The situation of women in our world today is very important. There are many differences between richer and poorer countries.

In industrialized countries birth rates have fallen since the 1960s. One reason is that more and more women have jobs and go to work. They do not want to stay at home any longer and have fewer babies.

In developing countriesthe situation of women is different. Many of them are at home, do the household chores and care for their children.

Helping women in the Third World is very important and can slow down the population explosion. One of the key factors is education. Women who go to school and maybe later on study at a university have higher chances of getting a job. They don’t marry so early and start having children at a later age.

Such women also know more about birth control and can plan the number of children they want to have.

Educated women also know more about health care. Young girls who have sex at an early age risk getting AIDS and passing it on to their babies when they are pregnant. More than half of the 40 million people living with AIDS today are women. In Africa, more than 75 % of all AIDS victims are young women between 15 and 24.

The status of women all over the world is a cause for grave concern. Women in all societies experience various forms of discrimination and oppression. Women are singled out for one form of oppression or the other. In all societies men are superior to women.

The diversity of women’s needs and interests vary from basic survival to aspirations of power and prestige. These diversities hinder the collective participation of women in public life. In spite of the few progress made towards the emancipation of women, power remains a male prerogative, with men retaining economic, political and religious control. Women’s space is restricted to the spheres of reproduction and household tasks. The public space is still limited to men and a few elite women.

This paper examines gender sensitivity and discrimination against women under statute and common law. This paper traces the oppression of women under both common law and statutes. The paper would highlight various discrimination Nigerian women are subjected to including harmful cultural practices against women.

In Nigeria women suffer a number of discrimination even under statutes. A lot of discriminatory laws still abound in our statute books – criminal law, law of evidence, Police Act, Labor Law, Marriage Act, Penal Code, Wills law, Inheritance Law, Citizenship, Civil Service Rules and Regulations and under the Constitution.

Nigeria ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) without any form of reservation. The country is therefore not expected to have any discriminatory law in her statute book.

The paper aims to hold Nigeria accountable to her obligations under International Human Rights Law.

Keywords – Gender, equality, discrimination, human rights, common law and statute.


The status of women all over the world is a cause for grave concern. Women in all societies experience various forms of discrimination and oppression. Women are singled out for one form of oppression or the other. In all societies men are superior to women.

The diversity of women’s needs and interests vary from basic survival to aspirations of power and prestige. These diversities hinder the collective participation of women in public life. In spite of the few progress made towards the emancipation of women, power remains a male prerogative, with men retaining economic, political and religious control. Women’s space is restricted to the spheres of reproduction and household tasks. The public space is still limited to men and a few elite women.

This paper examines gender sensitivity and discrimination against women under statute and common law. This paper traces the oppression of women under both common law and statutes.


Common law is the body of law derived from juridical decisions rather than from statutes or Constitutions.


According to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [1], discrimination is any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or an other field.


By gender sensitivity, we mean the level of awareness, appreciation of the need to maintain at reasonable levels the gender differentiation between the male and female. It is true to some extent that what a man can do, the woman can equally do, but it is not expedient that women should insist on doing everything the man does even at the expense of nature’s assigned honorific roles of wifehood and motherhood. At the same time we stress that all the rustic are atavistic male chauvinistic character of domination, oppression and marginalization must be done away with. Other wise, when gender differentiations are completely obliterated, gender sensitivity will also disappear with it. This will lead to some un-naturalness. To remain gender sensitive, we have to keep the gender peculiarities in focus to a reasonable limit.


Sex refers to the natural distinguishing variable based on biological characteristic of being a woman or a man. It refers to physical attributes pertaining to a person’s body contours, features, genitals, hormones, genes, chromosomes and reproductive organs. Gender refers to roles, attributes and values assigned by culture and society to women and men. These roles, attitudes and values define the behaviors of women and men and the relationship between them. They are created and maintained by social institutions such as families, governments, communities, schools, churches and media. Because of gender, certain roles, traits and characteristics are assigned or ascribed distinctly and strictly to women or to men.

In a patriarchal system, men occupy positions of dominance and control over women. Men as husbands and fathers, rule with unchallenged authority the lives of women and children in their family. Sexual differentiation pervades all activities, experiences and opportunities.

The public sphere is usually regarded as the domain of men and perceived to have a primary status in society because they perform what are considered major functions. Men’s exposure in the public sector makes them the dominant gender in all spheres of life. They are able to participate fully in economic, political and cultural endeavors. Women however, are relegated to the private arena of the home. They take on reproductive functions which are regarded as secondary pursuits.

Compared to the past, women have really made giant strides. There was a time when it was doubted whether women have brain or whether they were intelligent enough to study courses such as law and medicine. This work examines the history of women from past to the present time, where women are now accorded almost the same status as men at least de jure. Women have had to struggle for everything, from the votes, to equal rights within marriage, acquisition of property to custody of children in case of divorce.

It has to be put on record that discrimination despite the fact that the yearnings of women have been recognized in the recent years. Some statutes still discriminate strongly against them in some aspects in this last century.

The paper would now consider some of the discrimination against women contained under common law and statute.


It is not only in respect of the vote that the law had denied women were ‘persons’. They were also excluded, following the same reasoning from many professions including medicine and the law. Although women could be nurses, they were barred from qualifying as doctors or as solicitors and barristers.

However, women did not merely accept these prohibitions. Some women campaigned vigorously to be allowed to qualify in professions for which they had the necessary skills and abilities. Sophia Jex-blake [2] was one such woman. She wanted to follow the example of two women who had managed to qualify as doctors in the United States of America and who had then returned to Britain to practice.

Attempting to follow in these doctors’ footsteps, Sophia Jex-Blake and six other women went to study medicine at Edinburgh University. Initially the university admitted them, although their make fellow students demonstrated against them and tried to bar them from lectures. At the end of their course, however, the University refused to let the women sit for their examinations. Jex-Blake brought a case against Edinburgh University, which defended it by arguing that they had breached their own statutes by allowing the women to study there.

Giving his judgment in the case [2] Lord Neaves argued that women and men have a different mental, as well as physical, constitution:

The general mass of an army cannot move more rapidly than its weakest and slowest portion …Add to this the special acquirements and accomplishments at which women must aim, but from which men may easily remain exempt … Much time must or ought to be, given by women to the acquisition of acknowledge of household affairs and family duties, as well as to those ornamental parts of education which tend so much to social refinement and domestic happiness … we are apt to get a false view of the question by comparing extraordinary women with ordinary men.

Women’s rightful place, Lord Neaves went on to say, was an ‘absolute mistresses of their houses’, although he conceded that they could be midwives, a fitting and noble profession. This seemingly chivalrous attitude did not extend to all women. Whilst those in the middle classes were to ornament their homes, working class women were struggling to improve appalling conditions and long hours in the factories and sweatshops where they had no choice but to work.

Women were also prevented from studying law. Women who had attempted to sit for the Law Society’s examinations were not allowed to do so by the Law Society. In 1913, four women graduates took the Law Society to court [3]. They argued that Section 1 of the Interpretation Act [4] stated that the masculine provision included the feminine, so the Attorneys and Solicitors Act [5] ought to apply to women as well as men, enabling them to qualify. However, as in Jex-Blake, the court rejected this argument. The Court and the Law Society relied upon a mediaeval treatise, The Mirror of Justices, which stated that ‘the law will not suffer women to be attorneys nor infants nor serfs’. Since women could not qualify as lawyers, they would not be allowed to take the examinations.

In the same year, the Legal Profession (Admission of Women) Bill was put before parliament; it was opposed by the Law Society and failed. However, in 1919 a very important piece of legislation was passed. The Sex Disqualification (Removal) Act [6] made it unlawful to disqualify women (by reason of their sex or marriage) from holding a civil or judicial office or entering or carrying on a civil profession or vocation. It also allowed universities to admit women and enabled women to sit on juries. Section 2 specifically permitted women to be admitted as solicitors, even when the universities at which they had studied refused to grant degrees to women. The first female solicitor, a Carrie Morrison, was not admitted until 1922,


While female children were kept within the private sphere by paternal authority, many adult women continued to be under male authority in the home through the institution of marriage. The law gave men power over women in the home, sometimes explicitly and sometimes by lack of regulation. For example, the doctrine of coverture (a woman’s existence being legally ‘covered’ by husband’s) gave men legal rights while depriving women of theirs; at the same time, the law did little to protect women from abuses by their husbands.

Coverture is described [7] as making husband and wife legally one person the husband ‘the very being or legal existence of the women is suspended during the marriage, or at least is incorporated into that of the husband: under whose wing, protection and cover she performs everything’. The practical effects of coverture were that women could not make contracts or bring legal actions in their own name, could not bring cases against their husbands (because legally, that would be the same as bringing a case against themselves), did not have rights over their children or even their own bodies, and could not control their own property. A man who raped or committed adultery with a wife would be offending against the husband’s property rights.


Under Section 55, Penal Code (applicable in Northern Nigeria), husbands are permitted to reasonably chastise their wives. Section 55(10) provides further that:

Nothing is an offence which does not amount to the infliction of grievous harm upon a person and which is done by a husband for the purpose of correcting his wife, such husband and wife being subject to any customary law in which the correction is recognized as lawful.


Section 33 of Criminal Code provides as follows:

A married woman is not free from criminal responsibilities for doing or omitting to do an act merely because the act for omission takes place in presence of her husband.

But a wife of a Christian marriage is not criminally responsible for doing or omitting to do an act which she is actually compelled by her husband to do or omit to do and which is done or omitted to be done in his presence, except in the case of an act or omission which would constitute an offence punishable with death or an offence of which grievous harm to the person of another or an intention to cause such harm, is an element, in which case the presence of her husband is immaterial.

Section 34 of the Criminal Code goes on to state that there is no conspiracy between husband and wife alone. This section like the previous section applies only to a husband and wife of Christian marriage. The statute discriminates between Christian (monogamous) marriages and polygamous marriages.


Under the Criminal Code, a husband cannot be guilty of rape upon his wife. According to section 6 of the Criminal Code, unlawful carnal knowledge means carnal connection which takes place otherwise than between husband and wife.

For an offence to constitute rape there must be evidence of unlawful carnal knowledge. Unlawful carnal knowledge is defined as sexual intercourse otherwise than between husband and wife. The offence of rape is complete upon proof of penetration, and even the slightest penetration will be sufficient, neither rupture of the hymen nor the emission of semen need by proved.

In Nigeria, rape is a sex-specific offence, which can only be committed by men on women. A number of folkloric accounts abound about rape, its victims and perpetrators. For most people, a girl who is raped deserves it or she must have provoked the rape by her mode of dressing and that women do not know what they really wanted. According to them, most times when a woman says no, she means yes.

By continuing to define rape in a sex-specific language, the law provides fertile ground for the persistence of the various myths about women and rape. Men can also be violated sexually. There is no justification for designating rape to “protect” women. Traditionally, loss of virginity and pregnancy chances are and have been considerations which have weighed strongly in favor of criminalizing rape as it is and imposing such grave penalty for its commission. Agreed that a man cannot become pregnant or “lose his virginity” in the conventional sense, this would hardly be of comfort to the male victim of a sexual penetrating attack.

There is need to dispense with the offence of rape as defined and enact another offence of sexual assault [8].

Under the common law, the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife had given up herself in this kind unto her husband, which she cannot retract [9]. This common law position is adopted in Nigeria and a husband cannot rape his wife unless any of the following circumstances exist, where a decree of divorce has been given [10], where parties are living separately under a separation order of court[11], where a husband has given an undertaking to the court not to return to his wife, [12] where one party has filed papers to commence divorce proceedings [13], where there has been a separation by agreement [14], and where there is a court order prohibiting molestation of wife [15].

In virtually all the instances cited above, the marriage contract, though still legally subsisting, has its foundations weakened and is on the way to being dismantled hence there is sufficient reason for the law to come in and maintain sanity before he final untying of nuptial knots.

Evidence of previous sexual dealings of the prosecutrix with other persons as well as the accused is allowed [16]. The rationale for such evidential rules of practice derives from one or more of the mythological conceptions of the woman and rape. Section 210 of the Evidence Act allows evidence to be given that the prosecutrix is of general immoral character. It is suggested that Section 210 of the Evidence Act should be repealed, as it is evidently discriminatory of the prosecutrix as similar fact evidence of the accused is not usually admissible in evidence [17] unless it is relevant to the fact in issue.

Corroboration of prosecutrix evidence is not an express requirement of the law of rape in Nigeria. However following the common law practice of warning themselves on the dangers of convicting upon the uncorroborated evidence of the prosecutrix.[18] judges therefore adopted the cautionary rule. Under this rule, the judge is to caution himself that it is not safe to convict an accused of rape on the uncorroborated testimony of the prosecutrix. [19]

The difficulties inherence in providing corroboration in rape cases (and in general, all sexual offences) are obvious. In most cases, the offences take place in private and it is unlikely to have any other witnesses apart from the parties themselves. Most jurisdictions have dispensed with the “cautionary rule” in cases of rape [20].

Nigeria’s law on rape is crying for amendments firstly to re-define the offence of rape by making it gender neutral, to criminalize marital rape as in other jurisdictions [21] to disallow evidence on the character of the prosecutrix and finally to abolish the “cautionary rule”. As stated earlier, the “cautionary rule” is not part of the Nigerian law but courts have followed this common law practice. There should be provisions for compensating rape victims and rape victims should also be counseled.


Under the Criminal Code, there is a distinction between assaults committed against a male person and a female person. Under Section 353 of the Criminal Code, any person who unlawfully and indecently assaults any male person is guilty of a felony and is liable to imprisonment for three years. The section goes further to state that such offender cannot be arrested without warrant.

Section 360 of the Criminal Code provides that any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment for two years.

Thus, assaults on a male person, is a more serious offence and a warrant is needed to arrest any person who assaulted a male person. Assault on a male person is a felony, while that on a female person is a misdemeanor.


Regulation 118 (g) provides that a woman police desirous of joining the police force must be unmarried. Under Regulation 124 of the Police Act, a female officer desirous of getting married must first apply in writing to the Commissioner of Police for the state police command in which she is serving, requesting for permission to marrying and giving the name, address and occupation of the person she intends to marry. Permission will be granted for marriage if the intended husband is of good character and the women police officer has served in the force for a period of not less than 3 years.

It should be noted that there is no equivalent provision for male police men.

Under Regulation 127 of the Police Act, the employment of a woman police is not secured, as she is automatically discharged from the force upon getting pregnant. She can only be re-enlisted with the approval of the Inspector General of Police. This practice explains why the Police Force is predominantly filled with men.

In the same vein, the Air Force Act is also discriminatory against women when using the word “Airmen” for both sexes. The words Air Officials or Officers might have been sufficient reference.


Employment is an area where women are most discriminated against. According to Section 55(1) of the Labor Act, no woman should be employed on night work in a public or private industrial undertaking … or in any agricultural undertaking”. Section 55(7) provides an exception for women nurses and women holding responsible positions of management who are not ordinarily engaged in manual labor.

Rule 03303 of both Kano and Kaduna states Civil service Rules provides as follows:

Any woman servant, married or unmarried who is about to undertake a course of training of not more than six months duration shall be called upon to enter into an agreement to refund the whole or part of the cost of the course in the event of her course being interrupted on ground of pregnancy”.

This regulation is rather discriminatory as there are no equivalent provision for male civil servants where courses are truncated by sickness or ill health.

One form of discrimination, which reflects cultural gender stereotype, is unequal pay to women for the same value of work involving men. In the construction industry for example, an unskilled male laborer or worker earns more than the female counterpart because of the belief that a man is physically stronger.


The Evidence Act confers special defenses only on husbands and wives of statutory marriages. An illustrative case in point is the different defenses available in criminal charges to a wife of a statutory marriage and a woman married under customary law. A wife of a statutory marriage may plead in defense to a criminal charge that she was compelled by her husband to commit the wrongful act in his presence. This defense is not available to the wife of customary law marriage. She has to fall back upon the defense that she did the act in order to save herself from immediate death or grievous bodily harm threatened by some other person.

There are no apparent or convincing reasons why in a no-Christian country like Nigeria a distinction should be drawn between the status conferred by statutory and customary law marriages. By Nigerian law, marriage under both systems of law is valid and binding, and the status of husband and wife is conferred on the spouses of such marriages. It is suggested that this anomaly should be rectified by statutory amendments, which will give equal privileges on these branches of the law to all husbands and wives.

Also under section 162 of the Evidence Act, when a person charged with an offence is married to another person by a marriage other than a monogamous marriage such person shall be a competent and compellable witness on behalf of either the prosecution or the defense.

Provided that in the case of a marriage by Islamic law neither party to such marriage shall be compellable to disclose any communication made to him or her by the other party during such marriage.

This section also makes distinction between statutory marriage and other forms of marriages in Nigeria.


Under the 1999 Constitution of the Federal Republic of Nigeria, a foreigner does not automatically acquire Nigerian citizenship by marriage to a Nigerian citizen. But such foreign spouse may become a Nigerian citizen by registration or naturalization. When a female Nigerian citizen marries a foreigner, whether or not she thereby acquires her husband’s nationality will depend on the citizenship laws of his home state. Ordinarily, a female Nigerian does not, under the Constitution, lose her Nigerian citizenship merely by marriage to a foreigner. But she cannot transfer her Nigerian citizenship to a foreign spouse. The foreign spouse of a Nigerian woman can only acquire citizenship by naturalization, which is a much longer process (at least 15 years). Whereas a foreign spouse married to a Nigerian man, becomes a citizen of Nigeria by mere registration.


Women are also discriminated against under our inheritance law. Section 3(1) of the Will Law provides that:

Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator.

The above provision enables everyone to make a Will, but on a second look, it will be obvious that the freedom to make a Will has been fettered by the words “subject to any customary law relating thereto”. The implication of this is that what you cannot give away intestate, you also cannot give away by Will. By implication, wives who cannot inherit under most customary law would also not be able to inherit under a Will. Either way, women are short changed. There is need to change laws like this, which appear gender neutral on the face of it, but is actually designed to discriminate against women.


Under the Marriage Act, where either party to a statutory marriage, not being a widow or widower, is under twenty-one years of age, he or she must obtain the written consent of the father. But if the father is dead or of unsound mind or absent from Nigeria, the mother may give the necessary consent [23].

This is an obvious discrimination against women, as the consent of the mother would only be accepted where the father is dead or where the father is of unsound mind.


Section 53 of the Labor Act provides for maternity leave. An employed woman has the right to go on maternity leave if she produces a medical certificate given by a registered medical practitioner, stating that her confinement will probably take place within six weeks while on such leave she will be entitled to not less than 50 per cent of her wages provided that she has worked for not less than six months prior to her commencement of the maternity leave. While most public establishments are willing to apply this provision, a major obstacle is created for single women who more often than not are required to show evidence of marriage vide marriage certificate or an affidavit in support of change of name before they can benefit from the provision of maternity leave. This practice is a product of societal belief that a married woman must change her name upon marriage the origin of which could not even be located in custom. The belief that a woman is a property of a man may not be unconnected with the idea. This belief is so in most cultures of the world.

In private organization, the provision for maternity leave is observed more in breach than in compliance. This is particularly so in unorganized private sector. Maternity leave is granted if at all without pay. This forces a newly delivered mother to go back to work earlier than when she is medically fit in order to earn her living. This constitutes a breach of her right under the law.


In some states of the federation women and men do not receive the same leave bonuses even when they are on the same salary scales. This discrimination cannot be justified.


In tax administration the Nigerian law on personal income tax discriminates against women. The assumption in Nigeria is that a man is the head of the family and as such solely responsible for the upkeep of the family, this is so even in the face of economic realities, which has made it practically impossible for a man to lay claim to such a role. Thus the tax policy allows men to be granted tax relief in respect of expenditures on children and dependant relative. However, for a woman to enjoy the same relief, she must show evidence that the father is not responsible for their support. This requirement is discriminatory.


Under the Matrimonial Causes Act, a woman automatically acquires the domicile of her husband. While the marriage subsists, the woman cannot acquire a domicile of her own. Her dependent domicile changes automatically with that of the husband. When the marriage is either nullified or terminated by death or divorce, she ceases to depend on the husband for her domicile. But she does not thereby automatically revert to her last domicile before marriage. At that point, she retains her husband’s last domicile before the event until she acquires a new domicile.


Women have always had problem with participation in politics. In 1872, a woman was prosecuted for attempting to vote in the presidential election in the US. The US Supreme Court was hostile to Women’s suffrage. In Minor v Happersett [24] the court rejected an attempt by a woman to cast a ballot in a Missouri election. The court stated that the:

Constitution of the United States does not confer the right of suffrage upon any woman. … women were excluded from suffrage in nearly all the states by the express provision of their Constitutions and law.

In no country in the world do women have political status, access, or influence equal to that of men. In most cultures there is a complex matrix of political power composed of many social hierarchies, of which gender is only one component. Men of any group are more able to be active in politics than women of their group.

Political systems, whatever the ideology, form and mobilization, rest on the exclusion or marginalization of women from formal politics. Attention ought to be given to the natural exclusion of women from politics.

To explain women’s exclusion from formal politics, it is necessary to look beyond the two traditional theories of women’s exclusion from formal politics. Women’s socially shaped ‘choices’, especially to concentrate on child rearing and homemaking and social norms, which comprise the thousands of big and little gender-based rules about proper political activity that make up “political socialization”. These explanations are inadequate because they make women’ absence from formal political institutions either their own fault or no one’s fault.[25].


Upon marriage, all of a woman’s property became her husband’s. Although he had control of her real property (land) only during his lifetime and could not sell it, he was entitled to all the income, rents and interest earned from it and could even mortgage it. He had some control over what happened to it after her death too, because she could not make a will without his consent.