Inheritance of women. Practices and laws in Africa

Inhaltsverzeichnis

ABSTRACT

1. INTRODUCTION

2. DEFINITION OF TERMS

3. WOMEN AND INHERITANCE: THE AFRICAN CONTEXT
3.1 Testate Succession: Nigeria
3.2 Intestate Succession: Nigeria

4. WOMEN AND INHERITANCE: WORLD’S MAJOR RELIGIONS

5. ADMINISTRATION OF ESTATE LAW

6. RECOMMENDATIONS

ABSTRACT

From time immemorial, women have suffered greatly and disproportionately in comparison to their male counterpart. Most societies have been essentially patriarchal but in no area of political, social and religious life has the despicable plight of women been more conspicuously noticeable than in the aspect of inheritance. Over time, concrete efforts have been made in the Western world to stem this tide, while African societies, on the other hand, have not recorded much achievement in this area. National constitutions of African and other developing countries tend to prohibit discriminations against women in property inheritance, yet discriminatory traditional and customary practices persist. International treaties are merely ratified by these countries without committed implementation. This paper is posed to interrogate existing practices and laws in African and developing societies regarding the right of women to inherit property on the same footing as men in the light of developments in the Western world. At the end, recommendations are proffered so that those countries of the world which are lagging behind in treating women appropriately may have a second thought.

Keywords: Women and inheritance, Africa, Legal system, Treaties, Constitutions, Islam, Christianity, Hinduism, Customs, Western countries.

1. INTRODUCTION

Women of this age are far more fortunate than their predecessors who had lived up till the early part of the nineteenth century. Formerly, the degrading and second-class-citizen treatment meted out to women cut across all cultures and societies^[1]. There was no distinction between Western and non-Western worlds regarding the plight of women. Most societies were deeply patriarchal. Only men had rights to own landed property, though there was a slight difference in the lot of Western women in this aspect. In Europe then, America inclusive, an unmarried woman was allowed to own private property but upon marriage, everything she owned became that of her husband. However, some revolution was brought about with the passage of the Married Women’s Property Act in 1882 in England. The Act legalised the rights of married women to possess their own private property and enjoy independent legal status different from that of their husbands. The effects of this Act later spread across the whole of Europe and America.

In Africa and most other non-Western worlds, however, discriminatory and harmful cultural practices which subjugate the rights of women still persist. While women are still regarded and treated like slaves and second-class citizens in some African customs, the rights of women have improved better in some non-Western countries like India. Radical changes were made in India in 1937 through the passage of the Hindu Women’s Rights to Property Act and further amendments which culminated in the Hindu Succession (Amendment) Act of 2005^[2] have taken the rights of Hindu women to a level equal to the rights enjoyed by men. Even though, as far back as 1948, the United Nations passed an international human rights document known as the Universal Declaration of Human Rights (UDHR) in which all persons are to be accorded equal treatment^[3], the culture of treating women as equal to their male counterpart is yet to be fully embraced in Africa. The international community did not stop at this Declaration; some other human rights documents have also been passed including treaties specifically dedicated to the promotion and protection of rights of women^[4]. Despite the fact that most African countries have ratified most of these international human rights documents and in fact, domesticated some of them, uncivilised and harmful cultural practices which constitute serious threats to rights of women to equal treatment in marriage, inheritance, political participation and property ownership still hold sway.

In this paper, discussions are centred primarily on the laws and practices regulating the question of women and inheritance as obtained in Africa and the rest of the world. This is done by examining some relevant legislation on the subject in selected African countries of which Nigeria is given an overriding consideration. African customary practices vis-a-vis judicial interventions are also discussed. In addition, similar consideration is given to other parts of the globe. The subject of discussion which is women and inheritance is further examined under world’s major religions. In conclusion, recommendations are made on the way forward in order to alleviate the plight of women in the light of some restrictions posed by certain harmful traditional practices, as found mainly in Africa, which constitute threats to women’s right to inheritance.

2. DEFINITION OF TERMS

For the purpose of clarity, it is important to define some key words in the topic of today’s lecture.

i. Women – who is a woman? It is obvious that a woman is a person of female gender but at what age does a female person become a woman or age does not have any role to play in defining who a woman is? Longman Dictionary states that a woman is “an adult female person ^[5] ”. This implies that an underage female child is not a woman. Otaluka, in her article “Protection of Women under the Law” defines a woman as “...an adult female human being physically weaker than the man, exhibiting feminine characteristics quite distinctive from the opposite sex ^[6] ”. The two definitions have clearly shown that a woman is not only a human being of opposite sex different from a man but also that she is a grown-up female person. In Nigeria, any person of 18 years of age is considered to be an adult. Even though a female person below 18 years is not regarded as a woman, for the purpose of this lecture, the word “woman” would be used in a general sense. In that case, woman is used here to refer generally to persons of female gender, irrespective of age or marital status.

ii. Inheritance – Longman Dictionary defines inheritance this way, “money, property etc that you receive from someone who has died ^[7] ”. Another source defines it thus “the right of an heir to succeed to property on the death of an ancestor ^[8] ”. Another word that is closely connected to inheritance is “succession”. Law Dictionary defines succession as “The devolution of title to property under the law of descent and distribution ^[9] ”. In legal texts, the use of the word “succession” to denote a situation where property of a deceased person passes to her heirs seems to features more frequently than “inheritance”. However, in this lecture, the two words may be used interchangeably.

iii. Law – Longman Dictionary defines Law thus, “a rule that people in a particular country or area must obey... ^[10] ”. Another source puts it this way, “...the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like that is used to govern a society and to control the behaviour of its members, so law is a formal mechanism of social control ^[11] ”. Law is one of the words that do not command a universally acceptable definition. It is defined differently by different scholars. But on a general note, it can be defined as a rule of behaviour or conduct laid down by a constituted authority in a particular society. A law may comprise written codes, unwritten customs and traditions, pronouncements of rulers and judicial decisions. In Africa, for instance, despite the fact that former colonial masters introduced foreign legal systems to territories once colonised by them, the African people still hold strong allegiance to their unwritten native customs and traditions. Therefore, in most African countries, if not all, Customary law is a source of law, along other sources. Legal systems in African states are pluralistic; there exists such laws as the statutory law, Customary law and religious law e.g. Sharia legal system. All these laws affect the subject-matter under consideration one way or the other.

3. WOMEN AND INHERITANCE: THE AFRICAN CONTEXT

Inheritance may take place either through testate succession or intestate succession.

3.1 Testate Succession: Nigeria

This is a situation where a person makes a Will and in her Will, she expresses her wishes which may include how her property is to be shared, how and where to be buried and provisions may be made for underage children, if any. In Nigeria, anybody, whether male or female, can make a Will, provided the person is not below 21 years of age. Where a man writes his Will, he can provide for his wife, children, relations and even strangers. The Wills Act^[12], a statute bequeathed to Nigeria during the colonial era, is one of the laws under which people can write their Wills in Nigeria. The Act is commonly used in the North and South-Eastern part of the country, while all the South-Western States and many other states have made their own Wills laws. The provisions of those states’ laws are not, however, substantially different from the Act. Every person writing a Will has the liberty to distribute his or her property as it pleases him or her. However, there are basically two limitations placed on the liberty of a testator to distribute her estate as she likes. The first limitation is that a Will-maker must take relevant rules of Customary law in her locality into consideration while distributing her estate. For instance, any property owned as family property cannot be given to another person through a Will. Again, if a particular property must, by rules of Customary law, be given to a particular person, it cannot be given to another person. This is prevalent in Edo and Delta States. Under the Bini custom, the eldest surviving son is the only person who is entitled to inherit the last house lived by the deceased. So, this means that such house cannot be inherited by the deceased’s wife, daughter or any female at all. Even though the writing of Wills seems to be commonly found among people whose marriages are monogamous, nothing prevents people in other types of marriage e.g. Islamic or Customary law from writing their Wills in accordance with respective Wills laws in their states. The good news about the Wills laws of some states in Nigeria is that if a man makes his Will and fails to provide adequately for his wife or children, such persons can apply to court so that their interests can be appropriately catered for in such Will.

[...]

^*. He attended the University of Ilorin, Ilorin and was called to the Nigerian Bar in 2003. Since his call, he has remained in active legal practice for over 10 years. His post-call experience cuts across both private and public sectors and is based in Ibadan, Oyo State, Nigeria. He is the author of HOW TO WRITE YOUR WILL WITH EASE (his first book), while his second book titled, HOW TO BE YOUR OWN LAWYER: Including Over 500 Legal Terms That Everybody Must Know is coming out soon. Kehinde Adegbite can be reached on 0803-855-6525. Email: barrykehinde@yahoo.co.uk

^[1]. “Male domination”, http://culture-of-peace.info/books/history/male-domination.html (accessed on 8th June, 2014).

^[2]. See, P. Rajendran, Women’s Right to Property, http://newcenturyindianlaw.blogspot.com/2011/02/womens-right-to-property.html (accessed on 8th June, 2014).

^[3]. Paragraph 4 of the Preamble to the UDHR provides, “Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”.

^[4]. One example is the Convention on the Eradication of all Forms of Discrimination Against Women (CEDAW).

^[5]. Longman Dictionary of Contemporary English. 2007. (New Edition). P. 1897.

^[6]. Otaluka A. O., in Women and Children under Nigerian Law, A. U. Kalu & Y. Osinbajo (Eds.) Federal Ministry of Justice Law Review Series, Vol. 6., P.95.

^[7]. Op. Cit., note 7. P. 835.

^[8]. See, http://www.thefreedictionary.com/inheritance (accessed on 12th June, 2014).

^[9]. Black’s Law Dictionary, 6th Edition. P. 1431.

^[10]. Op. Cit., note 7. P. 909.

^[11]. ‘What is “Law”, http://sixthformlaw.info/01_modules/other_material/law_and_morality/0_what_is_law.htm (accessed on 13th June, 2014).

^[12]. The Wills Act of 1837.