There seems to be a prevalent denial of women’s right to inherit land or property in Africa. Either as a daughter or a wife, in most traditional societies in Africa, the transfer of land or property or any form of asset between generations seems to be regulated by customary law which largely excludes the female gender from property ownership and inheritance.
This practice of excluding a widow or a daughter from inheriting the assets of the husband or of the father respectively, is clearly a case of gender exclusion which speaks to the human right of the gender in question. It is a shame that many women in most African countries are known to have accepted this practice without redress to the court or customary arbitration.
The moment the issue of inheritance comes to play, at least three major questions come up as to if the testator has a male child, if he was married or if there is a Will in place. This seems to be a uniform discussion across most African countries. It “sounds” like a custom which has come to stay.
Why should the issue of gender be a factor in the bequeath of a testator’s property if in actual sense inheritance is simply “the transfer of property, land and other assets.” This means that customary law has succeeded in shaping the thinking of most Africans with respect to inheritance and seems like a big conspiracy against the female gender.
In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law has a great impact in the area of personal law regarding matters such as marriage, inheritance and traditional authority, and because it developed in an era dominated by patriarchy some of its norms conflict with human rights norms guaranteeing equality between men and women. While recognizing the role of legislation in reform, it is argued that the courts have an important role to play in ensuring that customary law is reformed and developed to ensure that it conforms to human rights norms and contributes to the promotion of equality between men and women. The guiding principle should be that customary law is living law and cannot therefore be static. It must be interpreted to take account of the lived experiences of the people it serves [Culled from African Customary Law, Customs, and Women’s Rights- By Muna Ndulo Trinity College, Oxford]
In order to bring an unassuming perspective to the issue of women inheritance. There are certain terms that keep coming up which I will like us to define in simple terms.
My number one, is inheritance.
What is inheritance?
Property that a person receives by bequest or devise. Audu V Shedrack (2016) LPELP-4077(CA)
Something gotten by legal right from a person at his or her death [Merriam-Webster dictionary]
To receive property, title, a right etc., by succession or Will [dictionary.com].
The passing on of land and possessions from one generation to another [The Bible- old and new testament].
The Islamic law of inheritance is a mandatory intestacy inheritance system; that means the estate of a decedent is distributed according to a prescribed-share formula in the Qur’an. [you can read more on Islamic law for inheritance- Sharia-wiz].
My second term, is Customary law.
What is customary law?
At the top of my head, I will like to simply say that customary law is a general practice accepted as law of the people by the people for the people. [this is my personal translation which is open for further review]…which could either sway at certain percentage of people for the people and whether this is democratically or autocratically practiced is a discussion for another day.
Andrew Obaseki, J.S.C defined customary law as the “organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is regulatory in that it controls the lives and transactions of the community subject to it“. This definition was given in the case of Oyewunmi v Ogunesan [1990] 3 NWLR (PT. 137) 137. Customary law can also be defined as the law which has from long and consistent usage, obtained the force of law.
The traditional law of indigenous peoples, generally oral, sometimes narrative or based on established performative practice, including song and dance, rather than in written codes or principles. [oxford reference].
Any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria between parties SUBJECT TO ITS SWAY [Zaidan V Mohessen (1973) 11 SC 1, Onyerika V Uzoukwu (2016) LPELP-40217(CA).
The organic or living law of the indigenous people regulating their lives and transactions –Idaayor V Nwosu(1995)2 NWLR (Pt. 377) 359.
If we must entrench the practice of customary law with respect to women inheritance then we should be looking at :-
Ensuring that customary laws evolve as need arises
Where there is a conflict between customary law and the human right of the female gender, then the latter should supersede.
The present day mortality rate in Nigeria which has put many young women into widowhood early and unable to take care of themselves and children alone.
Allowing the female gender who may be aggrieved have a say at the customary arbitration with superior oversight from at least two or more independent arbitrators who are not members of the said community or family with impeccable record of fairness. This should be approved by the aggrieved party.
Where the case is unresolved, a temporary plan should be put in place where the aggrieved widow/daughter should be allowed to have access to a percentage of the husband/father’s asset pending the verdict of the community heads. This could be termed as benevolence from the community
Feel free to share your experiences, questions. My email is talktolaragaruba@gmail.com
Omolara Garuba LLB, BL, PMP.
Founder, Global Mentoring Club [Young Lawyers’ Hub].
YOU SHOULD NOT MISS THESE HEADLINES FROM NIGERIAN TRIBUNE
Viral Voice Note On WhatsApp Billing False
Claim: A viral WhatsApp voice note, purportedly made by the director and CEO of WhatsApp, claims users will have to start paying for WhatsApp services…
Experts Say Mixture Of Snail Slime, Evaporated Milk Cannot Cure Stroke
CLAIM: A Facebook user claims water gotten from snails (snail slime) and peak milk can cure partial or full stroke…
Marburg Virus: What You Need To Know About Disease Recently Detected In West Africa
On Monday, August 9, 2021, the World Health Organisation (WHO) confirmed the first case of Marburg virus in West Africa in Guinea…
FACT CHECK: US Did Not Give Nigeria 48 Hours Ultimatum To Detain Abba Kyari
CLAIM: Several social media posts claim the United States of America (USA) gave Nigeria’s Federal Government 48 hours to detain suspended Deputy Police Commissioner, Abba Kyari, or face severe sanctions…
and then