Gender-neutral inheritance in Nigeria: Will this kite fly?

Introduction  The Sultan of Sokoto, His Eminence, Sa’ad Abubakar III, appears to have stirred controversy by reportedly kicking against a bill pending at the Senate which seeks to confer equal rights of inheritance on males and females across the country. At an Islamic function in Gusau, Zamfara State, on Tuesday, the 27th day of December, […]

Introduction 

The Sultan of Sokoto, His Eminence, Sa’ad Abubakar III, appears to have stirred controversy by reportedly kicking against a bill pending at the Senate which seeks to confer equal rights of inheritance on males and females across the country. At an Islamic function in Gusau, Zamfara State, on Tuesday, the 27th day of December, 2016, the Royal Father was reported to have rejected the bill as being un-Islamic, in apparent reference to the position of Islamic (Sharia) law which discriminates between the heirs of a deceased muslim on the basis of gender. Is His Eminence correct? What is the true legal position? I shall presently analyse the status quo and I shall ask whether it is all a storm in a tea-cup. In other words, should the National Assembly have bothered in the first place, assuming without conceding that the issue is even part of its legislative remit.

Can the National Assembly regulate inheritance rights?

The simple answer is that it depends on the Constitution. This is because, since DOHERTY vs BALEWA (1961) 2 NSCC 246 @ 252, the Supreme Court  has been unequivocal that the Assembly can only legislate for the federation on those matters in respect of which it is specifically empowered by the Constitution. The powers of the National Assembly are spelt out in the Exclusive and Concurrent Legislative Lists of the Constitution – no other authority is competent to legislate on the matters reserved for the National Assembly in those lists – Section 4(3) of the Constitution. Accordingly, the competence of the National Assembly to actually enact the said bill wholly depends on whether its subject matter is contained in either of the said lists of the Constitution.  I believe that Items 61 and 68 of the Exclusive List which deal with marriages and matrimonial causes, except those contracted under Islamic/Customary law and issues arising therefrom (as well as matters which can reasonably be regarded as being incidental/supplementary thereto), are the only provisions of the Constitution which come closest to conferring such a power on the Assembly. But even then, it is obvious that it is but a limited power, as it expressly excludes Islamic and Customary marriages. Accordingly, I believe the extant nationwide law on inheritance, i.e., the Wills Act is only applicable to non-Islamic and non-customary law bequests. So, does the National Assembly need to intervene as it is presently doing, or can it validly do so without amending the Constitution, i.e., Item 61 of the Exclusive Legislative List thereof as aforesaid? Before addressing them, it is important to examine the locus standi of His Eminence.  

Is the Sultan justified to speak out?

This question is best understood from the perspective of the traditional role of His Eminence as the leader of Nigerian muslims. In that position, the Sultan evidently sees himself as the guardian of Islamic values. Accordingly, it is understandable if he feels compelled to defend Islamic or Sharia law. Islam permits a muslim to make testamentary dispositions, i.e, wills, albeit in respect of only part (about three-quarters) of his estate. I believe that in respect of an intestate muslim (i.e, who died without leaving a will) or  that portion of his estate which is undevised, the Islamic position is largely expressed in the Quran, the muslim holy book,  in Chapter 4 (titled ‘Women’), verses 11-12 and 176, thereof, which provide as follows, respectively: 

4:11-12:- “God charges you concerning your children: to the male the like of the portion of two females, and if they be women above two, then for them, two-thirds of what he leaves, but if she be one, then to her a half; and to his parents, to each one of the two the sixth of what he leaves, if he has children; but if he has no children, and his heirs are his parents, a third to his mother, or, if he has brothers, to his mother a sixth, after any bequest he may bequeath, or any debt . . . and for you a half of what your wives leave, if they have no children; but if they have children, then for you of what they leave a fourth, after any bequest they bequeath, or any debt. And for them a fourth of what you leave, if you have no children; but if you have children, then for them of what you leave an eighth, after any bequest you may bequeath, or any debt. If a man or a woman have no heir direct, but have a brother or a sister, to each of the two a sixth; but if they are more numerous than that, they share equally a third, after any bequest he may bequeath or any debt not prejudicial”

4:176:- “God pronounces to you concerning the indirect heirs. If a man perishes having no children, but he has a sister, she shall receive a half of what he leaves, and he is her heir if she has no children. If there be two sisters, they shall receive two-thirds of what he leaves; if there be brothers and sisters, the male shall receive the portion of two females.”

I have quoted the foregoing in extenso for the purposes of accuracy and in order to properly contextualize the reaction of the Sultan. To the extent that the bill proposes to eliminate the dichotomy between the sexes under Sharia law of inheritance, it is clear that a clash is inevitable. But is it avoidable? In my view, short of amending Item 61 of the Exclusive legislative List of the Constitution, it was needless for the Senate to have stirred the hornet’s nest by the bill presently under consideration. This is because any law or practice which discriminates between persons which the law regards as being similarly circumstanced – such as the heirs/heiresses of an intestate – would appear to be inconsistent with the right to freedom from discrimination and to equal protection of the law under Section 42(1) of the 1999 Constitution and Article 3(2) of the African Charter on Human and People Rights respectively. The latter statute is an international treaty which has been domesticated in Nigeria vide the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1981. 

What is the scope of this right? Equal protection of the laws demand that laws will only be legitimate if they can be described as just and equal . . . equal protection means a legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right or involves a suspect classification, it is unconstitutional unless it can withstand strict scrutiny: BLACK’S LAW DICTIONARY, 8th edition, Page 577. 

In N.N.P.C vs. FAWEHINMI (1998) 7 NWLR pt. 559, 598 at 616, the Court of Appeal, per Ayoola, JCA (as he then was) held that equal protection of the law means “equality among equals. . . that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed; it forbids discrimination between persons who are similarly in similar circumstances; in other words, like should be treated alike and unlike should be treated differently”. In the event of a conflict between the African Charter and any other statute (with the exception of the Constitution), the African Charter will prevail: I.G.P vs. A.N.P.P (2007) 18 NWLR pt. 1066 page 457 at 500C.

Section 42 (1) of the Constitution, on the other hand, provides that: 

“ A citizen Nigerian of a particular community ethnic group place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-

(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the Government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, place of origin, sex, religion or political opinion are not made subject; or

(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinion” 

By contrast, however, Section 38(1) of the Constitution appears to support the view of His Eminence, the Sultan. It provides thus:

“Every person shall be entitled to freedom of the thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others and in public or in private), to manifest and propagate his religion or belief in worship, teaching, practice and observance”.

So, which of the two views is correct? I believe this poser can only be resolved by the Supreme Court. 

CONCLUSION

i. The Constitution is supreme. To the extent that it excludes inheritance rights under Islamic and customary law marriages from the purview of the National Assembly (Items 61 and 68 of the Exclusive Legislative List), the National Assembly is incompetent to interfere by enacting legislation which indirectly abrogates existing Sharia law, to decree equality between male and female heirs of an intestate muslim – unless, of course, Item 61 of the Exclusive Legislative List of the Constitution is amended in accordance with Section 9(2) thereof.

ii. To the extent that gender-based discrimination in respect of the rights of persons whom the law regards as being similarly circumstanced – such as heirs and heiresses – is recognized by any community in Nigeria, it violates the right to freedom from discrimination and equal protection of the law under Section 42(1) of the Constitution and Article 3(2) of the African Charter on Human and Peoples Rights, respectively. However, because the latter ante-dates the 1999 Constitution, it can only take effect as an existing law to the extent provided by Section 315(1) of the Constitution.

iii. Given that the Constitution is superior to the African Charter, I would advice His Eminence to take solace in the provisions of Items 61 and 68 of the Exclusive Legislative List of the Constitution and hold his peace – although it is always salutary to alert the unwary. As for the Senate, it ought to be constantly mindful that religious issues in Nigeria have always been divisive and potentially explosive. If not delicately handled, they can easily be misconstrued by the hoi polloi, with devastating consequences, including the loss of innocent lives.  

Abubakar D. Sani, Esq. is an Abuja based Activist