‘Equally unequal or unequally equal’
| Author | Yinka Owoeye,Ebenezer Durojaye |
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| DOI | http://doi.org/10.1177/1358229117704039 |
| Subject Matter | Articles |
Article
‘Equally unequal or
unequally equal’:
Adopting a substantive
equality approach to
gender discrimination
in Nigeria
Ebenezer Durojaye
1
and Yinka Owoeye
2
Abstract
The purpose of this article is to critically assess the approach of Nigerian courts to
interpreting section 42 of the Constitution. This article argues that Nigerian courts are
yet to develop a substantive equality approach to interpreting section 42 of the Con-
stitution. Rather, the courts have tended to adopt the formal equality approach to
interpreting the section. Analysing some decisions of the Court of Appeal and the
Supreme Court, the article argues that in order to safeguard women’s rights and address
gender inequality in the country, Nigerian courts should lean towards substantive
equality approach to the interpretation of section 42 of the Constitution. This is not only
consistent with Nigeria’s obligations under international law but also crucial to
addressing historical imbalances between men and women in the country.
Keywords
Substantive equality, gender discrimination, Nigeria, Constitution
1
Dullah Omar Institute, University of the Western Cape, Cape Town, South Africa
2
Faculty of Law, University of Lagos, Lagos, Nigeria
Corresponding author:
Ebenezer Durojaye, Dullah Omar Institute, University of the Western Cape, Cape Town 7535,
South Africa.
Email: ebenezerdurojaye19@gmail.com
International Journalof
Discrimination and theLaw
2017, Vol. 17(2) 70–85
ªThe Author(s) 2017
Reprints and permission:
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DOI: 10.1177/1358229117704039
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Introduction
About two decades ago, the international community affirmed in Beijing that women’s
rights are human rights and that states are obligated to prevent discriminatory practices
that may impair women from enjoying their fundamental rights on equal basis with
men.
1
Since this affirmation, the international community has renewed its commitments
at addressing discrimination against women. This is reflected in the adoption of the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)
2
and the Protocol to the African Charter on the Rights of Women (African
Women’s Protocol).
3
More importantly, the recently adopted sustainable development
goals (SDGs) aim at eliminating gender in equality and promoting women’s right s.
4
Despite these positive developments, discriminatory practices against women stubbornly
persist in many parts of Africa, including Nigeria. Discriminatory practices against
women are reinforced by patriarchy and gender stereotypes. This is often exacerbated
by deep-rooted cultural practices that regard women as second class citizens and deprive
them of their basic rights. One of such cultural practices in the Eastern part of Nigeria
does not accord the female child the right to inherit from her deceased father. This age-
long controversial practi ce, sometimes referred to as the primogeniture system, has
become subject of litigation on different occasions before Nigerian courts. It has been
contended that this practice is inconsistent with Nigeria’s obligations under international
law and section 42 of the 1999 Constitution to address discrimination in all
ramifications.
The purpose of this article is to critically assess the approach of Nigerian courts to
interpreting section 42 of the Constitution. This article argues that Nigerian courts are yet
to develop a substantive equality approach to interpreting section 42 of the Constitution.
Rather, the courts have tended to adopt the formal equality approach to interpreting
section 42. Analysing some decisions of the Court of Appeal and the Supreme Court,
the article argues that in order to safeguard women’s rights and address gender inequality
in the country, Nigerian courts should lean towards substantive equality approach to the
interpretation of section 42 of the Constitution. This is not only consistent with Nigeria’s
obligations under international law but also crucial to addressing historical imbalances
between men and women in the country.
Cultural practices and gender discrimination in Nigeria
Cultural practices play an important role in the lives of many Nigerians. Some of these
practices may have implications for the enjoyment of women’s rights. Given the patri-
archal nature of many Nigerian societies, some cultu ral practices tend to perpetuate
inequality and undermine women’s fundamental rights. Gender discrimination and
stereotyping are fuelled by customary rules that construct boys and girls differently. For
instance, while in many cultures in Nigeria, a child is cherished and viewed as a blessing
from God, different importance is attached to male and female children. Among the
Igbos, it is believed that children perpetuate a race or lineage, and in order to do so,
children are expected to continue Igbo tradition and ways.
5
Therefore, a distinction is
made between a male and a female child, particularly with regard to inheritance matters.
Durojaye and Owoeye 71
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