Tayo Agunbiade
The inclusion of women’s voices in constitution-making has long been identified as one of the effective routes towards the attainment of gender equality; however, in reality, this ideal is not as straightforward as it sounds. Over the years, several constitution assessment projects have found that women’s voices have continued to be marginalised in constitution-building, and this negatively impacts gender equality. Former United Nations High Commissioner for Human Rights, Mary Robinson, is quoted in the 2016 Constitution Assessment for Women’s Equality Report saying: ‘Effective participatory constitution-making has to provide for women’s equal representation in the process and outcome. No process which excludes or marginalises the majority of the population can be representative.’
Nigeria serves as an example of a country with a long history of marginalising its women in constitutional reform, which in turn has left them on the periphery of political and public decision-making.
However, in March, its National Assembly called for the submission of memoranda for another Constitution Review exercise. So far, this perennial review process to introduce a fresh set of alterations to the 1999 Constitution (as amended) has not favoured women’s rights and freedoms. At the last constitutional review in 2022, scores of women’s groups nationwide presented their memoranda on women’s rights and a catalogue of what became known as ‘the five gender bills’ evolved. Unfortunately, during the final round of discussions, out of the 469 lawmakers seated in the chamber, only twenty-one were women. The outcry was predictable. One news headline said: ‘Condemnation of the National Assembly’s Rejection of Bills seeking Gender Equality.’
The reason why Nigeria’s 1999 constitution (as amended) still does not include women’s rights and freedoms is steeped in a history of patriarchal norms.
In 1975, the Federal Military Government of Nigeria inaugurated an all-male constitution drafting committee (CDC). The members of the CDC who were dubbed the ‘49 wisemen’ by the press, were charged with the responsibility of producing a Constitution in time for Nigeria’s Second Republic which had been scheduled to commence on October 1, 1979.
Although three women – Keziah Awosika, Kemi Ajayi and Laide Soyinka – criticised the lack of women’s inclusion, their concerns were disregarded by the Head of State, General Murtala Muhammed, who in his speech at the inauguration of the CDC said:
I observe from comments in the news that your appointment as a committee needs some clarification. Members of the committee were selected, first, on the basis of two per state, so as to obtain as wide a geographical coverage as possible, and secondly, from our learned men in disciplines considered to have direct relevance to constitution-making, namely: history, law, economics and other social sciences, especially political science. Eminent Nigerians with some experience in constitution-making were brought in to complete the spectrum. It is not possible within such a small group to include all shades of opinion and all interests. Nor is this necessary! It is enough to ensure that all broad areas of interest and expertise are brought into the committee, and I am satisfied that members of this committee gathered here today represent a cross-section of opinions in this country that can be trusted to do a good job.
Coincidentally, this exercise took place at the onset of the Decade for Women, an initiative by the United Nations for “the promotion of equal rights and opportunities for women around the world.” Still, this women-centred global phenomenon did not influence the text drafted by the committee.
Indeed, the provisions and wordings (including the pronouns) of the resulting document have been the bane of Nigerian women and have formed the core of all other constitutions, i.e. 1995, 1998, as well as the current 1999 constitution. It must be stated that apart from women’s exclusion in the drafting of this fundamental constitution, over the years, they have also been largely excluded from the technical processes created to review the legal document.
Historically, only a token number of women have participated in the bodies, such as the Constituent Assemblies and Constitution Review Committees created to discuss the sections of the Constitution. Take for example, the first Constituent Assembly which convened in 1978 to deliberate on the draft produced by the ‘49 Wise Men’, of the 230 members, there were only five women. Unsurprisingly, the document sailed through and went on to become Nigeria’s Supreme Law in 1979.
In 1988, under General Ibrahim Babangida, only six out of the forty-member Constitution Review Committee were women, whilst the 567-member Constituent Assembly had fourteen women delegates.
The next main National Conference, convened by General Sani Abacha in 1994/95, revealed a far more cynical method to curtail women’s voices. Apart from the fact that of the 369 delegates, only eight were women, the exclusion of their voices was also formalised through their absence from the sub-committees set up during the Conference. In most of the committees set up on national issues such as: Political and Framework of the Constitution, Executive, Judiciary, Law and Order and National Security, National Defence, Revenue Allocation, Power Sharing, Legislatures and Legislative Lists, and Elections and Electoral process, women delegates were not members.
The masculinisation of national discourse was not limited to Nigeria’s military era. In the current Fourth Republic, the Goodluck Jonathan-Administration convened a Constitution Conference in 2014, and of the 492 delegates, some fifty-six were women. However, this time, the female delegates put up a spirited effort to introduce some fundamental changes. They insisted on the creation of a sub-committee known as ‘fifty Wise Women/Men’. Although, the group successfully embedded ‘pro-gender’ policies into the 10,335-page report, but the document itself was not implemented.
An All-Male Process: The Historical Journey
The male-oriented approach to Nigeria’s constitutional development can be traced back in history to 1922. The Constitution introduced by Nigeria’s Governor-General, Hugh Clifford, excluded women from the drafted principles of representation. The patriarchal environment of the era and the resulting document from his consultation with the people suggests that women did not participate in the process. The Constitution introduced male participation and representation in electoral politics and public institutions. The new document initiated the principle of representation, but Nigerian women were excluded from electoral politics and had no voice. In the decision-making body, which ironically Clifford had described as ‘a more representative legislative council.’ Thus, from the onset of representational politics, the culture of patriarchy was woven into Nigeria’s constitutional process and laid the foundations for future male-driven constitutional review exercises which still afflict Nigeria’s political and electoral landscape.
Evidence shows that the subsequent rounds of constitutional conferences held at the height of anti-colonial agitations, followed a similar pattern introduced by Clifford. Records from the first constitution review conference in 1949/50 show that only one woman participated at the provincial level in the four stages of the consultations. Olufunmilayo Ransome-Kuti contributed at the provincial level in western Nigeria and is on record to have called for women to be included in public institutions and treated equally to men. Women’s involvement at other conferences held in 1953, 1954, 1957 and 1958 was minimal. While it is true that the political leaders invited a handful of women such as Margaret Ekpo, Tanimowo Comfort Ogunlesi, Wuraola Esan and Ekpo A. Young to the talks, they were not part of the negotiation process. The 1957 Conference in London bears testimony to this exclusion. In a letter to the editor of the Sunday Times, published on 2 June 1958, Ransome-Kuti wrote: ‘There was not a single woman delegate in the conference hall. The three women on the delegation are unofficial advisers and observers; they were not even allowed near the hall.’
Outcomes for Women
Commenting on the 1978 Draft produced by the ‘49 wise men’ which eventually went on to become the country’s Grund Norm, journalist Bisi Adebiyi wrote in the Punch Newspaper: ‘If Nigerian women had got the representation on the CDC, it may have turned out better for the rights of women.’
Whatever constitutional rights women may seemingly have been granted in Section 42, for example, were at best on a de jure basis as opposed to de facto. One of the most contentious sections which purports to promote fairness and which has remained intact over the years is section 14 (3):
The composition of the government of the Federation or any of its agencies and conduct of its affairs, shall be carried out in such a manner as to reflect the Federal Character of Nigeria, and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from few ethnic or other sectional groups in that government or in any of its agencies.
The national agency charged with implementation is the Federal Character Commission (FCC). It has the power to:
Work out in an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the states, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government-owned companies and parastatals of the states.
In practice, the “equitable formula” promotes ethnicity over gender. So, for example, political parties – the gatekeepers of representational democracy – are only required in section 223 (1) (b) and (2) (b) to reflect a balance in ethnicity in their executive management policies. This has led to women being sidelined in the hierarchy of political parties and decisions on the selection and nomination of electoral candidates.
Quite clearly, the all-male CDC overlooked the critical intersection between the principle of Federal Character, gender and development. This omission has reinforced the deep inequalities in society, which manifests as gender gaps in critical sectors, including political and electoral representation, as well as the lack of substantial presence in public decision-making in the civil service and judiciary, etc.
In recent years, women have pushed back against several of the discriminatory sections of the Constitution. March 8, 2022, witnessed a display of anger by a coalition of women’s groups. After the Review Committee at the 9th National Assembly, rejected wholesale, the five gender bills, namely: (a) Additional Seats for Women in the Federal and State Legislatures; (b) Indigeneship Rights for Married Women; (c) Citizenship by Registration of non-Nigerian men married to Nigerian women; (d) thirty-five per cent Affirmative Action for Women in Political Party Administration; and (e) Reserved Quotas for Women in Cabinet Positions. Shocked by the backlash, the House of Representatives the next day promised on its own part to ‘reconsider’ three of the bills.
The latest call for ‘further alteration(s) of the 1999 Constitution (as amended)’ includes the ‘Issue of Gender’ as the ninth area of concern for discussion. Following on the announcement, the legislative body also issued a statement promising to ‘make women’s inclusion a priority.’ However, in view of the fact that there are only forty-five women among the 990 members in the thirty-six State Houses of Assembly and twenty in the 469-member National Assembly, it remains to be seen if the handwork of the ‘49 wise men’ that has negatively impacted the lives of women for so long, can finally be overturned.
Further reading:
N. Tamaru and M. O’Reilly, ‘How Women Influence Constitution making after Conflict and Unrest,’ Research Report January 2018 (2018) <inclusiveSecurity.org/constitutions.https://www.inclusivesecurity.org>.
Constitution Assessment for Women’s Equality, (2016) <https://www.idea.int>.
Q. E. Iroanusi, Many Male Senators Oppose inclusion of Gender Equality in Nigerian Constitution, (2020) <www.premiumtimesng.com>.
Women Constitution-Makers’ Dialogue, (2022) <www.idea.int>.
C. Mbamalu, Breaking the Chains of Bias against Women in Nigeria: A Constitution to Guarantee Equality and Freedom (2022) <www.thecable.ng>.
How Nigerian Constitution Discriminates Against Women, (2023) <www.icirnigeria.org>.
Tayo Agunbiade is a social historian and independent scholar/ researcher with a 30-year + background in print journalism and writing. She is the editor of the Women’s History Network Newsletter and author of ‘Untold Histories of Nigerian Women: Emerging from the Margins.’