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International Gender Law vis-à-vis Nigerian Custom and Cultural Practices[1]

Introduction

The rate at which the female counterparts in Nigeria are being deprived of their rights to the inheritance of parent’s and acquisition of personal property is alarming just based on customary laws and religious practices compared to what is operative in the general world Both men and women are entitled to the equal footing to the full protection of their right and freedom because they are a human being. In Bayelsa State South-South Nigeria, it is heard that whenever a woman believed to be possessed dies in any part of the State, her remains will be thrown into the water or the remains of every dead woman in the State will face a water test. If the remains sink after being thrown into the river then she is truly possessed and will be left to feed the fishes but if the remains float, then she will be brought back home and given a befitting burial. How many of the male counterpart in the State goes through inhuman treatment? It is proven that once life leaves the human body it becomes heavy, how then will a lifeless body float on a river? The question is why has the female counterparts been viewed as less inferior compared to the male counterpart? Society is filled with some riffraff just because the family members drove them and their mother as the case may be from home and took over the properties the husband or the parents left behind.

Globally, women or the female child have experienced various forms of abuses and discrimination[2]. These Customary Laws which most people of the country subject themselves to make it impossible for wives to inherit the property(s) of her late husband, she is on the other hand viewed as an asset which should be inherited and not to inherit any property. Also, a female child has no right to inheritance from the property(s) of her late parents, that her portion of inheritance is in her husband’s house whereas the husband or members of his household believes she is an asset to be inherited. What then is the fate of the female counterpart in a world dominated by the male counterpart?

This gender discrimination had been existing even from the time of the holy books, still existing and if proper attention and caution are not taken, it will continue to exist in our society irrespective of the level of education or exposure. This thesis seeks to examine the provision of the international gender law vis-à-vis the Nigerian customary laws and provide a possible way(s) for people who find themselves in menace. The world in its entirety has gone beyond the primitive times and therefore both male and female should be given equal consideration to acquire and inherit property(s) in the country and not just be contained in black on white without any regard[3].

                                       Universal Declaration of Human Rights[4]

Recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world[5].

The Article makes provision to recognize both sexes as being equal in dignity and rights and being born free without any prejudice[6]. We are both equals regardless of age, color, or education as what party A enjoys as a citizen of a State, party B has equal rights to enjoy the same and should not be cheated, coerced, or manipulates into thinking that we are not equal.

Article 6[7] states that;

everyone has the right to recognition everywhere as a person before the law.

It is crystal clear that every human on the face of the earth is to be considered a person having that same right in every part of the world and not a thing that can be taken, won, or tossed around whenever the dictator fancies. These rights should in no way be discriminated and such happens, the affected person has the right to seek redress[8].

Going forward, Article 17 of the same Law provides that;

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

From the above provision, it is obvious that everyone has the right to acquire property(s) and by inference inherent properties without any discrimination whatsoever.

      Convention on the Elimination of All Forms of Discrimination Against Women[9]

The Convention being aware of the existence of discrimination against the female counterpart gave the need for the establishment and their discrimination covers but not limited to distinction exclusion and seclusion of the sex to other sex[10].

Article 2 (f) provides that;

to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women.

Having this in mind, States that subscribe to the Convention are expected to remove from their existing Laws provisions that are detrimental to women enjoying the same rights which the men counterparts enjoy. However, we have some States who are a subscriber to the Convention with the same laws existing within their purview.

Article 5 (a) provides that;

to modify the social and cultural patterns of conduct of men and women, to achieve the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or stereotyped roles for men and women

PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA[11]

The Protocol referred to Article 18 of the African Charter on Human and People’s Rights which provides that each State adopting it should remove from its Law any form of discrimination against women as it is declared internationally. But in the actual sense of it, there are States in Africa that have adopted the Charter and the Universal Declaration of Human Rights and still have vivid discrimination against women encoded in their laws and customary laws.

Article 2 of the African Charter provides that;

states Parties shall combat all forms of discrimination against women through appropriate legislative, institutional, and other measures.

By implication, it is mandatory for every African States who had adopted the Charter to remove every discrimination from its laws and shall defend the rights of citizenship regardless of sex but this seems to be a mere fallacy considering what is operative in the African continent and in particular Nigeria which is the center of the discussion.

Moving ahead, Article 6 (j)[12] makes provision for every woman in the course of the marriage to acquire and administer property(s) of her own without any discrimination whatsoever on her person and this property should in no way be deprived of her. Also, Article 6 (d), provides that in the course of a divorce, the couples shall have an equal right to joint property(s).

The list goes on and on different laws and conventions providing for recognizing equality between the sex. However, we see a different thing being in vogue in our continent Africa and the whole generally but because this discussion is centered on Africa and in particular Nigeria customary laws, we shall vividly discuss some of the notable customs in Nigeria.

Examination of the Customary Laws in Nigeria.

Nigeria is a country with over two hundred (200) ethnic groups and 500 languages. Each ethnic group with its own culture, custom, and tradition[13].  The different customary laws in Nigeria have their dictates which have elements of the deprivation of inheritance of property[14]. Some religious practices in the country even make provision that a married woman has no right to purchase anything and even if any purchase is made by her, the purchase belongs to her husband. However, considering the multiplicity of ethnic groups in the country, it is reasonable that the major ethnic groups, Igbo, Yoruba, Hausa, and Edo/Benin Customary Laws are examined.

  1. Igbo Customary Law of inheritance

In describing the Ibo customary Law of succession we may have to start from Onitsha because of its historical and ethnic link with the Benin customary law with which Onitsha share the rule of primogeniture[15] with some variations in places like Anambra, Imo, Rivers, etc. The eldest son or the Okpalais entitled to inherit his father’s dwelling house exclusively[16]. In Ugbona v. Ibenema[17], Egbuna J held inter alia that Ibo woman being a daughter or wife has no inheritance right to property of her parents or husband[18].

From the foregoing, the only means through a female child can inherit in her father’s household under the Igbo Customary law is possible especially in Idemili Local Government of Anambra State is when she has performed nrachi[19] ceremony. In a situation where the woman acquires landed property of her own, unless she has a son, her uterine brothers, or where she does not have uterine brothers, her stepbrother is entitled to inherit her self-acquired property and not her daughters who are entitled to inherit her personal effects.

  1. Yoruba Customary Law of inheritance

Succession or inheritance of property among the Yoruba tribe of Nigeria is subject to Ori-jori i.e. per capita or the children of the deceased based upon the number of wives the deceased had. Each wife and her children constitute Idi-igi or stock. It should be noted that it is immaterial that any of the wives had predeceased the husband, as long as she has a child or children before her death, her side remains stock in the family[20]. It should however be noted that in the Yoruba tribe, the eldest surviving son inherits the property(s) of the father. In Salami v. Salami[21] it was held that the plaintiff’s right to inherit her father’s estate along with her two brothers was not diminished by the fact that she was a girl. It is also relevant in this connection to note S. 20(4) of the Western Nigeria Customary Law, which provides thus:

Where the customary law applying to land prohibits, restricts, or regulates the devolution on death to any particular class of persons of the right to occupy such land, it shall not operate to deprive any person of any beneficial interest in such land (other than the right to occupy the same or proceeds of the sale, therefore, to which he may be entitled under the rules of succession or any other customary law.

  1. Hausa Customary Law of inheritance

Inheritance of property amongst the Hausa is subject to the dictates of the Islamic Law which state that one-third of the property must be given out on charity and the rest shared among the family members including the wife(s). Hausa native law and custom, before the advent of Islam, young males and females are not entitled to inherit from their deceased father’s estate as was held in Mohammad v. Mohammed[22]. The rationale behind this was that since young sons and daughters could not go to war and secure booties or loot (Gamina), they should not be allowed to inherit as heirs. However, under the Sharia system, the notion of Qawama[23] is interpreted to mean that men as a group are the guardians of and are superior to the women as a group. That notwithstanding, Sharia affords women whether daughters or wives the right of succession, making it the only customary law that guarantees such rights. The provisions have put the Sharia customary law on a higher pedestal in the realm of succession rights with emphasis on equality of all human beings.

  1. Edo/Benin Law of inheritance

The principal house or Igi ogbe is of utmost importance in Benin customary law[24]. This is as a result of that the principal house is always inherited by the eldest surviving son of a deceased person absolutely notwithstanding any instruction, disposition in a Will, or family arrangement to the contrary[25]. Ogiamien v. Ogiamien[26] has provided two (2) supporting grounds for the aforementioned position; firstly the eldest son of a deceased hereditary title holder succeeds to all the property of his father to the exclusion of other children. Secondly, the eldest son inherits only the principal house. Taking over the properties is only possible after the successful completion of the father’s burial rites. However, in a situation where the eldest surviving son is incapacitated to perform the burial rites of the deceased father, the duty is passed to the next surviving son regardless of the fact whether or not there are female children of the deceased who could handle the funeral rites of the father.

Haven considered the different major Customary Laws in Nigeria and their dictates about the acquirement and inheritance of property(s) which we could see to be discriminatory to the female counterparts viewing them as a ‘thing’ rather than the ‘human’ attribute who can acquire and inherit property(s) at any time she so desires. It is however required to examine some of the International provisions which make provision for both sexes to be of equal standard.

                                                                   Ways out

It should however be noted that the possible way out of the menace women in Nigeria still suffer from all in the name of Customary Laws which will be discussed here are exhaustive enough and additional remedy or way out could be added personally.

  1. Punishment and Penalties

As the proverbial statement said that law without punishment will not be obeyed. In the actual sense, we have the abolition of discrimination against women’s rights encoded in our laws in Africa but none of these laws has a punishment to be meted out to anyone found defaulting. It is believed that if there is a serious punishment attached to these laws, people will find it grievous to defile them[27].

  1. Remedies

From the foregoing, if the laws could have punishment and penalties encoded within them, it is appropriate to say that the laws also should have adequate and relevant remedies in place for women who might have suffered or are suffering from these discriminations. However, for this to be in place effectively, some steps must be considered;

  1. They must be timely.
  2. They must be physically accessible.
  3. They must involve a clear and well-defined procedure, in terms provided for by the law, for establishing liability.
  4. They must enable recourse to functional independent and impartial bodies, with the authority to make enforceable decisions, impose sanctions, and award remedies[28].

By

Adeleye Adebola Valentine
+2348108173996

[1] Adeleye Adebola Valentine LL.B LL.M (In view) Ministry of Justice, Bayelsa State, 08108173996, av_debola.1@yahoo.com

[2] AJABOR, Ifeanyi Esq & OVREME, Olika Aforkoghene Esq. International Journal of Innovative Legal & Political Studies  The Female Right Of Succession Under The Igbo Customary Law: A Critique 7(1):59-67, January-March 2019

[3] Section 42 (1) of the 1999 Constitution and also again section 42 (2) of the 1999 Constitution.

[4] UN General Assembly Universal Declaration of Human Rights, 10 December 1948, 217, A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 10 March, 2021].

[5] Preamble

[6] Article 1 and 2

[7] Supra

[8] Article 8

 

[9] UN General Assembly Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, Vol 1249, P 13, available at: http://www.refworld.org/docid/3ae6b3970.html [accessed 10 March, 2021].

[10] Article 1

[11] Also known as Maputo Protocol. It is an international human rights instrument established by the African Union that went into effect in 2005.

[12] Supra

[13] Wikipedia List of Ethnic groups in Nigeria https://en.m.wikipedia.org/wiki/List_of_ethnic_groups_in_Nigeria Accessed 1 March, 2021 10:05.

[14] Supra.

[15] Nwugege v. Adigwe & Anor (1934) 11 NLR 134

[16] Nwafia v. Ububa (1966) 1 ALL NLR 8

[17] (1967) NMLR 251

[18] Nzeianya v. Okagbue & Ors (1963) 1 All NLR 352

[19] Denying herself not to marry where all her fathers’ children are female so that she may produce male children to maintain the continuity of the family.

[20] A.B. Kasumu and J.W. Salacuse Family Law (Revised ed. Butterworth London) pg. 39.

[21] (1924)5 NLR 43.

[22] (2002) NWLR (pt. 708) p. 104

[23] Modupe D-Fagbongbe, Gender Discrimination  Challenges for the twenty-first century [2002] (4)

[24] A. Osaretin, The Principal house in Benin Customary Law.

[25] Ugbo v. Asemota, unreported, Suit No B/49/70 of 30th March 1974, High Court Benin

[26] [1967] NMLR 245

 

[27] Article 2(b) CEDAW; CEDAW General Recommendation 28, Paras. 17 & 37(b); CEDAW General

Recommendation 25, Para.7.

 

[28] International Human Rights Law and Gender Equality and Non-Discrimination Legislation Requirements and Good Practices – a Briefing paper