GENDER, SA’AD AND THE QUR’AN
One of the major headlines during this holiday season was the statement made by the Sultan of Sokoto, Sa’ad Abubakar III concerning the Gender and Equality Opportunity Bill, which is at the second reading stage before the Senate. Amongst other things, the bill seeks to enforce equal inheritance between both sexes; and to provide for widows rights in custody, inheritance and remarriage. The Sultan had the following to say about the proposed bill at the closing ceremony of the 20th Zamfara State Annual Qur’anic Recitation Competition, which held in Gusau on Tuesday, 27th December, 2017:
“Our religion is our total way of life. Therefore, we will not accept any move to change what Allah has permitted us to do……………we should be allowed to perform our religion effectively.”
A major uproar ensued from the Sultan’s comment –understandably so, in a clime where the clamor for gender equality has been at the front burner of most socio-political happenings. The masses took to social media to pour out their outrage at this seeming attack on progressive thinking borne out of decades of sexual discrimination. Some of these sentiments have been shared below as a prelude to the discussion:
“When you look at Africa where we come from, women have always been the factor used in the uplifting of the family…. But, when it comes to inheritance, she will be rejected; that is hypocrisy of the highest order…. Why would you say the inheritance from the father should be for the men alone? The Sultan of Sokoto should moderate his thinking to modern times and he should know that there should be no discrimination in the area of inheritance.” –Dr. Jackson Omenazu (Chancellor, International Society for Social Justice and Human Rights)
“We are so different from these people; it is pathetic trying to prove otherwise. While not an advocate of complete severance for different regions, we are all in ruinous denial if we don’t see the need to advocate a confederation at least, as the minimum political system to help address the gulf-like differences between us and these people.” –NG (Commenter on BellaNaija.com)
“It is quite unfortunate that in some parts of this country, women are oppressed and dehumanized. The rights of widows are denied. And I want to state categorically as an Islamic scholar that Islam rejects this as something that is wicked and inhuman……However, the bill that is seeking gender parity on inheritance is an assault to the Islamic law which is part of the laws of this country……I am sure the Sultan was deliberately quoted out of context to sound as if he is against women or against their rights to inheritance, which is far from the truth.”–Sheikh Abdur-Rahman Ahmad (Chief Missioner of Ansar-ud-Deen Society of Nigeria)
“…the Sultan’s views are no more than the views of each of the several regions that we have in this country and should be disregarded. Despite their painstaking effort to turn Nigeria into an Islamic state, they know in fact that the Christians in this country over-populate their Muslim thinking, though they are by way of propaganda; trying to make the scenario look as though they are predominant.” –Mr. Osom Makbere (Human rights lawyer and activist)
Having appraised all the arguments on the issue –from the intellectuals, to the spiritualists, feminists, and conspiracy theorists, we shall examine the topic thoroughly using cultural history, legal authorities and religious influences. The brunt of the subject can be summarized in the following questions:
The family tussles over property left behind by the deceased dates back to the pre-colonial era. Staying true to the attitudes prevalent in the medieval ages, women were excluded from ‘serious’ issues such as property. This was solely within the occupational fancy of the menfolk. A woman could not own property of her own, much less inherit from another. Her ownership was subsumed under the title of a male relative –usually her father or husband- who administered it, or transacted business with it for her. Only after the 18th century did a paradigm shift occur in the manner women were treated regarding property.
In Nigeria where culture and norms have a stronger foothold in the governance of our society, it was akin to a taboo for women to even contemplate ownership of property. The age old traditions held sway in distribution of the wealth of the deceased, which mostly favored the sons and other male family members, e.g. the igi-ogbe custom of the Binis, the Yoruba idi-igi and ori-ojori customs, etc. It took longer for Nigeria to get there, but women eventually started to speak out about the injustices surrounding distribution of inheritance. The courts were flooded from the 50s with cases touching on female inheritance and lack thereof. Some customs grudgingly accepted the inclusion, albeit limited participation of women in property sharing. In traditional Northern Nigeria, a woman can only inherit the movable property of her mother and not landed property.
Under Nigerian law, Section 42(1) of the 1999 Constitution of the FRN (As Amended) provides that a person shall not be discriminated against by reason of their sex, among other parameters. Also, Section 43 gives every Nigerian the right to acquire and own immovable property anywhere in Nigeria. The law does not stipulate how much property a woman can inherit, as this is left to the discretion of the testator. This means that a woman shouldn’t have to skip hurdles in order to benefit from a relative’s property. She is as entitled as her male counterpart. Unfortunately, despite these legal provisions entrenched in the supreme law of the land and the various international legislations our country is party to, the reality is quite the opposite. For instance, the famous case of Ukeje v Ukeje centered round the property of Late Lazarus Ogbonna Ukeje, who died intestate in Lagos in 1981. This case which was instituted by his daughter, Mrs. Gladys Ada Ukeje was only resolved in 2014, wherein the Supreme Court annulled the Igbo customary law which precludes females from partaking in their father’s estate. Therefore, Gladys was deprived of enjoying her share of her father’s property for thirty-three years! This is the sad reality in most parts of Nigeria.
In the shari’ah, i.e. Islamic law, there is a fixed law on inheritance matters. Two-thirds of the deceased’s property is to be distributed among the heirs, while the remaining third can be shared according to the will of the testator. A person’s heirs are their direct ascendants and descendants (children and parents, or grandchildren and grandparents where the previous are dead, etc.) For the purpose of this discussion, we are concerned with the woman. A woman is fully provided for in matters of inheritance. The relevant provisions can be found in Qur’an 4:
“Allah directs you as regards your Children’s inheritance: to the male, a portion equal to that of two females; if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half…..The distribution in all cases after the payment of legacies and debts…These are settled portions ordained by Allah; and Allah is All-knowing, All-wise.” –Surah An-Nisaa, verse 11.
Evidently, the female’s inheritance is clearly provided for in Islam and has been so for over a thousand years. The only question arises as to the quantum of her inheritance which is half of her male counterpart’s. Is it discriminatory, or unfair? Logical reasoning dictates that this difference is due to the fact that the man is the natural provider and caretaker for the woman –whether in the role of father, brother, husband or son. Bearing in mind that a woman is obliged to spend her wealth only in a manner she is disposed to, this seems a fair share. And in circumstances where there are no sons, the daughter(s) inherit half or two-thirds of the property, as the case may be.
On the entitlement of widows, the situation is even drearier than that of daughters. Wives have always faced so much castigation in the history of the marriage institution. This doesn’t change even in the death of their spouses. They are accused of murder; made to undergo humiliating rites; sometimes deprived custody of her young children. The height of the emotional torture is being excluded from partaking in her husband’s wealth. Most women do not inherit directly from their husbands, only through their children. Ironically where the reverse is the case and the woman dies, her husband and sons do not reject her wealth. It was so bad that in the earlier case of Suberu v Sumonu, it was held that a woman could not inherit from her husband because she was described as a chattel herself to be inherited!
Mostly the woman’s right of inheritance is determined by the type of marriage she contracted, due to the plurality of Nigeria’s legal system. In a statutory marriage, the woman and her children inherit the entire estate of the deceased where he dies intestate. In the absence of children, she takes the entire estate. Custody of children hardly comes into dispute under statutory law, except in divorce cases. In all cases however, the overriding and paramount consideration is the best interests of the child. In customary law, we have established that most customs disregard the woman’s right to inherit from her husband.
Under Islamic law, Qur’an 4 verse 12 confers a fourth of the man’s estate on his wife if they had no children. Where there are children of the marriage, her share is one-eighth. Regarding the custody of the child, a mother has more right to custody of the child whether she is divorced from her husband or he dies, providing she does not remarry. This is from the hadith narrated by ‘Abd-Allah ibn ‘Amr and reported by Abu Dawood (2276), in which a woman came complaining to the Prophet (SAW) about her divorced husband who wanted to forcefully take away her son. As with English law, the interest of the child is paramount in deciding who keeps custody and the child may choose for himself/herself when he/she reaches the age of discernment.
The Nigerian law on succession on inheritance and succession is governed by various statutes including the Wills Amendment Act 1937, the Wills Law 1958 of Western Nigeria, the Administration of Estates Law of Lagos State, etc. Issues of inheritance are classified as personal law, which falls outside the Exclusive Legislative List. This means that the National Assembly cannot make laws on such subject matters and enforce them on the states. States may make laws on such topics to suit their individual peculiarities. This is the same situation with marriage and criminal laws. The effect is that even if the National legislature was to go ahead and enact the bill, it would be rendered ineffective in states which adopt different state laws on the same subject matter. A vivid example can be seen in Section 3(1) of the Wills Laws adopted by several states, which states that any property which the testator could not dispose of under the applicable customary law, would not be disposable by will. Thus, a Bini man still cannot will his igi-ogbe to anybody other than his first son and a Muslim who lived in accordance with shari’ah cannot disinherit a child, nor will more than one-third of his estates to non-heirs.
The Sultan ‘scandal’ could therefore be predicated on the legal implications of enforcing a uniform personal law in a plural legal system. This article will not be concluded without highlighting the right to freedom of association and religion enshrined in Section 38 of the Constitution. Religion and custom are influences that cannot be ignored in the scheme of policy and law making. They remain relevant, to the extent that such customs or practices are not repugnant to natural justice. The Sultan has simply voiced a concern which could become problematic in the future. It means that a person could be prosecuted for disbursing inheritance in line with the dictates of his faith, if his state government fails to enact an accommodating law. It would become a law observed more in violation than compliance.
It is hoped that the aim of this expose, which is to educate has been achieved. The defining feature of any heterogeneous society based on the principles of federalism is the rocky process of establishing law and order for the governance of said society. There will be disputes and misunderstandings due to the different backgrounds that have been grouped under one structure. However, one cannot over stress the importance of dialogue and genuine efforts in seeking knowledge about our differences. The world would have been one big, boring place if we had all been created to think, look and behave the same.