ENFORCEMENT GAPS IN THE PROTECTION OF WIDOW’SCONSTITUTIONAL RIGHT UNDER NIGERIAN LAW.

After the death of the husband, widowhood is seen as a vile situation which befalls women in the society. It is the period of being a widow[1]. It  goes with the mourning of the loss of ones loved one which includes abuse of the sexual and human right such as shaving of the woman’s hair.[2]   Thus, the harmful practices associated with widowhood tend to dehumanize women and leaves a traumatic and painful experience all over the world especially in the case of Nigeria where a lot of loathsome rituals are being practiced.[3]

In different societies, the stigma women go through after the death of their husband tends to be dreadful as she becomes an object of maltreatment. The widow’s status changes from womanhood to widowhood and is usually degraded by some cultural norms which involve varying degree of physical hardship, deprivation, emotional instability etc. Also, the children are less secured as it relates to sharing in their mother’s pain particularly the young ones.[4] Although, the 1999 constitution has altered some aspect of it to accommodate global change such as sec 34 of the constitution[5] which guarantees the right to dignity and sec 42 which guarantees freedom from discrimination.[6] Also, sec 37 which emphasize on the right to property.[7] Unfortunately, these protections remain theoretical as such laws suffer from weak enforcement.

CONSTITUTIONAL AND LEGAL FRAMEWORK FOR THE PROTECTION OF WIDOWS.

It is evident that widowhood practices and rituals have serious effects on women’s fundamental rights and freedom as these practices encroaches on their rights to dignity, nondiscrimination and equality, health and life which has been enacted to protect women’s right in the context of harmful practices under the Nigerian constitution. Though, Nigerian has adopted international and regional human rights instruments which protect human rights. These laws tend to focus on respecting and protecting human rights and this includes women’s right.[8]

One of the right that widowhood ritual infringe on is the right to dignity which is appreciated by all individuals and has been identified almost all regional and international human right instruments. Human Dignity refers to the inherent worth and value of every human being irrespective of gender, social status or marital condition. Thus, Article 1 of the Universal Declaration on Human Rights(UDHR) states that recognizing the dignity and inalienable right of individuals is the basis of freedom, justice in the world and this is seen in the case of Fawehinmi v Akilu[9]where Justice Oputa reinforce the same thing.[10] It is also recognized in article 7 of the International Covenant on Civil and Political Rights (ICCPR) which state no one should be subjected to anything without his consent and as such should be treated in humane ways. Therefore, widows should be treated fairly and not in a degrading manner, and such degrading widowhood rituals should be scraped out from the community.[11]

Article 5 of the African Charter also provides for individual’s right to dignity. It states that “Every individual shall have the right to the respect of the dignity inherent in a human to the recognition of his legal status” Thus it forbids all forms of inhumane treatment against any individual. Also, Article 3 of the African Women’s Protocol guarantees women’s rights to human dignity. It means that every woman has the right to be respected as a person and to the free development of her personality.[12] Also, this aligns with sec 34 of Nigerian constitution. This section state that one shall not be subjected to torture or degrading treatment and as such the government is put in place to ensure that this laws are being carried out. In the case of widows, the continued subjection of widows to such treatment diminishes their self-worth and thus negates the very essence of constitutional democracy. This is seen in the case of Mojekwu v Mojekwu[13] where the court of appeal condemned the oil ekpe custom of Nnewi which prevented female inheritance as being repugnant to natural justice, equity and good conscience. It is also seen in the case of Ukeje v Ukeje[14] where the supreme court struck down the Igbo customary law that disinherited female children, reaffirming such practices as unconstitutional.

Another issue regarding widowhood is the issue of gender in equality and the low status of women in the community. This has been enshrined in all human right instruments, such as Article 2 of the International Covenant on Civil and Political Rights and Article 1 of CEDAW  which defined discrimination against women[15]. This definition embodies the concept of substantial equality. Thus, the committee’s main aim is to eradicate discrimination between men and women by guaranteeing equality between men and women. Hence, the committee enjoins the use of the word ‘equality’ rather than ‘equity’[16].  Sec 42 of the constitution also provide for the right to freedom from discrimination. It state that discriminatory practices against individuals based on the prohibited grounds are forbidden and this should be read with sec 1(3) of the constitution which emphasize on the supremacy of the constitution. Thus, any law which is inconsistent with the constitution shall be rendered null and void. Therefore, any adoption of cultural practice which discriminates against women will be in violation of the provision of the constitution.[17] Thus, in Asika and others v Atunaya[18] while addressing a similar customary practice has held as follows: It seems that these provisions especially the provision as contained in Section 42 (2) of the Constitution indeed is so specific and categorical

WIDOWHOOD PRACTICES AND VIOLATION OF DIGNITY.

In Nigeria, there are different traditional practices that are contrary to natural justice, equity and good conscience and these traditional practices such as the widowhood rites infringes on women’s right as they are compelled to undergo rites that symbolizes ‘purification’ or ‘loyalty’ to her late husband and this includes shaving of her hair; force to drink the water used in washing her late husband’s corpse; denial of inheritance rights and many others. Thus, this acts amount to degrading treatments and are inconsistent with Article 4(1) of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the ICCPR and Article 1 of the Universal Declaration on Human Rights (UDHR). This has been displayed in the case of Mojekwu v Mojekwu; Ukeje v Ukeje where the court struck down the Igbo customary law that excluded women from inheritance. [19]

THE ENFORCEMENT GAP IN THE PROTECTION OF WIDOW’S CONSTITUTIONAL RIGHTS UNDER THE NIGERIAN LAW.

Despite the constitutional prohibition on degrading treatment and discrimination, there still exist harmful cultural practices due to the weak enforcement mechanism, to sanction violators of widow’s right and limited access to justice for victims who seeks redress in court.

One way in ensuring that constitutional rights are effectively protected is on the issue of strengthening and reforming the legal framework. Thus, the law should be revised so as to accommodate widow’s right. The law only provided human rights protection under sec 34(Right to Dignity) and 42(freedom from discrimination)of the constitution. Unfortunately, there is no specific legislation addressing the right of widow or criminalizing the harmful practices faced by widows. Thus, even though some states has made gender based laws, such laws are not in uniform thus making it difficult to hold the perpetrators accountable. Also, guaranteeing that international women’s right is accepted and implemented in the state and local grassroots levels will give legal coverage to women in Nigeria which is seen where The African Charter on Human and People’ Rights imposes an obligation on Nigeria to eliminate practices that undermine human dignity. Thus, agencies such as National Human Right Commission (NHRC) or Federal and State Ministries of Women Affairs which lacks adequate resources and manpower to monitor and prosecute violators should be more effective and not only respond to situations when it has gain public attention[20] Also, the domestic laws should align with international human right standards and facilitate the domestication of relevant agreements. [21]

Another issue as regards to the enforcement of widow s right is the issue of customary and statutory law friction. Court sometimes apply customary laws instead of the enacted law by the state and this is as a result of the deep legitimacy among local population. Thus, even though sec 1(3) of the constitution renders any law void that is inconsistent with the constitution, cultural attachments and social pressure prevents widows’ from rejecting degrading customs. Also, many communities practiced patriarchy and as such make use of the customary laws to subordinate women. Hence, the need for empowering women as enlightening women to their right teaches them to stop and avoid any discriminatory attitude and foster culture of respect and equality.[22]

Another means of protecting Widows right is in addressing socio economies barriers to justice.  Many widows are intimidated by court processes and as such makes them yield to the degrading treatment rather than seek redress in court. Therefore, measures should be made to enhance access to legal remedies which is usually achieved through the provision of low cost or free legal aid service coupled with awareness to inform them of their rights. Thus, addressing such issues aims at reducing social disparity and ensures that everyone has equal opportunity to seek redress[23] Also, courts that has jurisdiction to hear matrimonial affairs should be set up and widows should be sensitized on how to make use of these courts in protecting themselves from dehumanizing widowhood rites. Hence, there should be judges who are widows as they will be best suited to appreciate and therefore protects widows from degrading widowhood rites.[24]

The enforcement gap in protecting widows in Nigeria doesn’t come from the absence of law but from a failure of implementation. Thus, bridging this gap requires an approach that transforms constitutional promise of dignity and equality into enforceable realities for Nigerian widows and through these measures, the constitutional right moves from abstract recognition to practical protection. Therefore, courts should interprets the constitution as capable of dismantling patriarchal legacies and the legislature must codify widows protections explicitly and only then shall the status of equality become a livid realities for Nigerian Widows.

Reference(S):

[1] Foluso AF, ‘Gender Based Sexual Violence among Nigerian Widows: Implication for HIV Transmission’ (2011) 3(2) Current Research Journal of Social Sciences 139–145.

[2]Frances Opubo Idoniboyeobu and Georgy Obiechina, ‘Widowhood Practices, Implication and Rights of Women in Nigeria: Need for Intervention’ (2018) 26(2) Journal of Education in Developing Areas (JEDA)..

[3] C Odimegwu and C N Okemgbo, ‘Gender Role Ideologies and Prevalence of Violence Against Women in Imo State, Nigeria’ (2003) 5 Anthropologist 225.

[4] Idoniboyeobu and Obiechina (n 2)

[5] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 34.

[6] Ibid

[7] Ibid

[8] Ebenezer Durojaye, ‘Woman, but not Human: Widowhood Practices and Human Rights Violations in Nigeria’ (2013) 27(2) International Journal of Law, Policy and the Family 176, doi:10.1093/lawfam/ebt001

[9] (1987) 4 NWLR (Pt 67) 797 (SC).

[10] Universal Declaration of Human Rights, adopted 10 December 1948, UNGA Res 217 A (III), UN Doc A/810

[11] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

[12] Ebenezer Durojaye (n 8)

[13] (1997) 7 NWLR (Pt 512) 283 (CA).

[14] (2014) 11 NWLR (Pt 1418) 384 (SC).

[15] Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.

[16] CEDAW, Concluding Observations to the Combined Third, Fourth and Fifth Periodic Reports of Paraguay (15 February 2005) CEDAW/C/PAR/CO/3–5, para 23.

[17] Ebenezer Durojaye (n 8)

[18] Unreported, Suit No CA/E/2006 (Court of Appeal, 24 January 2008).

[19] Idoniboyeobu and Obiechina (n 2)

[20] Jennifer Heaven Mike, ‘A Concise Guide to Women’s Rights and Legal Protection in Nigeria’ (2024) 8(2) African Journal of Law and Human Rights (AJLHR). 

[21] Nkechinyere Huomachi Worluh-Okolie and Chukwudemebi Okoye Joseph-Asoh, ‘Legal and Institutional Frameworks for Human Rights Protection in Nigeria: Challenges and Pathways to Effective Enforcement’ (2024) 1(2) Fountain University Law Journal (FULAJ) 200–219 https://fountainjournals.com/index.php/FULAJ/index

[22] Jennifer Heaven Mike, ‘A Concise Guide to Women’s Rights and Legal Protection in Nigeria’ (2024) 8(2) African Journal of Law and Human Rights (AJLHR).

[23] Ibid

[24] Idoniboyeobu and Obiechina (n 2)