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 Freeman
5 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 manual
7 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 law
9, 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

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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
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