Annulment of Discriminatory Custom and its Impact on Matrilineal and Patrilineal Societies/People

Recently the Supreme Court of Nigeria (SCN) affirmed that the daughter of an intestate member of the Ibo tribe, which is patrilineal, was entitled to inherit her father’s landed property. It is unclear whether this decision abolished matrilineal, as well as patrilineal,² inheritance³ systems or not. It shows a conflict⁴ between customary law, constitutional rights,⁵ cultural diversity⁶ and gender equality⁷ enshrined in constitutions and international law.⁸ This article will examine these issues.

There are similar developments in other African countries. Courts have been consistent in upholding equality before the law and the principle of non-discrimination on grounds of sex.⁹ In the Tanzanian case of Ephraim v. Pastory¹⁰ a woman inherited clan land from her father under a valid will. She sold it for $300,000 to a stranger when she got older and had nobody to look after her. Clan members sued to void the sale because women have no power to sell under Haya customary law. The Court of First Instance voided the sale and ordered a refund because women have the right to inherit which entails a usufructuary right for life without the power to alienate the land.¹¹ The district magistrate reversed the judgment and held that the female inheritance right to enjoy the benefits of clan lands cannot be barred. The deprivation of the power to sell is archaic under 13(4) Bill of Rights Act 1984 as females have equal constitutional rights with males. The High Court of Tanzania dismissed the appeal. Mwalusanya J held:

Courts are not impotent, it’ll invalidate discriminatory, unconstitutional¹² inheritance-customary-laws which barred females from selling clan-land, males, females now have equal rights to inherit, sell. Disposal to strangers without consent is subject to any other clan member to redeem clan-land on payment of purchase price to the purchaser, the sale is valid, appellant is given 6-months to redeem the clan-land, otherwise it becomes the property of the purchaser.¹³

Similar jurisprudential reasoning was reached in Re Estate of NTutu (Deceased)¹⁴ where daughters under Maasai tribal customary law were held to be entitled to inherit their intestate father’s land with his sons. Ntutu had several wives and an inheritance dispute arose. The sons contended that females are not entitled because they enjoy inheritance rights from their husband’s family. Many tribes in Kenya, including the Kikuyu, have conferred equal status on sons and unmarried mature daughters to enable them to claim shares of their deceased father’s property. Rawal J held discrimination between males and married or unmarried females is prohibited and that all children are entitled to a share. The Succession Act 1981 disapplied sex-equality provisions to three areas − agricultural lands, crops on such lands and livestock governed by tribal inheritance customary law. Customary law is barred¹⁵ where it is repugnant to justice, morality, where it is inconsistent with an Act of Parliament or international treaties, such as the Convention on the Elimination of Discrimination against Women (CEDAW). S. 82(1) of the Kenyan Constitution prohibits discrimination on the basis of sex, therefore Ntutu’s sons and daughters enjoyed the property equally.

In Bhe v. Magistrate Khayelistsha, Shibi v. Sithole and South African Human Rights Commission v. Resident of South Africa,¹⁶ South Africa’s Constitutional Court abrogated primogeniture customary law which accorded males the right to inherit while excluding females because it violated the equality guaranteed by s. 9 of the South African Constitution. Ms. Bhe and her partner cohabited as husband and wife under a customary union for 12 years and had two daughters prior to the husband‘s death. They lived in a temporary shelter the husband acquired. Bhe contributed to the household income and building materials. Under s. 23 of the Black Administration Act 1927 (BAA), the deceased’s father, being the only surviving male, was appointed the sole heir to the deceased’s estate. The relationship between both broke down and the father attempted to sell off property to off-set funeral expenses. Bhe and her daughters challenged his appointment as heir of the intestate. The High Court invalidated the customary law succession implementation under s. 23 BAA as it was found to be unconstitutional. The Court awarded the estate to Bhe’s minor daughters. Similarly, unmarried Ms. Shibi challenged her male cousin’s appointment as heir of the intestate’s unmarried brother without children. The Constitutional Court held that the customary law primogeniture provision on male inheritance, to the exclusion of females under s. 23 BAA violated the right to human dignity and equality guaranteed by ss. 9(1)(3) and 10 of the Constitution.

In ancient times, the acquisition of land was carried out by matriarchs or patriarchs who were the progenitors of families. They formed the original first settlements. To this day, Nigerian tribal communities are organised through matriarchal and patriarchal lineages. This is the socio-cultural diversity upon which communities were founded and built:¹⁹

matriarch-founder, with-husbands, children; biological/adopted, servants, acquired plots-of-lands as individual, which grew into family land, hamlet, village, clan, eventually grew into tribal-communal land-title. Less than 10 percent are matrilineal in Nigeria notably Nembes part of Ijaw-tribe in Bayelsa-Abriba-Igbere-Arochukwu-Ohafia-Nkporo-Ututu-of-Abia-State...