This case challenges the customary law of male primogeniture (the right of succession belonging to the eldest son) of the Awka people in Nigeria. The Supreme Court of Nigeria found that any custom that denies women, particularly widows, their inheritance, is repugnant to natural justice, equity and good conscience and is condemned by the Supreme Court.
The Awka customary law of male primogeniture was invalidated for being repugnant to natural justice, equity and good conscience.
The Supreme Court of Nigeria utilized the repugnancy test in this case whereby the court will not validate and enforce a customary law and practice which is repugnant to natural justice, equity and good conscience. The decision provides the impetus for courts to use the repugnancy test in addressing issues of customary law and practice which violate women’s rights and gender equality.
The Court handed down the ruling for Anekwe v. Nweke on the same day it handed down Ukeje v. Ukeje. In both cases, the Supreme Court condemned the refusal of customary law to recognize female inheritance with regard to property. Customary law in Nigeria is a major source of law; however, the holdings in these two cases illustrate that the validity of customary rules within the legal system depends on whether those rules are consistent with the Constitution and are not repugnant to natural justice, equity and good conscience. In a country like Nigeria where there is a large discrepancy in gender equality that is largely grounded in traditional cultures and practices, the holdings in these two cases are a significant step in the protection of women’s property rights and gender equality.
Gender equality in matters of inheritance is particularly relevant today when women around the world still own less than 20 percent of the world’s land. In Africa, while 31 percent of men own land individually, only 12 percent of women do so. Various studies reveal that women’s rights to own and inherit property, including land, are vital to breaking the cycle of poverty. According to a UN Habitat report, “[i]nheritance is one of the commonest ways for women to acquire or access land…. However, the pursuit of gender equality in inheritance rights has been one of the most difficult challenges in rights-based approaches owing to the complexity as well as well entrenched patriarchal characteristics of socio-economic, cultural and religious practices.” There have been increasing calls from human rights mechanisms and UN bodies to strengthen women’s rights to property, land and other resources through effectively addressing discriminatory laws and practices. In the context of these contemporary contestations surrounding customary laws relating to inheritance, there have been significant jurisprudential developments in various countries, including India, Tanzania and South Africa.
Last updated 16 July 2018
Special thanks to ESCR-Net member: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.