Customary Law Of Inheritance On Gender Equality Sociology Essay

The Ibos are one of the largest and most influential ethnic groups in Nigeria, who live mainly in the South-Eastern part of the country. [1] Several historical accounts traced Igbo ancestral heritage to the proto-Benue group, who migrated from the great lakes and mountains of East and Central Africa around 5000 BCE. The Ibos speak different variations (dialects) of the Igbo language and share a common culture expressed by various customs, practices and traditions. Pre-modern Igbo societies were quasi-democratic; ruled by republican consultative assemblies of elders. To a greater extent, this system of government guaranteed its citizens equality; in contrast to the feudal system of government operated in most other parts of West Africa. [2] 

Nevertheless, some documentary evidence show gender biases favourable to men in the share of socio-political and religious roles and privileges in the localized patrilineal structure of Igbo society. Examples of these discriminatory practices include the exclusion of women from participating in age groups which were a major instrument for political actions in Igbo societies and the denial of rights to hold traditional titles which bestow authorities to perform religious ceremonies or pass laws that could provide access to patrilineal, spiritual, and economic resources (particularly land). [3] These customs have continued to receive the assent of native Igbo communities and finds expression in customary laws under the Nigeria legal system. This system has continued to perpetuate asymmetric power relations between men and women. [4] 

Research Questions

Overall, the study will strive to determine the impact of the practice and administration of customary laws of inheritance on gender inequality in contemporary Igbo (Ibo) society by providing answers to these specific research questions:

To what extent does the practice of inheritance in the Igbo customary law impinge on the livelihood and security of women in Igbo society?

What are the highlights of the salient features of the practice in contemporary Igbo society?

To what extent does the Igbo custom of inheritance reflect regional and global standards on equal status of women?

Rationale for the Study

The rationale for this study stems from disparities between the application of ‘lawyers’ customary law’ and the practice of ‘people’s customary law’. [5] This discrepancy tends to undermine the effectiveness of the state legal system in addressing gender inequalities. [6] This challenge is more pronounced in the complex and pluralistic context of the Nigeria legal system. [7] It becomes imperative to explore the possibility of legal reforms and pragmatic policy options that could better align common law incentives with those of customary law.

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Research Methodology

This study will adopt a theoretical approach, which would involve critical review of important scholarly literature on conceptual issues in legal theory, constitutional developments in British colonial Africa, the Nigerian legal system, customary and religious laws, and will invoke a multidisciplinary approach towards reaching acceptable goals on issues of gender equality. This paper would also use descriptive and analytical methods to review constitutions, legislation and case law relevant to the subject matter. Basically, it will apply the desktop library method.

Literature Review

The centrality of law in colonial administration was demonstrated by the early introduction of the English legal system as one of the first instruments of British authority in Nigeria. This system comprised institutions and norms of the English legal system, which had very distinct historical and cultural origins from the customs and indigenous systems of governance and administration of justice that existed before the advent of British rule etc. [8] These indigenous customs, institutions and normative order found expression in customary law. [9] Nonetheless, the British colonial authorities recognized and retained the indigenous system of customary law. [10] Weeramantry observed accordingly that upon the attainment of independence, newly emerged nations often need to take a considered decision whether and to what extent, they would wish to preserve their traditional values and cultural systems. This opportunity to make that decision, he said, has been presented to more than one hundred nations released from the bondage of colonialism since the beginning of this century. He went further to state that, these nations have been faced with the challenge of maintaining cultural values while foregoing new institutions of nationhood. Their decisions are often translated into legal terms, whether constitutional or otherwise. The co-existence of these dual legal systems gave rise to pluralism in Nigeria’s legal system; a phenomenon that has generated interesting debates amongst scholars.

Griffiths (1997) advocated for ‘legal centralism’ which engenders uniformity of laws and concentrated administrative structures under state control. This perspective fails to recognize the need to contextualize law and make it more compatible with the existing social order. [11] Woodman (1985) buttressed the argument against legal centralism by drawing attention to the inability of state controlled common law system to keep pace with the diversity, flexibility and evolutionary nature of customs and social norms. This handicap is manifested in the divergence between the customary law applied in common law courts and the customary law practiced by people in the society.

The Supreme Court Ordinance No.6 of 1914 gave permissive expression to customary law, subject to the satisfaction of three validity tests: applicability, repugnancy, [12] and incompatibility. [13] These limitations of customary law were designed to remove superstitious and harsh elements of these laws; and to solve problems emanating from inaccuracies caused by the lack of codification of customary law. [14] Despite these safeguards in the application of customary law, many feminist advocates have continued to question the ability of customary law to deliver rights and security to women under a plural legal system e.g. right to land, inheritance rights and customary division of labor etc. Citing frustration with the treatment of issues of customary law by common law as a matter fact and the reluctance of appellate courts to over-turn judgments given by customary courts, feminist advocates have looked more in the direction international conventions/charters and statutory law for the realization of gender equality. [15] Unfortunately, the expectation that customs and social norms could easily be changed by legislative fiat could be somewhat unrealistic, given the moral and religious sanctions attached to these customs and norms. [16] However, alternative approaches need to be explored to remove some of the impediments to the reform and development of customary law.

Aidoo [17] observed that the seeming preoccupation of most African scholars on human rights veers only in the direction of issues relating to violations which occur as a result of dramatic political events and not so much on real issues as that in the civil societies where cultural traditions and customs impact negatively on specific rights such as the violation of women’s right to inheritance in the Igbo traditional society. Women of the Igbo society have been led to believe that cultures cannot be changed. The ease of this conviction owe to the fact that indigenous women of the society have no proper means of exposure, and so are used to perpetuate in-human cultural violation on fellow women. Ibhawoh [18] argues that traditional cultural believes are not monolithic or unchanging. They could change in response to different internal and external pressures. He reiterated that cultural change can result from individuals being exposed to and adopting new ideas. Ejidike [19] on the other hand, though in his text he acknowledges that cultures are dynamic and are malleable, failed to relate this during his discuss on Igbo traditions. Could there have been a bias, or a tacit support of traditions.

It has become almost common knowledge and of general acceptance in Igbo society that women are inferior to men. This discrimination is reflected in their social, economic and political life. The discourse of inheritance in Igbo society is mainly on land and landed properties. In the Igbo society, land is recognized as the primary source of wealth, power and social status. As Uche [20] puts it, it is the most significant provider of employment in rural areas and is an increasingly scarce resource in urban areas. Further reiteration by Umeh [21] defines land as social security of last resort for the Igbos. The importance of agriculture in Igbo land cannot be over emphasized. According to Korieh, agriculture was the main stay of economic activity of the Igbo people for a very long time. While men had the right to grow cash crops, women were given the privilege to grow crops such as cassava, cocoyam, maize, pepper and vegetables. [22] Despite the small scale farming women were permitted to have, they were still able to trade their goods and substantially provide food for the family. However this does not vitiate the glaring discrimination of inheritance faced by Igbo women in both customary and formal system of land tenure. This, Uche [23] argued, was as a result of culturally embedded discriminatory beliefs and practices, and male control of inheritance systems. In the Supreme Court case of Chinweze v Masi [24] , it was held that, under customary law, a wife has only a life interest in the property of her deceased husband, and if he dies, her interest ceases. The Igbo culture views women as chattels, property of the man, and so the woman, upon the demise a man, his relatives will inherit her along with his other properties. [25] In Ogunkoya v Ogunkoya [26] , women were referred to as chattels that are inheritable by other members of the deceased husband under certain conditions. The Hegemony that is practiced among Igbo men, which is also supported by the law, has given them the impression that they can do whatever they please and get away with it. Under the custom of patrileneage prevalent among the Igbos, the “umuada” (daughters) are precluded from succeeding their father’s property. This was also observed in the case of Uka v Nkama [27] . The resultant effect of the patrilleage is that the fate of a woman is hanging on the kindness of the husband’s family or her fortune of bearing a male child. [28] This act had encouraged levirate marriages, where the deceased widow is inherited by a family member. Women had no option than to do the bidding of the “new husband” in a bid to protect her young children. Women were also exposed to sexual molestations, and contracted sexually transmitted diseases due to their powerless positions. They cannot say to their partner to use protection, for fear of being thrown into the streets. The dignity of women, through these discriminatory acts has been greatly trampled upon.

One of the excuses from men for discrimination in land inheritance is exogamy.as the men claim that allowing women to inherit land would result to a transfer of family land to another lineage if, in the case of a daughter, she marries, or a widow, she re-marries. [29] some of the reasons men have given for their strong believe and support of women not inheriting land are flimsy as uche [30] have put, and they include;

Women are not intelligent and may make wrong decisions on land.

Women are themselves properties and cannot, therefore own properties

Land belongs to the family, and women, traditionally are not regarded as family members.

Women are on transit and should not own lands.

If female children were given land by their fathers, they will not respect their husbands and will leave their husbands at the slightest provocation.

He went further to state that, not only are these reasons flimsy, but it also exposes the depth of ignorance which most men carry with them. Observing that some women when in an oppressive marriage, leave their husbands without much regards for his properties. He also emphasized the fact that ‘women have exhibited a high level of intellectual achievement both at national and international spheres’. [31] 

‘The quest for congruence between cultural traditions and modern national and international legal standards’, as put by Ibhawoh [32] , is a ‘theme for growing interest’. He observed the assumption that ‘national human rights standards enshrined in national constitutions reflect the collective national conscience; they present a higher order of human aspirations with a more effective mechanism for promotion and enforcement. They also provide a higher set of standards by which cultural tradition can be judged. This assumption can best explain the understanding that national human rights laws take precedence over customary or cultural practices, at least in theory’. One would imagine that the constitution of the federal republic of Nigeria would protect its citizenry, especially women, against cultural practices that violate their rights. But as succinctly put by Bennet [33] , when he states that ‘sometimes the constitution gives no indication whether fundamental rights supersede customary law or vice versa’. The notion that ‘the principle of the supremacy of national constitutions ensures that in legal interpretation national human rights guarantees take precedence over any other laws or customary rules” [34] , exists only in south Africa, [at least for the period during which this text is written].

The constitution of Nigeria, chapter 1, part II, spells out the cultural objectives of the state under what it referred to as ‘directive principles of state policy’. These principles are not rights and cannot be enforced in a court of law, and the state is not under any legal obligation to respect them. Directive principles are merely intended to direct government policies. Section 6, clause 6(c) is an ‘ouster clause’, which states that “the obligation of the state to conform to, observe and apply the fundamental objectives and directive principles of state policy is not amenable to judicial inquiry or enforcement”. Interestingly, and unfortunately, social, economic and cultural rights are contained in these principles.

Interestingly, Nigeria has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [35] , Nigeria was also one of the countries which participated in the United Nations Fourth World Conference on Women in 1995, that adopted the Beijing Declaration and Platform for Action, [36] the African Charter on Human and Peoples’ Rights (ACHPR) [37] which includes, the protocol on the Rights of Women in Africa. These bodies explicitly call for a repeal of every form of violation and discrimination against women. However, these discriminatory acts continue to exist, especially in the Igbo societies, thereby making a caricature of the legal obligation government have undertaken in acceding to these treaties. Article 5 of CEDAW provides that state parties shall take all appropriate measures to “modify the social and cultural patterns of the conduct of men and women, with the view to achieving the elimination of prejudices and customary, and all other practices which are based on the idea of the inferiority or the superiority of either sexes or on stereotyped roles for men and women”. Article 2 of the Charter provides ‘state parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures”. It also went further to state that ‘state parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority of either of the sexes, or on stereotyped roles for women and men”. The provisions of both bodies are basically the same, laying emphasis on the protection of women against discrimination. The reason for the continuous violations of these provisions, and of women, aside from the lack of implementation under the constitution, may not be far- fetched. In Nigeria, most particularly in the Igbo society, not much is heard by the indigenous people, who are mostly affected by these traditions, of any of the treaties. There is need for awareness and sensitization on the issues surrounding inheritance based discrimination, there should also be some form of media information and translation mechanism. Additionally, Non-governmental Organisation should put more effort into reaching indigenous women by making themselves readily available. That way, they can get first- hand information with which to write their reports and make necessary recommendations. An impact study by Christof Heyns and Frans Viljoen in 1999, in collaboration with the U.N office of the high commissioner for human rights, aimed at reviewing the all human rights treaties, they concluded that” international enforcement mechanisms used by the treaty bodies appear to have had a very limited demonstrable impact thus far”. [38] Awareness, judicial decisions and legislative reforms were the factors used to measure these impacts. They concluded that the coverage of the reporting process by the media was “negligible”.

The United Nations and its bodies have continually affirmed the right to equality before the law without discrimination on basis of sex. [39] Article 1(3) [40] of the United Nations Charter, states that the purpose of the United Nations are ; ‘to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. The Universal Declaration of Human Rights (UDHR) [41] provides in Article 7 that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’. Article 3 of the International Covenant on Civil and Political Rights (ICCPR) [42] also provides that ‘The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’. However, with all these treaties put in place, discrimination against women continues to sprout to a worrying height. In 2004 [43] , the CEDAW committee noted that ‘in no country in the world has women’s full de jure and de facto equality been achieved’. They went further to state as follows; ‘Discriminatory laws are still on the statute books of many states parties. The co-existence of multiple legal systems, with customary and religious laws governing personal status and private life and prevailing over positive law and even constitutional provisions of equality, remains a source of great concern. Nationality laws also continue to discriminate against women by curtailing their capacity to confer their nationality to their children. Women continue to experience discrimination and disadvantage in the enjoyment of rights to own and inherit property……’. [44] 

Outline of the Study

The study will be organized into five chapters using the following structure:

Chapter 1 will introduce the study and its objectives by presenting the context and research questions with a clear sense of scope and limitations of the study. This chapter will also discuss the methodology used in the study.

Chapter 2 will discuss the effects of the customary practice of disinheritance of the Igbo people on the rights of women in the society.

Chapter 3 will discuss international and regional standards of inheritance and the status of women, drawing inferences from the UN treaties and every other treaty which protects the rights of women from violation.

Chapter 4 will draw conclusions from the finding and make recommendations that could better align the customary law incentives with those of common law and also induce social actions that could lead to changes in gender relations.