Feminist Evaluation, Reflections and Conclusion in African
Evaluation of Feminist Jurisprudence
In the last decades, there have been positive changes in social attitudes toward the role of women as well as some improvements in some aspects of women’s position. However women still suffer some discrimination in many areas of their lives especially in the developing countries. The improvements no doubt can be attributed to the effort of the feminists’ movements. This however would not justify a failure to critically examine some conceptual problems and shortcomings of the various feminists’ movements.
Feminists believe that women and men are autonomous being whose rights should be respected regardless of sex. However there are some problems that occur when liberal feminist theory is applied. Autonomy is an objective, yet liberal feminists are critical of women’s desires when they do not fit the liberal feminist ideal. Liberal feminists believe that a woman should be able to freely pursue any goal as long as it does not infringe on other’s right: but what happens when a woman’s ultimate goal is taking care of her house and children? A feminist might suggest that this woman is performing a socially constructed gender role, which in itself denies her autonomy. Some Liberal Feminists would like to professionalize unpaid work. Liberal Feminists do not demand that these women go out and get intellectual jobs, unless that fulfills their autonomy. The main concern though is that women’s desires may reflect their socially depicted roles to make them want to accept their subordinate roles instead of truly developing the rational capacities. This could be done by paying someone to raise children as opposed to working. Another problem stems from Liberal Feminists goal that people should not be judged by their gender, age, or race, while they conversely believe that women should be appreciated for their power to bear children. These two convictions contradict one another and create problems in the Liberal Feminists ideology. Because Liberal Feminists want the state to enforce equal opportunities many feel they would only be accepted for the reasons of equal opportunities, and not on merit. These are some of the main problems with the Liberal Feminist ideology when applied to every day life.
Radical Feminists reject dualism. They see people as biological beings not as mind housed in bodies. Due to their belief in biological determinism, many adhere to the view that men and women have predetermined roles. However, this conception of gender roles leads to the belief that the relationship between man and woman is determined by biology: men will always dominate woman in a bi-gender society. The Radical Feminists belief that women will always be powerless victims of men confirms the patriarchal conception of women: they are innately weak and passive, so they are unable to combat their male oppression.
Radical Feminism’s pessimistic view of the potential for male- female relations is limiting for both genders. Many Radical Feminists view men as the creators of culture and women as beings ruled by culture. This gives men undue credit for the creation of civilization. In addition, Radical Feminism’s perception of gender roles as fixed ignores human individuality. Their analysis of gender relations leads to believe that women will only achieve autonomy in a society that excludes men.
The ideal of many Radical Feminists is complete separatism from men so they advocate lesbian life style. Separatism is problematic for several reasons. First, because practicing lesbianism is seen as the only way to be a true feminist, women who have connections to men are excluded. In establishing lesbianism as the only viable option for true feminists, radical feminism fails to give women full control over their sexuality. It denies the importance of racial, cultural and class distinctions between women. The failure of Radical Feminism to acknowledge the importance of these differences drives away most women who are not white and middle class by refusing to acknowledge women’s varying experiences of oppression.
A major problem of Postmodern Feminism is its seeming identification of women with the feminine and the biological body. Many view Postmodern Feminism as valorizing women and the feminine over male and masculine. However, most of the criticism in this vein simplifies Postmodern Feminism. As we have noted, there are widely varying viewpoints within this theoretical framework. While this diversity is seen as empowering by some feminists, many are concerned with the potential loss of feminists community. With no essential philosophy accepted by all feminists, it is difficult to make political action.
Against all these, some of the practical contributions of the Feminists school, leaving aside its extreme manifestations have had lasting effect. It provided the great stimulus to the Feministic study of law and institutions hereby helping to generate national and International attention to the role and status of women and the problems militating against their development. Arguably, nowhere else more than in the field of human rights has the impact of feminist jurisprudence been felt. Here, feminist jurisprudence has found space not only for its discourses to be accommodated but also for political engagement to the end of justice for women, its ultimate purpose. Feminism which is a mixed bag of theorising and politics found in the emergent human rights discourse and movement, much room for both theorising and political action.
Feminist discourses have challenged conceptual bases of the public private divide of law and as well as international law. Human rights law challenges the traditional scope of international law but women’s rights theorising goes even further in its challenge. As Christine Bell observes, many of the significant developments in the international arena would certainly not have been possible without a degree of theorisation such as feminist legal theories provided. The notion of positive non-discrimination obligations, which are strongly affirmed in CEDAW blurred the public/private distinction of international law by providing for a more extensive notion of State responsibility.
Arguably, the most profound instances of this radical influence are to be found in the recognition of violence against women as a violation of human rights and affirmation of reproductive rights, which includes the right of women to safe motherhood as human rights. Feminist legal theories demonstrated human rights law’s androgynous foundations and nature by eliciting differences between the nature of violence that women are more likely to suffer and the low level of law’s response to this as against its ‘tentacled’ response to violence that men are more likely to suffer from.
Violence against women within their homes may ‘feel’ like a human rights violation to women, but giving it a basis as an international law claim required at least some theorising about the distinctions international law draws between state and non-state action…The subsequent extension of discrimination to include violence against women had clear theoretical underpinnings through work such as that of Catherine Mackinnon and others.
Feminist legal theorising has led to the development of the content of human rights treaties through the principle of ‘subsequent practice” which enables adding a gender dimension to instruments that were primarily designed by men in a male oriented world. Essentially, this has been effected through the “recharacterisation’ of rights. While sex is prohibited as a ground for discrimination in the instruments which make up the International Bill of Human Rights, namely the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social, and Cultural Rights, the latter in time Women’s Convection (that is CEDAW), develops legal norms from a woman’s perspective. In the words of Celina Romany, ‘this Convention moves from a sex neutral norm that requires equal treatment of men and women, usually measured by how men are treated, to recognise that the particular nature of discrimination against women merits a legal response. The Women’s Convention progresses beyond earlier human rights convections by addressing the pervasive and systematic nature of discrimination against women, identifies the need to confront the social causes of women’s inequality by addressing “all forms” of discrimination that women suffer. This Convention is thereby able to address the particular nature of women’s disadvantages.
Within the last two decades, many conferences had been organized by the UN on women. Nigeria as a nation had participated in some of these event though the situation of the Nigerian woman had not greatly improved. At the same time, new actions outside the structures of government have emerged in this arena of development. The most significant is the civil society which has given rise to non – governmental organizations, whose objective is to enable the people to help themselves in those areas where government, either through negligence or lack of resources has been unable to meet the need of it’s citizens. Through their programs they complement government’s efforts and point to those areas of needs which should command the attention of government. Together with the United Nations Agencies and bilateral organizations these new actors provide new and interesting perspective to the issue of women and development.
A major break through came in the mid 70’s with the declaration of 1975 – 1986 as the decade of women by the United Nations Organization. Since then several important conferences have been held in different parts of the globe and under various auspices to advance the course of women towards equality and empowerment, the most recent is the Beijing Conference of September 1995, whose Platform of Action has provided the basis of national action in many countries of the world.
Beijing Conference is a significant milestone in the articulation and publicisation of women’s right. The conference identified the critical areas of concern to women, which can be compartmentalised into: civil, culture, economic, political and social rights. It observed that:
The advancement of women and the achievement of equality between women and men are a matter of human rights and a condition for social justice and should not be seen in isolation as a woman’s issue. They are the only way to build a sustainable, just and developed society. Empowerment of women and equality between women and men are prerequisites for achieving political, social, economic, cultural and environment security among all peoples.
The Beijing Conference had two main goals which were to adopt a platform for action that UN member states will implement; and to highlight women’s vision and strategy for the world in the 21st century. The Nigerian government participates in the conference that approved the platform for Action and the Beijing Declaration.
In fact Nigeria’s delegation both governmental and non-governmental was about the largest from one country. In the stock taking after the Beijing conference, it may be necessary to consider whether the number of Nigerian participants reflected the quality and level of awareness of women’s right by the participants/delegates. Was it for us a mere jamboree? Whether Nigerian Women’s concern particularly grassroots women who did not have the opportunity to attend were carried to Beijing?
Before the Beijing Conference, Nigerian government took certain steps towards mainstreaming gender issues. Notable amongst them is the constitutional guaranteed rights as outlined in Chapter IV of the 1979 Constitution of the Federal Republic of Nigeria. In particular; Section 39 of the Constitution gives everyone right to freedom from discrimination on grounds of sex amongst other infinite factors. Thus women are citizens of this country and are entitled to all their rights and can challenge anybody who attempts to interfere with the exercise of any of the recognised rights in the constitution. Apart from this, and other national laws, which protect women’s right, Nigeria is a party to African Charter on Human and Peoples Right, a regional human rights instrument and also Convention on Elimination of all Forms of Discrimination Against Women (CEDAW). Both instruments prohibit sex-based discrimination. In being a party to regional and international human rights instrument recognising women’s right, Nigeria has shown that it is very much part of the global action.
Another step in the right direction for women’s advancement in Nigeria was the establishment in 1989 of the National Commission for Women as a means for promoting, the full integration of women in development and for eliminating discrimination on grounds of sex.
The year 1993 and 1995 witnessed the establishment of the Ministry of Women’s Affair and National Commission on Human Rights respectively. These government structures are geared towards promotion and protection of women’s right.
Furthermore, other programmes have been embarked on by the head of states wives to put women issues on national agenda. Two examples of these programmes are the Better Life for Rural Women (BLP) initiated by Maryam Babangida, wife of the former Nigerian President Ibrahim Babangida and the Family Support Programme (FSP) embarked upon also by the former president’s wife – Maryam Abacha lunched on November, 1995. Despite the above efforts by the government in creating structures for advancement of women, not much has been achieved in terms of de facto equality. The issues to be addressed are the problems that impede actualisation of women’s human rights.
Reflections and Conclusion
In this essay we have taken a critical look at the origin, nature and development of Feminists Jurisprudence. We have also critically examined the various schools of Feminists Jurisprudence – both major and minor schools. Furthermore, we have examined some areas of the Nigerian Legal System touching the women.
Apart from law, other factors, socio – cultural, religious and educational etc. greatly contributed to the relegation of Nigerian women to the background. Unless these areas are also addressed, attempts at legislative and judicial interventions may not yield the desired effect. Nigerian women must also be determined to stop this unacceptable level of discrimination.
Since the erstwhile discriminatory laws, customs and cultures were made by male, it follows that the first step in the process of change will be for our women (and there are now many highly educated ones among them) to be politically and socially active. They must strive to be properly represented in our legislative assemblies where the laws governing their lives are made. This will go a long way to repair the devastating dislocation of sexism and restore the unity of humanness made up of its male and female correlative. Thus the latent and hidden talents of the female, hitherto suppressed by sexism, will be liberated for the development of our civilisation and its possibilities for perdurance.
There are ample constitutional provisions giving women equal rights and prohibiting discrimination on the ground of sex. The problem then is the non-implementation of those laws guaranteeing women equal treatment. Women suffer various disabilities under the heavy yoke of which they groan, especially their inability to have access to funds because they are women and the generalised poverty of most rural and urban women. It becomes a compelled necessity, therefore, that the federal, States and Local governments encourage income-generating activities by women. Bearing in mind the various prejudices against women, the government should formulate clear strategies and policies specifically reserving percentage representation for women in the various legislative assemblies.
In this race for development, no one can conveniently be left out. That will amount to downright injustice and to discrimination, both of which our constitution prohibits. Development as a concept should be broad enough to embrace economic progress, social advancement, political participation, and cultural upliftment. Proper and balanced development pays particular attention to those (like women and children) who have historically and structurally been victims of continued discrimination or social and economic exploitation.
Our law has to insist on social justice by clearing all the cobwebs of in built prejudices against women and children, which have all along formed the main props of structural injustices. Our law has to assist in the task of equitable distribution of the resources generated by growth and economic development to ensure that the benefits of development do not remain confined to a “fortunate” few.
Our law has to ensure more justice for the poor and under privileged, for women and children, if necessary, by preferential affirmative action. If we succeed in achieving either parity or equity in the treatment of our rural poor, our women and children, then our law would have made a significant in road into translating into reality the sublime pledge of our constitution “of promoting the welfare of all persons in our country on the principles of freedom, equality and justice.” The performance of this role is necessary for the legitimacy of law in our country.
It is now imperative that legislation be passed to put the marriageable age of young girls at 18 years, to make unlawful the circumcision of young girls. It is imperative that a vigorous campaign be mounted to educate our people on the urgent and pressing need to do away with the various obnoxious customs tradition and practices which pose considerable health hazards to our women, in addition to dehumanising and depersonalising them. To this end, there is need for the establishment of special courts vested with power and authority to declare these obnoxious customs and practices now invalid, null and void.
The following amendments to the Constitution is imperative if Nigeria is to become a gender neutral society: First, sections 25-23 should be amended so that any man (foreigner) who is or has been married to a Nigerian woman will be eligible for citizenship by registration just as any woman who is or has been married to a Nigeria man is eligible for citizenship by registration.
Second, there should be a clear provision in the constitution affirming gender equality and non-discrimination based on sex. There should be a provision prohibiting any culture, custom or tradition, which is against human dignity. In this regard, section 42 should be amended as follows: All persons are equal before and under the law in all spheres of politics, economic, social, cultural life and in every other respect and shall enjoy equal protection of the law.
Third, there should be a clear affirmative action clause. A proviso should be added to section 42 that Notwithstanding any thing in the constitution, the state shall take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or culture, for the purpose of redressing imbalances which exist against them. At least 30 percent of all elective and appointive positions should be reserved for women.
Fifth, section 34 on the right to the dignity of the human person should be strengthened. Subsection (a) should read No person shall be subjected to torture or to inhuman or degrading treatment whatsoever ; the subjection of any man, woman or child to torture, or degrading treatment on the basis of culture, custom, tradition or religion shall be prohibited. Subsection (d) should be added and it should read No person shall be subjected to any law, culture, custom, tradition, religion or gender practice which undermines his or her dignity, welfare or interests.
Sixth, section 37 on the right to private and family life should be strengthened. It should contain the following subsections: (1) In recognition of the fundamental importance of reproduction to the continuity of family life, the state shall ensure that every pregnant woman shall have free access to pre-natal, and post natal care, (2) Men and Women at the age of 18 years and above shall have the right to marry and found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. The minimum age of marriage shall be 18 years, (3) The National Assembly shall make appropriate laws for the protection of the rights of widows and widowers to inherit property of their diseased spouses and to enjoy parental rights over their children, (4) Marriage shall be entered into with free consent of the man and woman intending to marry, (5) It is the right and duty of parents to care for and bring up their children irrespective of marital status, (6) Children may not be separated from their families or other persons entitled to bring them up against their own will or the will of their families except in accordance with the law, (7) Male and female children shall have equal rights to inheritance, (8) The rights in this section shall not be exercised in a manner inconsistent with any provisions of the constitution.
The introduction of electoral politics in Nigeria in the 1920’s ensured that women were disenfranchised as colonial officials regarded only men as heads of families and controllers of production. It was not until 1959 that women were given the right to vote in southern Nigeria. It was therefore not surprising but only logical that no woman was elected into the government at independence and only two women were nominated as senators. This situation even at the moment has not significantly change as there was only marginal increase in the number of women in elective and appointive political positions either as legislators or as members of the executive. While the challenge of the continuing marginalisation of women in Nigerian politics is therefore that of devising appropriate strategies and tactics for eliciting the enthusiasm and concerted efforts of both male and female members of the society for the goal of enhancing the participation of women in politics, we would advocate that when reviewing the constitution this provision should be inserted:
“For Nigeria to take it’s proper place among other nations. It is hereby provided that 1/3 of all appointable and elective posts be reserved for women at the federal, state and local government levels”