







































 MGBEOKWERE: Discriminatory Cultural Practices of Property Rights of African Women Despite Legal 

Framework: A Call for More Proactive Measures 

 

23 | P a g e  

DISCRIMINATORY CULTURAL PRACTICES OF PROPERTY RIGHTS OF AFRICAN WOMEN 

DESPITE LEGAL FRAMEWORK: A CALL FOR MORE PROACTIVE MEASURES* 

Abstract 

African women have been subjected to myriad cultural discriminatory practices despite national and international 

laws guaranteeing their rights to own property. The aged long patriarchy and primogeniture practice which 

prefers male dominance is practiced in most customs in Africa. The 21st century ushered in a new way of thinking 

that questions the continuous observance and practice of these cultures. The superior courts in Nigeria and Kenya 

have relied on the constitutional provisions and other enabling Statute to proscribe some of these discriminatory 

cultural practices against women. The study aims at enabling women to change the narrative with regards to 

discriminatory practices in other to seek gender equality. It employs the doctrinal method where literatures 

related to the subject matter were explored. It is found out that the decisions of the Supreme Court are yet to be 

effective because in practice, women remain disadvantaged and discriminated. The paper among others, 

recommend for the involvement and networking of women rights activist and Non Governmental organization to 

bring about institutional change.  It concludes that the collaboration of all and sundry will go a long way to make 

the law and judicial prouncement in this regard practically effective. 

 

Keywords: Primogeniture; Patriarchy; African Women; Human Rights; Cultural practices 

 

1. Introduction  

Culture has been said to be the way of life of a people. This belief is resonated in Africa with its myriad cultural 

practices. Some of these practices are obnoxious and discriminatory to women especially in Africa. This stems 

from the cultural belief of male superiority primogenitor rule and the resistance to change that is firmly entrenched 

in patriarchal ideologies handed down through socialization as an undocumented memory of the people.  

Customary practices place all sorts of rules on the African women that limit their freedom. The female child 

suffers discrimination due to the male preference syndrome in some customs in Africa. This cultural preference 

aided in the discrimination of the female child1. This study focuses on discriminatory cultural practices on African 

Women in some part of Nigeria and Kenya with respect to their rights to own or inherit immovable property. 

Customs, tradition, religion and law are the instruments and tools used to subjugate the female gender. These 

obnoxious laws were made to protect the male gender and made the female gender a chattel to be inherited as a 

property. For example, one earlier case from the Federal Supreme Court in Nigeria echoed and restated the 

customary position when it held that women could not inherit as they themselves are part of the inheritance.2 This 

custom treats women as chattels to be passed on to the remainder of his family after the death of a spouse.3  Since 

customary law sees the female as a property, she does not have any inheritance rights in her place of birth or 

marriage. In Kenyan communities, women ordinarily do not own land or movable property. At best, their rights 

are hinged on their relationship to men either as their husbands, fathers or brothers who own and control land, 

while women are relegated to the right of use only.4 Although Kenya now has comprehensive progressive laws5 

that should translate to benefits for women in relation to their land and property rights, in practical terms women 

are still disadvantaged in terms of access to and control of economic structures and resources.6 The succession 

 
* By Chinenye Joy MGBEOKWERE, LLB, LLM, PhD. Lecturer, Nile University of  Nigeria Airport Bypass Jabi Abuja.  

Vice Chairperson FIDA Gwagwalada Branch and NBA Women Forum Abuja Nigeria; Chairman,  NBA Electoral Committee 

2020 Gwagwalada Branch.  Abuja. E-mail c.j.mgbeokwere@nileuniversity.edu.ng; c.j.mgbeokwere@gmail.com; Tel 

08063521649. 
1 Suberu v Sunmonu (1957) 2 FSC 31, 
2 In Suberu v Sunmonu (1957) supra Jibowu FJ said: ‘It is a well settled rule of native law and custom of the Yoruba people 

that a wife could not inherit her husband’s property since she herself is, like a chattel, to be inherited by a relative of her 

husband.’ 
3 Other examples of customary law prevailing in cases before the Federal Supreme Court that raised issues of discrimination 

include Nezianya v Okagbue (1963) 1 ANLR 352 and Osilaja v Osilaja (1972) 10 SC 126 where women were prohibited from 

inheriting the property on the basis of their sex under customary law. In Nezianya v Okagbue the Federal Supreme Court 

recognised limited rights of women to inherit, such as providing a life interest in the property dependent on their good 

behaviour. 
4Double Standards: Women’s Property Rights Violations in Kenya. Available at 

https://www.hrw.org/report/2003/03/04/double-standards/womens-property-rights-violations-kenya. accessed on 20th May 

2022. 
5 The Kenya Constitution 2010; the Marriage Act 2014; The Matrimonial Property Act; 2013; The Land Registration Act; 

2012 and Law of Succession Act 1981 among others.. 
6J N-Mewanu and N Abdi ‘Securing Women’s Property Rights in Kenya’. Available at 

https://www.hrw.org/news/2020/03/07/securing-womens-property-rights-kenya. accessed on 20th May 2022 

mailto:c.j.mgbeokwere@nileuniversity.edu.ng
mailto:c.j.mgbeokwere@gmail.com
https://www.hrw.org/report/2003/03/04/double-standards/womens-property-rights-violations-kenya
https://www.hrw.org/news/2020/03/07/securing-womens-property-rights-kenya


African Customary and Religious Law Review (ACARELAR) 3 (2022) 

 

24 | P a g e  

law in Kenya bars a widow’s husband’s relatives from arbitrarily appropriating her inheritance.  But the laws are 

rarely enforced and women that litigate on this issue are stigmatized especially in rural areas.7  

 

The Igbo people of the South eastern part of Nigeria practice a patrilineal system where the succession and 

inheritance rights pass through the male offspring.8 They share a common traditional belief in patriarchy and 

primogeniture which usually promote gender inequality and the subjugation of women, in both dignity and 

property rights.9 The patrilineal nature of the Igbo people subsumed in the prevalent customary law ensures that 

no female could be the head of a household or lineage or a sub-lineage.10 Women in Igbo land  are also denied the 

right to inherit the intestate immovable property of a deceased husband or father under customary law, to the 

exclusion of the males, except to the extent that they can expect to be maintained by their husbands’ heirs.11 Many 

women experienced domestic violence, abandonment, denial of their rights and eviction from their homes. 

Cheluchi argued that patriarchal attitudes prevailed and violence against women in their homes was often 

considered private matters to be settled within the family. These attitudes she commented, prevented women from 

seeking redress from law enforcement for matters such as rape, child marriage, harmful traditional practices and 

other kinds of violence.12 These cultural practices have been reverse by the highest Courts in Nigeria and Kenya 

through case law.  The Supreme Courts have upheld the fundamental Human Rights provisions in Nigerian 

landmark cases of Ukeje v Ukeje13 and Anakwe v Nweke.14 And the Kenya reformatory cases of Z.W.N. v. P.N.N15 

and .J.A.O. v N.A.16  As laudable, far-reaching and commendable as the decisions of the Courts  are in Nigeria 

and Kenya this reform is yet to be acknowledged by most of the kings, traditional rulers, family heads and elders 

who are the custodian of the history, tradition and custom of the people.17 This work seeks to find out the 

disconnect between the law laid down and the law in practice and then proffer a workable solution. 

 

2. Conceptual Framework 

 
Primogeniture Rule 

Primogeniture is a system of inheritance in which a person’s property passes to their firstborn legitimate child 

upon their death. The term comes from the Latin ‘primo’ which means first, and ‘genitura’ which relates to a 

rights person’s birth. Historically, primogeniture favored male heirs, also called male-preference primogeniture. 

Under this regime, the eldest living son would inherit the entirety of his parent’s estate.18  

 

Patriarchy 

Patriarchy is an institutionalized social system in which men dominate over others; It is an analytical concept 

referring to a system of political, social, and economic relations and institutions structured around the gender 

 
7Fida Kenya, ‘Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of ICESCR Rights. Available at 

https://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/fidakenya41.pdf. accessed on 10th Mat 2022 
8The South East of Nigeria is one of the six geopolitical zones in the country. The region consists of the following states; Abia, 

Anambra, Ebonyi, Enugu and Imo State. South East Geo-political zone is 99.9% of population of Igbo people.  
9 A Ojilere, R Onuoha. .,and  T. Igwe, ‘New Directions for Securing African Women’s Right to Property under Customary 

Law: The Case of Nigeria.’ Asian Women [2019] (35) (1); 95-119. 
10 U Nduka, and N. G. Ozioma, ‘Chinua Achebe’s Things Fall Apart and the Role of Women in Igbo Traditional Religious 

Culture.’ Open Journal of Social Sciences; [2019] (7)(12)  273. 
11 A Ojilere, ‘Expanding Women’s  Right to Inherit  Immovable Property in Igbo Land Beyond The Limits of Ukeje v Ukeje’ 

2021. Available at 

https://www.researchgate.net/publication/349732305_Expanding_Women's_Right_to_Inherit_Immovable_Property_in_Igbo

land_Beyond_the_Limits_of_Ukeje_v_Ukeje. accessed on 30th May 2022. 
12 C Onyemelukwe, ‘Legislating on Violence Against Women: A Critical Analysis of Nigeria's Recent Violence Against 

Persons (Prohibition) Act, 2015’ 5 DePaul J. Women, Gender & L. (2016) Available at: 

<https://via.library.depaul.edu/jwgl/vol5/iss2/3>. Accessed on 1st May 2022. 
13 (2014) 11 NWLR (part 1418) 384; (2014) 234 LRCN 1 
14  Onybor Anekwe, 2. Chinweze v. Mrs. Maria Nweke (2014) 9 NWLR (PT 1412) 393-422; Nzekwu v. Nzekwe (1989) 3 SCNJ 

page 167; (1989)2 NWLR (Pt. 104) 373. 
15 [2012] eKLR 
16 [2013] eKLR24 
17See Supreme Court’s Decision on Female Inheritance Divides Igbo. Available at 

https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/.Accused on 27th May 

2022. The judgment has evoked mixed reactions from Ndigbo, particularly traditional rulers who are the custodian of the 

tradition and culture, as well as church leaders. see also Igbo Culture, Supreme Court on Head-on Collision. Available at 

https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/. Accessed on 27th April 

2022. 
18 Legal Information Institute Primogeniture Available at https://www.law.cornell.edu/wex/primogeniture#:~:text. Accessed 

on 27th May 2022. 

https://www.law.cornell.edu/wex/inheritance
https://www.law.cornell.edu/wex/legitimate
https://www.law.cornell.edu/wex/inheritance
https://www.law.cornell.edu/wex/estate
https://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/fidakenya41.pdf
https://en.wikipedia.org/wiki/Geopolitical_zones
https://en.wikipedia.org/wiki/Igbo_people
https://www.researchgate.net/publication/349732305_Expanding_Women's_Right_to_Inherit_Immovable_Property_in_Igboland_Beyond_the_Limits_of_Ukeje_v_Ukeje
https://www.researchgate.net/publication/349732305_Expanding_Women's_Right_to_Inherit_Immovable_Property_in_Igboland_Beyond_the_Limits_of_Ukeje_v_Ukeje
https://via.library.depaul.edu/jwgl/vol5/iss2/3
https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/
https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/
https://www.law.cornell.edu/wex/primogeniture#:~:text


 MGBEOKWERE: Discriminatory Cultural Practices of Property Rights of African Women Despite Legal 

Framework: A Call for More Proactive Measures 

 

25 | P a g e  

inequality of socially defined men and women.19 Within patriarchal relations, women are collectively excluded 

from full participation in political and economic life. In a patriarchy, authority is exercised by the male head of 

the family and inheritance occurs through the male children.  The role of patriarchy deprived women from 

advancing educationally.20 

 

Human Rights 

Human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled 

simply because she or he is a human being. The concept of human rights is based on the belief that every human 

being is entitled to enjoy her/his rights without discrimination. Article 1 of the UN Charter declared that all human 

beings are born free and equal in dignity and rights. The entry into force of the UN Charter on 24 October 1945 

marked the formal recognition of human rights as a universal principle, and compliance with human rights was 

mentioned in the Preamble and in Articles 55 and 56 as a principle to be upheld by all states.21 In 1948, it was 

followed by the adoption of the UDHR, and in 1966 by the ICESCR and the ICCPR and its First Optional 

Protocol.22  

 

Marriage  

The major means through which individuals are differentiated and placed into a system of inheritance is through 

the form of marriage that they choose to adopt, be it a statutory marriage, or under a customary or sharia system.23   

It is through the institution of marriage, the inheriting child whether male or female effectively step into the shoes 

of the deceased whose possessions, rights, and duties all transferred to the heir. In order to have a valid statutory 

marriage under the Marriage Act, it is necessary to both complete a formal registration process and to get married 

within a licensed facility. A valid customary marriage in Nigeria is by payment of bride price, dowry and the 

formal handing over of the bride to the groom.24  Marriage under customary law is largely polygamous. 

 

3. Legal Framework  

There are lots of legal instrument that have been enacted locally and internationally to protect the interest of the 

Women and to prohibit discriminatory cultural practices against them. Some of the national and international legal 

frameworks are discussed below: 

 

Constitutional Framework 

The Constitution of the Federal Republic of Nigeria25 and the Republic of Kenya entrenched some reformative 

provision with regards to women Rights and gender equality. The Constitution in both countries are supreme and 

has binding force on all authorities and persons in Nigeria26 and Kenya.27 It prevails over any other law that is 

inconsistent with it.28 Article 2 (4) of Kenya Constitution 2010 provides that: Any law, including customary law 

that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in 

contravention of this Constitution is invalid. Customary law and the English law are subject to the Constitution of 

the Federal Republic of Nigeria 1999,29.this is also the same with Kenya,30 the Constitution is supreme law and 

prevails over any inconsistent laws. The fundamental rights are outlined in Chapter IV of the Nigeria Constitution 

from Sections 33 to 44. The Chapter IV rights include the rights to own property, dignity of human persons, and 

 
19C.J. Nash, in International Encyclopedia of Human Geography, 2009. Available at 

https://www.sciencedirect.com/topics/social-sciences/patriarchy. accessed on 10th April 2022. 
20 T.J Mudau , and  O.S Obadire, The Role of Patriarchy in Family Settings and its Implications to Girls and Women in South 

Africa. Journal of Human Ecology [2017] (58)(2) 67-72 
21 Nigeria and Kenya are members of the United Nations and signatory to the declaration 
22Universal Declaration of Human Rights. Available at https://www.un.org/en/about-us/universal-declaration-of-human-

rights. Accessed on 30th May, 2022. 
23V Emery, ‘Women’s Inheritance Rights in Nigeria: Transformative Practices. 1 UNAIDS, 2004 Report on the Global AIDS 

Epidemic. Available at 

http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/WOMEN%20INHERITANCE%20RIG

HTS%20IN%20NIGERIA,TRANSFORMATIVE%20PRACTICES.pdf. Accessed on 27th May 2022. 
24 H Boparai ‘The Customary and Statutory Law of Marriage in Nigeria’. [1982] (46) (3) The Rabel Journal of Comparative 

and International Private Law. 530-557 
25 Constitution of Federal Republic of Nigeria 1999 as amended in 2011 the current Constitution which is the 1999 Constitution 

although amended in 2011 was established by the Military administration of General Abdulsalami Abubakar. The Constitution 

has been criticized for not being authochonous because it was not enacted by elected representatives of Nigeria but by the 

Military Administrators 
26 Section 1(1) of the 1999 Constitution as amended in 2011 
27 Article 2(1) of Kenya Constitution 
28 Section 1(3) of Nigeria Constitution and Article 2(4) of Kenya Constitution 
29 Section 1(3)  
30 Article 2(4) of Kenya Constitution 

https://www.sciencedirect.com/referencework/9780080449104/international-encyclopedia-of-human-geography
https://www.sciencedirect.com/topics/social-sciences/patriarchy
https://www.un.org/en/about-us/universal-declaration-of-human-rights
https://www.un.org/en/about-us/universal-declaration-of-human-rights
http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/WOMEN%20INHERITANCE%20RIGHTS%20IN%20NIGERIA,TRANSFORMATIVE%20PRACTICES.pdf
http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/WOMEN%20INHERITANCE%20RIGHTS%20IN%20NIGERIA,TRANSFORMATIVE%20PRACTICES.pdf


African Customary and Religious Law Review (ACARELAR) 3 (2022) 

 

26 | P a g e  

provisions outlawing discrimination on the basis of sex.  Also in Kenya, Chapter 4 provides for Bill of Rights. 

These Rights and Freedom are encapsulated in Articles 26 to 51 of the Constitution. It is interesting to note in this 

discourse that Section 42 (1) of the Nigerian Constitution guarantees the right to freedom from discrimination on 

the basis of gender or circumstance of birth, and state thus:  Section 43 thereof guarantees the right of every 

Nigerian citizen to acquire and own immovable property anywhere in Nigeria. It is also a Fundamental Objectives 

and Directive Principles of State Policy in the Nigerian Constitution that the State ‘shall protect, preserve and 

promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives.’31 

 

The Kenya Constitution of 2010 in Article 27 (1-3) provides for Equality and Freedom from Discrimination. 

According to Article 28 Women and men have the right to equal treatment, including the right to equal 

opportunities in political, economic, cultural and social spheres. It further provides in Article 28 that every person 

has inherent dignity and the right to have that dignity respected and protected. Article 29 also provides for freedom 

and security of the person. Article 29 (c) provides that no one should be subjected to any form of violence from 

either public or private sources; Article 40 (1) provides that, ‘every person has a right, either individually or in 

association with, to acquire and own property (a) of any description and (b) in any part of Kenya’. Article 40 (2) 

prohibits parliament from enacting any law that allows the government or any individual to (a) …’deprive a person 

of property of any description or of any interest in, or right over, any property of any description or (b) …to limit 

or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or 

contemplated in Article 27(4).’ Article 45(3) of the Constitution provides that parties to a marriage will be entitled 

to equal rights at the time of marriage, during the marriage and at its dissolution. Article 60 (1) (f) eliminates 

gender discrimination in relation to land and property and gives everyone, including women, the right to 

inheritance and unbiased access to land. 

 

International Framework 

These are laws made at the international fora that are applicable in Nigeria and Kenya by reason of its membership, 

ratification and domestication of the law in these countries. Some of these laws are: 

 

African Charter on Human and People Rights 2004 

Nigeria and Kenya are signatories to the African Charter on Human and People Rights. This Act contains diverse 

provisions, protecting women against discrimination. For instance, the general non - discrimination clause states 

that: every individual shall be entitled to the enjoyment of his rights and freedom recognized and guaranteed in 

the charter without distinction of any kind such as ... sex’ Article 3 further concretised women’s right in Africa 

by stating that: (1) every individual shall be equal before the law. (2) every individual shall be entitled to the equal 

protection of the law’ The right of women in Africa were further firmly entrenched by the provision of Section 

18 (3) of the Africa Charter which stated in every explicit term that ‘the State, shall ensure the elimination of 

every discrimination against women and also ensure the protection of the rights of the women as stipulated in 

international declaration and convention’. 

 

Convention on the Elimination of All Forms of Discrimination against Women (1981) (CEDAW) 

Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women with Protocol 2000 

also enjoins State Parties to condemn discrimination against women in all its forms, agree to pursue all appropriate 

means and without delay formulate a policy eliminating discrimination against women and to this end undertake: 

(f) To take all appropriate measures including legislation to modify or abolish existing laws, regulation, custom 

and practices which constitute discrimination against women.  Article 16 (vi) provides for Respective rights in 

matters of property and succession. Article 5 enjoins state parties to take all appropriate measures to modify the 

social and cultural pattern of conduct of men and women, with a view to achieving the elimination of prejudices 

and customary and all other practices which are based on the idea of the inferiority and the superiority of either 

of the sexes or on stereotyped roles for men and women. 

 

Universal Declaration of Human Rights 1948 

Article 1 of the Universal Declaration of Human Rights has declared that ‘all human beings are born free and 

equal in dignity and rights’. Under Article 7, it states thus: ‘‘all are equal before the law and are entitled without 

any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination 

in violation of this Declaration and against any incitement to such discrimination’’  

 

 

 

 

 
31 Section 21 of the 1999 Constitution 



 MGBEOKWERE: Discriminatory Cultural Practices of Property Rights of African Women Despite Legal 

Framework: A Call for More Proactive Measures 

 

27 | P a g e  

4. Appraising the Discriminatory Practices through the Cases  

This paper has categorised the various judgments of the Superior Court of records in Nigeria and Kenya with 

regards to customary discriminatory practices against African Women in Nigeria and Kenya into two; the 

Conservative Approach and the Liberal Approach. 

 

Conservative Approach32 

 In time past, the Supreme Court of Nigeria and Kenya endorsed the traditional practice of inequity and 

discrimination against the women by upholding the customary law position on inheritance and property rights.  

For instance, in the Nigerian case of Suberu v Sunmonu,33 Jibowu F J said: ‘It is a well settled rule of native law 

and custom of the Yoruba people that a wife could not inherit her husband’s property since she herself is, like a 

chattel, to be inherited by a relative of her husband.’Also, in Nezianya v. Okagbue34 the court unequivocally stated 

thus:  

By the customary law predominant in Igboland, a widow has no right to succeed to personal or 

real estate of her deceased husband. Of course, it would be absolute nonsense in the 

circumstances for a widow who is herself regarded as property to turn round to claim the 

property of her late husband. In such a case the only right available to her will be to be 

accommodated by the person who inherits the husband's estate until she remarries or becomes 

financially independent or dies. 

 

The Supreme Court held in Arase v. Arase35 that the custom was not repugnant to natural justice, equity and good 

conscience, and therefore, valid and binding on those subject to it. Also, in Atuanya v Onyejekwu 36 Egbuna J. 

held with regards to Ibo native law and custom that on the death of Udemba his land which were not sold in his 

life time cannot rest in the second defendant as she can never be the head of the family, she being a woman.   In 

Ejiamike v Ejiamike37 the court held that a widow had no right to the late husband’s estate. Also in Kenya, this 

discriminatory property practice against women was upheld by the courts in Kenya. In Essa v Essa38 the court 

held that the estrange wife lack equal share of the property. Also, in Peter Mburu Echaria v. Priscilla Njeri 

Echaria,39 the Plaintiff instituted an action for divorce and ownership of matrimonial property. The Court of 

appeal reversing the first Court of First instance decision of equal proportion, held that husband and the wife 

shares of the property based on their monetary contribution towards its purchase. 

 

Liberal Approach40 

The above approach discussed earlier was the unenviable position, women in Nigeria and Kenya found themselves 

despite Constitutional and Statutory framework. The Highest Courts in Nigeria and Kenya proactively reversed 

this ugly trend and upheld the provisions of the Constitution.  The reformative Nigerian case of Mojekwu v 

Mojekwu41 came up for determination by the Nigeria Court of Appeal. Niki Tobi J.C.A (as he then was) in this 

case, invalidated the Nnewi ‘Oli-Ekpe’ Customary Law which disinherited a deceased man’s biological daughter 

from inheriting her father’s land in preference of her uncle as repugnant to natural justice equity and good 

conscience. The judge in his leading illuminating judgment, observed thus:  

We need not travel all the way to Beijing to know that some of our customs, including Nnewi 

‘Oli-Ekpe’ custom … are not consistent with our civilized world in which we all live today,… 

Accordingly, for a custom or Customary Law to discriminate against a particular sex is to say 

the least an affront on the Almighty God himself.  

 

This decision by the Court of Appeal strengthened by the Supreme Court landmark decisions in Ukeje v Ukeje42 

and Anakwe v Nweke.43  In Ukeje v Ukeje the Respondent as Plaintiff sued the Defendant Appellant; she contended 

that she was entitled to the estate of her late father. The Appellant as Defendant asserted that under Igbo customary 

 
32An approach which seeks to promote and preserve traditional social institutions. Adherents of conservatism often oppose 

modernism and seek a return to traditional values. 
33  (1957) 2 FSC 31 
34  [1963] All NLR 358 SC.  
35 (1981) N.S.C.C 101,114. 
36 (1972) NMLR 
37 (1972) ECSLR 
38 Civil Appeal No. 101 of 1995 
39  [2007] eKLR. 
40 A concept that believes in or allowing a lot of personal freedom, and believing that society should change gradually so 

that money, power and property will be shared more fairly. It generally supports individual right and equality and opposes 

norms, beliefs that are against social freedom. 
41 (2005) 5 NNLR (pt 657) 402 
42 (2014) 11 NWLR (part 1418) 384; (2014) 234 LRCN 1. 
43 (2014) 9 NWLR (PT 1412) 393-422 



African Customary and Religious Law Review (ACARELAR) 3 (2022) 

 

28 | P a g e  

law, daughters, and women generally, are not entitled to inherit immovable property. The trial court found for the 

plaintiff/respondent.  Dissatisfied, the defendant as appellant further appealed to the Supreme Court. Justice 

Olabode Rhodes-Vivour, JSC, who gave the lead judgment voided the Ibo customary law which disentitled a 

daughter from inheriting immovable property of a deceased father since such custom violated the fundamental 

rights to freedom from discrimination on the basis of sex or circumstance of birth guaranteed respectively by 

sections 42(1) (a) and (2) of the 1999 Constitution.44 This also contradicts section 43 of the Constitution which 

guarantees the right to acquire and own immovable property anywhere in Nigeria. Also, in another celebrated case 

of Onybor Anekwe, v. Mrs. Maria Nweke,45 the issue before the Supreme Court was whether a widow could inherit 

the family home after her husband’s death. If she was not entitled to inherit, then the property would go to the 

eldest living male in the family;  

Clara Bata Ogunbiyi, J .S.C46  delivering the lead judgment held:47  

I hasten to add at this point that the custom and practices of Awka people upon which the 

appellants have relied for their counter claim is hereby out rightly condemned in very strong 

terms. In other words, a custom of this nature in the 21st century societal setting will only tend 

to depict the absence of the realities of human civilization. It is punitive, uncivilized and only 

intended to protect the selfish perpetration of male dominance which is aimed at suppressing 

the right of the womenfolk in the given society.  

 

She also condemned the male appellants and their counsel for their actions in arguing that the widow should be 

disinherited. Nwali Sylvester Ngwuta JSC agreed with the condemnation of the custom and referred to it being a 

challenge to God’s will and the height of man’s inhumanity to woman, 48 In a similar circumstance as the case 

under consideration, the Court in Nzekwu v. Nzekwe49 held amongst others and ruled ‘that the plaintiff had the 

right of possession of her late husband's property and no member of her husband's family has the right to dispose 

of it or otherwise whilst one is still alive.’ In Kenya the Landmark decision In Z.W.N. v. P.N.N50 began a reform 

agenda in the property rights of Women in Kenya. In this case, where the husband and wife separated on the 

ground that the husband had left the matrimonial home to live with a mistress, the wife claimed for an equal (half) 

share of the matrimonial property. The court upheld the need to accord equal treatment to women following the 

principles of international law, as incorporated into law under Article 2 (5), and considering also the provision of 

Article 45 (3). In J.A.O. v N. A.51 the plaintiff filed for judicial separation. The court upon hearing the matter 

granted orders for judicial separation. The plaintiff in this case, contended that property bought in the name of the 

Defendant and during the sustenance of the marriage be shared equally. The court held that the plaintiff was 

entitled to half share in all the properties which were found to be matrimonial property. 

 

5. Conclusion and Recommendations  

Various laws at the national and international fore have been enacted to invalidate discriminatory practices against 

women and promote gender equality in Nigeria and Kenya. The judiciary has been proactive in proscribing 

discriminatory cultural practices against women in line with the constitutional provisions and other enabling 

statute in these countries. However, these laws and judgments are yet to be effective especially on the local chiefs 

and rural dwellers who in most cases observe such discriminatory cultural laws. Gender rights courses should be 

taught as a compulsory course in schools in other to correct societal perception. African Women are also enjoined 

to rise to the occasion to champion rights-based issues and sponsor programmes that enhance women rights. The 

collaboration of all and sundry will ensure that the law and decisions of the Courts are workable and not a mere 

academic exercise that conflicts with the law and tradition. One of the challenges of the enforcement and 

implementation of the Supreme Court Judgment is the reluctance of the people to accept the decision of the court 

that reverses the age long tradition handed supposedly over to them by their fore fathers. Ajabor, Ifanyi and 

Ovreme commented that in South Africa the Court has proscribed the primogeniture rule as it negates the equality 

of gender.52 It is on this basis that this article suggested some recommendations which are necessary for 

 
44 This was a unanimous decision as all the justices concur with the Justice that delivered the lead judgment. 
45 supra 
46The other judges (Ibrahim Tanko Mohammad, Muhammad Saifullahi Muntaka-Coomassie, Nwali Sylvester Ngwuta and 

Olukayode Ariwoola (JSC) wrote brief concurring judgments and all of them expressly agreed with Ogunbiyi JSC. Justice 

Ogunbiyi was the only woman on the panel. At the time of her appointment Ogunbiyi JSC was the first woman to be appointed 

from north eastern Nigeria, and the fourth woman appointed to the Supreme Court overall. 
47 Anekwe v Nweke, supra n 3, at 15. 
48 Supra n 3, at 18. 
49 (1989) 3 SCNJ page 167; (1989)2 NWLR (Pt. 104) 373 
50 44.[2012] eKLR 
51 46 [2013] eKLR28 
52 I Ajabor,and  O A Ovreme, ‘The Female Right of Succession Under the Igbo Customary Law: A Critique’ International 

Journal of Innovative Legal and Political Studies. [2019] (7) (1); 59-67  



 MGBEOKWERE: Discriminatory Cultural Practices of Property Rights of African Women Despite Legal 

Framework: A Call for More Proactive Measures 

 

29 | P a g e  

institutionalizing women’s right to equality, dignity and property inheritance rights. Some of these 

recommendations include: 

 

Incorporating gender rights in the school curriculum 

In a bid to catch them young and instill in them the right societal virtue, the introduction of gender right courses 

in the primary and secondary schools and incorporating it as a core course in the tertiary institution will go a long 

way to correct the societal perception of gender equality. Education of the girl child from primary, secondary and 

tertiary level is sacrosanct. African Women are also enjoined to rise to the occasion to champion rights based 

issues and sponsor programmes that enhance women rights.  

 

Enlightenment programme 

As the saying goes charity begins at home, primary reform must occur at the local level especially with the 

traditional rulers who are seen as the custodian of their tradition. In Africa many of the customary disputes do not 

reach the customary court system, but are resolved through local mechanisms such as traditional rulers, family 

heads and village counsels.53  The heads of the local institution and counsels through which majority of these land 

disputes are resolved who apply the discriminatory customary law of inheritance against women, should be 

informed about the reform the decisions of the Supreme Court have brought in their tradition. This will make them 

to reform their mind set towards accepting the change, thus become change agent in applying the decisions, 

propagating and enforcing the decisions of the court in the settlement of the dispute in the community; this will 

make the judgment of the Supreme Court effective especially when the custodians of the same customary laws 

and traditional institutions which used to deny women of property rights now become the ones to educate them 

on their new rights.54 

 

Disseminating Supreme Court decision through Electronic, Social Media and other Platforms  

The role of social media, electronic and the print media are enormous in disseminating information in the 21 st 

century.  The social media platforms like Facebook, WhatsApp, twitter, Instagram, blogs are one of the various 

ways information are disseminated.  The community of users of these platforms are growing astronomically as 

one only need to get a SIM card, smart phone with a data to access information on the internet. On the spot 

information are usually posted through any of these platforms. Indeed, one can access most the decisions of the 

Supreme Courts on-line and be aware of the reform in the customary inheritance rights of women in Africa. 

Human rights activist, Nigerian Bar Association (NBA) NBA Women Forum, Kenya Bar, International Federation 

of Women Lawyers (FIDA), traditional leaders, concerned citizens and NGOs can utilize this medium; create a 

group/forum to drive home the reform in the customary law of inheritance. They can sponsor programmes on the 

Radio station, Television or print media to educate people on gender equality of which the decisions of the 

Supreme Court stand for. They can create jingles and run it on the local TVs and Radio stations where most of 

the traditional leaders, rural men and women reside with their indigenous languages to create the awareness. 

 

Education, Mass Mobilisation, and Sensitisation Programme  

African women, especially those in the remote and rural communities who are usually cut off from modernity and 

access to justice must be mobilized and informed of the changes in the customary law of inheritance and how the 

Supreme Court decisions have reversed the age long custom. They can be mobilized in places of religious worship, 

market places, schools, co-operative societies, various women unions, as well as town halls and be sufficiently 

informed that the courts have eliminated the notion of inferiority, subordination and gender dichotomy which 

society previously placed on women because of traditional beliefs in patriarchy and male primogeniture. This 

mobilization, awareness and sensitization programme can be spearheaded by the traditional rulers, village heads 

and religious leaders who are within the locality.  

 

Involvement of Professional Institutions/NGO 

Professional institutions like the Nigerian Bar Association, the Nigerian Bar Association Women Forum, Kenya 

Bar, the International Federation of Women Lawyers and other nongovernmental organization should rise to the 

 
53 These included the family head who is the first mediator for internal family disputes; the umuadas, or married daughters 

who may return to enforce morality and prevent issues such as spousal abuse, theft and corruption; the village tribunal 

composed of 10 to 15 lineages which settles the majority of land issues, and its extension to the city through organizations like 

town unions; age grades (cohorts) who have responsibilities to each other such as burial and enforcement of discipline amongst 

each other; chiefs (titled men) who has statutory authority to reconcile parties in civil matters. 
54 H Nwaechefu, and S.K. Timiebiowei, ‘Discrimination Against Female and Widow in Inheritance of Real Estate and 

Succession in the South Eastern Nigeria: A Breach of International Instrument and the Nigeria Constitution’ Journal of Law, 

Policy and Globalization. [2019] (81). ISSN 2224-3240.P53-60 



African Customary and Religious Law Review (ACARELAR) 3 (2022) 

 

30 | P a g e  

occasion through advocacy and condemn laws or policies that discriminate against gender equality.55 FIDA in 

Kenya has been using radio talk shows and legal aid open days to raise awareness among women about their 

property rights. That includes educating women on the importance of jointly registering property that they buy 

with their husbands, because under the Matrimonial Property Act that gives both spouses the same interest in the 

property.56 In Nigeria, NBA Women Forum, FIDA and other Women Organisations were at the National 

Assembly the legislative headquarters in Nigeria on the 8th of March 2022 (being the International Day for Women 

with the theme Break The Bias) to protest the  Gender Sensitive Bills that were voted out by the Law makers. The 

Nigerian Women occupied the National Assembly for three days until the decision of the Law makers were 

reversed. 

 

 

 
55R.A Onuoha ‘Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the Rescue’ The International 

Journal of Not-For- Profit Law. [2008] (10) (2) 10  
56FIda Kenya, Women’s Land and Property Rights in Kenya. Available at https://land.igad.int/index.php/documents-

1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file. Accessed on 20th May 2022. 

https://land.igad.int/index.php/documents-1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file
https://land.igad.int/index.php/documents-1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file

