Legal issues around female disciplinary rules in armed forces

The decision to penalise a female soldier who received love advances from a male youth corps member during the NYSC orientation, and the court judgement that upheld the sack of an unmarried female police officer who became pregnant, have drawn controversy from different quarters. 

The two cases highlighted the blurred line between gender discrimination and armed forces discipline with comments that have trailed the developments from opposing groups.

• MNJTF neutralises Boko Haram terrorists on Nigeria, Cameroon borders
• Ramadan: Saudi Arabia, firm to feed 12,600 Nigerians

Regulations 126 and 127 of the Nigeria Police Force provide that “an unmarried woman police officer, who becomes pregnant, shall be discharged from the force and shall not be re-enlisted except with the approval of the Inspector General of Police.”

Regulation 126 provides that married female police officers are granted maternity leave and other benefits. 

The Nigerian Bar Association (NBA) had filed the suit challenging the regulations following the sack of Corporal Omolola Olajide of the Nigeria Police Force, Ekiti State Command, on January 26, 2021, for being pregnant while unmarried.

The NBA had contended that the action is discriminatory on women service personnel and therefore unconstitutional.

In its counter affidavit, the Attorney-General of the Federation, Abubakar Malami (SAN), who was joined alongside the Police Service Commission, and the Nigeria Police Force as defendants in the suit, had argued that the rule was in order, while persons who are not comfortable with it could seek amendment at the National Assembly. 

“Fundamental human rights, as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended), are not absolute,” he said.

“The Nigeria Police Act and Regulations are special creations of law. The Nigeria Police Act and Regulations provide the framework for the police force in maintaining peace, combating crime, protecting liberties, life and property and other related matters.”

But in the judgement, Justice Inyang Ekwo of the Federal High Court in Abuja held that the suit lacked merit, stressing that such unmarried female police officers were aware of the regulation before they joined the Force, adding that the association could not prove that the regulation “is not reasonably justifiable in a democratic society and is not made in the interest of defence, public safety, public order, public morality or public health.” 

He said, “Where a law or regulation of an establishment identifies gender attributes or faults and seeks to regulate the vulnerabilities capable of negatively affecting the progress of such gender, such law or regulation is a warning aforehand and cannot be said to be discriminatory. 

 “In my opinion, the essence of this suit is to use the provision of the 1999 Constitution, as amended, to lower the moral and professional standard of the NPF and this court will not give its imprimatur to such venture. 

“It is my finding that in all that the plaintiff (NBA) has posited, it has not pointed to any aspect of the regulation complained of, which violates the interest of public order or public morality, which will make it reasonably justifiable to invalidate Regulation 127 of the NPFR and I so hold. 

 “I find that there was no basis for this action in the first place. 

 “An unmarried woman who intends to get pregnant is not compelled to join the police force. 

 “Where such a woman becomes a police officer, she is bound by the regulation on pregnancy while being unmarried. 

 “I am unable to see any of the fundamental human rights provided in Chapter IV of the 1999 Constitution, as amended, expressly or latently meant to shield an unmarried woman police officer who becomes pregnant from being discharged from the force. 

 “I find that the regulation in issue, in this case, is about conduct and nothing more. I find no compelling reason for this court to disrupt the discipline of the force or interfere in the regulation of the conduct of officers of the NPF, whether male or female. 

 “Any person who joins the force must abide by the regulation of the force or not join the force as there is no compulsion about its membership.”

Contending against the sack of the pregnant woman police last year, the Humanist Association of Nigeria had argued that the law promotes unjust treatment of an officer based on her gender. 

Similar to this is the submission of Mrs Funmi Falana to the detention of Private Sofiyat Akinlabi by the Nigerian Army in December 2021 for accepting a marriage proposal from a youth corps member below the three years of service as provided by the rules.

Mrs Falana argued that contending that the action violated Section 40 of the Nigerian Constitution 1999 which guarantees freedom of association, contending that her association in a case of Women Empowerment and Legal Aid and the Attorney General of the Federation 2015 1 NHRLR (PT 1) 57 moved the Federal High Court to nullify similar Regulation 124 of the Nigeria Police. 

Similarly, Chinelo Ogbazor Esq. said the rule was offensive to the Nigerian constitution, which prohibits discrimination based on gender. 

 “If the law must exist, it must punish every police officer who conceives outside wedlock, including married men who impregnate women other than their wives,” she said.

 “It is hypocritical and an example of an attempt to police women’s bodies.

“Hopefully, the Supreme Court will make a pronouncement that will put this matter to rest. 

“That is to say that the NBA is encouraged to appeal the decision of the Federal High Court on this issue.”

However, a former Attorney General of Ekiti State, Dayo Akinlaja (SAN), said the fact that a Federal High Court had hitherto declared the vexed regulation imposing conditions for marriage by a woman police officer as illegal and unconstitutional, is not binding on another judge. 

He said any employment relationship is regulated by the contractual terms or statutory provisions governing the employment based on references in College of Medicine of University of Lagos v Adegbite (1973) All NLR 434 at 445; UBN Ltd v Edet (1993) 4 NWLR (Part 287) pg. 288 at 300.

“Appointment or employment follows only when there is a mutual agreement between the prospective employer and employee. 

“Incontestably, therefore, Section 42(1) of the Constitution is of no relevance to the employment status of the woman police officer,” he said.

“However, if there is any speck of doubt about the non-applicability of Section 42(1) of the constitution to the employment of an unmarried woman in the Nigeria Police Force, the proviso in Section 42(3) of the constitution steps in to dislodge that.”

 “As an upshot of the going legal position, it is settled law that when termination of employment is in line with provisions of the terms of the employment or the statute regulating the employment, such terminations are not wrongful. See Layade v PANALPINA (1996) 7 SCN) 1 at 10-11; Oforishe v N.G.C. Ltd (2018) 2 NWLR (Pt. 1602) 35 at 53-54, among the surfeit of authorities on this principle.”

He also stated that “a woman police officer may validly take advantage of the constitutional right to freedom from discrimination where applicable, once the expressed ground for the alleged discrimination is what is dictated by the terms or conditions of her employment.

 “An unmarried woman police office having voluntarily entered into the force with the actual or deemed knowledge of the restrictive regulation cannot be allowed to subsequently engage in any melodramatic somersault to circumvent the potency and consequence of the regulation.”