DDeePPaauull JJoouurrnnaall ooff WWoommeenn,, GGeennddeerr aanndd tthhee LLaaww Volume 5 Article 3 Issue 2 Spring 2016 5-30-2016 LLeeggiissllaattiinngg oonn VViioolleennccee AAggaaiinnsstt WWoommeenn:: AA CCrriittiiccaall AAnnaallyyssiiss ooff NNiiggeerriiaa''ss RReecceenntt VViioolleennccee AAggaaiinnsstt PPeerrssoonnss ((PPrroohhiibbiittiioonn)) AAcctt,, 22001155 Cheluchi Onyemelukwe Centre For Health Ethics Law and Development Follow this and additional works at: https://via.library.depaul.edu/jwgl Part of the Law and Gender Commons RReeccoommmmeennddeedd CCiittaattiioonn Cheluchi Onyemelukwe, Legislating on Violence Against Women: A Critical Analysis of Nigeria's Recent Violence Against Persons (Prohibition) Act, 2015, 5 DePaul J. Women, Gender & L. (2016) Available at: https://via.library.depaul.edu/jwgl/vol5/iss2/3 This Article is brought to you for free and open access by the College of Law at Digital Commons@DePaul. It has been accepted for inclusion in DePaul Journal of Women, Gender and the Law by an authorized editor of Digital Commons@DePaul. For more information, please contact [email protected]. LLeeggiissllaattiinngg oonn VViioolleennccee AAggaaiinnsstt WWoommeenn:: AA CCrriittiiccaall AAnnaallyyssiiss ooff NNiiggeerriiaa''ss RReecceenntt VViioolleennccee AAggaaiinnsstt PPeerrssoonnss ((PPrroohhiibbiittiioonn)) AAcctt,, 22001155 CCoovveerr PPaaggee FFoooottnnoottee Dr Cheluchi Onyemelukwe, a health law and policy expert, has particular interests in gender and women's rights and the intersections of gender and health. She has advised on a wide range of legal and policy issues in the health, gender, social protection and inclusion, governance and development sectors.She has considerable experience in developing, drafting, researching, and analysing policies, legislation, and regulations. She is the founder of the Centre for Health Ethics Law and Development (CHELD) which does extensive work on violence against women, including developing online resource for domestic violence, the first of its kind in Nigeria, available at: http://www.domesticviolence.com.ng/ This article is available in DePaul Journal of Women, Gender and the Law: https://via.library.depaul.edu/jwgl/vol5/ iss2/3 LEGISLATING ON VIOLENCE AGAINST WOMEN: A CRITICAL ANALYSIS OF NIGERIA’S RECENT VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015 Cheluchi Onyemelukwe Abstract In many African countries, as in other countries around the world, women suffer violence on the basis of their gender. Unfortunately, many countries lack legislation that provide effective protections against gender-based violence. Evidence from Nigeria, including the passage of new legislation at federal and state levels, suggests some progress. How effective such laws will be is yet to be seen. This paper begins the process of investigating the potential for the effectiveness of these new laws by conducting an in-depth analysis of Nigeria’s recently enacted Violence Against Persons (Prohibition) Act, 2015. This examines the relevance of the Act and its significance for issues around violence against women. This critique investigates the provisions of the Act alongside internationally accepted best practices and standards on legislation against gender-based violence. From this analysis, the article identifies gaps within the provisions articulated in the Act. It also examines the place of the VAPP Act amongst the pantheon of extant laws addressing violence against women. It argues that, by itself, the law will have only a limited impact, in part because of its limited geographical reach. This impact can only be moderated by intensive advocacy to ensure that this legislation is adopted by all States in the federation. The paper suggests the next steps after enactment to ensure effective implementation. The article concludes that the enactment of the Act is a positive step, which has the potential to provide effective protections for women against gender-based violence. However, gaps exist in the legislation, which will need to be remedied. Finally, specific actions will need to be taken to move the law from words on paper to active implementation and protection of women from gender-based violence in Nigeria. I. INTRODUCTION In many African countries, as in other countries around the world, women suffer violence on the basis of their gender. Unfortunately, the law is not always available to help them.1 This is in part due to the predominant cultural systems of patriarchy and the consequent subordinate status of women, which filters through to low rates of reporting, a tacit tolerance of and condoning of violence against women, and the reluctance to engage legislative processes in addressing them. Evidence from Nigeria, including the passage of new legislation at federal and state levels, indicates that a shift is occurring. How effective such laws will be is yet to be seen. This paper begins the process of investigating the potential for effectiveness by conducting an in-depth analysis of one such recent legislation. In Nigeria, 28 per cent of all women, almost a third of all women in the country, have experienced physical violence.2 This is a significant number in a country of about 170 million, where almost half are women.3 There is no data for women who have undergone emotional, psychological or abuse but evidence from the work of my organisation and anecdotal evidence suggest that the figures are likely more considerable than physical violence. Other statistics indicate that this problem remains enduring, with young women between the ages of 15 and 24, being most likely to have experienced physical violence in the past one year.4 They have also been found most likely to justify violence, including wife beating.5 As a result, in 2012, the Report, Gender in Nigeria, recommended, amongst other 1 ENIKO HORVATH ET AL., Gender Based Violence Laws in Laws in Sub-Saharan Africa, THE CENTER FOR REPRODUCTIVE RIGHTS, Feb. 22, 2008, at 3 (noting that many African countries do not have laws on gender- based violence). 2 National Population Commission and ICF International, Nigeria Demographic and Health Survey, at 304 (2013) (hereinafter NDHS). 3 The NDHS further showed that educated women were more likely to have experienced domestic violence. Further women who live in urban areas are more likely than their counterparts who live in rural areas to have experienced domestic violence. Women in the southern part of the country were also more likely to have experienced physical violence more than women in the northern part of the country NDHS, supra note 2, at 305- 06. 4 British Council Nigeria, Gender in Nigeria Report 2012: Improving the Lives of Girls and Women in Nigeria, at 48 (2012). 5 NDHS, supra note 2, at 292-93. 2 things, that a national campaign be mounted against gender-based violence and greater legal protection be provided to victims of gender violence.6 Legislation provides a solid foundation for effective, coordinated, legal action against violence against women. While only a part of the solution, it offers the positive attributes of sustainability, providing a foundation that can survive successive governments. often The UN Women’s Handbook for Legislation on Violence Against Women notes that “States have clear obligations under international law to enact, implement and monitor legislation addressing all forms of violence against women.”7 Unfortunately, however, Nigeria currently has disparate pieces of legislation, which do not address violence against women or gender-based violence uniformly across the country. A few states have passed legislation on domestic violence, harmful traditional practices or gender-based violence. A few others have attempted to do so unsuccessfully. Much of the existing legislation is out-dated, not sufficiently comprehensive, not specifically directed to this grave problem and not adequately enforced. Until recently, there was no comprehensive legislation on violence against women at the national level. Activism for the enactment of legislation often helps draw women’s groups with disparate interests in improving women’s conditions together, facilitating often formidable advocacy on violence against women.8 Human rights and women groups have, thus, over the years pushed for the passing of comprehensive legislation against gender-based violence/violence against women. Their efforts in the past had either been rebuffed or stalled. But, as I describe in subsequent sections, the coming together of different groups eventually helped mobilise action to improve the legislation landscape for violence against women in Nigeria. The result of that activism was the signing into law of the Violence 6 British Council Nigeria, supra note 4, at 65. 7 UN Women, Handbook for Legislation on Violence Against Women, (2012) 1. 8 Chris Hunter, The Master’s Tools Revisited: Can Law Contribute to Ending Violence Against Women? 37:6 IDS BULLETIN 57, 59 (2006). 3 Against Persons Prohibition Act9 on the May 25, 2015, after over ten years in the legislative process. The enactment of the Violence Against Persons (Prohibition) Act (hereafter, the “VAPP Act” or “the Act”), which proposes wide-ranging provisions of many aspects of violence, including violence against women, is therefore a pivotal event with the potential, arguably, to transform the landscape of violence against women in Nigeria. It is an amalgamation of different bills, which sought to abolish all obsolete laws relating to matters such as rape and assault, and enact new laws on hitherto neglected areas such as domestic violence. It aims to improve upon similar provisions on violence as contained in Nigeria’s Criminal and Penal Code. In part, initial delays stemmed from the gender-sensitive nature of earlier bills. Thus, it was initially focused on violence against women. Passage of this bill proved difficult for many years because of the heavily masculine legislature’s bias against focus on women’s issues. The Act is the latest, most wide-ranging legislation against persons, including women, in Nigeria. It is thus important to examine what contributions it makes or has the potential to make in providing women with protections against violence. Also, for other African countries with similar cultures and colonial backgrounds and legislative gaps in protections for women from gender-based violence an exploration of the history and the subsequent legislative provisions enacted, may prove helpful as they navigate the process of legislating on violence against women. The Nigerian experience provides a history that one can draw lessons from. This article also identifies how to best implement these provisions going forward in order to achieve the desired effect. In subsequent sections, I provide an overview of the provisions of the Act, focusing on the provisions of the VAPP Act that are most relevant to gender-based violence or 9 See generally Violence Against Persons (Prohibitions) Act (2015) (Nigeria). 4 violence against women. Violence against women in this article means violence experienced by women on account of their gender; thus, for convenience I use “violence against women” and “gender-based violence” interchangeably. I provide an analysis of the VAPP Act, examining its relevance and significance for issues around violence against women. I do this by examining the provisions of the Act against best practices on gender-based violence into compliance with international standards and best practices. I adopt the model legislative frameworks created by the United Nations and drawn from the experiences of a variety of countries. From this analysis, I identify gaps within the provisions articulated in the Act. Further, I argue that more work will need to be done to ensure that the potential of the law to protect women, to provide uniform protections, and to ensure conformity with best practices. Further, I examine the place of the VAPP Act amongst the pantheon of extant laws addressing violence against women. In this regard, I argue that by itself the law will have only a limited impact because of its limited geographical reach. This can only be mitigated by intensive advocacy to ensure that this legislation is adopted by all States in the federation. My analysis aims to underscore the significance of the Act, identify the gaps in the legislation with respect to effective protections for women against gender-based violence and its effects and suggest the next steps to ensure effective implementation. I conclude that the Act is a step in the right direction but that gaps exist in the legislation, and that specific actions will need to be taken to move the law from words on paper to active implementation and protection of women from gender-based violence in Nigeria. II. BACKGROUND AND OVERVIEW OF THE VAPP ACT Violence against women has been defined by the United Nations Declaration on the Elimination of Violence against Women as, “[a]ny act that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, 5 coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life.”10 In international law, the recognition of women’s rights in the public and private sphere, including the right to protection against gender-based violence, has been clearly articulated in various instruments including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)11 and the United Nations General Assembly Declaration on the Elimination of Violence against Women.12 Nigeria is a signatory to CEDAW though it has failed over many years of advocacy to domesticate it. CEDAW recommends that state parties must ensure that legislation on gender-based violence provides adequate protection to all women and respect for their integrity and dignity.13 It also recommends that state parties should take all legal and other measures are necessary to provide effective protection of women against gender-based violence, including effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence.14 Nigeria is also a signatory to the African Charter on Human and Peoples Rights, which it has taken the extra steps to domesticate, thus making the Charter domestic law in Nigeria. The African Charter provides that every individual shall have the right to the respect of the dignity inherent in a human being and prohibits all forms of exploitation.15 In addition, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, to which Nigeria is a signatory, requires State parties to enact and enforce laws to prohibit all forms of 10 United Nations General Assembly Declaration on the Elimination of Violence against Women G.A. Res. 48/104 (I), U.N. Doc. A/RES/48/104 (Dec. 20, 1993). 11 Committee on the Elimination of Discrimination against Women, Rep. on its 11th Sess., 1992, U.N. Doc. (1992) This was preceded by the UN General Assembly Declaration on the Elimination Of Discrimination Against Women (DEDAW) (1967). 12 United Nations General Assembly Declaration on the Elimination of Violence against Women G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Dec. 20, 1993). 13 Committee on the Elimination of Discrimination against Women, Rep. on its 11th Sess., 1992, U.N. Doc. ¶ 24 (b), (t) (1992). 14 Committee on the Elimination of Discrimination against Women, supra note 11 at ¶ 24.). 15 African Charter on Human and Peoples’ Rights, Oct. 21, 1986, 1520 U.N.T.S. 217, Art. 4-5. 6 violence against women,16 and take all necessary legislative and other measures to eliminate harmful practices.17 The enactment in 2015 of the VAPP Act can be said to be a measure in line with Nigeria’s international obligations under CEDAW and the Protocol to the African Charter. The VAPP Act came into existence to address gaps that existed in the protections and remedies available to women who had suffered various harms as a result of violence meted out to them on account of their gender. Many women experienced domestic violence, including financial abuse, abandonment and eviction from their homes. The discrimination embedded in the law was further exacerbated by the active discrimination experienced by women in accessing what limited justice was available. Patriarchal attitudes prevailed and violence against women in their homes were often considered (and continue to be considered) private matters to be settled within the family. These attitudes prevented women from seeking redress from law enforcement for matters such as rape, child marriage, harmful traditional practices and other kinds of violence. These attitudes and experiences remain prevalent. The extant criminal laws in the country, the Criminal Code operative in the South and the Penal Code in force in the North did not adequately protect women from violence. For example, while rape was a crime punishable by life imprisonment, marital rape was not covered under either Code—sexual relations being traditionally considered a right of the husband. The criminal law did not allow for negotiations or provide civil remedies which can be as, indeed sometimes more relevant to a woman. Some provisions in the Criminal Code delineate mild punishments for sexual violation, permit spousal or marital rape. Other 16 Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, July 11, 2003, African Comm’n on Human and Peoples’ Rights, Art. 4(2). 17 Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, supra note 16, Art. 5. 7 provisions in the Penal Code allow husbands to beat wives in chastisement.18 Offences such as domestic violence were not provided for in the two principal pieces of criminal legislation. In summary, existing laws were inadequate, gave impetus to inequality, were discriminatory to women, and allowed violence against women. This continues to be the situation in many cases. Women’s rights and other civil society groups began to agitate for a change: a comprehensive reform of the extant laws to ensure protections for women against violence and other forms of discrimination. As Nwankwo notes: The idea of a separate law on violence against women was therefore conceived because it was extremely difficult for Nigerian women to access existing remedies satisfactorily. The obstacles … are the patriarchal nature of the society and the attitude of the police that matrimonial misunderstandings should remain in the private realm.19 Over the years, women’s groups in Nigeria have advocated for the repeal of discriminatory provisions in the law and for the enactment of new law to cover acts of violence against women not previously covered. Legislative advocacy by different groups has resulted in the development of new laws at State and Federal levels. At the Federal level, the Child Rights Act, which amongst other things prohibits child marriage and sexual offences against children, was enacted in 2003, domesticating to a large extent the Convention on the Rights of the Child. The federal government also passed the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act in the same year. At the state level, several states, such as Edo and Osun states, passed laws to criminalize female genital mutilation. Twenty-four states have adopted the federal Child Rights Act, which prohibits child marriage. Other states criminalized harmful widowhood practices, including Cross River, Oyo, and Anambra, while others criminalized domestic violence, such as Lagos, 18 Penal Code Act Cap. (2), § 55 (Nigeria). 19Oby Nwankwo, Effectiveness of Legislation Enacted to Address Violence against Women in Nigeria, 11 (May 30, 2008), http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/expertpapers/EGMGPLVAW%20 Paper%20_Oby%20Nwankwo_.pdf. 8