ABSTRACT
Thus far, recent judgments on women’s property inheritance during a divorce delivered by the Nigerian Supreme Court have been perceived as a development of customary law. The article argues that these judgments mask the indifferent attitude of apex courts to women’s matrimonial property inheritance under customary law. This indifference is evident from the Supreme Court’s failure to address the preservative philosophy of property inheritance and the unsuitability of this philosophy to contemporary conditions. To bring this failure into critical focus, the article primarily uses case analyses to critique divorce and succession judgments delivered by the Supreme Court and the Court of Appeal. It finds that apex courts prefer the repugnancy test over the Bill of Rights, using a balancing act that shields the customary law of matrimonial property from constitutional scrutiny. Among other measures, the article suggests that customary law should be unequivocally subjected to the Bill of Rights, and legislation should be enacted to regulate customary laws of succession, marriage and divorce. Key words: customary law; matrimonial property inheritance; Southern Nigeria; Bill of Rights
CHAPTER ONE
INTRODUCTION
• Background to the Study
The traditional practice of widowhood and property inheritance is as old as human beings. The inevitability of death in spite of the great strides made in scientific and technological research, leads us to assert that there is no human society without widows and widowers. Yearly, there are seven million widows globally (United States Bureau of Statistics, 2024). The increasing number of widows across the world in recent times has become a social problem. In Nigeria, widowhood is a common phenomenon attributed to the high and increasing mortality rate (Oyekanmi, 2007). The fact that females have higher average life expectancy than males and the practice whereby men marry women younger than themselves likely result in more widows than widowers in the society. As Potash (1986:1) opines, “Widows make up about half the adult female population in Africa”. Even though this view is not justifiable by available data, one striking feature in most parts of Nigeria is the fact that until the 1990s, not much research had been done on widows and their plight as determinable from relevant discourse. Yet, this is one specific sub-group that should be targeted for intervention, considering the incidence of depression among members, the socio-economic setback that the crisis of widowhood brings to them, and the sudden change in their status (Sesay and Odebiyi, 1998).
A popular Nigerian folklore has it that all enduring marriages ultimately end with the death of either the husband or wife or both. However, the challenges and traumatic experience which accompany the death of a husband tend to be greater than those which accompany the death of a wife (Oloko, 1997:9). Even though men and women could die prematurely owing to a number of factors such as ill-health, accidents and wars amongst other unforeseen circumstances, it is observed from the relevant literature that, unlike a wife’s death, the death of a husband is culturally challenged in many African societies. When a husband dies, the ready suspect is the wife. Deaths, even in circumstances where the causes are natural and explicable, are never perceived as such. Magico-religious factors and widows’ bewitchment or sorcery are evoked for the death of the partners (Erinosho, 2000:1).
The widespread belief is that someone must necessarily cause the death of a man and that person is likely to be his wife. This assertion is corroborated by a popular saying in many societies in Nigeria that “no man dies naturally, but at the hands of a bewitching wife”. According to Ilogu (1974:40),
“I have not come across any death that any Igbo accept as a natural and biological end”. Similarly, Afigbo (1989) observes that in almost all societies, the immediate or remote cause of death is blamed on man’s inhumanity to man or of a malevolent ancestor or ghost. Suffice it to add that the situation described above is not age specific. However, the cultural belief and explanation of death vary from one society to another.
In many parts of Nigeria, death is often attributed to some unnatural causes. When a woman dies, it is more often than not taken with fatalism; even when such a death is queried, the culprit is sought amongst her contenders (e.g. co-wives or neighbours), and rarely is her husband seen as being responsible. Instead of suspicion and accusations, the husband receives more sympathies and support. For instance, in some Yoruba communities, a woman is arranged to sleep with the man for a night so that he is not haunted by the spirit of the dead wife. According to Lasebikan (2001:19), a widower is evidently pitied and consoled genuinely and encouraged out of his situation as early as possible while arrangement for a substitute is made quickly, because “Opo‘kunrin ki da sun nitori iyawo orun” (Yoruba). In other words, “A widower does not sleep alone because of the dead wife’s spirit”. Though the widower experiences emotional trauma at the loss of a wife, he is usually given more social support in order to cope, and to eventually re-adjust to a new life. In a polygynous setting, other living co-wives become a source of succour. A woman is seen as part of her husband’s property: at death, family members do not often challenge the husband with respect to her assets and wealth. However, if the marital relationship was undergoing stress the relatives of the woman might query the husband’s wish to inherit her property.
Under normal circumstances, a widow is to be empathized with, and helped out of the psychological valley into which the unexpected has plunged her. Unfortunately, this is often not the case. In most Nigerian societies, she is stigmatized as the killer of her husband, oppressed, suppressed, afflicted, neglected, accused, openly insulted and consequently made to succumb to widowhood rites on account of customs and traditions. Usually, the widow’s ordeal begins the very moment her husband breathes his last.
As Dei (1995:6) reveals for the Igbo society in eastern Nigeria,
The sympathy for her ends on the spur of the moment. Promises and assurances are made at the graveside. But as soon as the earth swallows the dead, the widow becomes a victim of neglect, accusation, and bizarre cultural practices. In most cases, the in-laws use the mourning period as an avenue to give vent to their anger and ensure that the widow’s solitary life is made more miserable. They strip her virtually of her self-esteem and all the toil she had acquired with her spouse.
Consequently, the death of a husband dramatically alters a woman’s status and leaves her at the mercy of her husband’s relations who are customarily empowered to take decisions concerning her and the properties left behind by the deceased, not minding her welfare and that of her children, if any. As observed in Women’s Rights Wake Up Call Assessment Report (2001:202), the plight of widows is made worse by various widowhood rites, which, though not uniform in all societies, exist in one form or another almost everywhere. While it is more entrenched in the rural areas, the practice affects many urban women in the Nigerian societies especially as it is common with those who die in the cities but are to be buried in rural areas (“hometown burial”). As the prime suspect of her husband’s death, the widow is usually compelled to go through an ordeal to prove her innocence. In some cases, she is made to drink the water used to wash the corpse (Kantiyok, 2000:61). “To express their grief, widows are sometimes required to sleep on the floor, abstain from taking baths, shave their hair, and wear dirty rags as clothes for as long as mourning lasts”. In a similar vein, “She is made to cook with broken pots and eat with unwashed hands” (Akumadu, 1998:29).
These practices, which stem from societal traditions and family beliefs, are harmful besides being extraordinarily harsh. Moreover, most of these rituals erode the dignity of the widows and also traumatize them. Besides exposure to diseases such as cholera, diarrhoea, etc, occasioned by eating with unwashed hands, drinking water used to bathe the corpse could be poisonous. Worse still, any attempt to contest such practices is met with stiff resistance and sanctions. The confined widows, in the wake of these treatments, suffer from social degradation, inferiority complex and low self- esteem. While lamenting over cultural practices against widows in Ghana, Oduyoye (1995:1) in a keynote address states:
And today, the category of woman called widow, is often disinherited specie, sharing no part of the legacy of her father or her husband and unable to have saved or acquired property because she was busy being a traditional wife, spending on spouse, children and the extended family.
In many African societies, particularly in East and South Africa, the practice of levirate, a marital union of the widow to her deceased husband’s brother still thrives. In some cases, levirate is responsible for the wiping out of extended family members if the spouse(s) of the dead man had already been infected with HIV (The New York Times, 17 Sept, 1990 p14). This report by The New York Times may not be true for all cases and could pass for an over-exaggeration. The fact that an extended family was wiped out may not be as a result of HIV. Also, this report ought to have taken cognizance of other factors such as magic, sorcery, witchcraft as well as other inherited diseases in Africa. However, the possibility of HIV cannot be completely ruled out.
Adepoju (1997:16) observes that despite campaigns to eradicate levirate, it is closely linked to the distribution of and right to wealth and property of the deceased. As Kantiyok (2000:61) opines in her study of Kano State North-western Nigeria, no widow is completely free from the plight of widowhood rites (and its effects). As much as there could be diverse cultural practices within the same country, regarding widowhood rites and property inheritance, one common feature is the fact that the intensity of a widow’s unpleasant experiences varies within communities and according to various religious beliefs. While those economically endowed may be able to pay their way in order to avoid some of the traditional widowhood rites, others rarely escape. For widows with children (male/female), the sex of the children is often an issue of contention in property inheritance, while widows without children are rarely considered.
Nzewi (1996), for instance, notes that in certain parts of Imo State, Eastern Nigeria, immediately the death of the man is announced, the in-laws demand a list of the man’s property, holdings, investments, bank accounts among others. The widow is expected to take an oath as a proof that she has not concealed any relevant information about her husband’s wealth. The acknowledged weak and defenceless position of the widow according to Afigbo (1989:14) is borne out of the fact that she has no legal right to the property of her husband. It is against this background that this study attempts to investigate widowhood and property inheritance in the context of the Awori customary law with a view to identifying points of convergence or divergence.
• Statement of the Problem
Most African societies are patriarchal and a major element of patriarchy is the subservient position of women and the level of discrimination that accompanies divorce settlements and property sharing. In the Awori tradition, when a woman dies, the man is consoled. If he is a monogamist, a woman is given to accompany him for the night and within six months or a space of two years the widower remarries. If he is a polygynist, he naturally takes solace in his other living wives. Even though widowhood is a condition shared by both men and women, differences in experience along gender lines have made it more of a woman’s problem. While the man enjoys social support and goes through minimal widowhood rites, the Awori woman is not so spared. Lasebikan (2001:19) aptly captures a widow’s situation in the following statement: “what the Nigerian widow experiences during widowhood are better imagined than expressed”.
In many parts of Nigeria, death is often attributed to some unnatural causes. When a woman dies, it is more often than not taken with fatalism; even when such a death is queried, the culprit is sought amongst her contenders (e.g. co-wives or neighbours), and rarely is her husband seen as being responsible. Instead of suspicion and accusations, the husband receives more sympathies and support. For instance, in some Yoruba communities, a woman is arranged to sleep with the man for a night so that he is not haunted by the spirit of the dead wife. According to Lasebikan (2001:19), a widower is evidently pitied and consoled genuinely and encouraged out of his situation as early as possible while arrangement for a substitute is made quickly, because “Opo‘kunrin ki da sun nitori iyawo orun” (Yoruba). In other words, “A widower does not sleep alone because of the dead wife’s spirit”. Though the widower experiences emotional trauma at the loss of a wife, he is usually given more social support in order to cope, and to eventually re-adjust to a new life.
Widowhood resulting from sudden death gives no room for a will or other preparations. Thus, property inheritance becomes a big challenge. For instance, it has been a long standing custom in most parts of Nigeria, including Aworiland, for women not to inherit property (Oke, 2001:52). Women are almost always regarded as their husband’s property and being themselves property can not aspire to own property (Orebiyi, 2002).
The seriousness attached to property in the Awori culture is reflected in the manner the properties of the deceased male members of the family are usually handled. Instances in which the relatives of the deceased insist on their right to inherit the property of the deceased, often to the exclusion of the wife/wives and children, can be a terrible plight for the widow(s). In spite of statutory and Islamic laws which provide for women to inherit property following the death of their husbands, one noticeable problem among the Awori people of Ogun State, Nigeria, is that, in practice, legal or religious laws are often overridden by the customary laws of succession. Widespread practices among this local group reveal that women under traditional customary laws are often denied their rights to inheritance. The law ranges from denial of rights to commonly held property with their husbands die to lack of or restricted access to the children produced from such unions. It is most shocking that the cases of joint property ownership, the family/relations of the deceased man do not consider this. Rather, the woman is completely ostracized and barred from having access to such joint property. In some cases, no consideration is given to the widow and her children by the extended family. In fact, the widow without children is rarely considered in property inheritance. Yet, she is not exempted from performing widowhood rites.
Against this background, this study examines divorce settlements and property inheritance among the Awori with a view to ascertaining the coping mechanisms of widows compared to their male counterparts. This is because the challenges arising from widowhood and property inheritance have created numerous problems for the Awori society. They have rendered many widows psychologically and economically incapacitated. Women empowerment and the need for a critical appraisal become urgent. However, there is no known study on widowhood and property inheritance among the Awori. Most studies in Nigeria (Afigbo, 1989; Ahonsi, 1997; Akumadu, 1998; Anyanwu, 2002; Imam, 1997; Korieh, 1996; Kantiyok, 2000; Nzewi, 1989; Nwoga, 1989; Okoye, 1995; and Onyenuchie, 2000) focused on the Southeastern and Northern part of the country. These scholars’ contributions on divorce settlements, levirate, aged widows, etc, have no doubt increased contributions immensely for our understanding of the uniqueness of divorce settlements in other societies. However, the gap caused by the absence of literature and research on widowhood and property inheritance among the Awori sub-ethnic group of the Yoruba race is what this study intends to fill.
• Research Questions
This study attempts to understand divorce settlements as a socio-cultural phenomenon in relation to property inheritance among the Awori of Ogun State. In the light of the above, the study investigates the following questions:
• What is thee extent to which the widow’s personal attributes (age, education, occupation, income, and type of marriage etc) influence widowhood rites and property inheritance?
• How does culture define divorce settlements and property inheritance among the Awori?
• Of what significance is material relationship in divorce settlements and property inheritance?
• What relationship exists between lineage-based family reciprocity, widowhood rites and property inheritance?
• How do gender values and orientations impact on widowhood rites and property inheritance?
• Objectives of the Study
The broad objective of the study is to investigate and describe divorce settlements and property inheritance within the context of the Awori customary law.
The Specific objectives are to:
• Examine the extent to which the widow’s personal attributes (age, education, occupation, income, type of marriage, etc) influence widowhood rites and property inheritance.
• Identify and examine the role of culture in divorce settlements and property inheritance among the Awori.
• Examine how material relationships can sustain widowhood rites and property inheritance.
• Explore the relationship between lineage-based family reciprocity and widowhood rites and property inheritance
• Examine how gender values and orientations impact on widowhood rites and property inheritance.
• Justification of the Study
A study of widowhood and property inheritance among the Awori people is coming at a time when several aspects of the people’s culture have been infiltrated by the wave of social change, modernity and globalization. This study is, therefore, significant in that it explains the ramifications introduced by the various aspects of social change. Widowhood and property inheritance are highly sociological, a culturally embedded study that aims at identifying, investigating, and explaining this aspect of Nigerian life, especially in the 21st century, is imperative. A research into this sensitive aspect of Awori social life will shed more light on certain aspects of culture and tradition as they relate to widowhood and property inheritance. Sociology as a scientific study of society, no doubt, has vital roles to play in explaining, questioning and challenging age-long societal practices such as widowhood and property inheritance as they relate for example to the Awori people.
Among the Awori of Ogun State, Southwestern Nigeria, the experience of widowhood is deeply gendered and there is no known study or available statistics on widowhood and property inheritance. Available works centre on the plight of widows within the context of divorce settlements and aging in other parts of Nigeria. This research is unique because it is a pioneer study that intends to provide data for further studies on the subject among the Aworis of the Yoruba cultural group.
There is the report of a widow from Ohafia in Imo State, in the Eastern part of the country, who had difficulty with her husband’s extended family during and after widowhood. The brings to the fore the fact that widows of different age groups and categories exist. Similarly, the challenges associated with widowhood and property inheritance also vary across cultures and communities. For instance, the following case study by Effah-Chukwuma (1982:1) is one out of several insights on the subject:
Mrs. Gladys Michael, 44 years old became a widow 18 years ago (1982) when she lost the man she had married at the tender age of 16 years. According to her, "At the time my husband died in 1982, it was the tenth year of our marriage and I was eight months pregnant. It was a period of agony for me, especially as an expectant mother. My in-laws despite my condition did not take pity on me. They were more concerned about laying hands on his bank documents even while his corpse was still in the mortuary. They never cared about the six children we had, the eldest at the time being 8 years old. Up till date, no one of them has come to find out how we are faring. For eighteen (18) years now, I have been bearing the burden on my own”.
The above example, which is just one among many, further makes any research into widowhood and property inheritance a unique and timely one in order to bring to the fore this aspect of African reality.
The content of this study is a gender sensitive one that touches the heart of every woman especially the widow. Denials of benefits in terms of property inheritance and fundamental human rights of widows via tradition are worth studying to better understand and predict this vital aspect of Awori experience. In addition, the dearth of statistical data coupled with the non existence of situational analysis of divorce settlements and property inheritance among the study population also necessitated this study.
Essentially, this research attempts to add to current knowledge on the socio-cultural variables that undermine the place of women in the society. Furthermore, the study brings to light the missing link between the variables currently being investigated and also assist in sensitizing the government, policy makers and especially the women to harmful traditional practices as they relate to widowhood and property inheritance. It is hoped that the findings from this research will go beyond suggestions and recommendations on the missing link.
This research will assist in terms of sensitizing the community, individuals and groups as well as policy makers on undocumented issues relating to widowhood and property inheritance and the way forward for both the Awori community and the larger society. Above all, this study will pave the way for further studies in this area of scientific enquiry.
Finally, this research serves as an avenue to contribute immeasurably to knowledge in this grey but sensitive aspect of African experience.
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