Nigerian women in 2020 sued the federal government for continuously marginalising women from holding leadership positions. ENE OSHABA writes on the outcome of the last court proceeding at the Federal High Court in Abuja on Monday last week.
Background
The matter which began in 2020 is of national importance geared towards an inclusive governance to reflect true democracy in Nigeria was filed by Nigerian women seeking compliance on anti-discriminatory provisions of the Nigerian Constitution and entrenching Gender Equality.
The reliefs sought by the plaintiffs include a declaration that the failure of the 1st defendant to implement the 35 per cent affirmative action policy of the federal government of Nigeria is illegal, unlawful, null and an arbitrary violation of the National Gender Policy, 2006.
Secondly, a declaration that the failure of the 1st defendant to implement the 35percent affirmative action policy of the federal Government of Nigeria is illegal, unlawful and a violation of sections 42, 147 (3) and 14 (3) of the 1999 Constitution as amended and Article 19 of the Adrian Charter of Human and People’s Rights.
The third declaration stated that the overwhelmingly predominant appointment of the male gender into decision making positions of the Federation is wrong, unlawful, unconstitutional, null and void as it violates Sections 42,147(3) and 14 (3) of the 1999 Constitution as amended and Article 19 of the African Charter of Human and People’s Rights and does not violate the right of the female gender of equal access to public office.
It also included an injunction restraining the 1st defendant from further exercising the Constitutional and Statutory power of appointment in a manner violative of the 35 percent affirmative action policy of the federal government of Nigeria as contained in the National Gender Policy, 2006.
Followed by an order mandating the respondents to henceforth comply with the principle of equality of the sexes in all appointments in compliance with Sections 42,147 (3) and 14 (3) of the 1999 Constitution as amended and Article 19 of the African Charter of Human and People’s Rights.
Lastly, any other order (s) the Court may make in the circumstance of the case.
The suit
The case involving Nigerian women against the federal government of Nigeria (defendants President Muhammadu Buhari and the Attorney General of the Federation, Abubakar Malami) for inclusive governance that gives room for gender equity to reflect true democracy in Nigeria was heard Monday, January 24, 2022, at the Federal High Court, Maitama, Abuja, before Hon. Justice Donatus Okorowo.
The plaintiffs, in the suit marked: FHC/ABC/CS/1006/2020, are the Incorporated Trustees of Nigerian Women Trust Fund, Women Empowerment Legal Aid, and Center for Democracy and Development West Africa.
Others are Women Advocates Research and Documentation Center, Vision Spring Initiative, and Women in Politics Forum, among others.
The groups had sued the federal government and the Attorney General of the Federation as defendants in the suit. They had sought the court order, ensuring the 35 per cent affirmative action policy of the federal government of Nigeria as contained in sections 42, 147 (3) and 14 (3) of the 1999 Constitution (as amended), the National Gender Policy, 2006, in the governance of the country, among others.
The lead counsel to the plaintiff, Barrister Funmi Falana, informed the court that the matter was fixed for the hearing of her clients’ originating summons, urging the court to take the substantive suit and the preliminary objection together.
“Our application of an amended summon is dated 1st day of February, 2021 and filed the same day. We have formed two questions for determination and we seek six reliefs,” she submitted.
She submitted further that their grievance was that the appointments in positions of office in the country were contrary to the policy of the government on 35 per cent affirmative action and that though the defence said in their preliminary objection that the groups had no locus standi to sue.
According to her, “Where the interest of the public is involved, any person or organisation has the right to go to court and that such applicant cannot be regarded as an interloper.”
She also informed the court that women had been marginalised too long in relation to appointments into decision-making positions, in a clear breach of the provisions of sections 147, 42 and 14 of the 1999 Constitution, Articles 19 and 18 of the African Charter on People’s and Human rights and other international human rights instruments like CEDAW, ICCPR and ICESCR.
Falana further informed the court that the plaintiffs have a right of action and are competently before the court, and prayed the judge to ensure strict compliance to the anti-discriminatory provisions of the Nigerian constitution and entrench Gender Equality in Nigeria.
Defendants’ prayers
However, the counsel to the defendants, Terhemba Agbe, argued that Falana’s submission had just a single ground for their opposition. He said in opposition to the suit, he filed a preliminary objection on 30th day of March, 2021, that the plaintiffs’ case does not disclose any cause of action against the defendant.
“We have a written address in support of this and we humbly and vehemently urge your lordship to strike out or dismiss the case of the plaintiffs. On our preliminary objection, we are saying that the case of the plaintiffs is built on Section 14 and Chapter Two of the Constitution which is unenforceable,” he submitted.
He argued further that Section 147 of the constitution also gives the president a guideline for appointment of ministers and other positions, said in doing this, what the law says is that the president should ensure that there is a minister from every state, but not based on sex.
“No matter how sentimental the plaintiffs appear in the matter to draw the sentiment of the court or public, ministerial appointment, etc, is guided by the law and at the discretion of the president to appoint those who can deliver.”
He said the 35 per cent affirmative policy of the government cannot be enforced by the court, but can be ensured through lobbying, especially at the National Assembly.
“If our counter affidavit is set aside, it is our strong view that the plaintiffs are not entitled to the reliefs because the law does not favour them.”
Plaintiffs’ counter-arguments
Falana disagreed with the argument that there was no cause of action and that in the reliefs sought, there must be a substantive law that needs to be determined.
She stressed that nothing can be more substantial than the interpretation of the constitutional provisions and violation of such which we have alleged, and urged the court to grant the women’s request.
“Saying that a policy is not enforceable is not correct; I challenge that the defendants said it is a policy and not a law but the court has set the law in Nigeria today that government is bound by their policy and as long as you say this is my policy, law stops you from denying or derogating from that policy.
“They have come up to say they have a gender policy and they are going to give a 35% minimum to the appointment of women. They have told everybody, announced it and held that policy on, so they no longer can say it cannot happen. They are bound by their policy, it is the law and we argued it,” she submitted.
Judgement day
Justice Okorowo slated March 30 for judgement on the suit which called for the implementation of the 35 per cent affirmative action Beijing Convention.
Justice Okorowo fixed the date after the counsel to the plaintiffs, Falana, and the lawyer to the defence, Agbe, adopted their processes and argued their matters in the suit.
Matters arising
Sharing her views, the executive director of BOABAB Human Rights, Bunmi Dipo-Salami, noted that women suffer discrimination and marginalisation at all levels of decision tables, adding that many laws and policies in the country condemns every form of discrimination and encourages gender equality yet these laws are not respected.
She noted further that for anyone to say policies created by the government are not enforceable means that the Nigerian Constitution is not important and functional, stressing that Nigeria is losing greatly from not including women in governance and allowing them contribute to the nation’s growth.
“If the Nigerian constitution is not enforceable it means we should throw it to the gutters. If a president came into power through the votes of men and women and we say that person cannot enforce a policy that ensures everybody contributes to making Nigeria a better place then there is a problem.
“If you improve the lives of women you are doing that to the benefit of the nation. If you did not bring the contribution of half of your population, but kept recycling the men over and over you are getting the same results because you are still doing the same things.
“There is discrimination against women at all levels of governance, Nigeria has the least proportion of women in leadership and we say we are the giant of Africa? We don’t have women in office, we don’t have women where it matters and you keep appointing men young and old, even those who should be in advisory capacity are being appointed while there are many brilliant, capable women who do not have the baggage that the men have yet you don’t appoint them and the country keep losing their contributions.
“We should take political parties, INEC and everybody involved to court for not honouring the agreement. If we say we are all equal in the Nigerian constitution, we say we have a national gender policy and all manner of policies and laws that says there shouldn’t be any discrimination yet in some states no single woman in the executive, their house of representatives also at the federal level no equality.”
The executive director maintained that Nigeria has the potential for greatness, but urged that things be done differently to enable the desired results.
Women’s desires
Nigerian women are challenging the domination of appointments by men in policy and decision making in the country as well as ministerial positions.
Obviously, men have predominantly been appointed into ministerial positions and other decision making positions, while the laws applicable and other international laws binding on Nigeria provide that there shall be equal opportunities.
Falana noted that women are marginalised and discriminated against and desire their proper place under the law.
“More appointments, especially ministerial appointments, should be given to women. For example, out of 36 ministers only seven are women; out of 38 members of the Federal Character Commission (FCC) only four are women and this is absurd and derogatory on women.
“This is not to say that we don’t have competent women in Nigeria. In fact, most women are better than men and can handle these positions better but because they are women they have been marginalised and so we have come to court to challenge our rights because all the laws Including CEDAW, International convention of social rights, African charter and even the Nigerian constitution specify that every section of the people shall be equal before the law,” she said
