Gender-Based Violence and the State’s Duty of Protection under International Law: A Nigerian Perspective.
By Chinwendu Judith Obierefu
Abstract
Gender-based violence (GBV) continues to undermine human rights and social justice in Nigeria. Despite a comprehensive body of international and regional instruments obligating states to prevent, investigate, and punish acts of violence against women, enforcement in Nigeria remains weak and inconsistent. This article examines Nigeria’s duty of protection under international law and its domestic legal framework, including the Constitution, the Violence Against Persons (Prohibition) Act 2015, and relevant case law. It argues that the Nigerian state’s failure to exercise due diligence in addressing GBV constitutes a breach of both international and constitutional obligations.
Keywords: Gender-based violence, Nigeria, due diligence, human rights, CEDAW, VAPP Act, constitutional rights, state responsibility.
- Introduction
Gender-based violence is a pervasive challenge in Nigeria, cutting across ethnicity, religion, and socioeconomic class. It includes domestic abuse, sexual assault, harmful traditional practices such as female genital mutilation (FGM), and trafficking in women.
While Nigeria has ratified several international and regional treaties prohibiting GBV, enforcement remains inconsistent. Reports from the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) and the National Human Rights Commission (NHRC) highlight recurring failures by law enforcement agencies to protect victims or prosecute offenders.
Under international law, Nigeria bears a duty of due diligence—an obligation to prevent, investigate, punish, and redress acts of violence against women. This obligation flows from both its international commitments and the fundamental rights provisions in the 1999 Constitution of the Federal Republic of Nigeria (as amended).
- Legal Foundations of the Duty of Protection in Nigeria
2.1 Constitutional Protection
The Nigerian Constitution guarantees the right to life (s.33), human dignity (s.34), and freedom from discrimination (s.42). These rights form the foundation for protection against gender-based violence.
Section 34(1)(a) explicitly prohibits torture and inhuman or degrading treatment, which encompasses sexual violence and domestic abuse.
The Supreme Court has repeatedly affirmed that state inaction in protecting fundamental rights can amount to a constitutional violation. In Uzoukwu v Ezeonu II (1991) 6 NWLR (Pt 200) 708, the Court held that fundamental rights impose both negative and positive duties on the state — to refrain from violating rights and to protect citizens from violations by others.
This principle aligns with the international due diligence standard, which holds that a state’s failure to protect individuals from foreseeable harm may amount to complicity.
2.2 Nigeria’s International and Regional Obligations
Nigeria is a party to multiple instruments prohibiting GBV, including:
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified in 1985;
- African Charter on Human and Peoples’ Rights (ACHPR), domesticated via the African Charter (Ratification and Enforcement) Act, Cap A9, LFN 2004;
- Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), ratified in 2004; and
- Convention on the Rights of the Child (CRC), ratified in 1991.
In Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228, the Supreme Court affirmed that once a treaty like the African Charter has been domesticated, it assumes the force of law and is enforceable by Nigerian courts. The Charter’s provisions on human dignity (Article 5), non-discrimination (Article 2), and protection of women and children (Article 18(3)) therefore create binding domestic obligations.
- Domestic Legislation: The VAPP Act and Related Laws
3.1 The Violence Against Persons (Prohibition) Act 2015
The Violence Against Persons (Prohibition) Act (VAPP Act) represents Nigeria’s most comprehensive domestic response to GBV. It criminalises:
- Rape and sexual violence (s.1–3);
- Spousal battery (s.19);
- Female genital mutilation (s.6);
- Harmful widowhood practices (s.15);
- Emotional, psychological, and economic abuse (s.14).
Importantly, section 38 of the Act provides for protective orders for victims, aligning with the due diligence obligations of prevention and protection.
However, the Act currently applies only in the Federal Capital Territory, though many states have since adopted similar legislation. The slow pace of adoption across all 36 states undermines Nigeria’s nationwide compliance with its international obligations.
3.2 Other Relevant Laws
- The Criminal Code Act (South) and Penal Code Act (North) contain provisions on rape, assault, and indecent assault but are outdated and gender-insensitive.
- The Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 establishes NAPTIP, which combats human trafficking and sexual exploitation.
- The Child Rights Act 2003 protects children from sexual abuse, forced marriage, and harmful practices, although implementation remains uneven.
Together, these statutes provide a legal framework but suffer from weak enforcement and poor institutional coordination.
- Judicial Developments in Nigeria
4.1 Judicial Recognition of Gender-Based Violence
While Nigerian courts have historically been slow to address GBV explicitly, recent cases demonstrate a gradual shift.
In Bassey v State (2019) LPELR-46910(CA), the Court of Appeal upheld a conviction for rape and emphasised that the state bears a duty to ensure protection of victims and effective prosecution of offenders.
In FRN v IGP (Suit No. FHC/ABJ/CS/668/2020), the Federal High Court declared the police ban on protests against sexual violence unconstitutional, reinforcing that women have the right to assemble and speak out against GBV.
Similarly, in Women Advocates Research and Documentation Centre (WARDC) v Attorney-General of the Federation (2018) FHC/ABJ/CS/591/2017, the court recognised the federal government’s failure to protect women from domestic violence as inconsistent with Nigeria’s constitutional and international obligations.
- The Due Diligence Principle in Nigerian Context
The due diligence obligation has four pillars: prevention, protection, prosecution, and reparation. Applying these to Nigeria reveals gaps between legal norms and practice.
- Prevention:
Public awareness remains limited. The 2020 #JusticeForUwa movement exposed widespread ignorance of reporting procedures and societal victim-blaming.
- Protection:
Shelters and psychosocial support for victims are inadequate. Most police officers lack training in handling GBV complaints sensitively.
- Prosecution:
Conviction rates for sexual and domestic violence remain low. Many cases collapse due to poor investigation or lack of forensic evidence.
- Reparation:
Access to compensation or rehabilitation is almost non-existent. Victims often withdraw cases due to stigma, cost, or community pressure.
The state’s failure in these four areas amounts to a breach of both international and constitutional obligations of due diligence.
- Intersection of International Law and Domestic Enforcement
Although Nigeria operates a dualist system—meaning treaties require domestication before they become enforceable—the courts increasingly use international human rights law for interpretation.
In Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283, the Court of Appeal condemned discriminatory inheritance practices against women, relying on CEDAW and the African Charter. Justice Niki Tobi stated that customs that violate women’s rights are repugnant to natural justice, equity, and good conscience.
This demonstrates that international law principles can influence domestic reasoning, even where not formally domesticated.
- Barriers to Effective Implementation in Nigeria
Despite these legal developments, practical enforcement remains weak.
- Cultural resistance: Deeply rooted patriarchy, religious interpretations, and societal norms continue to normalise domestic violence.
- Institutional inefficiency: Poor funding, lack of gender desks in police divisions, and limited witness protection deter victims from seeking justice.
- Fragmented jurisdiction: Federal-state divisions complicate uniform enforcement of the VAPP Act and related laws.
- Stigma and underreporting: Many victims prefer silence to social ostracisation.
These systemic obstacles underscore that legal reform must be accompanied by cultural change and consistent political will.
- The Path Forward: Strengthening State Responsibility
To fulfil its international obligations, Nigeria must:
- Fully domesticate CEDAW and the Maputo Protocol, incorporating their provisions directly into domestic law.
- Ensure nationwide adoption and implementation of the VAPP Act.
- Establish specialised GBV courts and provide training for police, prosecutors, and judges.
- Create victim-support funds and improve access to medical, legal, and psychological assistance.
- Partner with civil society organisations such as WARDC, Project Alert, and FIDA Nigeria to sustain advocacy and awareness.
The goal is not only to punish offenders but to prevent recurrence through structural transformation and accountability.
- Conclusion
Nigeria’s international and constitutional obligations are clear: gender-based violence is not a private matter but a public wrong that engages the state’s legal responsibility.
The due diligence principle demands that the state act decisively to protect victims, prosecute perpetrators, and reform institutions that perpetuate gender inequality.
As the courts and civil society continue to push for accountability, Nigeria must bridge the gap between ratified promises and lived realities. Only by aligning law, policy, and practice can the Nigerian state meet its duty of protection and uphold the fundamental dignity of every individual.
References (OSCOLA Style)
- Constitution of the Federal Republic of Nigeria (1999, as amended).
- Violence Against Persons (Prohibition) Act 2015.
- Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004.
- Penal Code Act, Cap P3, Laws of the Federation of Nigeria 2004.
- Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015.
- Child Rights Act 2003.
- Uzoukwu v Ezeonu II (1991) 6 NWLR (Pt 200) 708.
- Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228 (SC).
- Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283 (CA).
- Bassey v State (2019) LPELR-46910(CA).
- FRN v IGP (FHC/ABJ/CS/668/2020).
- WARDC v Attorney-General of the Federation (FHC/ABJ/CS/591/2017).
- CEDAW (1979).
- African Charter on Human and Peoples’ Rights (1981).
- Protocol to the African Charter on the Rights of Women in Africa (2003).
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