WOMEN’S RIGHT AND STATUS UNDER EDO NATIVE LAW AND CUSTOM:
Myth And Realities (2)
By Hon. Justice P.O. Isibor
(b) Possession of the said house and
(c) a perpetual injunction.
INHERITANCE/SUCCESSION
“Succession” and “inheritance” are often used as synonyms. But as Professor
Emiola noted, although they are twin words in English language, they are not
Siamese twins. He postulated the distinction as follows: “Inheritance is an
estate or property that a man acquired by descent and can be transmitted to his
heir in the same way on his death on intestacy. On the other hand, ‘succession’
includes the devolution of title to land by will as well as accession to office
and dignity” Thus, the word “succession” has a broader meaning than
“Inheritance.”
We shall here consider the right of an Edo
woman to inheritance of estate or property as well succession to titles,
offices and dignity. It is, however, also considered appropriate to first
consider the obnoxious customary practice of Widow Inheritance.
WIDOW
INHERITANCE
This invidious practice affects an Edo woman’s
status after the death of her husband. Among the Binis and Esans as well as the
other tribes in Edo, marriage is mainly polygamous – a status which is accepted
and revered among the rural folk. The net effect is that many deceased Edo men
leave a large number of widows to the whims and caprices of their relations.
The practice of widow inheritance was hitherto the norm. While it is true that
the wife or wives of a deceased Edo man may be inherited by his heir or heirs,
who may be the sons of the deceased, or where they are too young, the uterine
brothers of the deceased, no son takes his widowed mother as wife.
In some respects, equity may be said to have
had its impact on this practice in contemporary times as a widow under Benin
customary law now has the option of refunding the bride price or dowry after
which she could re-many outside her late husband’s family. Dr. Ijewere posited
that among the Benins, any widow who has surviving children for the deceased is
free to return to her maiden family and to marry any man of her fancy.
It has been argued that the practice of widow
inheritance is a form of insurance policy designed to ensure that a widow is
not left uncatered for after the demise of her .- husband. It is, however,
salutary to note that many Edo men now take more direct steps to ensure that
there wives are provided for after their death. This is usually done by gifts
made to such wives inter vivos, a donation mortis causa, a death-bed
declaration or by a Will.
INHERITANCE
RIGHTS OF WIDOWS
Under customary law in all parts of Edo State, a widow cannot inherit in the
intestate estate of her deceased husband. As noted earlier on, the widow is in
fact regarded as part of the estate to be inherited by the son or relative.
Indeed, Obi ‘observed as follows: “Nowhere in Southern Nigeria does the
customary law give a widow the right to inherit, or share in, the intestate
estate of her husband.... Even where a husband in his lifetime allots a farm, a
house or some other form of landed property to his wife for her use and
enjoyment, the latter does not thereby acquire inheritance rights in it.”
Professor Emiola notes that the Courts have
declared that under Yoruba customary law, land allocated by the deceased to
each of the wives still belong to the family because the allocation conferred
no title on the women. They were, however, entitled to remain in the house if
they chose subject to good behaviour.’
Similarly, the widow of a deceased Benin man is
not entirely without some rights in her husband’s estate. She has a life
interest in the use of a house which is not an Igiogbe” as long as she remains
within the deceased husband’s family even without consenting to marry an eldest
son or even when she has no children surviving. But she has no right to dispose
of any interest in such house,
INHERITANCE
RIGHTS OF THE GIRL CHILD
Since all the tribes in Edo State are patriarchal and patrilineal, the sons
(especially the first son) enjoy a pre-eminent position in succession matters.
The principle of primogeniture applies in its pure form among the Esans. The
eldest son inherits all the properties of his deceased father after performing
the funeral rites. His obligation is to cater for the infant children
(including girls) until they marry. The pure principle of primogeniture also
applied to the Benins in bygone days.
Contemporary customary law among the Benins confines
the principle of primogeniture in its pure form to the inheritance of the
(Igiogbe,) that is the principal house in which a Benin man lived and died and
was perhaps buried. Other properties are shared among the children including
girls.
In the book From Birth To Death, A Benin
Cultural Voyage, Chief S.O.U. Igbe posited at page 125 thereof that a woman
cannot inherit Igiogbe. This assertion is oblivious of the fact that deceased
might not be survived by male children. Since inheritance follows the blood
among the Benins and Esans, a girl child in preference to a relative, may
inherit an “Igiogbe” where there is no male child.
Under Benin customary law, the other properties
apart from the (1giogbe) are shared according to “Urho” (door to a wife’s room)
where the deceased had more than one wife. The children of every wife are
entitled to a share. This is inapplicable under the Esan customary law where
the eldest or first son inherits all the properties of his late father after
performing the funeral rites.
Among the Owans, the Ibo system whereby
brothers of full blood or half blood succeed to the estate of the deceased in
the absence of a male child, it still operative.
SUCCESSION
TO HEREDITARY TITLES
Female children do not succeed to hereditary titles as these are the exclusive
preserve of the eldest surviving sons of the last incumbent. The principle of
primogeniture applies, even though the rotational form of succession is
practiced as revails as regards the mode of succession to the throne of the Oba
of Benin.
Herereditary titles among the Esans include
Oliha, Ezomo, Iyasele, Edohen, Oloton and Elo.
MARRIAGE/CUSTODY
OF CHILDREN
The concept of women as chattels and articles of property to be used and
discarded at will dominate the customary laws of most tribes in Edo State as
regards marriage.
In some parts of Edo State, a father may
express his desire to secure a child, who is still in the mother’s womb, if
born a female as wife to his son. Our customary laws permit the parents of a
girl of tender age to sell” her to permanent servitude in the guise of marriage
without her consent while oblivious of the unwholesome consequences of such a
transaction. Early and arranged marriages expose the frail bodies of young
girls to pregnancy with attendant risks of complications in pregnancy at child
birth such as prolonged and obstructed labour resulting in vesico — vagina
fistuiae (V.V.F). Part of the attraction of child marriage for parents is
economic as they stand to gain material benefits from the groom.
The case of Osadiaye Osamwonyi V. Itohan
Osamwonyi has revolutionized Benin customary law of marriage by holding that a
daughter could not be married off to a man without her consent even where the
parents have already collected dowry or bride price.
Custody
of Children
The father of grown-up children always has custody under our customary law.
Where the wife is deserted or divorced, custody of the children remains with
the husband.
It has been held that “there is no rule of law
that the cowry of a child of tender age must necessarily be granted to its
mother, each case must be considered and determined on its own facts.” This was
the ratio in the case of Gabriel Oladetohun v. Grace Oladetohun. It represents
the position in most parts of Edo State as the paramount consideration is the
welfare of the child.
Dehumanizing widowhood rites
In most parts of Edo State, the wife of a deceased husband must perform a host
of rites. Thus, she is subjected to taking an oath denying her involvement in
the husband’s death. In some rural areas, the oath is administered with
insistence that the widow must drink and bathe with the water used in washing
the husband’s corpse. In Esan land, in particular, a widow must shave all her
hairs (both head and pubic), wear same dress or clothes for a year, sleep on
bare floor, eat with broken plates and not wash her hands for a number of days
or months, it is most disturbing that it is mainly women who insist that these
obnoxious rites be performed.
“There are no degrading traditional rites for a
widower, rather, his welfare is the paramount concern of both family and
friends. In some parts, custom and tradition demand that a widower should not
sleep alone but with another woman of his choice until his wife is interred, so
that the spirit of the dead wife may not come and disturb his peaceful sleep.”
Violence
against women
Violence against women is common in most
systems of customary law in Edo State. All sorts of behaviors and abuses that
are calculated to hurt or kill women and girls come under this head. Violence
against women is gender-based because whatever form it takes — physical, sexual
or psychological — they all result from the perception of a woman’s purported
secondary position in Nigerian Society. There is nothing under customary law
which approves violence against women as a lawful norm. The only exception is
wife battering which is justifiable under most customary law in Edo State when
applied on grounds of correction or chastising an erring wife. But such battery
must not occasion grievous bodily harm.
Conclusion/suggested
reforms
The empowerment of women in the context of
gender equality has not been vigorously pursued by most Edo women especially
under customary law. Traditional practices occupy a central role in the lives
of Nigerians, both male and female, and is one of the instruments that
perpetuate inequality of the sexes. In marriage, in particular, traditional
institutions and customs tend to reinforce the subservient status of women.
There is the need to probe and challenge the gaps in traditional jurisprudence
that foster entrenched inequalities in the rights and status of both sexes.
Poor education and ignorance of the law among
most rural women prevent them from taking advantage of their rights as prescribed
by the extant Nigerian Constitution and other international instruments. There
is a crying need for a redress of all the discriminatory practices highlighted
in this paper. Harmful traditional practices like female genital mutilation and
forced labour must also be eradicated. So must sexual violence include physical
assault and battery. Widow inheritance is obnoxious notwithstanding the facile
explanation that it provides some insurance for the widow. Dehumanizing
widowhood rites are repugnant to natural justice, equity and good conscience.
The time to break down all traditional
practices that enhance the subordination of women is now.
