Discriminatory Customary Inheritance Law in Nigeria: Judicial Activism or Legislative Intervention?

Abstract

Intestate inheritance in Nigeria is faced with legal issues. This is due to the pluralistic nature of the Nigerian society, where there exist different native laws or customs on inheritance. Some of the native laws or customs discriminate against the rights of women to inherit. This has generated endless legal battles. There abound a number of legal frameworks that provide for women’s rights, such as the African Charter on Human and Peoples’ Rights, CEDAW, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. These legal frameworks are targeted at abolishing any customs or cultural practices that discriminate against the rights of women. Further is the constitutional provision on non-discrimination found in section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In spite of the foregoing legal frameworks the rights of women to inherit continue to be discriminated against. This article examines the customary laws of inheritance in two ethnic groups in Nigeria which tend to discriminate against the inheritance rights of women in intestacy. Further, the paper examines these discriminatory customary law practices against the backdrop of international human rights instruments. Finally the paper advocates for a penal legal regime to address such discriminatory customary law practices rather than judicial endeavor.