•Penal Code, Marriage Act still harbour anti-women provisions
The abolishment of Section 127 of the Police Act, used to justify the dismissal of pregnant unmarried officers, has given rise to fresh debates on need for review of other discriminatory laws against women, ADEOLA OJO reports.
Last week, the Nigeria Police Force, through an Assistant Inspector-General of Police, Aishatu Baju, announced that it had abolished regulations that were seen to be biased against women; specifically highlighting the previously-mandated dismissal of unmarried female officers who became pregnant while in service.
Baju, who is the most senior female officer in the Force, confirmed this development during an interview on a national television, explaining that all discriminatory sections of the Police Act, including Section 127, which was used to justify the dismissal of pregnant unmarried officers, had been expunged in line with the ongoing police reforms.
According to her, “That section, along with any other part of the Police Act that discriminates against female officers, has been removed under the Police Act 2020. The Inspector General of Police has also introduced the Nigeria Police Gender Policy to ensure full inclusivity and equal opportunities for all officers.”
This development is in line with the ruling of the Court of Appeal in May 2024, which nullified Sections 126 and 127 of the Nigeria Police Act, effectively putting an end to the policy.
Baju explained that based on the abolishment, unmarried female officers will no longer be dismissed if they are pregnant, emphasising that the Force is committed to eliminating gender-based discrimination and fostering a more inclusive institution.
Sacrificial lamb?
A prominent casualty of the now-proscribed law was a police corporal, Omolola Olajide, serving in Ekiti State, who was dismissed from the Force after she became pregnant in 2021. Her issue became a national discourse and sparked public outrage.
Despite the fact that in September 2020, then-President Muhammadu Buhari signed the amended Nigerian Police Act into law, the Nigeria Police Force at the time maintained that the dismissal of Omolola, who was attached to the Iye Ekiti Police Station in Ilejemeje Local Government Area of Ekiti, for getting pregnant barely a year after graduating from the police academy, was in accordance with extant laws.
Ekiti State Commissioner of Police at that period, Babatunde Mobayo, had argued that the rules and regulations were unambiguous that female police must undergo post-training experience on the field for at least two years before marriage and three years before childbearing which he said the officer in question understood very well.
“In police organisation, we have rules and regulations which are being carried out within the ambit of the constitution. The police officers are not even allowed to keep their children that are above 18 years of age in the barracks. Some of these laws were taught in the police colleges before we graduated. These laws have been there. Some stipulated the number of years you must spend before you get married. If you are in police college, you are not supposed to get pregnant. When you pass out, you still need basic training and for your attention not to be distracted, you must spend a certain minimum of the period before you get married for you to perform efficiently,” he reasoned then..
Many were sympathetic to her situation and there was widespread condemnation for what people described as an unfair law against women, since unmarried male police officers are not penalised for impregnating women out of wedlock.
Human rights activist, and Executive Director of Rule of Law and Accountability Advocacy Centre, Okechukwu Nwanguma argued that “the decision by Ekiti State Police to dismiss a female police officer for getting pregnant outside marriage is based on the colonial police regulation which is yet to be reviewed in line with the new Police Act of 2020. Both the Nigerian constitution and the reviewed Police Act of 2020 prohibit discrimination.
“That provision in the new Police Act prohibiting discriminatory practices was actually informed by such discriminatory provisions in the old police regulation which needs to be reviewed to align with the new Police Act 2020. The action of the police is primitive, discriminatory, illegal, and unconstitutional. It should not be heard of in a modern, civilised and democratic society. “
Also, the chairperson of Women Empowerment and Legal Aid (WELA) Mrs Funmi Falana {now-Silk} had called on the Inspector-General of Police (IGP) at the time, Ibrahim Adamu, to reinstate Corporal Olajide in a letter titled “Request To Recall Dismissed Pregnant Police Officer” dated January 28, 2021.
She described the dismissal of Corporal Olajide as discriminatory, adding that Section 127 of the Police Regulation which discriminates against policewomen is illegal and unconstitutional and vowed that the dismissal would be challenged at the National Industrial Court of Nigeria (NICN) praying for the annulment of Regulation127, made pursuant to the Police Act, 2020 if the police authorities failed to reinstate her.
Judicial challenges and victories
The controversial dismissal prompted the Nigerian Bar Association to challenge the regulation in court. Although the Federal High Court in Abuja upheld the dismissal, ruling that officers were aware of the regulation before joining the Force, NBA escalated the case to the Court of Appeal.
The Lagos Division of the penultimate court in May 2024, nullified Sections 126 and 127 of the Nigeria Police Act, effectively putting an end to the policy.
In January 2023, Justice Dashe Damulak of the National Industrial Court sitting in Akure, Ondo State, also held that the provision of Section 127 of the Police Act and Regulation 127 which apply to unmarried women police officers getting pregnant while in service but not their male counterparts who can impregnate females while in service, are discriminatory against women police officers.
The judge subsequently struck out the regulation for being inconsistent with Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and People’s Rights which abolishes discrimination on basis of gender.
The court further held that Corporal Omolola Olajide had a right to challenge the constitutionality of section 127 of the Police Act and Regulation 127 thereof and she proceeded to court to challenge her dismissal on the ground that the police authorities had discriminated against her since her male counterparts are not dismissed in similar circumstances.
The suit was filed on her behalf by the law firm of Falana & Falana and handled by WELA chair, Mrs Funmi Falana,
“The Court accordingly, finds and holds that the provision of Section 127 of the Police Act and Regulation 127 thereof, which applies to unmarried women police officers getting pregnant while in service but does not apply to unmarried male police officers impregnating females while they are in service, are discriminatory against unmarried women police officers by Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, if any law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of its inconsistency be void,” Justice Damulak held.
He however refused the application of the plaintiff to be reinstated as a police officer due to her wrongful dismissal, holding that she was employed on probation as at the time of her dismissal and she could therefore not be reinstated.
He however granted a major relief, saying “for being wrongfully denied a lifetime opportunity of serving in the Nigerian Police based on a discriminatory law and since the claimant cannot be reinstated, she is entitled to aggravated and punitive damages assessed at N5,000,000.00 (five million naira only).”
But a three-man panel of the Court of Appeal including Justices Joseph Olubunmi Oyewole, Adebukola Banjoko and Okon Abang, sitting in Abuja on Friday, May 3, 2024, while ruling on appeal No: CA/ABJ/CV/454/2022 filed by the Nigerian Bar Association (NBA) on behalf of Olajide against the Attorney-General Of The Federation, Police Service Commission and Nigeria Police Force, took a different route.
The appellate court juxtaposed the provisions of Regulations 126 and 127 of the Nigeria Police Regulations to the effect that an unmarried woman police officer who gets pregnant shall be discharged from the Force, against the provisions of Sections 37 and 42 of the 1999 Constitution, which guarantee a citizen’s rights to privacy and forbid any law in force or any executive or administrative action of the government from subjecting a citizen to disabilities or restrictions by reason of circumstances of birth, ethnic group, place of origin, sex, religion or political opinion.
In interpreting the said sections, the court referred to the admonition of the Supreme Court in Director of SSS & Anor v Agbakoba (1999) LPELR-954 (SC) at pages 42–43 that, in dealing with the fundamental rights provisions of the Constitution, while not being unmindful that the stated rights may be qualified, it is imperative that the protected rights be interpreted in accordance with the values of a humane and civilised democratic society where the rule of law prevails.
The court further held that while Regulation 126 of the Nigeria Police Regulations provides that pregnant married women police officers may be entitled to maternity leave, Regulation 127 provides that 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. The court reasoned that a careful appraisal of these Regulations is saying that an unmarried female police officer, on account of her gender, cannot procreate.
The court found that Regulations 126 and 127 interfere with the private lives of female police officers and discriminate against them on the basis of gender, ruling it a clear contravention of Section 42 of the 1999 Constitution, which unequivocally forbids discrimination of any citizen on the basis of gender or circumstances of birth.
It held that Regulations 126 and 127 are inconsistent with the provisions of Sections 37 and 42 of the 1999 Constitution, and are therefore, null and void to the extent of their inconsistency.
Rounding off the elaborate ruling, the court advised the respondents {AGF, PSC and NPF} to carry out a comprehensive review of the entire Police Regulations, to ensure that they accord with the demands of a modern society operating under the rule of law.
Corporal punishment for women using the law?
Corporal Olajide’s case according to analysts and civil society organisations, highlights the unfortunate reality that the Nigerian woman is subjected to discriminatory laws and practices at every phase especially career-wise. It is said that while some of these discriminatory laws and practices against women are subtly entrenched, others are loud and deeply rooted.
According to a research paper, “the issue of discrimination against women in Nigeria is as old as history and has refused to go away from our body politics basically because of respect for tradition and custom by various ethnic nationalities that formed Nigeria. But with pressures from international organization like United Nations, European Union and African Union, more awareness is being created in this regard. The 1995 Beijing declaration marked a global watershed in the trajectory of gender and women equality worldwide. Twenty years after it was conceptualized and subsequently adopted, the BPFA has continued to provide a comprehensive policy and pragmatic guide for achieving the goals of gender equality and human right development in Nigeria.
The laws against any form of discrimination against women are in Nigeria’s statute book but implementation and enforcement have been variously identified as the main challenge.
Nigeria is a member of United Nations and signatory to major treaties against discrimination and violence against women. Discrimination and marginalization of women in economic development and in social and political spaces is taken to be a worldwide phenomenon, but believed to be worse in developing countries. In Nigeria, despite the adoption of the United Nations Convention on the elimination of all forms of discrimination against women in 1985, and similar legal policies such as the National Gender Policy of 2006, inequality still exists due to a myriad of cultural and structural challenges. Activists noted that this has constrained women’s participation in all spheres of life with serious implications for human resource development and in that capacity, economic development of the country and the general state of gender equality.
Over the years, there have been constant calls for equity among the genders especially in the face of obvious discrimination against women across the world especially in Nigeria where inequality is believed to thrive in every sphere of life due to effects of customs and traditions. And while women have increasingly become more vocal in the fight against discrimination as they demand equality in every sphere of society, the bias is still seen in the laws of the land despite Section 42 of the constitution that provides for the right to freedom from discrimination. Contrary to this provision, there are several laws in existence that are not favourable to women.
This is the reason the abolishment of Section 127 of the Police Act, which was used to justify the dismissal of pregnant unmarried officers, had been lauded as a step towards true gender equality and the expunging of other established discriminatory laws against women.
Discriminatory laws against Nigerian women
There are diverse laws that have been identified as discriminatory against women in Nigeria in spite of countless laws put in place to protect them.
The culprits include the Police Act, spousal rape, provisions on citizenship, discriminatory labour laws, abortion, assault and battery as well as consent to marriage among others.
Section 26 (2) of the 1999 constitution as amended provides that a foreigner can become a citizen when married to a Nigerian man but the constitution does not make the same provision for a male foreigner who marries a Nigerian woman.
Regulation 124 of the Police Act compels that, “a female police officer who is desirous of marrying must first apply in writing to the Commissioner of Police in the state where she is serving requesting permission to marry and giving the name, address, and occupation of the person she intends to marry.”
The section further states that permission will only be granted “if the intended husband is of good character” and the female police officer has served in the force for a minimum of three years.”
In 2012, Justice Stephen Adah, of a Lagos High Court sitting in Ikeja, declared this section of the Police Act illegal and unconstitutional but is yet to be expunged.
Also, Regulation 127 of the Police Act stipulated that “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.”
There was no similar provision for men before it was eventually shot down.
In recent times, there have been reports from women complaining of spousal rape from their partners but there have been no conviction in such cases in Nigeria because there is no existing law in Nigeria that provides for marital rape though there are clear pronouncements on unlawful carnal knowledge.
Section 282(2) of the Penal Code, which is still applicable in the northern region, states that “sexual intercourse by a man with his wife is not rape, save and except the wife have not attained the age of puberty.”
Indecent assault committed against females equally carries lesser punishment than that of males.
Section 353 of the Criminal Code Act, prescribes that “any person who unlawfully and indecently assaults any male person is guilty of a felony and is liable to imprisonment for three years,” but Section 360 of the same act says that “any person who unlawfully and indecently assaults a woman is guilty of a misdemeanour and is liable to imprisonment for two years.”
Section 55 of the Penal Code also gives room for men to beat their wives as a corrective measure as long as it does not result in “grievous” bodily harm.
Section 18 of the Marriage Act requires the written consent of the father of either party who wants to get married if he or she is below 21 years of age and the mother’s written consent is only permitted when the father is dead or of unsound mind or out of Nigeria.
The recent development in the Nigeria Police Force has however awakened calls for general amendment of discriminatory laws against women in Nigeria.
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