Justice Jumbo-Ofor's saga has presented an opportunity for civil society to challenge the unfair federal character policy that limits the right of a married woman in public service to choose her state of origin. It is part of the citizenship issues that Nigerians must resolve to achieve strong nationhood. Citizenship should, by best practice, be defined by residency and domicile, with reasonable safeguards.
The issue is not about Justice Ofor, or the CJN's refusal to swear her in. It is not about the individuals. It is about a male-centric and asymmetric policy that clearly offends the provisions of the right to family life, freedom of association and prohibition from discrimination firmly guaranteed by the constitution as well as the African Charter on Human and People's Rights.
The best practice in this regard is to allow career married women the right to choose their state of origin. It is undisputed that she cannot benefit from both her parental and spousal States, but she must be able to take that decision. It becomes arbitrary and therefore unlawful when it is predetermined and imposed by a law or policy.
A subsidiary regulation by the Federal Character Commission states that 'A married woman shall continue to lay claim to her State of origin for the purpose of implementation of the Federal character formulae at national level.'
This is said to be the legal basis for the CJN's decision to revisit Justice Jombo-Ofor's elevation. If that is the law, then the CJN cannot disobey the law, irrespective of who is the victim.
Now, a lot of constitutional issues are raised by this policy. The policy is not only illogical, it is unconstitutional and offends the principles of Nigerian family law. It has been used over the years by men to manipulate and negotiate women out of key public positions, including in the political parties and political appointments. There are so many instances of female electoral aspirants being asked by their male competitors to step down because they were contesting in their spousal, rather than parental constituency.
It is spurious, if not practically impossible that a woman married from Jigawa state to Ondo state for 30 years would go back to her village in Jigawa to contest election or seek political appointment. Upon marriage, she has changed her domicile, and for all intent and purpose, her family name and her social, legal and most times, cultural and religious identities.
For all legal purposes, including taxation, voting, census, and other civic duties, she is primarily of her place of marriage. However, she could choose to retain her parental status of citizenship, including in discharge of her civil duties and in earning civic benefits. That then is her choice. Many married women validly choose to do so. That choice must be demonstrated by clear intention, and that is the entire purpose of right to family life. It is therefore inimitable for the Federal Character Commission to contrive a bungling policy that would compulsorily pinion a married woman to her parental domicile.
Apart from its inexcusable legal unsoundness, the practical absurdity of the policy is demonstrated in a case of a foreign woman married to a Nigeria husband. She will, under this policy, be entitled to nothing at all at the national level because she would be unable to go back to her foreign parental 'state' to get appointed, having surrendered, as in many jurisdictions, her parental national citizenship for citizenship of Nigeria. It is also absurd in cross tribal marriages in Nigeria.
Forlornly, this test case to address the Federal Character Commission's obnoxious policy arose from the judiciary, which could again give our opportunistic politicians occasion to deride judicial affairs. Evidently, last week's Senate's hurried resolution on the matter was simply political gain seeking and totally uncalled for. They should have been addressing the hideous gender policy and not the isolated case. Many female political colleagues have been quietly victimised in the past by these same politicians on similar grounds.
The quandary of our amiable CJN found herself could be understood by every discerning person in the law community: She was in a catch-22 situation. She is on oath to uphold the law of the land including the Federal Character Commission's regulation, and also have the responsibility to protect national judicial integrity and be fair to all, including other female candidates earlier disqualified on those grounds. Unhappily, Justice Ofor's elevation was fait accompli, having been successfully screened by NJC and approved by the President. At this point, she is no longer a judge of the High court for all legal purposes. See OGBUYIGA v OKUDO (1979) 1 AllNLR.
It is therefore opportune for the civil society and the Bar to use their advocacy leverage to ensure the firm protection of the integrity and sanctity of the judicial interests from such undoing gender policies. Clearly, this is an apt test case to reduce the vulnerability of women in public service, and address the citizenship/indigenship issue that has remained a sore point in our nationhood. A more positive federal character policy should be constructed, with time-framed, goal oriented approach that would favourably address the needs of those purportedly sought to be protected.
Obiagwu is Executive Director, Legal Defence Assistance Project
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