It is an accepted principle of international law that a state is responsible for violations of human rights, says Karen Stefiszyn.
The kidnapping of more than 200 schoolgirls in northern Nigeria is an act of gender-based violence for which not only Boko Haram is responsible, but also the Nigerian government. Amnesty International has reported that up to two thirds of Nigerian women have experienced violence by an intimate partner.
While domestic violence differs from the kidnapping, the common thread is the context within which the acts occur: a society which does not accord women equal value and provides the structural conditions whereby they can be kidnapped and sold in the market.
Discrimination against women is sanctioned in some provisions of Nigerian law.
For example, in the northern part of the country, the state allows for the correction of child, pupil, servant or wife by beating in as much as the beating does not amount to grievous harm.
Women’s human rights organisations in Nigeria report that the police consistently fail to respond to complaints because of perceptions of violence against women as a private family matter.
Harmful traditional practices, such as female genital mutilation, child marriage and ritualistic widowhood practices, are common.
The prevalence of child marriage in northern Nigeria is among the highest in the world, contributing to the low literacy rate.
While recent years have witnessed some positive legal reforms towards protection for girls and women in Nigeria, the government is nonetheless responsible for maintaining this status quo of discrimination and inequality, and for the violations of many rights of the kidnapped girls.
However, is it fair to blame Nigeria for not guaranteeing their rights, when the kidnappings were carried out by the extremist group acting independently from the state?
The answer is yes.
It is an accepted principle of international law that a state is responsible for violations of human rights even when committed by groups acting outside the authority of the state.
Nigeria has obligations under legally binding human rights treaties including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the African Charter on the Rights and Welfare of the Child, as well as its own constitution, to guarantee human rights.
On the issue of violence against women, this requires states to prevent violence against women, to protect women from violence, to prosecute acts of violence and punish the perpetrators, as well as to provide redress for survivors of violence.
To do so is to exercise what is referred to in law as due diligence, which Nigeria has failed to do.
The acceptance of the societal norm of discrimination against girls and women, and failure to promote, protect and fulfil their human rights, not only enabled the kidnapping of over 200 Nigerian schoolgirls, but continues to guarantee the impunity enjoyed by Boko Haram.
There is ample guidance from international human rights treaty bodies concerning the specific steps to be taken by states in exercising due diligence to address violence against women. It also places the actions, or lack thereof, of Nigeria in response to the atrocity in the framework of state accountability, under which it can be held accountable by a relevant organ of the AU or UN.
The campaign to “bring back our girls” has successfully drawn the eyes of the world to the plight of the kidnapped girls, but it has not effectively placed the campaign in the framework of human rights or articulated the responsibility of the Nigerian government to protect the girls and prosecute the perpetrators.
* Karen Stefiszyn is a programme manager at the gender unit at the Centre for Human Rights, faculty of law, University of Pretoria.
** The views expressed here are not necessarily those of Independent Newspapers.