ABSTRACT

Gender discrimination and violence against women are global phenomena and are as old as human history. Nigeria like other African countries have certain traditional customs and deep rooted cultural beliefs and practices that tend to compete with and in many cases overshadow the common laws and statutory laws. Issues relating to women are mostly affected, resulting in discrimination and violence against women in Nigeria. Women’s rights like human rights are rights inherent in human beings and guaranteed by law, therefore, gender discrimination and violence against women are contrary to fundamental human rights, equity and natural justice. Nigeria is a signatory to many international treaties which prohibit violence against women. There are many regional instruments and national laws that frown at such violence, yet the violence continues. This work focuses on some types of violence inflicted on women as a result of customary law practices. This will be restricted to customary law practices of marriage, inheritance and widowhood basically under the three major ethnic groups in Nigeria, namely Ibo, Hausa, Yoruba as well as Ibibio.

CHAPTER ONE

INTRODUCTION AND GENERAL OVERVIEW

1.1       BACKGROUND OF THE STUDY

African customary law as a legal system has been in existence from time immemorial and finds expression in the day-to-day cultural practices, rituals and traditions of the people. In the colonial era in Nigeria, customary law existed side by side with the received English law in the context of legal pluralism[1]. This legal pluralism with the attendant existence of indigenous laws and other laws often results in the constant clash of African culture and traditions with human rights which in turn militates against the adequate protection of women’s rights. These African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, degrading treatment of widows, domestic violence, gender inequality and gender discrimination.

            There is a growing interest in human rights especially as it is affected by cultural or customary practices in relation to the rights of women in different communities in Nigeria[2]. Its prevalence has necessitated human rights activists and groups to discuss at various fora why, customary practices are denying women a wide range of basic rights. Feminists note that cultural practices and customary laws as well as religion are often cited as justifications for denying women a wide range of human rights[3]

            Custom being a way of life of a people based on usage and practices is usually difficult but not impossible to change[4]. In Nigeria it has been observed that women in many communities are discriminated against on a daily basis under the excuse of culture or custom. Most customary practices prohibit a number of things among certain groups of the society (especially women). There are things people claim women should not do, yet if custom allowed them, would have helped a lot of women toward being self-reliant.

            Although customary practices play a very important role in the lives of the Nigerian people, some of the rules can no longer withstand constitutional scrutiny. The exclusion of women from inheritance on the ground of gender is a clear violation of Section 42 of the 1999 Constitution of Nigeria. The principle of primogeniture also violates the right of women to human dignity as guaranteed in Section 34 of the Constitution, as in one sense, it implies that women are not fit or competent to own and administer property. The reasons for loss of constitutional effect are that some of the customary practices place women in position of dependency in relation to their male counterpart and as such subjected to a place of subordination to man[5]. Communities and ethnic groups are still male-dominated and this is reflected in the sphere of family law and succession.

            Against this background, recent conflicts between rights of women and customary law practices makes it imperative to examine some customary laws that operate against women, and also to develop customary law in line with human rights and equality. Under customary law of the Igbo, for example, succession and inheritance is according to the unwritten rule of primogeniture in which estate of the deceased person will devolve upon the male descendants to the exclusion of women and girls[6].

            In the light of the foregoing, it becomes imperative in discussing rights of women affected by discriminatory customary law practices, which is the focus of this research, to also offer recommendations as to reducing gender discrimination and violence against women in Nigeria.

1.2       PURPOSE OF THE STUDY

One of the greatest concerns of the world in this century, characterized by war of all kinds, poverty and HIV/AIDS is the protection of human rights which lay the basis for security, development and peace.

            In this study, the writer seeks to demonstrate the ripple effect of the co-existence of customary law and the English law on women’s rights particularly in certain communities in Nigeria, which do not have the tradition of respect for such rights. In Nigeria, there is a correlation between democracy and respect for women’s legal rights.

            However, problems arise in the context of legal dualism (which exists in Nigeria i.e. customary law and received English laws) and the fact that some customary law practices despite their apparent repressive nature, govern the very essence of the lives of the people thereby making it difficult for the government to abolish them.

            On the other hand, the presence of the certain customary laws regarding the unwritten rule of primogeniture, poses a huge challenge on the judiciary either to strike these practices down or to develop them to be consistent with the provisions of the constitution with regards to fundamental human rights.

            This study will also show the discriminatory positions of various Nigerian communities and ethnic groups regarding women’s access to land, intestate succession and rights in marriage.

1.3       SCOPE AND LIMITATION OF STUDY

            There are basically a whole lot of discriminatory customary practices against women both in Nigeria and all over the world. In Nigeria, specifically, gender discrimination and violence permeates every facet of the society and comes in several form. Although this study will be restricted to only some of these practices, it is important to also mention others. Violence against women is the most acute form of gender inequality in Nigeria and can be traced to some discriminatory customary laws[7].

            A great majority of the violence against women can be described as Harmful Traditional Practices against women (HTPs). Some of the common Harmful Traditional Practice against women in Nigerian communities includes:

i.                    Female genital mutilation (FGM)

ii.                  Child marriage

iii.                Ritualistic widowhood practices

iv.                Nutritional taboos

v.                  Cult prostitution

vi.                Domestic violence

vii.              Sexual freedom for husbands

Other discriminatory practices include:

i.                    Traditional and land tenure systems

ii.                  Patterns of inheritance

iii.                Family preference for some (gender inequality)

iv.                Lack of participation in public decision-making

v.                  Discrimination in housing and employment,

vi.                Discriminatory legislation

vii.              Discriminatory religious practices etc[8].

Despite the enumeration of these customary practices, this research is limited in scope only to the customary law practices of marriage, inheritance and succession, divorce and widowhood, as well as the resulting consequences of violence against women, discrimination, inequality and also violation of the rights of women in Nigeria. The study will be restricted to ethnic groups in Nigeria including Ibibio, Igbo, Yoruba, Hausa and Tiv etc. These ethnic groups will be examined and their customary practices regarding women will be highlighted.

1.4       OBJECTIVES OF THE STUDY

This research is aimed primarily at bringing to fore the negative effects of customary law practices against women in Nigeria and also recommending suggestions on how to reduce the effects of these practices on women. In order to achieve these objectives, this study is organized into six chapters. Chapter one has already been dealt with above. Chapter two is an elaborate detail of the nature and meaning of customary law. This chapter will cover the characteristics of customary law in Nigeria, the validity tests of customary laws, the enforcement and judicial ascertainment of customary law. Chapter three considers in depth the various customary law practices in the selected ethnic communities in Nigeria in regard to customary marriage, inheritance and succession, widowhood and divorce. Chapter four outlines and comments on the adverse and negative effects of the customary law practices mentioned in chapter three. Some of the effects discussed will include violence on women, gender discrimination, gender inequality, and violation of women’s rights. Chapter five which is the concluding chapter deals with recommendations for reforms of some customary law practices that affect the rights of women in Nigeria and also suggestions to reducing the violent effects of those practices.

1.5       RESEARCH METHODOLOGY

To bring about relevant insight into the effects of discriminatory customary law practices and violence on women in Nigeria, this research will utilize the following sources.

1.5.1    Primary Sources:

This study will consider inter alia pieces of legislation and relevant statutory laws as well as case-laws covering women’s rights and human rights in general.

1.5.2    Secondary Sources:

            These include literature on customary law practices such as textbooks and articles published in journals.

1.5.3    World Wide Web:

            The internet is a huge repository of information especially in trends obtainable globally. Women’s rights like rights are a global issue and concern, hence the nature of this research study demands that such an avenue for resources materials be consulted.

1.6       DEFINITION OF TERMS

In order to fully understand and appreciate the import of this research, certain key words and terms need conceptual clarifications.

Key words: Gender discrimination, customs and customary practices, customary law. Women’s rights and violence.

1.6.1    Gender discrimination

            Articles 1 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) has defined the term “gender discrimination” as:      

“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, employment or exercise by women, irrespective of equality of men and women, of human rights and fundamental freedoms in the political., social, cultural, civil or any other field”[9] 

1.6.2    Customs and Customary Practices:

            Custom is defined in Blacks Law Dictionary as:

“A usage or practice of the people which by common adoption and acquiescence and by long and unvarying habit has become compulsory and has acquired the force of a law with respect to the place or subject matter to which it relates”[10].

Customary practices are the rules of conduct established by usage or continuous practice over a long time. 

1.6.3    Customary Law

In Eshugbayi Eleko v. the Government of Nigeria[11], customary law was referred to as:

“unwritten customs and traditions, which have been accepted as obligatory by members of a community.

Karibi-Whyte J. S. C. has defined customary law as: 

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