How Nigerian constitution contradicts itself, discriminates against women

ONYEKA, a Nigerian, is married to an American woman. *Olayemi, another Nigerian, is married to a Ghanaian man. This looks like two Nigerians married to two foreigners, right?

Wrong!

In the eyes of the 1999 Constitution of the Federal Republic of Nigeria (2023 amendment), Olayemi cannot give her husband citizenship, but *Onyeka can. The reason for this discrimination is simple: Olayemi is female.

There are three ways of becoming a Nigerian citizen — citizenship by birth, citizenship by registration and citizenship by naturalisation, according to Sections 25, 26 and 27 of the constitution

For the citizenship-by-registration route, either you have a grandparent who is a Nigerian citizen, or you are married to a Nigerian, popularly referred to as ‘citizenship by marriage’.

For the latter, the constitution in section 26 subsection 2a expressly discriminated against women by recognising only marriage to Nigerian men – “any woman who is or has been married to a citizen of Nigeria” – as the way to obtain citizenship by marriage.

Olayemi tells The ICIR the divide is “unfair”. “I don’t think it’s fair,” she said. “What’s the essence of the man being able to give and the woman cannot?”

But there is an anticlimax. Olayemi’s husband lived in Nigeria long before the couple met and married, and he is not interested in Nigerian citizenship.

But she doesn’t care much for the discrepancy.

“I feel the woman too should be given equal opportunity,” she said. “If you are married to a non-citizen, by virtue of that, your husband should be able to apply for citizenship.”

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Nura Abubakar, who works in academia, describes the gendered discrimination as misogynistic. “That was really misogynistic. I never knew that.”

Onyeka was not aware of the Constitutional provision that discriminates against women until the interview. He was surprised and shocked.

“Is this true?” he asked. “Wow, this is freaking awful.”

The twist … 

Interestingly, this discrimination contradicts Section 42 of the Nigerian Constitution. The section gives Nigerian citizens a right to freedom from discrimination by outlawing discrimination on the basis of sex.

The section reads: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-

“(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or”

Furthermore, the B part of the section also states that one should not be accorded privilege on the basis of sex, like obtainable, in citizenship by marriage.

“(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions”.

The principal partner of Spectrum Legal Services, Saidu Mohammed Lawal, agrees that subject to the provision of dual citizenship, citizenship by marriage is discriminatory against Nigerian women. 

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He, however, notes that should such a woman seek legal remedy, the defence can argue that the section is discriminatory against non-Nigerian men “as it’s discriminatory against the man married to a Nigerian woman at the same it’s discriminatory against the Nigerian woman when she wants to make her husband a citizen”.

But Lawal pointed out that Section 42, which gives the right to freedom against discrimination, only applies to Nigerian citizens. Therefore, the man (non-Nigerian) cannot complain; however, the wife, on the other hand, can. 

Lawal said, “A very clear and reasonable interpretation is that it’s discriminatory because it does indirectly confer a right on Nigerian men—and since it does so, Nigerian women married to non-Nigerian men should also enjoy it.”

What can women do?

“The Supreme Court has ruled severally on the issue of citizenship and on the issue of discrimination,” said Onyekachi Umah, managing partner of Bezaleel Chambers.

“There shouldn’t be any difference when I marry or when a woman marries, so ordinarily, it means that whether a man marries or a woman marries, that apparatus of government should accord the same duties, rights and privileges to all. So, it is a problem of the Ministry of Interior.”

He suggested that people suffering from such discrimination—females married to foreigners—are the ones to approach the court for a pronouncement.

“The moment the court makes a pronouncement, that takes over because our laws are made first by the legislature and also the pronouncements of courts,” he said.

Umah explained that the government could only be accountable if citizens demand accountability.

“When we demand from the ministry of interior by going to court, the court will make an order. And the order of the court is binding on all parties,” he said.

“Then we can start talking of Constitutional amendments.”

Attempt at constitutional amendment 

Last year, women’s groups and civil rights organisations attempted to get the law amended. It was one of the five gender bills submitted for a constitutional amendment. However, the bill, known as ‘Bill 36’, did not scale through the lower house of the legislature. 

“The House of Representatives rescinds decisions on three women-related bills for re-consideration. They are the bills on citizenship, indigeneship and 35% affirmative action for women. The bills failed to secure the mandatory two-thirds votes to pass during voting on the proposed amendments to the constitution,” the lower chamber stated via the official Twitter handle.

The lawmakers had initially rejected the five gender bills but opted for re-consideration following protests across several locations in Nigeria.

At a press briefing in Abuja, civil rights activist Abiola Akinyode-Afolabi said women would continue to pressure the legislators over the rejected bills.

“We also urge all Nigerians, especially women, not to give up hope as we shall continue to apply pressure to persuade the NASS to act responsibly,” she said.

“Citizenship by registration in Nigeria, as it stands, is very biased towards the female gender,” writes Babatunde Christian Denton of the City Law Associates in reaction to Bill 36 rejection.

He added: “The issue of culture and religion has also made it difficult for those who create laws in the country to allow male spouses of Nigerian women to obtain citizenship through their wives. Nevertheless, continuous pressure on the legislators should yield positive results and a change in policy.”

Nigeria immigration: long history of institutional discrimination against women 

Immigration biases against women are not new. The Nigeria Immigration Service, even before 2009, required married women to obtain written consent from their husbands before applying for an international passport.

However, this policy changed only after Priye Iyalla-Amadi, wife of the celebrated author Elechi Amadi, challenged the NIS. Her legal team, leaning on Section 42 of the Constitution, argued that the policy was contrary to the fundamental human rights of married women since no person is to be discriminated against because of their sex.

The discrimination is not on marriage as men were not required to present written consent from their wives. 

She argued that she was mature enough to apply for a passport without anyone’s consent since that condition was meant for minors.

The judge, G. K. Olotu, ruled that the NIS position violated Constitutional provisions in Section 42. It also violated Section 18 (3) of the African Charter on Human and Peoples’ Rights, of which Nigeria is a signatory.

Shortly after Iyalla-Amadi’s victory, in 2010, a Nigerian woman at the Nigeria South African consulate was told she could not apply for her children to get passports without their father’s consent.

More recently, in 2023, several women signed a petition against such discrimination as they were asked to produce written consent from the fathers of their children – this is despite the NIS policy, which states that consent from either parent would suffice –  alluding to an entrenched institutional discrimination against women.

In all of this, what is the Ministry of Women’s Affairs doing? A message sent to the spokesperson Olujimi Oyetomi is yet to receive any response. It was followed by calls, after which Oyetomi asked that the question should be written and sent to the ministry. There is no email address on the ministry’s website; therefore, the question was sent via the contact form on the website.  

Umah, the principal partner at Bezaleel Chambers, writing about the situation, noted: “At this point, the Constitution of Nigeria, being the hunter of the violators and perpetrators of discrimination in Nigeria, should be hunted via Constitutional amendment over its discrimination in citizenship by registration.”




     

     

    Gender discrimination being treated less favourably because of an individual’s gender is stacked against women who are constantly jumping one hurdle after the other in Nigeria. 

    Onyeka, the Nigerian married to an American after learning that married women were once required to produce a letter of consent from their husband to obtain an international passport, remarked, “I never knew women dealt with and are still dealing with such unforgivable suffering and humiliation.”

    Note: Names with asterisks means a single name of source was used.

    *This report was supported by the Wole Soyinka Center for Investigative Journalism (WSCIJ) under its Report Women! Female Reporters Leadership Programme (FRLP), champion building edition.










    Bamas Victoria is a multimedia journalist resident in Nigeria.

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