As Court Orders Implementation of 35% Affirmative Action for Women

CICERO/Isssues

The 35 per cent Affirmative Action, which some Nigerian women gathered at the National Assembly gate in Abuja for weeks to agitate for without success, was last week given to them by a Federal High Court, writes Alex Enumah

It was a huge victory for the women in Nigeria last week when a Federal High Court in Abuja ordered the federal government to comply with the 35 per cent affirmative action for women, which allows women to occupy 35 per cent of all appointments.

Delivering judgment in a suit filed by a non-governmental organisation, Women in Politics Forum (WIPF), Justice Donatus Okorowo said the federal government had the obligation to implement the 35 per cent affirmative action, accusing past governments of acting in breach of international treaties on women participation in government. He added that the National Gender Policy is not merely a policy statement, but one that must be backed with requisite action on the part of the government.

The judge held that the 35 per cent affirmative action, which entails appointive positions for women to ensure inclusivity, must not be merely on paper as Nigeria is a signatory to international treaties, particularly on those that entrench the rights of women.

WIPF, a non-partisan forum for women used for addressing women’s marginalisation in politics and decision-making, was seeking the implementation of the 35 per cent Affirmative Action in appointments of women into public office.

Its lawyer, Mrs. Funmi Falana, had argued during the hearing that women were being discriminated against as a result of the belief that women were inferior to men. She noted that the National Gender Policy (NGP), which provides that women should be allocated 35 per cent of all appointments was being violated.

“The predominant appointment of men to decision-making positions, especially ministerial positions, with the exclusion of women is discriminatory against women and is in violation of sections 147 and 42 of the Nigerian constitution and article 19 of the African charter.

“Only seven of Nigeria’s 36 ministers are female. In the eyes of the law, 36 and 7 are not equivalent. Only four of the 37 members of the Federal Character Commission are women. This is ridiculous and insulting,” she argued.

Citing section 14(3) of the 1999 Constitution to back her call for the enforcement of the NGP, Mrs. Falana noted that the provision mandates that the composition of the government of the federation or any of its agencies, and the conduct of its affairs shall reflect the federal character of Nigeria, promote national unity and also to command national loyalty.

The provision, according to her, also seeks to ensure “that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or in any of its agencies.”

The plaintiff lawyer said the provision is in line with Article 19 of the African Charter, which specifies that “no predominance in appointment of any set of people shall exist.” She added that the provision provides a basis for female gender inclusion in government, adding that section 42 specifies that no one should be discriminated against because of their gender.

“We are, therefore, saying, my lord, that the preponderance of men in ministerial and other decision-making positions is discriminatory, which may be summarised as anything that is disadvantageous to a person,” she added.

She argued that beyond the constitution, the international universal declaration of human rights 1948, international convention of social economic act and the convention of the elimination of all forms of discrimination against women states that women and men are equal and there shall be no discrimination.

She said Nigeria is a signatory to all these conventions which means these laws are binding on Nigeria. Falana recalled that the National Gender Policy states that women should be allocated 35 per cent of all appointments.

This, she noted, is a by-product of Nigeria’s signing of the International Convention on the Elimination of All Forms of Discrimination Against Women. She said the government had “refused to follow through on this strategy.”

The plaintiff’s lawyer also disputed the defendant’s claim that the plaintiffs lacked locus standi to suit. She stated that with the scope of meaning of locus standi having been broadened in various court decisions, “anyone or any non-governmental organisation has the ability to go to court in instances involving public interests.”

The defence lawyer, Terhemba Agbe, in his address, had urged the court to dismiss the suit on the grounds that it did not disclose any cause of action. He said the policy can be lobbied to be passed into law by the National Assembly, and not by the court.

He added that the Nigerian Constitution in Section 147, gave the president a guideline for appointments of ministers, stressing that in doing that, the president should ensure there is a minister from every state and not from all sexes.

“No matter how sentimental the plaintiffs are, ministerial appointment or appointment of any government parastatals is not guided by sex but on qualifications or on who the president thinks can deliver the job. This is guided by the constitution,” Agbe said.

After listening exhaustively to the arguments, Justice Donatus Okorowo, in delivering his judgment, agreed with the plaintiff that Nigerian women had been subjected to various forms of discrimination concerning appointments into key positions of government.

The judge dismissed the preliminary objection of the federal government’s lawyer for arguing that the plaintiff’s case did not disclose any cause of action. Referencing Section 42 of the Nigerian constitution as it relates to the suit, he upheld the plaintiff’s contention to the effect “that of all the 44 ministries, there are only about six female gender, stressing that the situation is worse in other MDAs and agencies.”

Justice Okorowo noted that the defendant, by its conduct, insinuates that there are no competent and reliable women that should be appointed to “stop the apparent male dominance as witnessed in the appointments” of men into key government positions.

“I agree with their (plaintiff) contention that this cannot be possible out of 70 million women in Nigeria,” the judge said.

He held that the Attorney-General of the Federation (Abubakar Malami), who was the sole defendant in the case, “failed to disprove the material allegations contained in the affidavit, and led no credible evidence to debunk material evidence of the plaintiff.”

“The plaintiff has led cogent, verifiable evidence backed by incontrovertible depositions in their affidavit evidence contrary to the objections raised by the defendant,” the judge said.

The court held, “These violations with impunity and reckless abandon were projected by the plaintiff,” adding that “the defendant merely based their arguments on the grounds that the plaintiff’s demands are not justiciable.”

In a stern tone, the judge held that, “dismantling barriers to women’s participation in public spheres has been achieved through progressive interpretation of municipal laws and international obligations and treaties. Formulating policies based on sex, stereotyping and feudal and patriarchal traditions will no longer be tolerated due to the supremacy of constitutional values.” He said the court was duty-bound to uphold “the 2006 Affirmative Action for women.”

“This court is not expected to achieve less for Nigerian women, since the constitutional obligation of this court is to apply the law. The two issues for determination are resolved in favour of the plaintiff,” the judge said.

After the verdict with the judge returning to the chambers, some gender balance activists burst into a jubilant mood, hugging one another and chanting solidarity songs. The Chief Executive Officer of the Nigerian Women Trust Fund, Mufuliat Fijabi, led other women’s rights activists in jubilation outside the courtroom.

“I am so happy that we get to witness today’s judgment in our lifetime in Nigeria. For us, this is a victory and we know that the government will acknowledge this and do the needful in terms of ensuring that we have a balanced system of governance that will bring about fast development for the country,” an elated Fijabi told journalists shortly after the judgment was delivered.

The judgment marks a step closer to victory for women who had been pushing against the rejection of gender-related bills by lawmakers in the ongoing constitution review process.

Recall that the lawmakers had voted against bills seeking to promote more opportunities for women in political parties and governance.

One of the bills titled ‘Act to Alter the Provisions of the Constitution of the Federal Republic of Nigeria, 1999 to Provide for Special Seat for Women in the National and State Houses of Assembly; and for Related Matters’, failed after 208 members out of 290 present, voted against it in March.

Since then, various women groups had occupied the gate of the National Assembly in protest against the rejection.

They had demanded that the federal lawmakers should take another look at the requests for 111 seats for women, citizenship, 35 per cent representation in party leadership, more appointive positions in government, and vote in favour of the amendments. Attachments area