Authored By: Favour Amaechi
University of Nigeria Nsukka
Introduction
Nigeria has a plethora of statutes and case laws that guarantees women’s right to inherit their deceased father’s or husband’s properties but are women truly equal to men in inheritance? The present realities facing women are far above what the law guarantees. Nigeria is a democratic nation and the constitution is the highest law of the land. However, the nation is deeply rooted in culture and traditions and the people of the grassroots are more familiar with culture than formal laws. Women living in Nigeria experience unfair treatment with respect to inheritance rights in Nigeria. They are denied the right to inherit their father’s or husband’s properties on discriminatory grounds of sex and are made to believe that they are inferior to men, despite the court ruling in several cases that women can inherit properties. Many women after the death of their fathers or husbands are left without any properties and are most times left to fend for themselves. In some cultures, women are directly blamed for the death of their husbands and are asked to leave the houses of their husbands while her husband relatives takes ownership and possession of her husband properties. Female children in the households of their fathers are deprived of the right to inherit moveable or immovable properties while permitting only the male children in the family to inherit their deceased father’s estate.
The aim of this research is to critically analyze the law under the various legal systems. This article explores the relevant women inheritance rights available in Nigeria’s statutes and case laws and juxtaposes this with the recognition of these rights by culture and traditions. It identifies obstacles present in the system that hinders recognition of women inheritance rights by cultural institutions and political systems. The article finds that various cultural and socioeconomic factors as well as gaps in the law intensifies the ineffectiveness of these rights. It proffers solution for an effective implementation of laws with regards to women inheritance rights.
WOMENS’ RIGHT TO INHERITANCE UNDER THE LAW
1999 Constitution
Looking at what the constitution provides regarding women inheritance rights in a wider perspective, section 42 of the 1999 constitution as amended provides a legal foundation for women inheritance rights. It stipulates that no citizen of Nigeria who is a of particular ethnic group, community, place of origin, sex or religion shall because he is such a person, be subjected to deprivation in any form nor can they be granted or denied access to privileges or advantages based on their ethnicity, religion, origin or sex.
By virtue of this provision the constitution in itself has strengthened women’s ability to assert their right in the court, in society and in other places where necessary.
Married Women’s Property Law
This is a law that empowers women to own and inherit properties. Section 4 of the married women and property law states that :
Subjects to the provisions of these law, all property which
- Immediately before the passing of these laws was the separate property of a married woman or held for her separate use in equity; or
- Belongs at the time of her marriage, to a woman married after the passing of this law; or
- Is acquired by or devolves upon a married woman after the passing of this law, shall belong to her in all aspects as if she were a female sole and maybe disposed of accordingly.
From the above provisions, women have the right to own or inherit properties she owned by her before or at the time of marriage, or devolves on her upon marriage.
The Wills Act 1837
Under this Law, every person is allowed to devise, bequeath or dispose of all real an personal estates by his will to which he is entitled to under the law or in equity at the time of his death and if not devised, would devolve on his heir at law or customary heir.
The African Charter on Human and Peoples Right on the Rights of Women in Africa
The African Charter on Human and Peoples Right on the Rights of Women in Africa otherwise known as the Maputo Protocol is a foundational treaty of the Africa based on the treatment of women in Africa and emphasizes women’s individual and collective rights. Nigeria became a party to this treaty in December 2003 and formally ratified it in December 2004. Article 21 guarantees women’s right to inheritance by stipulating that:
- a widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in her matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or has inherited it.
- Women and men shall have the right to inherit, in equitable shares, their parents’ property.
Though this law is in force in Nigeria, citizens are unaware of the provisions of this law including women themselves. Women are still being deprived of these rights as if the law does not explicitly provide for them.
WOMENS RIGHT TO INHERITANCE UNDER CUSTOMARY LAW
Nigeria is a country full of diverse culture and cultural systems. Some of these cultural systems includes the Igbo customary system, the Yoruba customary system the Hausa customary system and the Benin customary system. Women’s inheritance rights are guaranteed by the nation’s formal laws however, customary laws remains a powerful force in determining inheritance rights as regards women in Nigeria.
The Igbo customary is majorly based on the principle of primogeniture. This is a principle which established that the oldest male child has the right to his deceased father’s estates to the exclusion of his other siblings By this trusteeship, the eldest male child exercises dominance of his deceased father’s estate. Where the deceased has no male child, the right over his estate falls on his male siblings even if he has female children. A known custom in Nnewi Anambra known as Oli-ekpe custom prevents a female child from inheriting her father’s property. Only the males can inherit their father’s property and if there are none, it passes to their father’s brother. In the Nrachi custom also in the Igbo land, a female may inherit both moveable and immovable properties of her deceased father but she does so in trust for a male child which would birth under her father’s name. She is also mandated to stay unmarried for the time being. However, it is trite to note that in some parts of the Igbo land such as the Abriba community in Abia state, women may be allowed to inherit moveable properties from their father’s or mother’s estate but the vast majority of communities in the Igbo land believe that properties should not be inherited by women and must be remain in their patriarchy lineage. It is also very rare for widows to inherit properties of her deceased husband because there is only but very limited succession rights under the Igbo customary law. Her deceased husband’s properties are regarded as not belonging to her and she only retains the right to possession of a portion of the family’s property as long as she is of good behaviour.
Under the Yoruba customary tradition, womens’ right to inheritance is generally fair. The Yoruba tradition practice a system known as the Ori Ojori system where if a man dies intestate, all his children including male and female can share in his property equally. This Yoruba tradition has also been given efficacy in the case of Lewis v Bankole where the court emphasized equitable and fair distribution of a man’s property among all his children if he dies intestate, irrespective of gender. The eldest son knowns as Dawodu only has material responsibility and cannot dispose of the property without the consent of his other siblings.
The Hausa customary tradition possess are patriarchal structure. It generally permits only a male child to inherit his deceased father’s properties to the exclusion of his female child or children. Widows are seen as inherited properties rather than entities capable of inheriting their husband’s properties. In spite of this known patriarchal structure, some Hausa communities such as the Gandu system in Jigsaw operate a gender inclusive. In this system, land can be held communally by all family members including the wives in the family. Hausa customary law is also greatly influenced by Islam and many states in Northern Nigeria are governed by Sharia Law. The Sharia is more liberal and permits women’s inheritance rights.
The Benin Customary tradition also follows are a patriarchal approach. It has been observed that “under both statutory and customary law, a greater percentage of women in Benin City, Nigeria, irrespective of their marital status, cannot own or inherit land or other property in their own right.” The eldest male in the family is entitled to inherit his deceased father’s properties and the females usually do not have equal share with the males in her father’s property because she is believed to leave her family to her marital family.
JUDICIAL PRONOUNCEMENTS OF WOMEN’S RIGHT TO INHERIT PROPERTIES
The Nigerian Judiciary has for over the past two decades played a pivotal role in guaranteeing the rights of women to inherit properties. In the case of Mojekwu v Mojekwu, the Nigerian Court of Appeal took an impressive stance by labeling the Oli-ekpe custom in Nnewi as “repugnant to natural justice, equity and good conscience”. This was however upturned by the Supreme Court in Mojekwu v Iwuchukwu cautioning against an outright dismal of customary practices without due procedural scrutiny. Critics argue that this approach underscores a conflict between the protection of women’s inheritance rights under the law and preservation of culture and that it prioritizes customary law over our formal laws.
An earlier case of Nzekwu v Nzekwu maintained that widows have the right to inherit their deceased husband’s properties and they cannot be unjustly evicted out of their husband’s house by other family members.
In another notable case, Ukeje v Ukeje the Supreme Court established a solid legal foundation for women inheritance rights in Nigeria. The court invalidated the Igno customary custom that prevents a female child from inheriting her father’s property and labeled this as unconditional because it violates the provisions of Section 42(1) and (2) of the 1999 constitution, guaranteeing non discrimination of person. In Anekwe v Nweke the Supreme Court invalidated the Igbo custom which the denies women inheritance rights and declared that such customs are not only unconstitutional but as well “repugnant to natural justice, equity and good conscience.”
Despite strong judicial pronouncements of women’s inheritance rights, there is still resistance to these law due to the nation’s diverse cultural systems in place. There is a huge gap between recognition of these judicial declarations of women inheritance rights and the lived reality of many women in Nigeria, making it difficult for women assert their rights.
BARRIERS TO ENFORCING WOMEN’S RIGHT TO INHERITANCE
Statutes, court judgements and treaties ratified have unequivocally reiterated women’s right to inherit properties nonetheless, the realities of many women in Nigeria is that they are deprived these rights. Some customary laws even though declared by statutes and judicial pronouncements as being “repugnant to natural justice, equity and good conscience” are still used to determine women’s right to inherit their father’s or husband’s properties. Reliance on customary laws depriving women’s right to inherit properties are still being upheld across various regions and communities in the nation. This issue stems from various political, cultural, as well as socioeconomic factors facing the country.
A core problem is the lack of a clear legal and policy framework that recognizes and grants women with explicit rights to own lands as citizens with full legal capacity, as envisioned under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979) and the African Charter on Human and Peoples Right on the Rights of Women in Africa (Maputo Protocol 2003). The Government has not adequately fulfilled its responsibility in providing an enabling environment for women to optimally realize their lands and property rights. Women are greatly underrepresented in governance and decision-making especially in matters of land and property.
The country is also faced with high illiteracy levels which makes most women and men ignorant of existing legislations and court declarations of women inheritance rights in Nigeria. Many women especially in the rural communities do not have access to education like their male counterparts. Women are constrained by cultural and domestic roles putting them at an disadvantaged end.
There is heavy reliance on cultural practices and traditions by traditional rulers and community members with little or no respect for formal laws. Women are perceived as commodities rather than as human beings with full legal capacity, hence the discrimination of women in various communities in Nigeria.
RECOMMENDATIONS
Despite the steps taken by different governments Our laws should be enforceable, declaration of women’s inheritance rights shouldn’t end at the courtrooms. Systems and practical policies should be adopted to ensure that there is effective implementation of these laws. The policies adopted should be practicable and measurable to ensure success. There should be institutions in place which ensures that court declarations are enforced in various communities.
More funding should be put into the educational sector to provide more opportunities for the citizens to be educated. Education should be made affordable and accessible to all irrespective of their gender. Making education accessible for women not only educates them on their rights but also provides them with financial empowerment so that they can take care of their own needs.
Public awareness campaigns should also be carried out across rural communities in the country, enlightening both community leaders and members about the provisions of the law while still acknowledging the role of culture in helping to maintain a sane society.
Provision of legal aids to women cannot afford legal services, in matters of women’s rights and women inheritance rights should made available to promote accessibility to justice.
CONCLUSION
The clash between statutory provisions of women inheritance rights and deeply rooted customary traditions in many part of the nation creates an undesirable or weak foundation for women to fully enforce their inheritance rights. It creates a prejudicial reality where women are awarded certain rights of paper information form of our statutory laws and denied same rights in practice due to dissenting customary practices. While significant statutory provisions and judicial declarations have helped in nullifying harmful cultural practices that discriminate against women, many women still experience a high level of discrimination and are deprived the right to inheritance due to various cultural, political and socioeconomic factors. Women are treated unequally compared to men and are seen as not having full legal capacity to own or inherit properties in many communities in the country and this results in undesirable consequences for women individually and the nation at large.
For the nation to see meaningful progress, statutory laws and judicial pronouncements should be backed up by effective enforcement, legal reforms that includes practical strategies should be adopted, education should be affordable and accessible to all regardless of gender and public awareness campaigns should be carried to enlighten the public on what the law stipulates. Guaranteeing women inheritance rights is not just a social issue but a constitutional and human right and it is imperative that women as well as men be granted equal inheritance rights.
Table of Cases
Anekwe v Nweke [2014] 9 NWLR (PT.1412) (SC)
Lewis v Bankole [1909] 1 NLR 81
Mojekwu v Iwuchukwu [2004] JELR 44983 (SC)
Mojekwu v Mojekwu [1997] LPELR-13777 (CA)
Nzekwu v Nzekwu [1989] 2 NWLR (PT.104) 373 (SC)
Ukeje v Ukeje [2014] 11 NWLR (PT.1418) 384 (SC)
Table of Legislations
Statutes
Constitution of the Federal Republic of Nigeria (as amended) 1999
Married Women’s Property Law 1848
Wills Act 1837
International Treaties
African Charter on Human and Peoples Right on the Rights of Women in Africa 2003
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