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A COMPARATIVE STUDY OF WOMEN’S RIGHTS AND PROPERTY INHERITANCE
ABSTRACT
Generally, most Nigerians both literates and illiterates are ignorant of the laws that regulate their private lives until they fall foul of such laws or there is a problem which affects their relatives as a result of the application of such laws. One area of law which Nigerians are ignorant of or for which they have shown apathy is the law of inheritance. Many Nigerians contract their marriages under customary law and so the customary laws of inheritance will be applied to the distribution of their estates after their death if they leave no valid will. Many of the customary laws of inheritance deprive women of their right to inherit the estate of their deceased husbands and fathers. The aim of this research is therefore to awaken the men folk to the unfairness of the customary laws of inheritance which do not entitle widows and their daughters to inherit the estates of their husbands and fathers and the consequential hardships such women suffer. The research considers the following questions: Are women entitled to inherit the property of deceased male relations and relatives and what are the rules of inheritance? Do the customary laws of inheritance treat men and women equally? Are there differences or similarities between customary laws and the Law as they relate to women’s right of inheritance? How can the customary laws of inheritance be reformed to improve women’s rights of inheritance? What laws are in existence to combat this trend and how effective are they? This study’s objective is to examine the status of women vis-à-vis the rights of inheritance under customary and Laws, it will also asses the adequacy or otherwise of the laws relating to women’s rights of inheritance under the customary laws. It is also aimed at sensitizing the legislatures, policy makers and other stakeholders on the need to reform or abolish the discriminatory customary laws of inheritance to give the women right of inheritance. The research will adopt the doctrinal and comparative study of customary laws and Law as they relate to women’s right of inheritance. This study is aimed at the enlightenment of the reader, who will become aware of the discriminatory practices of inheritance against women and its damaging effect on the overall socio-economic development of the country. Under Law, women’s rights are protected because Laws allow women in their capacities as wives, daughters and sisters to inherit the estates of their deceased relatives these rights are clearly stated in the Law sources. The customary laws of inheritance of the Igbo, Benin, and Yoruba people which deprive women the right of inheritance are unjust and discriminatory. They contravene the provisions of the 1999 Constitution of Nigeria and other International Conventions on elimination of discrimination against women of which Nigeria is a signatory. This work contributes to knowledge by exposing these discriminatory laws for what they are, that is contrary to the Constitution of the Federal Republic of Nigeria 1999 and the extant conventions against discrimination of the Nigeria grund norm. It advocates the consideration of the Law customary law of inheritance not ordinarily commended by non adherents of that faith as a better option to other customary laws without prejudice to religion or faith or belief.
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION
Gender issues are topical throughout the world as there seems to be an increasing demand for more equitable treatment of women in all human actions. Many women throughout the world are campaigning, organizing and working together to improve their lives. Their aims, methods and interests are various. Some are working in women’s refuges, some are campaigning against pornography, some are demanding total legal equality with men, some want improved maternity leave, some are campaigning for abortion on request etc. Hence there is no united women’s movement.
However, they are all concerned with improving the status and promoting the rights and interests of women. These women’s movements are usually described as “feminist”. Alison Jaggar[1] identifies feminism with various social movements which are dedicated to ending the subordination of women.
The feminist’s claim is that women should have the rights and freedom as men. In view of their various aims, methods and interests, feminist theory is not uniform. Many writers have identified three main theories of feminism namely liberal, socialist and radical feminism.
The liberal approach is that women have as much right as men. The aim of the liberal approach is formal and sexual equality for women and men. Although the liberalism’s claim for formal sexual equality for women and men has been successful and resulted in the acquisition of rights for women to be educated, to vote and to stand for political office etc, some feminists disagree with the liberal approach because they feel that the approach recognizes certain values that are mainly male.
Bryson[2] says the socialist theory of feminism like liberalism, promotes equal rights and opportunities to all individuals. However, unlike liberalism, it emphasizes economic and social rights and freedom of exploitation. Socialism allows women to recognize the ways in which men are also oppressed and to work with them to achieve a more equitable society in the interest of all.
The radical feminist approach sees patriarch as the oldest and most significant form of oppression for women. The radical view is that women are an oppressed group who has to struggle for their liberation against their male oppressors. Women must recongnise that it is men who oppress them and that politics has to be redefined to include family and personal relationships.[3]
This study supports the socialist approach that women should work with men to achieve an equitable society in the interest of all. It is necessary that women should collaborate with men so as to enlighten the men about the injustice which inequality of the rights of men and women creates. The enlightenment of men in this regards could eventually eliminate the unpopular misconception of men that women are inferior. However, the collaboration of women with men should not preclude activities that are solely women. Despite the differences in their approaches, the feminists’ claim that women should have the same rights and freedom as men which has been largely conceded in western society has led to concerted efforts by international communities to hold conferences on the elimination of gender inequality. Consequently, many international instruments have been promulgated by General Assembly of the United Nations to address gender inequality. One important international instrument as regards women’s rights is the Convention on Elimination of All Forms of Discrimination against Women adopted in 1979 by the UN General Assembly which provides guidelines for legal policy and programme development to promote equality as a means of justice.[4]
Article 5 of the convention[5] obligates state parties to the convention to take action to modify custom and eliminate prejudices which are based on inferiority or superiority of either sexes or stereotyped roles for men and women. According to Freeman[6] the examination of custom, the elimination of prejudices and the development of measure to promote equality in practice as well as in law are the tools for justice.
Article 5 of the convention[7] is relevant to the title of this research because the customary laws which this research examines are generally biased against women as they do not accord women equal rights with men as regards inheritance. Generally, under customary laws of the various tribes in Nigeria, women are not allowed to inherit the estates of their late husbands and fathers. However, under some customary laws, women are given limited right to inherit the estates of their husbands and fathers. The customary laws which deny women of the right to inherit the estates of their husbands and fathers pose some challenges to women because on the death of men, widows and children are left destitute by surviving relations of men who inherit the estates of the deceased. Law, on the other hand, allows women to inherit certain portions of the estates of their husbands and fathers. Many Muslim women are however denied this right by surviving relatives of their husbands who prefer to apply customary law of inheritance to the distribution of the property of the deceased Muslims.
Customary laws are the indigenous laws of the people. They are founded on the social norms or cultures of the people. They are a reflection of the habits and social attitudes of the people they govern, and they drive their validity from the consent of the people they govern[8]. There is no single set of customary laws of inheritance in Nigeria because customary laws are tribal in origin. They operate within the tribes. Therefore, customary laws vary from one tribe to another and also from one community to another. Generally, customary laws are unwritten in the sense that they cannot be found in statute books. It should be noted however, that in the recent times, some customary laws of inheritance have been put in writing. Examples are the customary laws of inheritance of former Anambra and Imo states which have been written in a customary law manual[9] and the customary law of inheritance of Benin which has also been written in a hand book10. Law, which is also regarded as customary law[10], unlike the indigenous customary laws has religious basis. According to Law scholars, Law includes two basic elements. The divine which is unequivocally commanded by God or His messenger and is designated as Sharia in the strict sense of the word; and the human which based upon and aimed at the interpretation/ or application of the Sharia and is designated as Fiqh or applied Sharia.[11]
The divine sources of Law are the Quran and the Sunna of Prophet Muhammad while the human components are Ijma, Qiyas, Urf, Istihsan and Maslaha under the broad heading of Ijtihad. The Holy Quran is the first and primary source from which all the teachings and laws of Islam are derived. It is the pivot upon which all the other sources revolved. Briefly, it is the ground norm of Law (the sharia).[12] The Quran is the exact words of Allah as revealed to mankind through the Prophet Muhammad. The secondary source is the Sunna of the Prophet Muhammad, that is to say, his deeds, utterances and his indirect authorization.
The human components of Law under the broad heading of Ijtihad include Ijma (consensus) Qiyas (analogical deduction), Istihsan (preference) Istislah and Maslahah (public interest and welfare). These other components of Law are aimed at interpreting, expounding, understanding and applying the injunctions of Sharia to practical day to day affairs of the Muslim community. This is because according to Ramadan Said[13], the Quran and Sunna established the general rules without going into details.
The source of Law rule of inheritance as it affects women’s rights of inheritance in their capacity as wives and daughters is the Holy Quran which is the first and primary source of Law.
This study discusses the rules of inheritance as they affect women’s rights as wives and daughters under the customary laws of some major tribes in Nigeria and Law of inheritance as regards this category of women.
1.1 BACKGROUND TO THE STUDY
Generally, most Nigerians both literates and illiterates are ignorant of the laws that regulate their private lives until they fall foul of such laws or there is a problem which affects their lives or the lives of their relatives as a result of the application of such laws. One area of the law which many Nigerians are ignorant of or for which they have shown apathy is the law of inheritance.
Many Nigerians contract their marriages under customary law and so the customary law and so the customary laws of inheritance will be applied to the distribution of their estates after their death if they leave no valid will. The inheritance practices of intestate estate under the customary laws in Nigeria have almost as many variations as there are ethnic groups in the country and they are predominantly patrilineal that is relating to, based on, or tracing descent through the paternal line. Inheritance and succession under native law and custom is determined primarily by the customary rules of the place of origin of the deceased person and not by where he resides or w\here the property is situated. These practices conform to the primogeniture rule which is a system of inheritance or succession by the firstborn child, specifically the eldest child[14] who consequently becomes the head of the family. He occupies the family house, holding same as trustee of the other children, male or female.
As earlier stated, many of the customary laws of inheritance deprive women of the rights to inherit the estates of their deceased husbands and fathers. Some Nigerians are aware of the fact that if they die, their wives will not have the right to inherit their estates because of their customary laws of inheritance. This category of Nigerians does not bother to question such laws probably due to their carefree attitude. Some believe that after their death, their relatives will take care of their wives, children and property. Unfortunately, this apathy or carefree attitude to customary laws of inheritance which deprive widows of the right to inherit the estates of their husbands has been creating problems for widows. This is because in many instances, the relatives whom their deceased husbands trusted while alive to take care of their children and property sometimes convert the estates of the deceased of the deceased to their own thereby leaving the widows and the children in destitute.[15]
It is therefore necessary to awaken the men folk to the unfairness of the customary laws of inheritance which do not entitle widows and their daughters to inherit the estates of their husbands and fathers and the consequential hardships such women suffer.
1.2 RESEARCH PROBLEM
One can easily perceive generally that the Nigerian woman (the widow) and the girl child typically get little or nothing in comparison with their male counterparts when it comes to intestate devolution of property. This is because these customary laws exhibit an overwhelming sympathy for the male gender and has as a consequence, sustained an unjust and disproportional treatment of female in Nigeria. The continued practices of these laws constitute a major obstacle to gender equality, economic empowerment of female gender and actualization of social justice in terms of development, peace and security[16].
These discriminatory aspects of property inheritance under the customary law in Nigeria manifests in different forms and scope ranging from primogeniture rules to the right of spouses and they run contrary to various international conventions and more importantly, to the constitution[17] of the Federal Republic of Nigeria.
As regards Law of inheritance, the study discusses the quantum of share to women in their capacities as wives and daughters in the estates of their deceased husbands and fathers as contained in the Holy Quran which is the divine source of Law.
In this connection, the research considers the following questions: Are women entitled to inherit the property of deceased male persons and what are the rules of inheritance? Do the customary laws of inheritance treat men and women equally? Are there differences or similarities between the customary laws and the Laws as they relate to women’s right of inheritance? How can the customary laws of inheritance be reformed to improve women’s rights of inheritance?
1.3 OBJECTIVES OF THE STUDY
One of the objectives of this study is to examine the status of women vis-à-vis the rights of inheritance under the customary and Laws. Generally, under customary laws, a wife is not entitled to inherit the estates of her late husband. Similarly, the right of inheritance of a girl child is also curtailed. However, Law allows women in their capacity as daughters, wives, mothers and sisters to inherit the estates of their relatives. It is therefore clear that the customary laws of inheritance are discriminatory against women.
The second purpose of this study is to assess the adequacy or otherwise of the laws relating to women’s rights of inheritance under the customary laws of inheritance of the Igbo, Benin and Yoruba peoples of Nigeria.
Furthermore, the aim of this study is to examine which of the customary laws of inheritance of the three ethnic groups considered in this study has any similarity with Law.
Finally, the purpose of this study is to sensitize the legislatures, policy makers and other concerned stakeholders on the need to reform or abolish the discriminatory customary laws of inheritance to give women right of inheritance.
1.4 SCOPE OF THE STUDY
A discussion of the full range of the customary laws of inheritance of the various customary laws of the over two hundred and fifty ethnic groups in Nigeria is not the focus of this study. This study is concerned with the customary laws of inheritance of three of the major ethnic groups, that is to say, Igbo, Benin and Yoruba people as they affect women in their capacity as wives and daughters.
Generally, the customary laws of inheritance of these ethnic groups deny wives of the right to inherit the estates of their deceased husbands. In the same vein, the Igbo customary law denies women and daughters the right to inherit the estates of their late fathers, while the Benin customary law gives preference to sons over daughters. This study has criticized these customary laws to be unjust, inequitable, and unconstitutional.[18] They also violate the CEDAW[19] to which Nigeria is a signatory and the African Charter on Human and Peoples Rights which Nigeria has also domesticated.[20]
On the other hand, Law of inheritance which gives women as wives and daughters certain portions of the estates of their deceased husbands and fathers is just and equitable.
1.5 METHODOLOGY
The research is both doctrinal and comparative. The research adopted a comparative study of customary laws and Law as they relate to women’s rights of inheritance. The doctrinal research method and context analysis were used for the comparative study.
Secondary sources of materials were mainly utilized. Law text books learned authors on customary laws and Law of inheritance, manual and handbook on customary laws, articles in law Journals and materials downloaded from the internet were consulted for the study. The other sources utilized were statutory laws and decided cases from different jurisdictions cutting across all the ethnic groups covered by the study.
Moreover, information about the existing customary laws of the tribes covered by the study was considered vis-à-vis the provisions of the Law of inheritance as enshrined in the Holy Quran.
[1] Cited by Bryson Valerie in Feminist Debates Issues of Theory and Political Practice (Palgrave New York 1999) page 5.
[2] Bryson Valerie op cit. page 16
[3] Ibid. page 27
[4] Kerr Joanna (ed.) “Ours by Rights: Women’s Right as Human Rights” (Zed Books London 1993) page 93.
[5] Convention on the Elimination of All Forms of Discrimination against Women, Adopted and opened for signature, ratification and accession by General Assembly resolution 34/ 180 of December 1979.
[6] Freeman Marsha A. “Women Development and Justice. Using the International Convention on Women’s Rights” in Kerr (ed.) Ours by Right: Women’s Rights as Human Rights. Op cit. page 93.
[7] Ibid
[8] Eshugbayi Eleko v Government of Nigeria (1931) A.C 662 at 673 where the Privy Council said “it is the assent of the native community that gives a custom its validity…’
[9] Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Government Press, Enugu, 1977). 10 A Handbook of Benin Customs and Usages (Eweka Court; The Palace Benin City Nigeria, 1996).
[10] S.2 of the Native Courts Law 1956. CAP 56 Laws of Northern Nigeria 1963 states: ‘Native law and custom includes Muslim law.’ However in the case of Alkamawa v Bello, (1998) 6 SCNJ 127 the Supreme Court held that the Law is not and has never been customary law. Court stated thus, “Law is not the same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than the English Common Law” at p. 128.
[11] rd
Fayzee, Asaf A.A, (1964) Outlines of Muhammed Law (Oxford University Press 3 Edition , London) Faruki Kemal A. (1962) Law Jurisprudence (Karachi Publishing House Pakistan)p.18, Couslon, N.J 1964. A History of Law. (The University Press, Edinburg) p.85; Schacht J. 1964, Introduction to Law (Clarendon Press Oxford) and Shorter Encyclopedia of Islam, pp. 102-107; 524-529) cited by Sada I.N in his article ‘The nature of Law, A Rigid or Dynamic System? A Critique’ (2000-2002) vol 11, No 11 (Ahmed Bello University Journal of Law).
[12] Sada I. N, “The Nature of Law; A Rigid or Dynamic System? A Critique” (2000- 2001) vol. 11 No 11 Ahmed Bello University Journal of Law.
[13] (1970) Law its Scope and Equity p.64. Cited by Sada I.N. op. cit. page 17.
[14] th th
Chambers 20 Century Dictionary 4 Ed., 1981.
[15] Socio-Economical and Legal Rights of Women: The Challenge (Women’s Aid Collective [WACOL] Nigeria 2006) pg. 5. WACOL is a non- governmental, non-profit making organization in Nigeria which is gender conscious working towards gender equality and human rights for all.
[16] Ikpeze O. V., Gender Dynamics of Inheritance Rights in Nigeria: Need for the Women Empowerment (Onitsha: Folmech Printing & Pub. Co. Ltd; 2009), p.54
[17] The highest law of the people of Nigeria, against which, any law (or practice) in contradiction is invalid.
[18] They violate S. 42(1) of the 1999 Constitution of the Federal Republic of Nigeria CAP C23 Laws of the Federation of Nigeria 2004 which prohibits discrimination against any citizen of Nigeria on the basis of sex.
[19] By Article 2 of the Convention, State signatories to the Convention are required to take appropriate measures to abolish existing laws, customs, regulations and practices which are discriminatory against women
[20] African Charter on Human and People Rights (Ratification and Enforcement Act, CAP A9 Laws of Federation of Nigeria 2004. Article 18(3) of the Charter provides “ The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in International declarations and conventions”