Customary inheritance as a hindrance to gender equality

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CHAPTER ONE

INTRODUCTION

1.1 BACKGROUND OF THE STUDY
The patterns of inheritance and succession, particularly under intestate estate under customary law in Nigeria, have almost as many variations as there are ethnic groups in the country, and many of the variations are discriminatory in practice. The law of succession and inheritance reflects Nigeria‘s plural legal system. Indigenous customary law developed rules of inheritance for intestacy through the traditional canon of descent, as adapted over the years to changes in the society and the rule of natural justice as applied by the courts. Fortunately, nongovernmental organizations have been active in attempting to rectify the problems of discrimination.
Rather than trying to cover all the patterns of succession, I examine a few of the succession patterns, with particular reference to the discriminatory aspects under customary law. I also propose reforms. Finally, I recognize the important work done by nongovernmental organizations in Nigeria.

1.2 STATEMENT OF THE PROBLEM
While the law of inheritance and succession under English law is reasonably settled, the aspect dealing with customary law is not, which breeds conflict and acrimony among heirs. What’s more, the law discriminates among beneficiaries. Some are accorded rights of inheritance and others are not. Consequently, this customary law falls under the repugnancy doctrine test and, more important, international conventions against discrimination.
One example is the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), an international document that establishes standards of equality between women and men. The convention was adopted by the United General Assembly on 18 December 1979, and was made binding on ratifying
states on 3 September 1981. CEDAW provides a framework for developing and applying equality norms to specific conditions in different countries and legal systems. This international bill of rights for women also stands as an agenda for action to guarantee these rights. In its preamble, the convention states that extensive discrimination against women continues to exist, and it emphasizes that such discrimination violates the principles of equality of rights and respect for human dignity. Article I of the convention defines discrimination against women as “any distinction, exclusion, or restriction made on the basis of sex in the political, economic, social, cultural, civil or any other field.”
Article I further defines discrimination against women as anything that can bring
about unequal treatment between men and women while carrying out their livelihood.
This article groups married and unmarried women together. Article 13 stipulates in part that women have the right to obtain family benefits, while Article 15 states, inter alia, that women have equal rights with men in matters of law related to business contracts. Under Article 16, women are empowered to own and give away their property. State parties to the convention are obliged to refrain from acts that would defeat the object and purpose of the convention—namely, the elimination of all forms of discrimination against women. Each party must report on its progress to the committee. The implementation of the convention is monitored by the Committee on the Elimination of Discrimination against Women (CEDAW), which is composed of 23 experts elected by state parties.
The Committee meets annually in New York. Gender discrimination is currently receiving the attention of the world community. The position of women in law and society has attracted public sympathy and interest.
Apart from CEDAW, other documents apply, such as the African charter—a
regional bill—and national Constitutions that prohibit discrimination on the ground of sex in all categories of rights. Having ratified the CEDAW treaty, Nigeria is generally bound by its provisions, so any laws or procedures to the contrary must be declared null and void. Unfortunately, Nigerian courts have long sustained some of the customary practices that subjugate women, as demonstrated in the case of Nwanya v. Nwanya. The case of Mojekwu v. Mojekwu, however, has marked a turning point. The Court of Appeal in that case struck down, as repugnant to natural justice, equity, and good conscience, the Oli-ekpe custom in Ibo land, which bars women from inheriting land.
The law of succession basically deals with testate methods of inheritance, and the
rules governing them differ. When a man dies, the devolution of his self-acquired property depends upon whether he has made a will. If he has made a will, the property devolves according to the will. If no will exists—that is, under the condition of intestacy—his property devolves in accordance with the applicable customary law. Discriminations exist in both cases, but especially under intestacy. Discrimination thus exists in the method of distribution under various customary laws. Unfair practices allow some to inherit while others cannot.
The discriminatory aspects of property inheritance under customary law in
Nigeria manifests in different forms and scope ranging from primogeniture rules, right of spouses, rights of adopted children and rights of illegitimate child; although it is generally agreed rule under customary law of intestate succession and inheritance that succession goes by blood.
1.3 AIM AND OBJECTIVES OF THE RESEARCH
This research aims at ascertaining the applicability of the concept of customary inheritance as a hindrance to gender equality, through and examination of the legal and institutional frameworks on the subject matter in Nigeria. In view of this therefore, the objectives of this paper are as follows.
i. An examination of the practice and mode of customary inheritance in Nigeria vis-à-vis the adequacy or otherwise the inadequacies of the laws regulating
gender equality Nigeria.
ii. An examination of the factors militating against the practice of customary inheritance in Nigeria
iii. An examination of extent does the Nigeria custom of inheritance reflect regional and global standards on equal status of women
iv. The highlights of the salient features of the practice in contemporary society
v. The practice of inheritance in the Nigeria customary law impinge on the livelihood and security of women in the society
vi. Finally, to profer measures for addressing the problems identified in the
course of the study so as to have a smooth operation of inheritance in
Nigeria like other jurisdictions.
1.4 SIGNIFICANCE OF THE RESEARCH
The significance for this study stems from disparities between the application of ‘lawyers’ customary law’ and the practice of ‘people’s customary law’. This discrepancy tends to undermine the effectiveness of the state legal system in addressing gender inequalities. This challenge is more pronounced in the complex and pluralistic context of the Nigeria legal system. 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.
1.5 SCOPE OF THE RESEARCH
The area of coverage for this research as earlier stated is to appraise the
legality of the practice of customary inheritance in Nigeria. Though, the research will be majorly in the Nigerian context and other Africa country, but a short reference may also be made to other jurisdictions where customary law holds
sway.

1.6 RESEARCH QUESTIONS
Overall, the study will strive to determine the impact of the practice and administration of customary laws of inheritance on gender equality Nigeria society by providing answers to these specific research questions:
1. To what extent does the practice of inheritance in the Nigeria customary law impinge on the livelihood and security of women in the society?
2. What are the highlights of the salient features of the practice in contemporary society?
3. To what extent does the Nigeria custom of inheritance reflect regional and global standards on equal status of women?
1.7 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 project 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. The writer shall also make use of secondary sources of materials
which include textbooks, journals, encyclopedia, workshop material, internet
materials

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