-McDonnell, 2003).

In parts of Cross River State, Nigeria, custom requires a woman who has a still birth to trek to any evil forest where her hair and pubic area must be cleanly shaved as sacrifice to appease the gods and cleanse her sacrilege (Bassey, 1995). Certain Nigerian mythologies consider women as unclean and subordinate and therefore must not eat chicken rump, or take yam tubers off the stakes in the yam barn, or even shake hands with a man but rather to stoop down or kneel down to greet him (Ojilere, 2008). Women do not lead prayers in mosques. Indignity may be by verbal and emotional torture or the use of abusive and humiliating language, or innuendoes on a woman by her husband, mother in-law and even extended family members, especially if she is childless or bore only female children (Ojilere, 2009; Ojilere & Chukwumaeze, 2010).

(Idowu, 2013) therefore posits that Nigerian women have become a vulnerable group just like aliens, ethnic and religious minorities, persons born out of wedlock, children and the mentally retarded, all of whom are susceptible to abuse and denial of basic rights. This is unlike the situation in India where women have come to possess same legal status as men.

Assessing the Scope of Legal Protection in Nigeria and India

The analytical evaluation of the legal framework for protecting women’s right to dignity in Nigeria and India entails the examination of available fundamental rights guarantees and allied constitutional provisions, including access to justice for enforcement of fundamental rights, relevant legislations, and legislative pro-activity or otherwise as well as the independence and activism of their judiciary.

Closing Legislative Gaps in Enforcing Women’s Right to Dignity

Generally, the traditional role of the judiciary in a democracy is to interpret the law. The Nigerian courts have held strongly to this old tenet. Nigerian courts still maintain the “positivist” ideology of law as it is “written”, that is, law “as it is” and not “as it ought to be” and invariably affect the interpretation, delivery and enforcement of human

rights in Nigeria. Thus, in Nigeria, unlike in India, the courts still uphold the “non-justiciability” provision of Section 6 (6) (C) of the constitution, whereby economic, social, cultural, and environmental rights necessary to guarantee life with dignity remain judicially unenforceable because they are mere “fundamental objectives and directive principles of state policy.” This is a serious setback to the protection women’s right to dignity in Nigeria (Dada, 2012). And unlike in India, the Nigerian courts do not exhibit the activism of defining the right to human dignity as an extension of the right to life in order to make it sacrosanct.

Again, the non-domestication provision in Section 12 of the 1999 Nigerian constitution under which courts are not bound to follow the principles of international law constitute an affront to the protection of dignity of women. The Nigerian National Gender Policy fashioned pursuant to the CEDAW cannot be implemented (Sehinde, 2013). Due to this constitutional lacuna, the CEDAW has also remained a mere wish in Nigeria. But in most countries including India “the issue of human rights in the recent past, has penetrated the international dialogue, become an active ingredient in interstate relations and has burst the sacred bounds of national sovereignty” (Dada, 2012).⁹ Thus, in the Vishaka case, Justice Verma observed that a strict or “positivist” application of municipal law will diminish the intended scope of human rights protection in international law. Also, India’s Criminal Law (Amendment) Act, 2013 amends much of the Indian criminal jurisprudence both in form, procedure and evidence, and even fills the gap for “proper laws to deal specifically with child sexual abuse” (K. Singh & Kapur, 2001).

These legislative advances further set India ahead of Nigeria on the enforcement of the right to dignity of women and fundamental rights generally.

Furthermore, Indian courts have been innovative and uncommon by not just performing the constitutional role of interpreting the law, but by also performing the social function of making or giving the law so as to meet the broad aspirations of the people (Mate, 2013), irrespective of the defect or non-existence of proper legislative or constitutional provision. Thus, in Vishaka & Ors v. State of Rajasthan & Ors,¹⁰ the Supreme Court of India formulated the Vishaka Guidelines to fill a yawning gap in the enforcement and protection of the dignity of women against sexual harassment at their work places at a time when there was no legislation on that subject. These guidelines were to endure effectively and mandatorily as relevant law from 1997 until the promulgation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Medha Kotwal Lele and Others v. Union of India and Others”, 2013).

Similarly, in Sheela Barse v. Union of India,¹¹ the Supreme Court formulated what became known as the Rule in Sheela Barse which set out principles for the protection of the dignity of women who were held in custody, directing inter alia, that female inmates must be kept in separate lock-ups under the supervision of female officers only, must also be interrogated in the presence of female Police officers, and also to be searched decently by women officers only, thus justifying the judiciary as the touchstone of India’s political economy and democracy (S. R. Babu, 2013).

Nigerian courts have not been consistent in upholding the right to dignity of women but some judges have stood their ground as lawgivers in cases of abuse of a woman’s dignity especially with respect to property inheritance (“Mojekwu v. Mojekwu ”, 1997; “Nnayelugo v. Nnayelugo”, 2008).

Conclusion

Nigeria is a signatory to a number of regional and International Treaties including the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples Rights (and invariably, the 2000 Women Protocol to the African Charter) and the International Covenant on Economic, Social and Cultural Rights, all of which guarantee the right to dignity of women.

Unfortunately, most patriarchal and socio-cultural practices violate the right to dignity of women and contravene these instruments. For instance, Paragraph 11 of CEDAW General Recommendation 19 of 1992 provides inter alia that traditional attitudes by which women are regarded as subordinate to men perpetuate widespread practices involving violence or coercion which deprive women of equal enjoyment of human rights and fundamental freedoms (Ojilere & Gan, 2015).

The authors hold the view that the guarantee and protection of the right to dignity of women in Nigeria or elsewhere is so important that its breach or abuse on account of patriarchy, customary law, or socio-religious mythology is beyond reasonable excuse. Nigeria should therefore respond consciously to new constitutional approaches, pro-active legislating as well as judicial innovations and activism for the enforcement of fundamental rights which are already common in India. The elaborate approaches for the right of access to justice, including the liberalisation of locus standi which are common in India should also be adopted by Nigeria.

However, both countries should make clear and unequivocal prohibitions of marital rape (Chika, 2011; Ola & Ajayi, 2013; Onyejekwe, 2013; Ozo-Eson, 2013; Ray, 2014; A. Singh, 2013), even though marital rape in India is now indirectly covered under the Domestic Violence Act, 2005.

There is also need for India to codify the current implied rights contained in its directive principles of state policy into positive fundamental rights in its Constitution, just as in the case of the Bill of Rights in South Africa. However, fear has been expressed that the legal framework, although important, still appears to be grossly inadequate, and that “mere passing of laws has failed to guarantee any reduction in the number of violence against women and girl children...in the Indian context.” (B. Ghosh, 2013; Ray, 2014).

But whether the language of the law is sufficient or not, Nigeria and India must strive to reinforce all other sections of their polity to guarantee sustainable protection of women’s dignity and human rights generally. According to Justice Bhagwati:

The language of human rights carries great rhetorical force of uncertain practical significance. At the level of rhetoric, human rights have an image which is both morally compelling and attractively uncompromising. But what is necessary is that the highly general statements of human rights which ideally use the language of universality, inalienability and indefeasibility should be transformed into more particular formulations, if the rhetoric of human rights is to have major impact on the resolution of social and economic problems in a country. (Unit, 1988)

These formulations will include political courage and sensitivity, civic education, public enlightenment, as well as the monitoring of implementation of laws and policies by various stakeholders including civil society groups, women rights activists, and feminist scholars.

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