Affirmative Action: Court orders Nigerian govt to reserve 35% of public offices for women

The Federal High Court in Abuja, on Wednesday, ordered the federal government to enforce the National Gender Policy by allotting 35 per cent of appointments in the public sector to women.

A nongovernmental organisation, Women in Politics Forum (WIPF), filed the suit against the Nigerian government, seeking the implementation of the 35 per cent Affirmative Action in appointments of women into public office.

Delivering his judgement on the suit on Wednesday, the judge, Donatus Okorowo, 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, Terhemba Agbe, who had argued 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, the judge upheld the plaintiff’s contention to the effect “that of all the 44 ministries, there are only about six female gender, and that the situation is worse in other MDAs and agencies.”

Mr 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,” Mr Okorowo said.

The judge 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 “the defendant merely based their arguments on the grounds that the plaintiff’s demands are not justiceable.”

In a stern tone, the judge held, “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 noted.

Mr Okorowo 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 declared.

PREMIUM TIMES reported how the court conducted the final hearing on the suit in January and fixed March 30 for judgement. The court later rescheduled the verdict for today, Wednesday.

Plaintiff’s arguments

WIPF had filed the suit through its lawyer, Funmi Falana, who argued during 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,” Mrs Falana, counsel for the group, argued in her written address filed on September 29, 2021.

The lawyer added, “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.”

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She cited section 14(3) of the Nigerian Constitution to back her call for the enforcement of the NGP.

She 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.”

She 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.”

Mrs Falana said 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,” Mrs Falana added.

She added 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 convention which means these laws are binding on Nigeria.

Mrs 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 defendant has argued that the policy is not a law. But the court has ruled that government is bound by their policies and they will be ‘extolled’ for denying the people of the benefit of such policies,” Mrs Falana argued.

She 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.”

Defence

The defence lawyer, Terhemba Agbe, in his address, 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, and 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,” Mr Agbe said.

Further reply by plaintiff

Mrs Falana replied the defence’s argument that when a provision under chapter 2 can be linked to any provision under chapter 4 or any other provision in the constitution, it becomes incidental and justiciable.

“The right to health is not justiceable until it is linked to right to life,” Mrs Falana added.

WIPF

WIPF is a non-partisan forum for women used for addressing women’s marginalisation in politics and decision-making. It also recognises the significance of unity.

The forum which was created in 2011 is also working to increase the voice and capabilities of female politicians, groups, and individuals working to influence and advocate women’s participation in the political process, in order to achieve a more equitable society and democratic governance for women.

Women group applaud verdict

Meanwhile, as the judge receded to chambers after delivering the verdict on Wednesday, some gender balance activists burst into a jubilant mood, hugging one another and chanting solidarity songs.

Mufuliat Fijabi of Nigerian Women Trust Fund and Ebere Ifendu, led other women’s rights activists in jubilation outside the courtroom.

“I am so happy that we get to witness today’s judgement in our lifetime in Nigeria,” elated Ms Fijabi told journalists shortly after the judgement was delivered.