Abstract
Human rights are now accepted as lawful claims that one can lay as a human person against the state, state actors, institutions, and individuals. They are available to all human beings on the level of equality. They exist to remove all forms of discrimination on the basis of sex, color, religion, and other negative indices that places difference in the way human being are seen and treated. However, women and especially the girl child have been seen and treated as less than human and definitely not of the same rank, status, or worth of the male sex. In this position woman and children have been treated as nothing more than a tool and chattel. International law, under international human rights regime has fought and seen to removal of harmful traditional practices that negates the worth and status of women by proscribing such acts and providing remedies for the practice and perpetuation of those practices. This chapter adopting doctrinal methodology explores the protective international and national legal regimes against harmful traditional practices (HTP) and the role of Nigeria courts in protecting women and children against HTP. This chapter finds that although Nigeria courts have recorded remarkable progress through its pronouncements, more judicial activism is required in its interpretative role.
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Notes
- 1.
The debate about the status of women could be traced to the ancient Greece but it became popularized since the sixteenth century. See Wollstonecraft, M., ‘Vindication of the Rights of Women’ (first published in 1792) New York: WW Norton, reprinted 1967.
- 2.
See Radacic, I., ‘Human Rights of Women and the Public/Private Divide in International Human Rights Law,’ (2007) Available online www.cyelp.com accessed 5th June, 2021 and Charlesworth, H., ‘The Public/Private Distinction and the Right to Development in International Law,’ (1988): 12 Australian Y.B. of Int’l L.190.
- 3.
See, for example, Concluding observations of the CRC Committee regarding Nepal, 21 September, 2005, CRC/C/15/Add.261 at para. 67 (and traditions such as the Deuki, Kumari, Jhuma, Badi, Kamlari and Chaupadi causing extreme insecurity, health hazards and cruelty to female children).
- 4.
See Inter-African Committee on traditional practices affecting the health of women and children, Newsletter No. 28, December 2000, at 3.
- 5.
See Finley, L.M., ‘Breaking the Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning,’ (1989) 64 Notre Dame Law Rev. 886, at 886.
- 6.
Merry,’ Human Rights and Gender Violence: Translating International Law in Local Justice,’ Chicago: University of Chicago Press, 2006, at 6–16.
- 7.
Reaume, D., ‘What’s Distinctive about Feminist Analysis of the Law?’ (1996) 2 Legal Theory 265 in this article the author maintains at page 273 that: ‘feminist jurisprudence is distinguished by its concern with women exclusion from law and that a feminist critique of the law is, negatively, an analysis of how some or all women have been excluded from the design of the legal system or the application of law, and positively, a normative argument about how, if at all, women’s inclusion can be accomplished’.
- 8.
See for instance the decision of the African Commission on Human and Peoples Rights stating that there is a correlation between depriving a person of one specific aspect of human rights as that will tantamount to affecting all other forms of human rights. Legal Resources Foundation v. Zambia, Communication 211/98, Decision of the African Commission on Human and Peoples’ Rights, 29th Ordinary Session, April/May 2001.
- 9.
The list of harmful traditional practices according to Tobin, J., ‘The International Obligation to Abolish Traditional Practices Harmful to Children's Health: What does it Mean and Require of States?’ Human Rights Law Review, (2009), 381; includes forced or early marriages, ritual killings, the caste system, dowry disputes, virginity testing, food taboos forced feeding, consanguineous marriages, milk teeth extraction, infanticide and selective abortions, traditional medical practices, and traditional practitioners.
- 10.
See http://pambazuka.org/en/category/comments/46520 accessed 12 July 2021.
- 11.
It is difficult to come to terms with the tag ‘harmful traditional practice’ as this suggests that there are traditional practices that are not harmful. It also seems to suggest that it is aimed at critiquing some traditional practices. This is, to us, vague. As there has not been a universally accepted methodology that is used epistemologically to define what constitutes harmful traditional practices. For us, the yardstick should be the degree to which the practice deviate from general human rights principles, the level of harm it produces, the lack of probative value to be attached to the practice, the application of the practice on the basis of gender, how that practice discriminates, the age at which the practice is done, therapeutic value or lack of it of the practice and the degree of harm it causes the victim.
- 12.
Women and Health (Art. 12) General Recommendations 24 CEDAW, Gen. Rec. 24, UNGOR, 1999, Doc. No. A/54/28/Rev. 1 Article 1 (e); Art. 1(g) Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 2005.
- 13.
Hellsten, ‘Rationalizing Circumcision: From Tradition to Fashion, from Public Health to Individual Freedom: Critical Notes on Cultural Persistence of the Practice of Genital Mutilation,’ (2004): 30 Journal of Medical Ethics 248; UNFPA, ‘Analysis of Legal Frameworks on Female Genital Mutilation in Selected Countries in West Africa.’ UNFPA Regional Office for West and Central Africa.
- 14.
ESCAP, ‘Harmful Traditional Practices in Three Countries of South Asia: culture, human rights and violence against women.’ Gender and Development Discussion Paper Series No. 21; Timilehin Olayinka Omoniyi, ‘Appraisal of harmful traditional practices in Nigeria: magnitude, justifications and interventions.’ Journal of Social, Humanity, and Education (JSHE) ISSN: 2746-623X, Vol 1, No 1, 2020, pp. 67–78. https://doi.org/10.35912/jshe.v1i1.335.
- 15.
See Legal Resources Foundation v. Zambia, Communication 211/98, Decision of the African Commission on Human and Peoples’ Rights, 29th Ordinary Session, April/May 2001.
- 16.
The Convention on the Elimination of All Forms of Discrimination against Women, (CEDAW) for example, obliges States parties, in general, to ‘pursue by all appropriate means and without delay a policy of eliminating discrimination against women.’ The CEDAW reaffirms the equality of human rights for women and men in society and in the family; it obliges States parties to take action against the social causes of women's inequality; and it calls for the elimination of laws, stereotypes, practices, and prejudices that impair women's well-being. See Feitshans, I. L., (1998), loc. cit. at pp. 107–108.
- 17.
Edwards, S., ‘Sex and Gender in the Legal Process’ London Blackstone, 1996.
- 18.
See generally Dorkenoo, E., ‘Cutting the Rose, Female Genital Mutilation: The Practice and its Prevention,’Minority Rights Publication, London, 1994.
- 19.
ILO Concerning Night Work of Women Employed in Industry, 1919 (Convention No. 4), revised in 1934 (Convention No. 41), and 1948 (Convention No. 89); and Convention Concerning the Employment of Women in Underground work in Mines of all Kinds (Convention No. 45).
- 20.
Kenneth L. Karst, ‘Woman's Constitution,’ Duke Law Journal, Vol. 1984, No. 3 (June, 1984), pp. 447–508, at 449.
- 21.
See Articles 1, 3, 5, 7, 8, 12, 25 and 28 UDHR, 1948.
- 22.
Ibid.
- 23.
See Articles 2, 7, 9, 17 and 24 ICCPR, 1966.
- 24.
See Articles 3 and 12 ICESCR, 1966.
- 25.
See Article 1 CEDAW, 1979.
- 26.
See Articles 2, 3, 5, 13(a), 15 and 16 CEDAW, 1979.
- 27.
See Articles 3, 9, 24 and 37 CRC, 1989.
- 28.
Schneider, M. E., The violence of privacy 23 Conn. L. Rev. (1990–1991): 975.
- 29.
See https://www.constituteproject.org/constitution/Nigeria_2011.pdf?lang=en. Accesed 30 September, 2021.
- 30.
See https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/104156/126946/F-1224509384/NGA104156.pdf. Accessed 30 September, 2021.
- 31.
See Sect. 8.6 (1)–(4) VAPP Act, 2015.
- 32.
See. Nwankwo, O., Effectiveness of legislation enacted to address violence against women in Nigeria. Available at https://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/expertpapers/EGMGPLVAW%20Paper%20_Oby%20Nwankwo_.pdf.
- 33.
Ejiamike v Ejiamike (1972) 2 ENLR P. 11; Oloko v. Giwa (1939) 15. NLR. 31; Nezieanya and Okagbue & ors (1963) 1 ALL N.L.R. 352; Aileru & ors v. Anibi (1952) 20 NLR 46; Uka v. Ukama [1963] FSC 184.
- 34.
Uboma v Ibeneme (1967), E.N.L.R. 251. 350; Ogunkoya v Ogunkoya (1988) Suit No. CA/L46, 88, P. 6; Akinubi v Akinubi (1997) 2 NWLR 486 at 144.
- 35.
Muojekwu v Ejikeme (2000) 5 NWLR P. 657 P. 402 at 409 CA; (2004) 11 NWLR P. 883 P. 196; Anekwe v Nweke (2013) LPELR 20,386 (CA); Ukeje v Ukeje (2014) 11 NWLR (P. 1418) 384; Nzekwu v Nzekwu(1989) 2 NWLR 9(p. 104) 373 at p. 422; Okonkwo v Okagbue (([1994] 9 NWLR (P. 368) 301).
- 36.
Akinbuwa v Akinbuwa, (1998) 9 NWLR (p. 564) 100.
- 37.
This provision permits wife chastisement as long as it does not cause grievous bodily harm.
- 38.
The case of The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kanu (The AFRC-case) concluded with the Appeal Judgment on February 22, 2008.
- 39.
Ibid at p. 195.
- 40.
Ibid at p. 196.
- 41.
The case of The Prosecutor vs. Foday Saybana Sankoh, Sam Bockarie, Issa Hassan Sesay, Morris Kallon and Augustine Gbao (The RUF-case) concluded with the Trial Judgment on February 25, 2009.
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Haruna, B.A., Yusuf, A.M. (2023). The Role of Nigeria Courts in Protecting Women and Children Against Harmful Traditional Practices. In: Onuora-Oguno, A. (eds) Promoting Efficiency in Jurisprudence and Constitutional Development in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-13814-0_8
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