The scope of women’s customary rights in Nigeria came under interrogation recently at this years’ Diaspora scholars lecture of the Nigerian Institute of Advanced Legal Studies (NIALS), Lagos, writes Legal Editor, JOHN AUSTIN UNACHUKWU.
Many customary rules are incompatible with state laws and unsuitable for modern societies, especially as they relate to women’s rights to property. Scholars examined this problem and proferred solutions at this years’ Diaspora scholars lecture of the Nigerian Institute of Advanced Legal Studies (NIALS).
The 2020 Diaspora Scholars’ Lecture titled: Rethinking Customary Law and Women’s Property in the Context of Legal Pluralism in Nigeria” was delivered by a scholar of African Customary Law at the University of Western Cape, South Africa, Dr. Anthony Diala.
Participants at the event included senior lawyers and other legal scholars.
The problem with customary law and women’s matrimonial property rights
Introducing the lecture, Dr. Diala stated that: “The problem with customary law and women’s matrimonial property rights in Nigeria is the unsuitability of many customs to contemporary conditions.
“This problem reflects in legal pluralism. Commonly defined as the existence of more than one normative order in a legal system, legal pluralism has traditionally been problematic, especially in post-colonial societies.
“In these societies, its problematic nature stems from the manner foreign laws and their accompanying socio-economic changes were imposed over indigenous laws by European colonial authorities.
“Specifically, the wholesale transplantation of capitalist European laws into agrarian African societies “overlooked, to a large extent, the complexity of previous legal orders” in colonised states.
“In recognition of these problems, therefore, many post-colonial states have taken varying constitutional steps to address the problems inherent in legal pluralism.
“However, unlike African countries such as South Africa, Ghana, Kenya and Uganda, Nigeria has, thus far, failed to constitutionally define the co-existence of its legal orders.
Three types of legal orders
Diala divided the legal orders into three notable.
He said: “The first is state law, or the so-called received English laws. These are essentially European laws that were imposed on Nigeria by British colonialist and retained or adapted by Nigerians to suit their local circumstances.
“The second is customary law, which is used here to denote, in a very broad sense, the various forms of norms people use to conduct their daily affairs. In some jurisdiction, customary law is referred to as “people’s law, folk law, traditional law” and indigenous law.”
According to him, indigenous law is different from African customary law and this difference has significant implications for the future of legal pluralism in Nigeria.
He identified religious laws such as the Shariah as the third type of legal order
Why customary, state law interaction is problematic
Dr Diala explained that he confined legal pluralism to the interaction of customary law with state law in Nigeria, for the purposes of the lecture.
He said: “Why is this interaction problematic in Nigeria?
“The answer to this question lies in the three structural arguments of this lecture.
“Firstly, Nigeria’s legislative framework on women’s property rights under customary law ignores the incompatibility of indigenous laws with individualistic state laws, and how this incompatibility causes hardship to women.
“For example, the application of customary law is not directly subjected to chapter four of the Nigerian Constitution.
“Similarly, indigenous laws of succession, marriage and divorce are not statutorily regulated, law reform is practically non-existent, and the constitution pays no attention to the proper place of customary law in the face of rapid socio economic changes.
According to him, the result is a problematic coexistence of customary law with state law, which manifests in “a complex and confusing legal regime under which women generally are denied adequate legal protection.
“Secondly, the judicial approach to women’s property rights under customary law in Nigeria is not sensitive to the foundational values of indigenous law.
“These values emerged in agricultural social settings, in which rights were communal, property was basic, and social organisation privilege the preservation of the family through the male primogeniture rule of inheritance.
“In these kinds of agrarian social settings, indigenous laws and customs were informed by values, some of which are so foundational that they still shape the manner people apply customs in contemporary times.”
In his third argument, the scholar stated that customary law related reforms in Nigeria appear to ignore legal history, “which offers a crystal bowl for deciphering the future of legal pluralism in Nigeria.
This, according to him, is unlike the Global North, where, in the England, for instance, the English Common Law emerged from centuries of co-existence between indigenous English Customs and the Laws imposed by Roman and Norman conquerors at varying historical periods.
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