Lawyer and human rights activist Funmi Falana (SAN) discusses the court ruling against Regulations 126 and 127 of the Nigeria Police Force, which allows the dismissal of unmarried pregnant policewomen, with AJIBADE OMAPE
What were the specific regulations declared illegal by the Court of Appeal in Abuja regarding the dismissal of unmarried pregnant policewomen?
Police Regulation 126 specifies that no woman police officer shall be allowed to get married within the first three years of entering into service, and Regulation 127 now states that if they do, they will be dismissed from police service. However, this regulation specifically targets women police officers, whereas the same is not required of policemen. These regulations were challenged in court. It also happened that one Omalola Olujide, who was a police officer somewhere in Ekiti State Police Command, was dismissed because she became pregnant. So, we went to court last year to challenge those regulations. The court said that the regulations were unconstitutional and violated her rights to freedom from discrimination because any provision that is made in any organisation should be for both men and women. Any provision that targets a woman and does not apply to the male counterpart is inconsistent with the provision of the constitution that says there shall be no discrimination on the basis of sex. Such a provision is null and void due to the inconsistency with the Constitution. So the court struck down that provision and declared the dismissal of Omolola Olujide from police service as illegal. Fortunately, the NBA had gone to court initially, but not specifically on the case of Olujide, but they went to court to ask that the regulations 126 and 127 should be struck down, and the court dismissed their application initially at the Federal High Court. So they now filed an appeal to the Court of Appeal, and the Court of Appeal granted their application two days ago. I think sometime last week. The court declared that regulations 126 and 127 are inconsistent with the provision of section 42 and of course section 37 of the constitution. Section 37 of the constitution provides that there shall be rights to privacy and that if any woman is deprived of becoming pregnant, that is an infringement on her right to privacy. Of course, if that provision is targeted at female police officers and is not applied to male police officers, it is, again, inconsistent with section 42 which talks about freedom from discrimination. So the Court of Appeal last week granted the application of the NBA and while the Court of Appeal was granting that application, it referred to our own case that was already granted by the Federal High Court last year as an authority that is cited in courts. It affirmed that these provisions are inconsistent with the constitution and they are null and void as to the inconsistency.
Can you explain the implications of the court’s decision on Regulations 126 and 127 of the Nigerian Police for unmarried pregnant policewomen?
Yes, the implication is that that pronouncement is now a law. This is because, luckily for us in Nigeria, state decisions are one of our sources of law. When I say state decisions, I mean judicial precedent, when an issue goes to court and the court pronounces on that issue. The pronouncement of the court becomes the law on that issue. So as of today, the law in this country regarding police regulations 127 and 126 is that they are expunged from the law because the court has so pronounced that they are inconsistent with the provision of the constitution and they should be struck down. So having been struck down by the court, the implication is that those laws no longer exist. They are no longer part of the police regulation as of today, by virtue of the pronouncement of the decision of the Court of Appeal last week. So that is the implication of that decision and that is the law as of today.
Do you see the dismissal of Omolola Olujide as an act of discrimination against women in the police force?
The entire police regulations 126 and 127 are inconsistent with the provision of the constitution. They are discriminatory. Those laws are discriminatory against women and it was based on the fact that they are discriminatory against women that they were struck down by the court. So the dismissal of Omolola Olujide is inconsistent with her right to freedom from discrimination and that was what the court held, so the court also ordered that Omolola Olujide be reinstated back in the police force.
Now that the court has declared the dismissal illegal, is Omolola Olujide going to be reinstated into the police force?
Oh yes, that will be done. When we got this decision of the court’s judgment, we sent it to the Inspector General of Police and the Inspector General of Police replied to us as a lawyer to Omolola Olujide that the police were working on her reinstatement and that Omolola Olujide would be re-absorbed into the police force based on the order of the court, and any act of victimisation of course will also be answerable in court. If anybody victimises her based on her being re-absorbed into the police force, she has a right to challenge that in court again.
Can women from other security agencies benefit from this judgment?
Yes, they can benefit from it. There are similar provisions in the Immigration Service as well and I think the Nigerian Drug and Law Enforcement Agency. But unfortunately, this particular judgment is specifically on regulations 127 and 126 of the police force. So until such provisions in other sister organisations, and other security organisations are taken to court, they may not be able to take benefit from it. But such provisions in other security organisations could be challenged in court and this case will be referred to in court as a precedent or as a judicial precedent. The court will now take cognisance of this particular rule to strike down the other provisions. But because most of the provisions are not specifically mentioned, in this decision, they may not be able to take the direct benefit. Until we take their provisions to court and the court makes pronouncement of them, they may not be able to take the benefit of this provision because the court specifically mentioned police regulation.”
Do you believe the same police regulation should have applied to male police officers who aren’t married but get women pregnant?
Of course, that was our argument in court. We said if you are saying a woman should not get married and should not become pregnant, what happens to a policeman who impregnates another woman? A man and a woman should be treated equally. So if a condition specifies that a woman should be so treated, the male counterparts should also be so treated, that was our argument. But unfortunately, you will agree with me that every day men impregnate women and nobody gets to know because men do not carry pregnancies. When I was arguing this case in court, I told the court that of course the person who impregnated Omolola Olujide is a man and he’s a police officer who is still in police service, and the woman, because of this same pregnancy was dismissed. This is discriminatory.
Can you elaborate on the Court of Appeal’s reasoning behind the ruling in favour of the Nigeria Bar Association?
The reason is that discrimination has been expunged from the law in all civilised communities. Also, the constitution of Nigeria, which we call the ground law specifically mentions in section 42 that nobody shall be discriminated against on the basis of sex and of course on place of origin. Now, if regulations 127 and 126 are placed side by side, and juxtaposed with section 42, they cannot stand. They cannot stand if they are juxtaposed with section 42 of the constitution because any provision that is made in any organisation should apply to both men and women. If they do not apply to both men and women, then they become discriminatory, and so the court said this type of law cannot stand in any civilised community, and our country should not be an exception. So the court ordered that the organisations involved should take steps to expunge this from the regulation. Now, perhaps I should let you know that there is also another regulation which is Regulation 124. What that specifies is that a woman should not get married within the first three years of being absorbed by the police force unless she takes the permission of her superior officer, and in obtaining that permission of the supervising officer, she must bring the would-be husband, before the supervising officer for approval. That’s section 124, and that we took to court some years ago, Women Empowerment and Legal Aid versus Attorney General of the Federation. So that case was handled by my own organisation, my NGO. I went to court on behalf of my NGO to tell the court that such a provision of the law cannot stand in the face of section 42, because a man who enters into the police force could get married and not have to bring his own fiancé before the superior officer, but the woman will be compelled, otherwise, she will be dismissed from the police force. So we went to court and the court said that provision was inconsistent with the provision of the constitution and it was struck that down. So three provisions have been struck down by the court now. Provision 124, and that was in the case of Women Empowerment and Legal Aid versus Attorney General of the Federation, and that was in the year 2011. It was struck down based on the fact that it was inconsistent with section 42 of the constitution. Also, regulations 126 and 127 were equally struck down based on the same reason. Now the reason for the two, of course, is the fact that those provisions are inconsistent with the provisions of the Constitution, and any law that is inconsistent with the provisions of the Constitution is null and void as to the level and the extent of its inconsistency.
How does the court’s judgment address the issue of privacy and discrimination against female police officers within the Nigerian Police Force?
Yes, section 37 provides that every person shall have the right to privacy. In other words, you have the right to determine when to get married, who to get married to, when to have a baby, and when not to have a baby. As a matter of fact, the extension of that law is the third-generation rights we call the reproductive rights of women. The reproductive rights of women go further to give you the right to decide who to get married to, and when to get married, who to be your partner, and who not to be your partner. So these are the rights to privacy, and by extension, the reproductive rights of women. So the court now held that any law that takes away this right to privacy is inconsistent with the provision of the constitution. Such a law violates one’s right to privacy, and it cannot stand in the face of any law in any civilised community.
What was the court’s position on the principles of morality, discipline, and gender equality in its judgment?
Yes, the police argued that they were trying to protect women, and of course, they were also trying to protect the police force from abuse. In other words, a woman who becomes pregnant may not be able to function properly. They also argued that the women knew that this provision existed when they were applying to join the police force, and they should have opted to say, I don’t want to go into the police force because of that. They noted that having seen the provision and still went ahead to join the police force, they must have waived their rights. That was the argument of the police. The court addressed that by saying, that any law that is a law cannot be waived, especially the rights under the Constitution. Morality is different from law, a law is a law and must be obeyed, especially when it is the provision of the Constitution. It cannot be waived by any person, and so, the argument that they waived their rights, or the argument that they are trying to defend or morally protect the police force cannot stand in the face of the provision of the Constitution.
What are the broader implications of this court decision for the Nigerian Police Force and its regulations?
The implication is that all these provisions that have been specified would be expunged from their law, they cease to become part of the law, and so, a woman can now become pregnant within the first three years of being absorbed by the police force without any punitive measure. They also can get married within the first three years of being absorbed by the police force without any penalty. Because all these laws that prohibit these actions have been taken away by the decision of the court. So, they cease to be part of the laws of the land. That is the implication.
How does this judgment align with the demands of a modern society operating under the rule of law, as mentioned by the Court of Appeal?
Yes, that was one of the objectives of the court, that they honour the rule of law, and the rule of law specifically says that everybody shall be equal before the law. That is one of the terms of the rule of law. So, any law that discriminates against any person or gender, any gender-biased law is inconsistent with the rule of law, and that was what the court said. In any modern society, when we talk about the rule of law, the cardinal number one point, everybody shall be equal before the law. Number two, you must give the other side a fair hearing, and number three is that you cannot be a judge in your own cause. The judgment of the court must be obeyed. These are the cardinals of the rule of law, and the primary cardinal is that everybody shall be equal before the law. The law does not see anybody as being superior to the other. That is what we call the rule of law. So, any law that discriminates is inconsistent with the cardinals of the rule of law, and cannot stand in any modern society. Nigeria must obey the rule of law, and Nigeria must allow its laws and the provisions of their laws to be consistent with the cardinals of the rule of law as being operated in modern societies.”
What steps are expected to be taken by the respondents following this court ruling?
The court specifically ordered the police force to take steps to expunge these provisions from their law, and that means the Police Service Commission and the Attorney General will take steps to expunge this from their laws.
(Punch)
