A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW

A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF

INHERITANCE IN NIGERIA UNDER ISLAMIC LAW

TABLE OF CONTENTS

PAGES

COVER PAGE……………………………………………………….............

CERTIFICATION PAGE……………………………………………………

ABSTRACT………………………………………………………................

DEDICATION……………………………………………………….............

ACKNOWLEDGEMENT…………………………………………………..

TABLE OF CASES.…………………………………………………………

TABLE OF STATUTES…………………………………………………….

TABLE OF TREATIES…………………………………………………….

LIST OF ABBREVIATIONS…………………………………………….....

TABLE OF CONTENTS……………………………………………………

CHAPTER 1

GENERAL INTRODUCTION

1.0.0 INTRODUCTION……………………………………………………..

1.1.0 BACKGROUND TO THE STUDY………………………………….

1.2.0 OBJECTIVES OF THE STUDY……………………………………..

1.3.0 FOCUS OF THE STUDY……………………………………………..

1.4.0 SCOPE OF THE STUDY……………………………………………..

1.5.0 METHODOLOGY…………………………………………………….

1.6.0 LITERATURE REVIEW…………………………………………….

1.7.0 DEFINITION OF TERMS……………………………………………

1.8.0 CONCLUSION………………………………………………………...

CHAPTER 2

AN OVERVIEW OF THE NIGERIAN LEGAL SYSTEM

2.0.0 INTRODUCTION…………………………………………………….

2.1.0 NIGERIAN LAW…………………………………………………….

(A) RECEIVED ENGLISH LAW……………………………….

(B) ISLAMIC LAW OR SHARIA………………………………

(C) CUSTOMARY LAW………………………………………..

(D) LEGISLATION………………………………………………

(E) CASE LAWS…………………………………………………

2.1.1 CONCLUSION………………………………………………………...

CHAPTER 3

ISLAMIC LAW OF INHERITANCE

3.0.0 INTRODUCTION…………………………………………………….

3.1.0 INHERITANCE DURING PRE-ISLAMIC PERIOD………………

3.1.1 ISLAMIC RULES OF INHERITANCE………………………….

3.1.2 INEQUALITY OF SHARES OF WOMEN AND MEN…………

3.2.0 CONCLUSION…………………………………………………….

CHAPTER 4

CUSTOMARY LAWS OF INHERITANCE OF IGBO, BENIN AND

YORUBA PEOPLE OF NIGERIA

4.0.0 INTRODUCTION…………………………………………………….

4.1.0 IGBO CUSTOMARY LAW OF INHERITANCE………………….

4.2.0 TYPES OF PROPERTY TO BE INHERITED AND PERSONS

WHO CAN INHERIT………………………………………………..

4.2.1 METHODS OF DISTRIBUTION OF PROPERTY AND ORDER

OF PRIORITY OF INHERITANCE AMONG RELATIONS……..

4.3.0 THE BENIN CUSTOMARY LAW OF INHERITANCE…………..

4.3.1 RULES OF INHERITANCE UNDER BENIN CUSTOMARY

LAW…………………………………………………………………..

4.3.2 JUDICIAL APPROACH TO WOMEN’S RIGHTS AND

THE CONCEPT OF IGIOGBE…………………………………..…

4.4.0 YORUBA CUSTOMARY LAW OF INHERITANCE…………….

4.4.1 PERSONS ENTITLED TO INHERIT PROPERTY………………

4.4.2 METHOD DISTRIBUTION OF PROPERTY………………………

4.5.0 CONCLUSION……………………………………………………….

CHAPTER 5

COMPARISON BETWEEN ISLAMIC LAW OF INHERITANCE,

IGBO, BENIN AND YORUBA CUSTOMARY LAWS OF INHERITANCE

5.0.0 INTRODUCTION………………………………………………………

5.1.0. DIFFERENCES AND SIMILARITIES, BETWEEN ISLAMIC

LAW OF INHERITANCE AND THE CUSTOMARY LAWS

OF INHERITANCE OF THE IGBO, BENIN AND YORUBA

PEOPLE……………………………………………………………….

5.1.1. REASONS FOR THE DIFFERENCES AND SIMILARITIES

BETWEEN THE ISLAMIC LAW OF INHERITANCE

AND THE CUSTOMARY LAWS OF INHERITANCE OF

THE IGBO, BENIN AND YORUBA PEOPLE……………………

5.2.0 CONCLUSION……………………………………………………….

CHAPTER 6

6.0.0 GENERAL CONCLUSION

6.1.0 SUMMARY………………………………………………………........

6.2.0 FINDINGS……………………………………………………….........

6.3.0 RECOMMENDATIONS …………………………………………….

BIBLIOGRAPHY

ARTICLES IN JOURNALS…………………………………………………..

ARTICLES ON THE INTERNET……………………………………………

BOOKS………………………………………………………...........................

CHAPTERS IN BOOKS……………………………………………………..

THESES………………………………………………………..........................

CHAPTER 1

GENERAL INTRODUCTION

1.0.0 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, organising 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 Jaggar1 identifies feminism with the various social movements which

are dedicated to ending the subordination of women.

The feminist’s claim is that women should have the same 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 disagreed with the liberal approach because they feel

that the approach recognises certain values that are mainly male.

Bryson2 says the socialist theory of feminism like liberalism, promotes equal

rights and opportunities to all individuals. However, unlike liberalism, it emphasises

economic and social rights and freedom from exploitation. Socialism allows women to

recognise the ways in which men are also oppressed and to work with them to achieve a

more equitable society in the interest of all.

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

The radical feminist approach sees patriarchy 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

recognise 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 regard 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 the 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

3 Ibid. page 27

(CEDAW). CEDAW provides guidelines for legal policy and programme development

to promote equality as a means of justice.4

Article 5 of the convention 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 Freeman5 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 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 the men, the widows and

children are left destitute by surviving relations of the men who inherit the estates of the

deceased.

4 Kerr Joanna (ed) Ours by Rights: Women’s Rights as Human Rights (Zed Books London 1993)

page 93.

5 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

Islamic 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 deceased 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 derive their validity from the consent of the

people they govern.6 There is no single set of customary laws of inheritance in Nigeria

because customary laws are tribal in origin. They operate within 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 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 manual7 and

the customary law of inheritance of Benin which has also been written in a hand book 8

6 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…”

7 Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Government Press

Enugu Nigeria 1977).

8 A Handbook of Benin Customs and Usages (Eweka Court. The Palace Benin City Nigeria 1996).

Islamic law, which is generally regarded as customary law9, unlike the indigenous

customary laws has religious basis. According to Islamic scholars, Islamic 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 is based upon and aimed at the interpretation/ or application of Sharia and is

designated as Fiqh or applied Sharia.10

The divine sources of Islamic law are the Qur’an 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 Islamic law (the Sharia)11. The

9 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 Islamic Law is not and has never been customary law. Court stated

thus, “Islamic 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

10 Fayzee, Asaf A.A, 1964 Outlines of Muhammad law (Oxford University Press 3ed London)

Faruki Kemal A. (1962) Islamic Jurisprudence (Karachi Publishing House Pakistan) p.18,

Coulson, N.J. 1964. A history of Islamic Law. (The University Press Edinburg) p.85; Schacht J.

1964 Introduction to Islamic 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 Islamic Law, A Rigid or

Dynamic system? A critique’ (2000 – 2001) vol. II No 11(Ahmadu Bello University Journal of

Islamic Law.

11 Sada I.N, ‘The Nature of Islamic Law; A Rigid or Dynamic System? A Critique’ (2000-2001) vol.

11 No 11 Ahmadu Bello University Journal of Islamic Law.

Holy Quran is the exact words of Allah as revealed to mankind through Prophet Muhammad. The

secondary source is the Sunna of Holy Prophet Muhammad, that is to say, his deeds, utterances

and his indirect authorization.

The human components of Islamic 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 Islamic 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 Said12, the Quran and Sunna established the general rules without going into

details.

The source of Islamic 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 Isla0ic law.

This study discusses the rules of inheritance as they affect women’s rights as

wives and daughters under customary laws of some major tribes in Nigeria and Islamic

law of inheritance as regards this category of women.

1.1.0 BACKGROUND TO THE STUDY

12 (1970) Islamic Law its Scope and Equity p.64. Cited by Sada I.N. op. cit page 171

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 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 laws of inheritance will be applied to the distribution of their estates after their

death if they leave no valid Will.

As earlier stated, many of the customary laws of inheritance deprive women of

the right 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 to their own thereby leaving the widows

and children in destitute.13

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 deceased husbands and fathers and the consequential hardships such

women suffer.

1.2.0 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 customary and Islamic 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, Islamic 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.

13 Socio-Economic and Legal Rights of Women: The challenge (Women’s Aid Collective [WACOL]

Nigeria 2006) pg. 5. WACOL is a non-governmental, non-profit making organisation in Nigeria

which is gender conscious working towards gender equality and human rights for all.

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

Islamic 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.

1.3.0 FOCUS OF THE STUDY

In the discussion of the customary laws of inheritance of the ethnic groups

covered by this research, attention is focused on the discriminatory aspects of the laws,

that is to say, discrimination that exists on the types of property to be inherited and the

persons who are entitled to inherit what property.

As regards the Islamic law of inheritance, the study discusses the quantum of

shares 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 Islamic 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 Islamic law as they

REFERENCES

JAIYEOLA MULIKAT BOLAJI (2015) a comparative study of women’s rights of inheritance in nigeria under islamic law and some customary laws, MSC thesis