WOMEN NEED INDEPENDENT OWNERSHIP RIGHTS: WOMEN AND LAND IN NORTHERN NIGERIA
By Hussaina J. Abdullah with Ibrahim Hamza
Paper Presented at an International Workshop on Women and Land In Africa organised by the Emory University Law School, Atlanta, Georgia in collaboration with Associates for Change, Kampala, Uganda at the Entebbe Beach Hotel, April 24-25, 1998
"By independent rights ...I mean rights independent of male ownership or control (that is excluding joint titles with men). Independent rights would be preferable to joint titles with husbands for several reasons: one, with joint titles it could prove difficult for women to gain control over their share in case of marital break-up. Two, women would also be less in a position to escape from a situation of marital conflict or violence...Three, wives may have different land-use priorities from husbands which they would be in a better position to act upon with independent land rights. Four, women with independent rights would be better able to control the produce. Five, with joint titles the question of how the land would subsequently be inherited could prove a contentious one. This is not deny that having joint titles with husbands would be better for women than having no land rights all; but many of the advantages of having land would not accrue to women by joint titles alone (Agarwal, 1994:20)
Using this as our point of departure, we argue that ownership without independent rights is, in the final analysis, no ownership at all and, therefore, make the case for independent land rights for women. We argue that independent land rights are necessary for Muslim women who already enjoy (nominal) rights to own land in order to enable them to be in a position to make decisions on the use, disposal and acquisition of this resource. For non-Muslims without ownership rights, we argue that demands for ownership have to go hand in hand with independent rights on matters of usage and disposal (i.e. control).
1. IntroductionLand is one of the most important resources in Africa. Indeed, it is one of the resources that is contested the most on the continent, pitting individuals and various groups against one another and the state. Wrapped up in the land question are not just economic concerns but also political, social (class and non-class), and historico-cultural claims. Not surprisingly, disputes over land are often amongst the most bitter sources and forms of conflict in Africa. Although various aspects of the land question in Africa have been closely studied over time, it is only recently that there has emerged an increasing intellectual and activist concern with the gender dimensions of the issue, with particular reference to women's right of independent access to this critical resource (Davison, 1988; SAFERE, 1995; Meer, 1997). This concern has gathered steam against the background of the fact that although, in most parts of Africa, women are active farmers, their rights of ownership and control of land are circumscribed either by law, or custom, or religion or a combination of all three. Exactly how this situation plays out differs from one part of the continent to the other; even within the same country, there are different practices in existence.
This study is intended to contribute to our understanding of the land question as it relates to women and as viewed from a human rights paradigm. The main objective of the work is, at a general level, to undertake a critical, empirically based study of women's land rights in northern Nigeria in the context of the way in which these rights are shaped by religion, tradition and law. In studying the land rights of women in northern Nigeria, the purpose is not only to examine a variety of issues connected to their rights of access to ownership of, and control over land, including their inheritance rights, but also to study how, within the framework of these parameters, religion (canonical and Sharia), law (customary and non-customary), and tradition act and interact to condition the definition and practice of women's land rights. The primary focus of the study is a review of historical practice in general and an analysis of empirical data on three categories of women, namely, married, divorced and widowed women. We have used marriage as a determining variable in women's land rights because it is the major source through which women and men access land in Africa. However, in most cases, whereas women's land rights are dependent on their social relations with men, men's rights are not dependent on their relations with women. Moreover, women are threatened with dispossession if divorced or widowed (Small, 1997:46). In the context of northern Nigeria where marriage is extremely fluid (especially among the Hausas and the Maguzawa), it will be interesting to see the strategies which women have employed to secure their rights in land.
It must not be taken for granted that in the face of tradition, religion and the law, women are simply the passive victims of discriminatory and disempowering practices. The study has, therefore, also been interested to understand and capture the ways in which women use the idiom of tradition, religion, and natural justice to attempt to assert and/or defend their land rights. Furthermore, since there is contestation over just what constitutes tradition/custom as well as differences over doctrinal interpretation among different Muslim and Christian groups, we were interested to see the extent to which this situation plays out in favour of or against women and their land rights. We went into the study with the assumption that tradition and religion are not static and that the question of the extent to which their practise works against women is an empirical one and not an issue that is settled or which can be answered ab initio on the basis of prevailing pathologies. In this regard, we tried to capture and draw attention to actual practices as they exist on the ground with regard to women's land rights and access.
11. The Origin and Socio-Religious History of Northern NigeriaThe geographical area that is known as northern Nigeria comprises of the Federal Capital Territory, Abuja, and 19 of the thirty-six states that make-up Nigeria's federal structure. It is 720 miles wide, 410 miles long and about 300,000 square miles in size. It borders Niger, Cameroon and the Benin Republic. Based on the provisional figures of the 1991 census, it contained about 55 per cent of Nigeria's population. Of this number, slightly over half were women. Most of the landmass in the area is Hausa land, as it is made up of several Hausa-speaking states and emirates. Although much of the area was incorporated into the Sokoto Caliphate after Uthman Dan Fodio's Jihad in 1804, not all its inhabitants are Muslims. There are Christians and adherents of indigenous religions. In other words, despite being predominantly Muslim, northern Nigeria is a multi-religious region. We shall return to this issue later on.
The process of the formal incorporation of the area into the modern international capitalist system began in earnest on 1 January 1900 after three years of negotiations and struggles involving the British government, local rulers and the Royal Niger Company (RNC). The RNC was keen to protect its interests (both economic and political) in the area, having established a strong commercial presence before the formal onset of direct colonial rule. The Company, successor to the National African Company, had, through the manoeuvrings of its owner, Sir George Goldie, won a royal charter in 1886 to advance British commercial and other interests in the area. This charter gave the company absolute power and control in the region, including the "power to administer, make treaties, levy customs and trade in all territories in the basin of the Niger and its effluents" (Elias, 1971:3). To be sure, there was already some contact between agents of the British government and representatives of the Caliphate authorities before the onset of direct colonial rule in the area. Aside from the various expeditions undertaken by visiting British explorers, the two had their first contact in 1885, one year before the royal charter was granted to the RNC. This was followed up with a second direct contact in 1893. The first contact led to the signing of a treaty that conferred some recognition on the National African Company (which later became the Royal Niger Company). This treaty gave the company trading rights on the rivers Niger and Benue. As a result of the second contact, the company was given jurisdiction over foreigners in the territory.
However, the RNC's power and control over the area was short-lived as it was unable to contain local resistance to its trade monopoly, ward off competition from French capital and suppress the internal traffic in slaves in the north. The British government, not wanting to loose its grip on the territory, delegated Sir Frederick Lugard, its Commissioner in the area, to take over the administrative functions of the Company. The RNC's royal charter was revoked and the protectorate of Northern Nigeria was declared (ibid). Thus, the subjugation of northern Nigeria, which started in 1900, was completed in 1903 with the defeat of the Sokoto Caliphate's army by British soldiers and the imposition of British colonial authority in the area.
As part of the negotiated agreement between the Royal Niger Company and the British government, the Company agreed to retain its:
"Commercial rights and privileges, surrendered its other rights and interests, including all the land hitherto acquired by means of various agreements with local chiefs and princes, to the Crown for the lump sum of 865,000 pounds, subject, however, to the payment to the Company of 50 per cent of the mining royalties for a period of ninety-nine years"(Ibid: 4). To mark the end of Caliphate rule and the beginning of British colonial rule in northern Nigeria, Lugard noted triumphantly that: "...The Fulani in old times under Danfodio conquered this country. They took the right to rule over it, to levy taxes, to depose kings and to create kings. They in turn, have by defeat lost their rule, which has come into the hands of the British. All these things, which I have said, the Fulani by conquest took the right to do, now pass on to the British” (Northern Nigeria Annual Report, 1902 Appendix 111,164).
Despite this proclamation, the British colonial government did not abrogate the laws of the Caliphate. Rather, through its policy of indirect rule, it super-imposed its own laws upon existing ones. It must be noted that Islam and Islamic law were already well rooted in the socio-political structures of the area before the onset of colonial rule. For instance, by the time the region was subjugated, nearly every emirate had judicial courts presided over by an alkali (judge). But despite the dominance of Islamic forms of governance, non-Islamic courts existed side by side with Muslim ones. These courts were to serve non-Muslims who had agreed to co-exist with their Muslim rulers. They were thus accorded dhimmi or tributary status within a Muslim domain.
African Traditional Religion in Northern Nigeria (Illustrated with the Case of the Maguzawa)Since the practice of African traditional religion is based on the distinctive socio-cultural characteristics of an ethnic group, it is not possible to present one uniform overview of the traditional religious practices of northern Nigeria as the area has more than 100 ethnic groups. Still, despite their differing practices, adherents of African traditional religions tend to have four fundamental beliefs. These are their belief in the Supreme Being (God), belief in the deities or lesser gods, belief in spirits, including ancestral spirits and others, and belief in the power of magic and medicine (Kayode and Adelowo, 1985:235). Let us illustrate this further with the example of the Maguzawa, one of the groups in our study.
The term Maguzawa is said to have originated from the Arabic word Majus, used to describe non-Muslims living peacefully and under the protection of a Muslim state. The Maguzawa are regarded as the non-Muslim Hausa people. They are found in several small rural communities (unguwoyi) around the Muslim Hausa states and the emirates of Sokoto, Kano, Jigawa, Bauchi, Katsina, Daura and Zaria. They are predominantly agriculturalists (Naniya, 1990). In Kano state, they are located mainly in Tudun Wada, Wudil, Gaya and Rogo local governments. They are the largest non-Muslim group in Kano and are considered the non-Muslim Hausa-speaking peoples of northern Nigeria. According to Meek, they are the descendants of the original of inhabitants of Kano i.e. before the Habe (Hausa) invasions in the 11th Century (Kan/Prof.His/5/1936). A Bamaguje is only recognised as such provided he (sic) follows the traditional religion of his people (Ibid). But to Last (1993) "to be a Bamaguje is to fit a distinct non-Muslim stereotype that distinguishes you from both a Muslim and from a mere “pagan” (269). They are the only Hausa sub-group that is identified by their religion. Upon conversion to Islam he becomes a Ba-Kano.
They were deemed to be good citizens because they paid a lot of protection tax to the state and, most times, fought along side their Muslim protectors (Last, 1979). According to Ibrahim, the Maguzawas “have survived because they have maintained a posture of defencelessness and have always migrated to the geographical fringes of Hausa land” (Ibrahim, 1997:31).
According to their religious belief, the world is divided into two parts: the inhabited and the uninhabited. In addition, there is the ancestor's spiritual world and the world of demons and spirits (Iska) (Krusuis, 1915:6). The latter is made up of two spirits the white and the black, which are friendly and unkind respectively. The leader of the white spirits is Kure (Male Hyena) and is recognised as the patron of the Maguzawa spirits. Kure is sacred to all Maguzawa. It may not be killed and neither is its meat eaten. It is believed that Kure protects and supplies its adherents with all their needs (ibid: 10). The Maguzawa communicate with the spiritual world through the Yan Bori or the bori people (male and female), who act as the medium between them and the spiritual realm (Ibid: 18).
Islam in Northern NigeriaIslam spread into northern Nigeria from the Kanem Borno Empire, one of the first places in West Africa to come in contact with the new religion. Although Islam was introduced into northern Nigeria in the twelfth century, its impact was only felt in the fourteenth century through the proselytisation efforts of the Wanwagara merchants. This process of Islamisation was taken a step further by al-Maghili, a learned Islamic scholar who wrote a treatise on Islamic governance for Muhammadu Rumfa, the first Muslim King of Kano, in the second half of the fourteenth century. Despite the acceptance of the treatise in Kano and other parts of Hausa land, the Islamic religion still did not sink roots in the society because the ruling elite, whose duty it was to propagate the practice of the religion, was very lax in its attitude to it. Most rulers combined Islamic rituals with non-Islamic practices and never insisted on the conversion of their subjects. As Kukah and Falola note:
"...pre-jihad northern Nigeria was irreligious, ... the so-called religious leaders were either pagans or syncretists who took what they wanted from Islam and combined it with local religions and culture..." (1996:30).
The ambiguous attitude of the Hausa rulers towards the practice of Islam, coupled with other factors such as economic decline, excessive taxation, corruption, and the political marginalisation of the poor, among other things, antagonised the Fulani Muslim settlers in Hausa land. For them, being a Muslim meant strict adherence to the teachings of the religion. They were, therefore, uncomfortable with the Hausa way of practicising Islam and sought to purify the religion through "a return to the pure and primitive (sic) faith of Islam purged of heresies and accretions"(Trimingham, 1968:199-200).
In 1804, Shehu Uthman dan Fodio, a learned Fulani scholar, began the task of purifying the Islamic religion. By 1812, the Sokoto Caliphate, a new political dispensation based on the Sharia, had been established to replace the non-Islamic rule of the Hausa kings. This conquest led to the adoption of Islam by the general populace and the imposition of Sharia on the existing legal system. In establishing an Islamic state, dan Fodio and his followers adopted the Maliki doctrine as opposed to the other three schools of thought, namely, Hanafi, Shafi'i and Hanbali. This was because the Maliki code was already in existence in the area and in West Africa in general.
Describing the new political dispensation, Kukah and Falola comment:
"The Sharia, ...became the most common and official legal system. Every Emir must establish and administer the Sharia. Each town had its judge, and every emirate its Court of Appeal. To the Jihadists, the only legitimate code of law must derive from the Sharia. It was through the implementation of the Sharia that the reforms of the Jihad were to be carried out, as they affected the poor, property, and commercial interactions. Thus, law was to be the supreme instrument of change" (P.38).
Governance in the Caliphate was based primarily on the obedience of the Emirs (i.e. the head of the emirate) to the Sultan (the head of the Caliphate). Each emirate was to be governed according to "Islamic laws, repair mosques, convert pagans, and promote Islamic education" (Ibid, 36).
Although the Sharia is the principal legal statute in northern Nigeria, especially in civil matters (marriage and inheritance), it has not completely replaced the customary laws of the various ethnic groups. Despite the influence of Islam and Christianity, the customary laws of the various ethnic groups in northern Nigeria, particularly in civil matters, have for most part remained unchanged.
Christianity in Northern NigeriaChristianity and the Christian influence in Nigeria as a whole have a more recent history than Islam. The Christian religion was introduced into the country only in the second half of the 19th century. Unlike southern Nigeria, where the Christian faith gained a strong foothold, its spread in northern Nigeria was extremely slow. Christian penetration of northern Nigeria began in 1857 with the opening of the Niger mission by Samuel Ajayi Crowther. The aim of the mission was to serve "all the peoples of the Niger River from its delta northwards up to and including all the northern states of present day Nigeria" (Clarke, 1986:65). As part of his effort at evangelisation in northern Nigeria, Crowther got the emirs of Bida, Ilorin, Gwandu and the Sultan of Sokoto to receive Arabic versions of the bible from his Church Missionary Society (Ayandele, 1966: 118).
The conversion of northern Nigerian Muslims was the primary objective of Crowther and his successors because for them "no one became a Muslim for sound intellectual and religious reasons" (Clarke, opcit: 108). Further the idealised picture painted by various European explorers, especially Barth, of the region and its peoples as highly civilised, industrious, prosperous, and eager for European manufactures (Ayandele, op.cit) made it very enticing to the missionaries.
Despite their efforts and conviction, the missionaries were unable to gain an in-road in the Muslim areas of northern Nigeria because of the entrenchment of the Islamic religion, the cultural clash between Islam and Christianity, and the unwillingness of the colonial government to allow them to evangelise in the Muslim areas. This, however, does not mean that the colonial state was anti-missionary. Rather it wanted to maintain the cosy relationship it had developed with the Caliphate and it was not going to allow the missionaries to jeopardise this. Objecting to desire by the missionaries to evangelise in the area, H. H. Middleton, the District Officer in Hadejia Emirate in the Kano Province stated:
"...it has been considered inadvisable and inexpedient in the past to permit missionary activity amongst Moslem states during normal times, to do so now would, in my opinion, constitute an act of treachery and ingratitude unworthy of our best traditions. I make no apology for the use of somewhat strong terms as I think that the occasion demands the fullest expression of our views in a matter where our honour is at stake. For the last three years the Moslem chiefs of the Northern Provinces have stood by us with a loyalty, fidelity, and devotion that will not lightly be forgotten by those who have worked with them during this period...missionary activity be construed by the natives to be an unwarrantable interference with their religion and a breach of faith that they could neither forget or forgive (A.H.K./15246).
Although the Christian missionaries failed woefully in their attempt to Christianise northern Nigerian Muslims, they had some successes in the non-Muslim areas of the region. The process of Christianising the non-Muslim peoples of northern Nigeria can be divided into two phases, namely pre-1945 and post-1945. In the pre-1945 period, the conversion rate among the non-Muslims was similar to those of the Muslims. For example, in the Birom village of Forum in the present Plateau State, there were only three converts in an eleven-year period (1910-1921). This was attributed to the missionaries' policy of excluding polygamous men and beer drinkers in their worship, lack of indigenous leadership in the churches, and the reluctance of the local population to accept Christianity. In the case of the latter, becoming a Christian to the local population meant losing their political, social and economic status as well as their social networks (Clarke, op.cit).
The post-1945 period witnessed an increase in the number of converts and the proliferation of churches in the region. This was due to a number of factors, including a change in the strategy of the missionaries (the training of local pastors and evangelists), the introduction of education and health care in their pastoral work, and the undermining of local institutions and values by colonialism. Despite these changes, the number of Christian converts was still negligible compared to the population of northern Nigeria (Ibid: 113).
111. The Research SitesThe research for the study was carried out in three different sites in northern Nigeria, to reflect the diverse socio-cultural and religious characteristics of the region. Our first research site is the predominantly Muslim area of Kano and Sokoto. Both sites are among the biggest population centres in Nigeria; they are also among the oldest centres of Islam in West Africa. But whereas Kano, the foremost commercial centre in northern Nigeria, is the seat of the populist-radical Tijanniya brotherhood, Sokoto, the seat of the old Caliphate and the home to the Sultan, is dominated by the more conservative Quadriyya brand of Islam. Studying the experiences of Muslim Hausa women in the two different settings afforded us with the opportunity to observe the differential effects (if any), which the radical and conservative variants of Islam as practised in Kano, and Sokoto respectively have on women's land rights in these areas.
An Historical Overview of Kano StateWhat is presently known as Kano State came into being in May 1967 with the creation of twelve states from the three regions (east, north, and west) that made up the Nigerian federation at independence in 1960. Kano is the second most populous and industrialised state in Nigeria's present 36 state federal system. Although Kano occupies an important place in Nigeria in general, its significance in northern Nigeria is even more so. In addition, to being one of the earliest sites of Islam in northern Nigeria, Kano is the home of radical and populist politics and the economic capital of the region (Olukoshi, 1985:53).
The city of Kano was founded in the seventh century AD. Wangawara traders from Mali introduced Islam to the city in the second half of the fourteenth century (Kano Chronicle). The Islamic tradition in present day Kano is made of various sects, including the brotherhoods or the Sufis, the Sunnis, the Shiites, and the Yan Tatsine (Zakaria, 1997:29). The most prominent of these sects is the Sufis made up of the Tijanniya and the Quadriyya brotherhoods. The Tijanniya brotherhood was introduced in Kano, while the Quadriyya, with origins from Iraq, might have been introduced by Fezan Arabs from Morocco (ibid: 29). The Quadriyya's early status in Kano and northern Nigeria as a whole was enhanced by the fact that the leaders of the Jihad belonged to the group (Callaway, 1987:96). They dominated Kano's religious landscape from the fifteenth century up to World War 1 when Sarki (Emir) Abbas, the then Sarki of Kano 1903-1919 converted to the Tijaniyya sect. However, it was during the reign of Sarki Muhammadu Sanusi (1953-1963) that the Tijaniyya brotherhood gained wide prominence in Kano. He used his position to increase the status and authority of the group until it became the dominant sect in the area (Ibid: 96).
Kano's place as the bastion of radical and populist politics in Nigeria started in the early 1950s. Under the aegis of his political party, the Northern Elements Progressive Union (NEPU), Mallam Aminu Kano, a young schoolteacher learned in Islamic law, launched a scathing attack on the Northern Peoples Congress (NPC), the dominant party in the region and its allies in the emirate's political structure. He accused the NPC of betraying the ideals of Islamic governance (justice and equity) as outlined by the Jihadists. His party's declared objective was the institution of a democratic system based on Islamic principles in which the interests of the talakawa (oppressed) would be represented. Hence social justice and accountability became the themes of his party’ all through his political career. As Callaway noted:
"...NEPU/PRP rhetoric was phrased in terms of Islamic reform. Campaign themes centred around notions of equality, knowledge literacy, political reform, and modernisation"...Equality was a notion extended to include women, but only insofar as Qur'anic interpretations allowed; NEPU's advocacy of education and political emancipation for women did not imply support for Western feminist concepts..." (Ibid: 98).
Although Mallam and his colleagues were not advocating for a fundamental restructuring of gender relations in society, by raising pertinent issues (child marriage, polygamy, participation in public life, right to education among others) that affect Muslim women's status, they expanded the boundaries of political debates in the area. Though limited, these demands were definitely radical in the context of Muslim northern Nigerian where women do not enjoy most of their rights as stipulated in the Qur'an.
Dawakin TofaThe study on women's land rights in Kano was conducted in Dawakin Tofa Local Government Area. It is 20km west of Kano city. The area was chosen as our site of study due to the rural nature of its economy and also for its close proximity to Kano city. Even though, it is closely located to the state capital, it is not affected by the rapid urbanisation taking place in the state.
Migrants from Mali established the town in the 16 century AD. It is well known for its pottery, which is mostly produced by women. Dawakin Tofa town and district have the largest village units in Kano emirate, 98 villages in all. It is located within the Kano Closed-Settled Zone. The principal occupation in Dawakin Tofa is farming which is characterised by peasant land holding and craft, notably pot making.
An Historical Overview of Sokoto StateSokoto state, the religious capital of northern Nigerian Muslims, was one of the seven states created in 1976 to establish the then nineteen-state federal structure. It was a war camp during the period of the jihad. After the jihad, it became the headquarters of the Caliphate from 1809-1903 and the capital of Sokoto Province during colonial rule.
Whilst Aminu Kano and his associates championed the rights of women and criticised their exclusion from public life, the NPC under the leadership of Sir Ahmadu Bello, a Sokoto prince and premier of the then northern region, vehemently opposed these principles. Waziri Ibrahim, a minister in the NPC government defended his party's position and criticised the regional governments in the east and west of the country for granting suffrage to women. According to Ibrahim,
"We in the North are perfectly happy: our women are happy about their condition and I appeal to other members of the Republic to please leave us in peace. There is not a single Northern woman who has told anybody that she is unhappy. We know what is right for women and our men know what is right for themselves" (quoted in Callaway, Ibid: 99).
Arguing in the same vein, Sir Ahmadu Bello noted: "Female suffrage is inimical to the customs and feelings of the great part of the men of this region" (Ibid: 99).
Even though the NPC and its successor, the National Party of Nigeria (NPN) were against granting women a pro-active role in society, they did not ignore them in their quest for political dominance. They (women) were used and seen as objects of political entertainment chanting, singing and dancing at rallies. The women who performed these functions were mostly Karuwai or prostitutes
Yabo Local Government AreaYabo, our case-study local government in Sokoto State, was part of the pre-Jihad Hausa city-state of Kebbi. The town was established by a group of migrant Fulani from Daura. Present day Yabo is made up of 14 villages. The town has a close relationship with the Sultanate, as it was one of the earliest towns to support the Jihad. It is 48 kilometres from Sokoto town. Yabo is well integrated into the mainstream of Sokoto's rural economy with farming being the principal occupation of its inhabitants.
As will be shown later in the essay, the Tijanniya's emphasis on social justice and the promotion of women's rights has not translated into a fundamental difference in the status of women; indeed, in many respects, the position and social status of Kanawa women is not different in any fundamental sense from those of their counterparts in Sokoto, a centre of Quadriyya Islam. This was due, in part, to the fact that the NEPU/PRP political machine that dominated politics in Kano saw the declaration of support for the promotion of women's rights as electorally beneficial. But beyond this, the political rhetorics of NEPU/PRP activists did not transcend the boundaries of religious teachings on the place of women in society. This shows that irrespective of political differences, neither the Quadriyya nor the Tijanniya have separate laws or interpretations over religious issues such as inheritance. Both sects use the Qu'ran, Hadith (the sayings of the prophet) and Ijma (consensus opinion of the ulama) as the bases of their religious and political discourses.
The MaguzawaOur second study site is the section of Kano state inhabited by the Maguzawa. The research was undertaken in Tudun Wada local government in the villages of Karefa, Tanigel, Tuku, Barangwaje, and Jarkaya. As noted earlier, the Maguzawa of Kano, a Hausa-speaking group that is listed among the earliest settlers in the area, are mainly followers of their own indigenous religion. For almost two centuries, they valiantly resisted efforts aimed first at Islamising and then Christianising them. As a consequence of their resistance, they have been essentially marginalised from the mainstream of the economy and politics of contemporary Nigeria. The Maguzawa have no independent political authority because of their subservience to Muslim Hausa authority. The role of the Sarkin Arna (pagan king), or Mai Unguwa (ward or hamlet head) in Hausa was tax collection and general mediation -marriage counsellor and peacemaker. As noted by Ibrahim, “the Maguzawa always tried to limit their contact with Muslim officialdom, hence the strategy of retreat and attempts to settle their problems internally” (Op.cit: 32).
The traditional social life of the Maguzawa differs greatly from that of Muslim Hausa. It was centred on beer drinking “the major traditional form of recreation and the symbol of conviviality, generosity and humanity” (Ibid: 32). This has changed because of the inroad made by both Islam and Christianity. The Muslim converts have had to restructure their lives completely and the Christians also made dramatic changes. The Evangelical Churches of West Africa (ECWA), the major Christian denomination in the area forbids the consumption of alcoholic beverages and smoking, encourages monogamy and Christian marriages.
Recent statistical evidence suggest that in the context of the profound economic crisis that has afflicted the country and which has ravaged the livelihood of the Maguzawa, they have succumbed to the unyielding pressures exerted by missionaries for their Christianisation. As Ibrahim observed that out of about 75,755 Maguzawa living in Kano state, 33,843 had converted to Christianity, 16, 533 to Islam and while the remaining 26,005 have tried to stay true to their Indigenous religious practice (op. cit.: 25). Even though the Maguzawa are very close to their Muslim Hausa cousins, they have not converted en mass to Islam as predicted by either Greenberg (1946) or Barkow (1970). In fact, they seem to have, by and large, maintained their centuries old resistance to Islam. Still, the Maguzawa experience provides us with a good opportunity to attempt to grasp the way in which women's land rights are handled in a setting where "traditional"/indigenous religious practices still weigh heavily on the livelihood of the populace.
Unlike their Muslim neighbours, Maguzawa women are not secluded nor are they treated as social and legal minors. Comparing the roles of Maguzawa and Hausa women, Barkow noted:
"Maguzawa women are both more free and more encumbered than their Muslim village sisters. They are not in seclusion and may frequent the village market. They are not expected to veil themselves or comport themselves with exceptional modesty ... But Maguzawa women work hard, and instead of devoting themselves to their crafts must devote themselves to raising food for their families" (1970:94).
Arguing along the same line, Last (1979b quoted in Ibrahim, Op.cit: 32) observed in his study that Maguzawa women participated wholly in social and economic life; that they are autonomous and control their sexuality. One indication of their autonomy is that they alone have the right to decide whether they are sick and cannot do the work expected of them. The obligation, which Maguzawa women have for their autonomy, is that they do a lot of farming and agricultural production. They (Maguzawa women) are responsible for feeding their families for most of the year - November to June - while the men feed their families during the raining season and generate money for tax, clothing and farming implements (Ibid: 32). Money from these activities belongs to them and they have the right to dispose of it as they deem fit. As a result of their economic independence, they are relative more prosperous than Muslim Hausa women. However, Ibrahim argues that despite their relative autonomy, Maguzawa women remain one of the most oppressed groups of women in Nigeria because they are almost wholly responsible for social provisioning in the household.
“ Apart from the responsibility of women in feeding the family, they are also expected to provide basic necessities such as medicine, soap, pomade and clothing for themselves and their children” (Ibid: 33).
Southern ZariaOur last study site, Southern Kaduna, lies between Hausa land, the Benue-Niger valley and the northeastern part of the Jos Plateau. Southern Kaduna is the geographical area south of Zaria emirate in the former Zaria Province. In the pre-colonial period, some parts of this area was under the Caliphate but during the colonial period, the whole area was subordinated to Hausa-Fulani rule in Zaria and Jema'a (Turaki, 1982:12).
Southern Kaduna is a belt of northern Nigeria where Christianity serves as a common thread binding together various minority ethnic communities in the area. The peoples of Southern Kaduna were among the first to be Christianise in northern Nigeria following the onset of colonial rule. Today, the area is dotted with many churches from different Christian denominations. The churches are not merely institutions that minister to the religious needs of the populace but are also, to a great extent, the focal point around which social life generally is organised. Studying Southern Kaduna afforded us the opportunity to see how the practice of Christianity in the area has affected women's land rights in a context where women play a prominent role in farming activities and where customary inheritance practices do not allow women to inherit land.
Our field survey in Southern Kaduna was in Kamurun Ikulu village in Zango Kataf local government area. The Ikulus are found mainly in Anchuna, Kamurun Ikulu and Padan Ikulu villages. Before the Ikulus were transferred to Zango Kataf in 1925, the three villages were distinct entities with recognised traditional rulers (Meek, 1932:85)
1V. Land Tenure and AdministrationIt should be noted at this point that land tenure and land administration were well established in the Sokoto Caliphate long before the imposition of British colonial rule in the area. There exists an extensive and well-documented body of literature on these issues and we need not detain ourselves here with a detailed discussion on the subject. Suffice it to outline the main features of the debate that has been going in the literature.
The Caliphate authority developed a theory of land tenure as a way of establishing Sokoto's primacy over the emirates and for the purpose of maintaining the political and social cohesion of the Caliphate as a whole (Jumare, opcit: 64). The Caliphate's land tenure policy was based on the Qur'an, Hadith (sayings of the prophet) and Ijma (consensus of Muslim scholars). The Caliphate focused its attention on land tenure and administration to prevent the emerging aristocracy in the area from appropriating land that was needed to resettle the vast number of people who were displaced during the jihad (Ibid: 67). The Caliphate's land tenure policy vested control of all mineral lands in the state. Selling or inheritance was forbidden. However, the state granted usufructory rights to worthy individuals to exploit.
The Caliphate’s land policy governed both Muslims and non-Muslim inhabitants within its jurisdiction or sphere of influence. In the Muslim areas for example, lands in Sokoto and Gwandu (the Capital of the Caliphate) were declared waqf (conquered land), and were thus exempted from financial and labour exploitation but the payment of zakkat was made compulsory. The emirates paid annual tributes or land tax to the Caliphate. In addition to being administered through customary laws, the non-Muslims in the Caliphate paid land tax for protection and this granted them both proprietary and usufructory rights (Ibid: 111).
The objectives of the Caliphate’s land policy, as observed by Last, were population settlement, exemption from taxation for waqf land, generating revenue for the state (through taxation of non-Muslim land and royalties from mining among others), increasing land under cultivation, developing agricultural production and increasing the fertility and productivity of the soil (Last, 1977:77). Land in the Caliphate was administered on the basis on which it was acquired. Thus, land was classified into four categories. The first is waqf or conquered land. This is land captured after a Jihad. Such land can neither be sold nor given out as gift. It is held in trust for all Muslims. The second category is non-Muslim land (suhr) that is based on the recognition by those non-Muslims of the suzerainty of their Muslim neighbours. Non-Muslims residing on this land are treated as a protected people. In return, they are expected to pay a stipulated amount for the protection they receive from their Muslim neighbours. They are allowed to observe their religion and customs, and they have the right to sell, bequeath, lease out or do what ever they want with their land. The third category of land is that which belongs to non-Muslims who converted voluntarily to Islam. Occupants of such lands can only be dispossessed of it if they revert back to their indigenous religious practices. The fourth category of land, ushr is abandoned or non-booty land acquired by Muslims from non-Muslims. It is state land that can be disposed of by the leader of the Muslim community (NAK/Kanoprof 5/110591; Ibid: 74)
All the different categories of land had their clearly specified conditions of tenure. Zakkat or one tenth of produce after harvest was to be paid for all the different types of land. Land tax was not required for cultivating waqf land and usufructory rights could be claimed by reviving it through cultivation or building. Proprietary rights in the other three could be obtained through the same procedure (Jumare, Ibid: 74).
The main features of the Caliphate's discourse on land centred on the categorisation of tenure practices into three groupings, namely, protected lands (al-hima), virgin lands (iqta), and dead lands (mawat). Protected lands were reserved under certain conditions by the leader of the community (imam) and also for the purposes of grazing animals used for the jihad, for charity and for animals belonging to the poor (Ibid: 80). Jurisdiction over lands was vested in the imam, who grants ownership to individuals. However, the imam's authority was not absolute. He was not allowed to grant permanent ownership on land acquired by compulsion or treaty because possession renders it waqf (Dan-Fodio, 72 quoted in, ibid). To forestall confusion over which land the imam had right to dispose, the Shehu divided the lands in the Caliphate into five categories:
"Land acquired by compulsion (anwantan) which cannot be sold or given away but is to be retained for the benefit of the Muslims; land taken by peace treaty which is kept by its owners who can do what they like with it; land whose people embrace Islam while it was in their possession, and which belongs entirely to those people; land whose people (owners) fled abandoning, and this belongs to the imam who can deal with [it] according to his discretion; land whose owners have not accepted Islam and have not made peace either [the Muslims], and this the imam can grant to whoever he wishes (dan-Fodio, quoted in Ibid:82).
Virgin or unoccupied lands were those appropriated from non-Muslims and to which they have no inheritance rights. Non-Muslims could only possess proprietary rights in virgin lands if they were located in a distant area. In addition, such lands should not contain immovable property of non-Muslims. Ownership of virgin lands can be acquired:
"...by the act of cultivating it, or by virtue of it being adjacent to a virgin land which has been thus cultivated, or by the imam giving it to someone as a grant or by making it a hima... to cultivate virgin land is subject to the imam's consent, but a dhimmi cannot cultivate such land at all. On the other hand, a virgin land far from inhabited areas can be cultivated even by a dhimmi without seeking the imam's consent, ... whoever cultivates a virgin land has the rights of ownership over it, together it harim [reserve] (Shehu dan Fodio, Kitab al-fark, quoted in Jumare: 84).
Lands designated as dead are those that have not been cultivated or reclaimed. It can be pasture, fallow land or vacant land. In principle tenurial rights over dead lands can be established through cultivation of the land and its reserved spaces, grant from the ruler, and official reservation.
Land administration in contemporary Nigeria is based on three sources of law, viz, Native law and custom, statutory law and received English law (Yakubu, 1985:6). Native law and custom embodies both Islamic and customary laws.
Islamic LawAccording to Meek, land tenure and land law in Northern Nigeria was based on three factors namely, Sharia or Muslim religious law, local custom and politics i.e. the discretionary power of the ruler or political authority (Meek, 1957:163). In Sharia, land is considered as "indispensable to individual and social life just like water, air, light, and fire and no person will have an exclusive power of control over it except for the part he [sic] uses (Yakubu, Op.cit:8). The principle embodying this is that land is a gift from God (Allah) and that everybody has usufructory right to it (Ibid:8). Furthermore, land ownership is not limited by time. Land in Sharia is administered legally under three categories. The first category, occupied land, refers to land that is under use. Acquisition of land in this group can be through grant from the Emir, inheritance, clearing, cultivation, fencing among others. Once occupancy is established, the occupier assumes complete ownership as she/he can sell, pledge, loan, rent or bequeath the land.
The second category, unoccupied land, is divided into two namely, town land and land outside the town. The former refers to all vacant land in and around the town. Authority of occupation is vested in the Emir. Once the land is allocated, the allottee gains complete ownership. However, this type of land cannot be alienated to strangers without the approval of the Emir. On the other hand, lands far away from the town or bush land, do not need the permission of the Emir for occupation. They can be occupied through cultivation, or by fencing, and clearing.
The third and final category is what is referred to as Common Land (Waqf). Historically, these include lands that were acquired through warfare, cession or treaty. Nowadays, land can only be declared as waqf by the Emir after due consultations with elders in the society. Lands in this classification are used for grazing, as markets or as praying grounds.
Customary LawUnder customary law, land is seen as an inalienable property belonging to the whole community. As in Islamic law, it is seen as a gift from God to be used and enjoyed by all those entitled to it. Ownership is through grant from the head of the family or community. Alienation of land to non-members of the community is restricted and can only be effected with permission from the head of the family, community, and committee of elders.
According to Famoriyo, the principles of land ownership and tenure under customary law are built on the assumption:
"...that the entire family has proprietary rights in the land, ...the individual grantee is held to possess usufructuary rights over land granted him (sic). It should, however be added that individuals may acquire absolute rights in land through gifts among living persons (inter vivos), pioneer clearing of virgin forests or through partition of family landed property. Rights acquired in any of these ways become proprietary rights, the owner being free to dispose of such rights without consultations with anyone else" (Famoriyo, 1987:103)
Statutory Land LawStatutory land law in northern Nigeria came into being with the defeat of the Caliphate forces by the British. Lord Lugard, the then British High Commissioner in the region stated that:
"...The Government will, in future, hold the rights in land which the Fulani took by conquest from the people, and if Government requires land, it will take it for any purpose" (Shaw, 1905:451).
To back-up these words, the British government sought to establish its right to control the lands of northern Nigeria with the Land Proclamation Act of 1902. Under this Act, all lands in northern Nigeria were classified into two groups, Crown and Public lands (Yakubu, Opcit: 16). Crown lands referred to all the lands purchased by the British government from the Royal Niger Company. Being the private property of the government, it had the power to dispose (sell, rent, lease) of them without recourse to anyone. In addition, trespass was forbidden. On the other hand, public lands were those acquired from the Caliphate authority and non-Muslims who were not conquered by jihadists. These lands were left to indigenes to use and enjoy according to the rules of native law and custom. However, they were not allowed to alienate the land to non-indigenes without the consent of the High Commissioner (Ibid: 17).
The Land Proclamation Act was later on reviewed and amended by Lord Lugard's successor, Sir Percy Girouard. The new law, the Land and Native Rights Proclamation of 1910 was in use until 1962 (two years after Nigeria's independence), when the Land Tenure Law was adopted. The 1910 law reduced the rights enjoyed by both chiefs and their subjects under native law and customs:
"All native lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the government and shall be held and administered for the use and common benefit of the natives and no title to the occupation and use of such lands shall be valid without the consent of the Governor" (Quoted in Ibid: 19).
Although the Land Tenure Law of 1962 (which later became the Land Use Act of 1978 and was adopted for use in the whole of Nigeria) replicated the principles of the 1910 law, it distinguished between two rights of occupance: customary and statutory.
1. Customary Right covered all those tenure systems administered by communities or their leaders since pre-colonial times, under which the great majority of holdings were held under rights of inheritance derived ultimately from community membership. Such rights are defensible in local (Sharia) courts. However, there is no documentary record of them, except for the remarkable Native Authority Revenue Survey of the 'home districts' of Kano Emirate discontinued in 1957. Otherwise, claim to customary rights are incapable of legal defence above the level of local courts and cannot be used as security for loans
2. Statutory rights are registered in the Lands Division of the State administration. Their acquisition follows a lengthy and relatively costly process of application and approval. They are mainly restricted to urban and government land. The statutory Certificate of Occupancy confers leasehold rights for periods up to 99 years, is renewable, and is acceptable to banks for purposes of mortgages and loans. The administration of lands by the State Ministries of Lands and Survey is therefore restricted in the main to those lands held under statutory occupancy, and is subject to a series of rules and amplifications laid down in the 1960s by the Northern Region Ministry of Land and Survey (Mortimore, 1987:16-17).
On March 29, 1978 the Federal Military Government of General Olusegun Obasanjo promulgated the Land Use Act. This Act, which is the land law presently governing the whole of Nigeria was enacted due to an increase in population, industrialisation, and urbanisation but most important of all, for the purpose of easing the problems encountered by the federal government in acquiring land for public purposes. In the context of northern Nigeria, land scarcity became evident as result of five factors. First, was rapid urbanisation, which was fuelled by 'petro-dollars' from the 'oil boom'. Second, was the demand for land by the Federal Government for its large-scale irrigation schemes. Third, was the extension of World Bank funded integrated rural development schemes. Fourth, was the disappearance of grazing lands and fifth, was growing ecological menace such as desertification, soil erosion, drought, and woodland degradation which combine to add to the increased pressures for land (Ibid: 15-16).
The Land Use Act of 1978The Land Use Act, according to Ega (1987), "redefined the rights and obligations of the Government and those of the cultivators and others with interests in land" (Ega, 1987:41). The Act vested all titles to lands in each state government. As such no right of occupancy and use of land will be valid without the consent of the governor (Yakubu, Opcit: 200). It further divided the lands into two groups viz, urban and other land. The former is under the jurisdiction and management of the governor while the latter is controlled and managed by the local government authority in which it is located. The Act, however, did not define "urban" and "other land". The task was assigned to the governor. In addition, as we noted earlier, the law recognises two rights of occupancy: customary which is bestowed by the local government and statutory which the governor grants. The right of occupancy, which is backed by a certificate, is dependent on the payment of rents and other covenants which are part of the agreement but not inconsistent with the Act. Existing titles holders apply only for a certificate as proof of occupancy. However, if the land is undeveloped, the holder can only retain one plot of up to half a hectare. Any excess goes back to the state and will be administered in accordance with the Decree.
The broad objectives of this legislation are:
1. To permit every Nigerian to use and enjoy land and the natural fruits thereof in sufficient quantity for the sustenance of themselves and their families.
2. To permit the Federal, State and Local Government to acquire land easily and cheaply for public purposes.
3. To prohibit land speculation and escalation of land prices (Ibid, 209)
The Act has been subjected to critical analysis by land tenure scholars (Yakubu, 1985; Famoriyo, 1983; Ega, 1987;etc.), its disadvantages from the point of view of women have not been discussed at all. Yet, reading the Act, it is clear that it was formulated on the false premise of gender equality as it granted every Nigerian equal access to land. In granting equal access in a situation of gender inequality, the law reinforces existing stereotypes of men as breadwinners and women as dependents. Secondly, the law does not recognise de facto land ownership, which is the situation in which of most women find themselves. Thirdly, the registration of customary rights of occupancy threatens the rights of women who have mainly secondary rights especially as these cannot be converted to ownership rights.
Received English LawReceived English law or the body of General laws as applied in Nigeria is based mainly on English Common Law. It was based on the common law, the doctrines of equity and the statutes of general application, which were in force in England on 1st January 1900. Although it was developed primarily for the purpose of litigation affecting foreigners and indigenes in the colonial bureaucracy, it has become the main legal instrument in the country. It is different from both customary and Islamic laws as it is administered principally in higher courts.
The adoption of English laws in Nigeria led, in certain cases, to the direct application of English land law in the country. Thus, for example, courts in Nigeria hold that a person can lose his rights under the rule of prescription that is long ownership. In addition, the following English statutes are applicable in Nigeria: Fraudulent Conveyancing Act 1571, Statue of Distribution 1670, Real Property Limitation Act 1833, Wills Act 1837, Conveyancing Act 1833, and the Land Transfer Act 1897 (Yakubu, opcit: 22).
V. Women's Land Rights in Northern NigeriaWith the exception of Hamza, (1994) and Jumare (opcit), most of the recent studies on land tenure in northern Nigeria have generally ignored women and gender relations. The exclusion of women in the northern Nigeria literature has been attributed in part to the widely held view that women do not own/have access (as in the non-Muslim areas) to or control over land and in part to the practice of kulle (female seclusion), which restricts women’s use, and management of land (Jumare, op. cit.: 262). These, it is argued, have led to women's rights being subsumed under those of men.
As part of the process of developing a land tenure policy in northern Nigeria, the colonial government instituted a judicial enquiry, the Northern Nigeria Lands Committee, to investigate the tenurial practices existing then. One of the issues investigated was the disparity in land ownership between women and men. The Committee found that in the Muslim areas, judicial corruption influenced both women and men's land rights while in the non-Muslims areas, gender inequality in inheritance rights was responsible for the disparity in land ownership between the sexes. This attempt was followed by the work of British colonial ethnographers and sociologists like Meek and Nadel. Meek observed in his study of various land tenure practices in northern Nigeria that in general women did not exercise land rights; took no part in primary agricultural production in some societies; assumed a minor role in others; and were responsible for major farming activities in others (Jumare, 1994:). According to Nadel’s findings, land tenure practice among the Nupe even though the emirate was part of the Caliphate was completely dominated by men reflecting the culture and tradition of the society.
Although women's right to inherit land was established in Muslim northern Nigeria by the jihadists, it was not applied uniformly all over the region. While women's inheritance rights in relation to land were recognised in Sokoto province, the practice in Zaria, Kano, Niger and Yola provinces deviated from the Maliki code. For example, C.W. Cole, a senior district officer in Zaria emirate reported that rights to economic trees replaced women’s rights to land.
“ Maliki law would not prevent the deceased’s daughters entering into possession but in practice the custom prevails. The female heirs however have in local custom and in law an absolute right to the fruits of the economic trees” (quoted in Jumare, 1994:8).
In addition to recognising women’s inheritance right, the practice in pre-colonial and colonial Sokoto was that land belonging to women and under-aged children were not to be sold because it undermined the security of family land. However, women especially the elderly were granted access to their lands if they so desired. But as the colonial economy developed and land became expensive, women’s inheritance right was threatened. Some judges out rightly refused to recognise female inheritance right, while others ruled that women excluding the wives of the deceased could inherit farmlands (Ibid: 7). This practice continued until the colonial state in consultation with jurists directed all judges to recognise female inheritance as both Islamic and English laws acknowledge their right to inherit farmlands.
The Rowlings land report on Kano outlined eight means through which land is acquired or transferred. These are allocation of an abandoned farm or uncleared bush by the village head, inheritance (gado), gift by an existing holder (kyauta), purchase (saye), acceptance of a pledge (jingina), lease (aro) sharecropping (kashi or nomamuraba) and loan (aro) (File No. 6508/52:18).
On the inheritance practice in Kano, the same report (Rowlings) noted the following:
"Inheritance is straight forward in the case of resident male heirs: they arrange among themselves. Females are not accorded any right of succession to either farmland or houses, the reason being that they go, or should go, to live with their male relatives or, in due course, with a second husband and would, therefore, tend merely to take over rights in order to sell them. The Emir may instruct that a woman who has no other support be left in occupation of a farm or house but this is an act ex-gratia, not of right. Property of a man who dies without heirs’ escheats to the treasury. A farm will be left with the village head for realloting: a house given to someone else or, in the city, retained by the Emir as a “gidan sarauta” (house of the aristocracy) to be used as he sees fit" (Ibid: 26)
This practice as observed by Rowlings in the 1940s is a Hausa custom legitimised by the ruling of Sarki Usman bn Abdullahi bn Dabo in 1923 when he decreed that:
"Whoever come across this Declaration (al Barawah) that the Emir of kano Usman bn Abdullahi, the son of Sultan Kano Dabo, has made an absolute rule that women should not be entitled to the inheritance of farmland (al-Bustam) from this date Saturday 1st Zul Qaidah 1314 A.H. equivalent to 14th June 1923CE, the same rule applies to housing... this was done after investigating the problem in the margin of sharha Aqrab Masqlikh and after consultation with the ulama"(Appendix 1c in Hamza, opcit: 146).
On 7th March 1924 (Friday 1st Sha’aban 1324 A.H.), a new declaration stating conditions on which women’s rights to inherit houses was to be recognised was made:
“I would like to inform you from this day henceforth whoever dies and left his inheritance and his house and he has no heirs but women and the house belonged to him and is not part of the land of the emirate, that house should be lumped together with the rest of his property and be divided among them (women heirs). And each of them would take her share and whatever remains from that should be deposited with Bait el-Mal. This is what we intend to do God, the Almighty willing in order to ward off unnecessary litigation and vengeance” (Appendix 2c in Ibid: 149).
Women’s non-inheritance of farmlands was reinforced in the same declaration and their rights to inherit houses where there are male heirs was not recognised.
“Then if the deceased left a house belonging to him and left property and he has both male and female heirs, then the property should be divided among them all, and then the house should be left to the male heirs alone, in the same manner with the farmland, for females have no right to that. Likewise whoever acquire from the Emir a desolate land or undeveloped land as a gift then he developed it with his own money and he then died, and did not leave behind a male relation, then that house should be sold and the money divided among the heirs and the remaining would be deposited with Bait el-Mal (Ibid.).
Some scholars (Tahir, 1975; Hamza, Op.cit) have attempted to explain the state’s action with a view to showing that it was not anti-women. For Tahir, the state had to disinherit women to stem the increase in social vices such as prostitution, which according to him was becoming rampant in the society.
“The immediate cause was provided by a woman of Unguwan Makama…Though pre-menopausal had refused to marry and had converted the house she inherited into an assignation for unfaithful married women, young girls and vagrant wives” (Tahir, 1975:346 quoted in Hamza,Op.cit).
Hamza, on the other hand, argued that to understand the state’s action, the social history of Kano before the 1920s should be studied. He noted that the declaration prohibiting women from inheriting land was based on the application of the concept of “conquered land” and urf (custom). In Islamic jurisprudence, “conquered land” is land acquired through a Jihad. All pre-existing laws found among the conquered peoples should continue to operate provided they do not contradict the Sharia. In Maliki law, conquered land should not be sold, hired, purchased or given out as a free gift without a fatwa/religious sanction. Conquered land is designated state property and placed under the custodian of the Amir or any head of the Muslim community. When the Jihadists conquered Kano in 1804, all its laws and customs that contravened the Sharia were not only abolished, it (Kano) was declared an Islamic state. Thus, all land in Kano was treated as conquered, as they became part of the Sokoto Caliphate.
The declaration of all land in Kano as conquered is in line with the practice that takes place when a Muslim community conquers a non-Muslim community. The conquered community must operate in accordance with Islamic laws and values or accept the condition of Amanah and pay Jizya. The reverse operates in the defeat of a Muslim community by non-Muslims. Any law promulgated by the conqueror that affect the social lives of Muslims must be adhered to until Muslims are able to liberate themselves. Based on the above, it was easy for the British colonial government to take over and treat all land in Kano as conquered.
Like the concept of conquered land, all customary (urf) practices found to be in existence in a conquered society that are not contradictory to the Sharia are accepted as part of Islamic law. As such when the Jihadists conquered Kano, they established an Islamic state and abolished all non-Islamic practices. With an Islamic state in place, women’s rights to inherit land and landed property was established and recognised. However, this was not the case in practice as the concept of Ahafu dharayn (choosing a lesser evil) was applied to this right. This concept is applied when a Muslim community is confronted with a thorny issue. The lesser evil is chosen in order to preserve societal equilibrium. It (Ahafu dharayn) was applied to women’s rights to inherit land and landed property because it was believed that the application of the Islamic injunction on women’s inheritance right would lead to social (quarrel between brothers and sisters) and economic (too many heirs and heiress to share the property) disintegration. This is because women, who were not allowed to inherit land under Hausa customs and tradition, will under an Islamic regime claim those rights and assert their independence vis a viz their male kith and kins. In other words, the establishment of women’s rights to own property will reduce male wealth, power and authority in the society. This will diminish patriarchy in the society.
Rather than absolve the state from being criticised for its anti-women stance, Tahir and Hamza in their uncritical arguments of the act unwittingly justified the decree. How can anyone explain away the disinheritance of an entire gender based on the action of a single individual? Secondly, whatever inconvenience the establishment and/or recognition of women’s inheritance rights might caused their male relatives would not have led to the total disintegration of Kano and therefore the application of Ahafu dharayan was unwarranted. The argument in the subsequent paragraph will buttress the point.
We shall argue that the annulment of women’s inheritance right was a deliberate action by the Emir and was strongly supported by the British colonial state. In his report to the Acting Resident in Kano, the District officer stated that:
“The court has decided that it will not award farms or houses to women by inheritance in the future. To do so the Waziri and Mallams say is contrary to custom and law. This issue cropped up for reasons unknown in Emir Abbas’ time and was dropped on the advice of the Mallams. To prevent it cropping up again, the Emir wishes therefore to have it duly recorded for reference and to prevent disputes” (NAK/Kanoprof. 5/1/5579A).
The acting Resident gave his support “Yes, I see no reason to forbid the enactment of custom and law. Women will own houses and have the right of occupancy of farms (i.e. to purchase). It is merely the question of inheritance which is affected” (Ibid).
Based on the conspiratorial way women were denied their inheritance right, Jumare’s assertion that “inheritance of farmland is one aspect of the land question which manifest gender problem (Jumare, 1994:6) encapsulate the land problem in colonial northern Nigeria.
On April 1st 1954, Sarki Sanusi, the Emir who popularised the Tijjaniyya doctrine in Kano, annulled the ruling disinheriting women. It is said that Emir Sanusi's counter-declaration was based on a complaint brought to him by a woman who was humiliated and barred from her brother's house (which he inherited under the previous inheritance law) by his wives. After consultation with the ulama that confirmed that there is no doctrine in the Sharia prohibiting women from inheriting farmland, houses or both, the Emir then reinstated women's inheritance rights. This incidence not withstanding, Emir Sanusi would have taken this action because he was an Islamist (Islamic activist) and someone well versed in Quaranic teachings. Furthermore, according to the 1954 Kano Province Annual Report, the resident officer noted that Sarki Sanusi has upon his ascendancy promised reforms in three areas.
“Public sessions of his own court and a root and branch change in its membership. Limitation of the high offices to be held by members of his own family, reorganisation and retrenchment of his personal household and land registration and reform in Kano city” (NAK/KanProf. Annual Report, Kano Province 1954:1).
According to Islamic jurisprudence, the radd al-Mazahlim(redressing of Injustice) is applied to restore either individual or group rights which have been violated by previous regimes. It is ap>plied when there has been a general miscarriage of justice or in times of war or chaos.
“In Islamic tradition, the Mazalim jurisdiction was exercised by Moslem sovereigns to provide their subjects with an avenue of complaint against unjust acts or decisions on the part of officials or judges appointed by the rulers” (Christelow, 1994:81).
It has been applied only twice in the history of Kano. The first was during the reign of Sarkin Abbas, 1903-1919. It was applied to restore the property rights of victims of the Kano civil war of 1892-94. The second was in 1980 when the People’s Redemption Party (PRP) government set up a committee to restore the rights of victims of the anti-Northern Element Progressive Union (NEPU) policy by the Northern People’s Congress and the aristocracy.
What this means is that Sarkin Sanusi’s re-establishment of women’s rights was not backed by the Mazalim. What is not clear however is whether a law not backed by the Mazalim can be revoked. But since the declaration and his ouster in 1954, there has not been a counter-declaration. With the re-introduction of women's right to inherit land and landed properties, it is reported that the courts in the state became inundated with various claims. Some of the claims dated as far back as the 19th century and generated a response in which male relatives became less sympathetic to the problems of their female kindred (Hamza, op. cit.: 111).
VI.Inheritance Practices and Women's Land RightsLet us now move on to discuss the various inheritance practices in our study sites to show how they determine and shape women's land rights in the societies under study. From the literature consulted and our research findings, women's land rights appear to be influenced and determined both by religion and culture. In general, the inheritance practice in northern Nigeria is based on Islamic law and customary intestacy. In the Muslim areas, land is accorded to women based on Sharia injunctions and where errors are made, they are redressed through the same channel. A good example of this is the revocation of the colonial law and ordinance in 1926 with regard to women's rights to inherit farmland and houses in Kano. It addition, that women usually exchanged their share of land with their brothers for other property they might consider more valuable, gave out their farmlands and houses to their brothers without prejudice. Brothers also made concessions to their sisters by giving them property they considered more important to women during the sharing of inheritance (Jumare, 1994:10).
In most non-Muslim areas, inheritance is patrilineal. Under this form of inheritance practice, male children inherit their father’s property. Those who are entitled to inherit include, the male children of the deceased, his brothers, his brother’s male children, parents and grandparents. Wives, sisters, aunts and all female relations are excluded (Yakubu, Op.cit: 134). However, patrilineal female relations such as sisters related through father, aunts through paternal grandfather are considered as possible inheritors. Women in most of the non-Muslim still cannot inherit land. However, due to the secular Land Use Act, they can now purchase land and develop it.
Our discussion of women's land rights in our research area was undertaken from a human rights perspective. But in employing a human rights framework in the study, we do so fully cognisant of the fact that the conventional human rights approach is still inadequate in fully addressing and advocating for women's rights in society because of its tendency to separate civil and political rights on one hand, and economic, social and cultural rights on the other, with the former given priority over the latter. We argue that from the point of view of women, both sets of rights have to be treated together in an integrated manner.
Despite this shortcoming, the human rights approach is still worth using not only because it is the only framework that can be use internationally to determine norms, procedures and standards but also because, in the case of women's rights, it "provides concepts and strategies, formal and informal, that women can shape in the light of (their) diverse needs and contexts to challenge abuses, promote positive programmes and, at the most fundamental level, to empower women in (their) daily lives" (IWHR, 1994:1).
However, in using the human rights framework, "we stress the need for an expansive approach that considers the economic conditions under which rights are constructed, violated, or pursued (Fried, 1994: 55). Hence our use of Agarwal's analysis developed in her study of women's land rights in South Asia. What then are rights? According to her,
“Rights are defined as claims that are legally and socially recognised and enforceable by an external legitimate authority. Rights in land can be in the form of usufruct (that is rights of use), associated with differing degrees of freedom to lease out, mortgage, bequeath or sell. Land rights can stem from inheritance (individual or joint family basis), community membership, transfers from the state, tenancy arrangements etc. Rights in land have temporal and sometimes locational dimension: they maybe hereditary, accrue only for a person’s life-time (or lesser period) and may be conditional on the person residing where the land is located” (Op.cit: 19).
In addition to her definition of rights, Agarwal identified four elements that may determine an individual’s land rights. These are the distinction “between legal recognition of claim and its social recognition and between recognition and enforcement; between ownership and control; between ownership and use rights; and rights conferred by inheritance and those conferred by the state” (Ibid, 19).
In addition to rights, we need to look at the issue of women’s access to land. This is because rights to land (especially for women), is closely associated with access to land. Access is different from rights, as it does not allow for the disposal or perpetual use of the land. Women's access to land, in many cases, is determined on the basis of rights (usufruct, loan, lease and at times ownership) and through informal networks (friendship and goodwill) on which no rights can be claimed. For example, the general practice in most of northern Nigeria is for a man to allot a piece of land to his wife to farm, but she cannot claim it as of right. On the other hand, rights bestow security on the owner as she can sell, bequeath and use the land in perpetuity. Thus, in our study, we shall distinguish between law and practice and between women's rights, access and control of land. We shall return to these issues later.
The Muslim Areas:Kano and SokotoThe position of women in Muslim Hausa society as observed by M.G. Smith is that:
“Women were jural minors, subject to numerous incapacities in relations with their agnatic guardians and husbands alike. However, by a Muslim law women may demand divorce, recover debts from their husbands or other and hold property in their name. By contrast, Hausa custom denied women the right to inherit valuable capital goods (dukiya) such as land, farms or compounds, except when widows acted as trustees for their sons. Women, could, however, inherit slaves, cattle and other res mobiles, but pastoral Fulani oppose female inheritance of cattle, their major capital goods (Smith, 1997:36).
As shown above, women are recognised as legal entities in Islamic law. They can acquire and retain their own property, inherit from and be inherited from. Women can inherit from their deceased parents, husbands, brothers, sisters, daughters and other relations. However, women’s inheritance is less than what male heirs get. Based on Quranic injunctions, women inherit one half of the male share. Daughters are entitled to half the share of their brothers and wives one eighth if there are children and one fourth if there are none. Where a daughter survives the deceased, she is entitled to half the net estate while an only son gets the entire estate. Although this inheritance practice is biased against Muslim women, if adhered to, it can be argued that Muslim women’s land/inheritance right is secured because it is a religious injunction to be obeyed by all concerned. In the Maliki tradition, a married woman cannot give out more than one-third of her property without her husband’s consent.
In Islamic law, a woman can inherit or acquire land in six ways.
“Firstly, woman as a mother has a right to inherit from a share of her offspring’s’ land. Secondly, a woman as a wife is eligible to a share of her deceased husband’s land. Thirdly, women were eligible for inheritance of their deceased parents’ and other maternal and paternal relations’ land. Fourthly, women also inherited from their siblings. Fifthly, women who owned male or female slaves had the right to inherit their property including land. The sixth source can be divided into two: gift and purchase. (Jumare, opcit: 269).
A divorced Muslim woman is entitled to take all her personal property including land and landed property. This includes all her dowry and any gift she received from her during the marriage. If the dowry was not paid in full at marriage, the husband must complete payment before the divorce. It is said that the divorced woman is entitled to a parting gift from the husband as a consolation (Uzodike, 1993: 309). However, she loses her inheritance rights upon divorce (See Box.1. This is the practice in all our study sites), but she is not required to pay back her dowry and her children do not loose their inheritance rights.
|Zulaihat, 50 a divorcee was in her fifth marriage. She did not inherit from her parents, as they had no farmland or house. Since she is childless she cannot have access to any of her former husbands’ property and neither can she lay claim to their property in spite of the fact that she was once married to them and might have contributed in acquiring the wealth|
In spite of the religious injunction on women's rights to inherit property, the general belief by men in our study sites is that it is unwarranted because women allegedly have no need for land as they are usually married and are catered for by their husbands. Even when divorced, according to the men we interviewed in Dawakin Tofa and Yabo, women will be looked after by their male guardians. Furthermore, they claim that women rarely engage in actual farming activities. Rather, under the "supervision" of their husbands they hire labour to cultivate the land. They maintain further that because women engage in petty-commodity production and household chores, they do not have time to take on the arduous task of farming and, therefore, have no need for independent land ownership rights.
Inheritance in Non-Muslim AreasInheritance practices among non-Muslims are based on the customs and traditions of each ethnic group. Although there may be variations in matters of detail, the general principle is the same. Inheritance is traced through male descent and the people who are entitled to inherit are the male children of the deceased, his brothers, his brother’s male children, parents and grandparents. Wives, sisters, aunts and all other female kindred are excluded from inheritance (Yakubu, opcit: 134). In the event that there are no relations to succeed, the land goes back to the community. If such should happen among the Jaba of Southern Kaduna, female relations are allowed to inherit the land.
Based on the principles outlined above, women are, in most cases, therefore, not entitled to inherit or have personal rights in land as Yakubu puts it "they have nothing to be inherited and don't inherit as well (Ibid: 138). Thus a woman's rights in land can only be through marriage or her family. The right she derives from either status is usufructory and, therefore, she cannot alienate the land. On the death of her husband, she is (sometimes) allowed to continue using the land that was allocated to her by her deceased husband on condition that she remarries a member of the family or stays as part of the family. If she decides to opt out of the options given her, she loses the land. If because of old age, the woman stays with her children she will retain her right to use the land. A woman using her family land does not have the right to alienate such land either.
The MaguzawaAccording to colonial historiography (NAK/Kanprof.His/5/1936) and Naniya (op.cit), inheritance practices among the Maguzawa is patrilineal. The District Officer in Kano noted that: “The estate of the deceased passes on to the eldest son who also inherits his father’s wives...No woman inherits farm land” (NAK/Kanoprof.His/5/1936). To Naniya “ Both male and female heirs are given equal share of the deceased property, with the younger ones or minors taking the lion share while female heirs are excluded from the farmland. The wives of the deceased are also given a share of the property. The method of distribution is strictly guided by equity” (31). (I tried contacting Naniya for him to explain this further but was unsuccessful).
Our research findings reveal that Maguzawa women can now inherit farmlands from their deceased parents estate but not on an equal basis with men. Unlike in Islam where there is an inheritance-sharing formula, the maguzawa have none. We were unable to establish when this practice came into being. However, Tasalla Mazadu a 75 years old widow did not inherit from her parents but her daughters inherited farmlands from her husband’s estate when he died about 30 years ago (Note: May be Emir’s Sanusi’s ruling re-establishing women’s inheritance rights among Muslim Hausas influenced the Maguzawa). Maguzawa women are not allowed to sell the land they inherit and if they do marry away from their ancestral home, they either rent out the land or ask their brothers to farm it. While her children are not entitled to inherit the land, her brothers’ children can inherit. In other words, when a woman dies, the farmland she inherited from her parents reverts back to the family. In spite of the fact that women’s right to inherit land is now recognised in Maguzawa culture, brothers frequently refuse to recognise this right (See Box. 2).
Although Tarana’s brothers refused to give her out of the farms left by their deceased father, she has, through hard work acquired four farms valued at about N90, 000 ($). The farms were bought with proceeds from the sale of local beer. Even though she is not desperately in need of the farmlands, she wants to take her brothers to court to seek justice.
Tsakani also disinherited by her brothers is not as fortunate as Tarana. She was given two plots of farmlands as her share of their deceased father’s estate. The brothers later on took back the farmlands from her without any explanation. She has not bought any land and does not plan to go to court as she has no money. She farms on piece of plot that her husband gave.
The inheritance right of widows and divorcees is precarious and depends on the benevolence of the family head. The situation of widows is determined by their willingness to re-marry, and their fertility. If the woman is pre-menopausal, she is expected to marry someone from her dead husband’s family to continue the lineage. If she obliges, she will be allowed usage of the portion of the land allotted her and to stay in her hut or room, as may be the case. If she opts not to marry but to stay as a member of the family and look after her children, she will have access to both her hut/room and the land was farming because of the children. However, if she marries outside of her husband’s family, she looses all the rights she was entitled to. Menopausal widows with children who choose not to marry, will, because of their children continue to have right of abode and usufuctory right to the land. The situation is totally different for a childless widow. The number of years in marriage notwithstanding, she is expected to return to her ancestral home on the death of her husband (See Box.3).
|Takorau, 46, was married to Barau for 16 years. On his death, she did not inherit his farms because they had no children. She was asked by his family to leave the residential home. She did not return to her parental home, as she has bought her own farms in her husband’s village. Her brother’s children and not her sisters’ will inherit the farmlands she bought because according to Maguzawa culture, those children belong to another family|
However, if the husband’s family does display a sense of responsibility (See Box. 4.), the woman is allowed to use the land given to her by the deceased.
|Lange, 65, was married to her deceased husband for 45 years and they had no children. Rather than send her away as is the custom, the husband’s family gave her two farms to enable her earn a living as she has no one to cater for her.|
Under Maguzawa tradition, a divorced woman looses all her matrimonial rights (land and residential), required to return the bride-price to the husband’s family and her children also lose their right to inherit from their father’s estate. But she is entitled to whatever landed-property she might have acquired during that period. The only hope for divorced women who did not acquire land during their marriage is that their families would accept them and provide them with land. If their families do not provide them with land, they would have to work as labourers on other people’s farms.
According to our informants in kamurun Ikulu, women have no inheritance rights in their tradition (See Box.5). Rather women are inherited on the death of their husbands because they need someone to take care of them. Furthermore, they argue that the concept of widow inheritance is necessary for family cohesion. If there is no suitable member of her deceased husband’s family who could/wants to inherit her, she will be considered as part of the family and provided with farmland. This only happens if the widow has only female children. However, widow inheritance and polygamy are disappearing because of Christianity. Christianity has placed restrictions on the number of wives its adherents could have.
|Haushi stated that according to Ikulu custom women couldn’t inherit either from their father or husband’s property. They are only entitled to inherit their mother’s personal property (clothing, cooking utensils and furniture). On the death of her husband, if a woman has male children, they will inherit their father’s property. If there are no male heirs, the land and houses of the deceased passes on to his relations. A widow or divorced woman in need of farmland has to beg her male relations to allot a plot of land for her to use in her lifetime. If she is given, she can use the land as long as the male relative wishes. On her death, the land reverts to its owner.|
Inheritance among the Ikulus is patrilineal. When a man dies, his property is shared among his male child (ren). Wives and daughters are excluded. If the children are young, the property is held in trust either by the mother or a male relative of the deceased. As illustrated in Box.V1. male relations are not always trustworthy. In addition, it is expected that a male relation of the deceased would help in caring for the family. If the deceased has no male child (ren), his property is shared among his male relatives including his father. A woman with male child (ren) have unlimited access to land and landed-property and might be allowed some form of control. But all this is subject to the longevity of the child (ren). If she survives her children such right to access ceases.
Divorced women, widows who refused to be inherited (those without male child (ren)) and childless widows have no place in Ikulu custom when they become single See Box.7.
|Lami had three sons and four daughters with her late husband. On his death, the three sons inherited the three farmlands left by their father. Because the children are young, she held the property in trust for them. The lands were located in the government grazing reserve for Fulani. In establishing the reserve area, the government stated that persons with proof of continuous cultivation of twelve years and above would be issued with a certificate of occupancy as registered agricultural land. The farmlands of Lami’s children and two other persons were not taken over by the state as they met the requirement. When Lami was informed of the issuance of the certificate of occupancy, she went to the project office to collect them. On getting there, she was informed by the project officer that her brother in-law has collected one of the certificates of occupancy. Lami was given only one of the certificates. The other certificate is with project officer for safe- keeping. All efforts by the village head and Lami to collect the certificate have been unsuccessfully. The brother-in-law has leased out part of the land and farming on the other. Lami has however kept the issue alive by telling her children of their uncle’s illegal action.|
|Mama Kwanya, a widow aged about 70 told us that Ladi a childless widow now residing in kaduna town, the capital of the state, refused to be inherited by her husband’s brother. Because of that, her deceased husband’s family rejected her request for farmland. Her brothers’ also refused to give her land to cultivate. She left for Kaduna as she felt no attachment to the village.|
Inheritance Under Christian Marriage
The inheritance practices as they affect Christian marriages in which the man dies intestate are not as clear-cut an issue as it might appear to many. This is because the legal status of this type of marriage in Nigeria is ambiguous. Although it was established by case law (Cole vs. Cole 1898) that when a person married by Christian rites dies intestate, the inheritance rules of the received English law should apply, recent judgements, have set aside this decision by applying customary inheritance practices. For example, the presiding judge in the case of Obiekwe Vs Obiekwe noted that:
"A good deal has been said about 'Church Marriage'. So far as the law of Nigeria is concerned, there is only one form of monogamous marriage and that is marriage under the Act. Legally, a marriage in a church (of any denomination) is either a marriage under the act or it is nothing. In this case, if the parties had not been validly married under the Act, then, either they are married under the native law or custom or they are not married at all... In either case, the ceremony in the church would have made not a scrap of difference to their legal status" (Yakubu, Op.cit: 158).
This means that women contracting monogamous Christian marriages without a marriage certificate based on the Marriage Act of 1914, and whose spouse might die intestate will not inherit their husband’s estate, including land. For a church marriage to be legal, a licensed certificate issued by the Registrar of marriages should back it. Most churches are licensed for marriages and a marriage certificate provided to make the action legal. Where a church is not so licensed, any marriage contracted by it is not legal by statute.
Interestingly, this is a form of marriage that is common in Southern Kaduna, one of our study sites. We shall discuss the effect of Christian marriage on respondents inheritance rights in the study area in section six of the essay.
Going back to Argarwal’s discussion on rights and access to land, it is clear from our field data, that women's land rights are principally determined by their relationships to men-either as wives or as daughters. This is based on the belief that women will be married throughout their life cycle and that their husbands will cater for their every day needs. In most cases, women’s land right is usufructory.
V11. Brief Presentation of Aspects of the Data from Research Sites
The empirical data for the study was generated through interviews and the administration of survey questionnaires to purposively selected households to represent a balance mix of married, widowed and divorced women in the study sites. The 100 women used in our analysis are from our three study sites representing fifty from the Muslim areas of Kano and Sokoto and twenty five each Maguzawa and Southern Kaduna sites.
Table 1:Respondents Classified by Marital Status and Age
Table 2: Respondent Classified by No. of Marriages
|No of Marriages|
Table 3: Respondents Classified by Access to Land (Ownership)
Table 4: Respondents Classified by Source of Ownership
Table 5: Respondents Classified by Ownership Structure
It is clear from the data available that in the Muslim areas of Kano and Sokoto, women's land rights are principally determined by their relationships to men-either as wives or as daughters but not as individuals entitled to own/control land in their own rights. This is based on the belief that women will be married throughout their life cycle and that their husbands will cater for their every day needs.
However, as Tables 1 and 2 show, 15 of our respondents were divorced and over two thirds of them had married more than once. As shown in Table 4, none of the thirty-eight women with land in our sample got their rights as independent individuals. Twenty-three got theirs through inheritance from their parents, while the remaining fifteen got their lands from their spouses.
Data was collected on the socio-demographic characteristics (age, marital status, number of times married) and land ownership of respondents. From the Table 1, we can see that slightly more than half our respondents (28) were either widowed or divorced, with fourteen and ten in their second and third marriages respectively (Table.2). In relation to ownership land, 38 of our respondents owned land (Table 3). As shown in Table 4, none of them acquired the lands as individiuals.23 inherited their lands from their parents while the remaining 15 inherited from their husbands. According to the details in Table 5, 18 of the women are married, 9 are widowed and the remaining 11 are divorced. None of the women in our sample enjoyed independent land rights. They all had to consult with their male relations on how to use or dispose of their lands.
In Yabo and Dawakin Tofa, given that Islam recognises women as legal entities and faced with the realisation that none of the Muslim women in our sample enjoyed independent land rights, we attempted to find out from the interviewees why they thought this was so. Almost invariably, the answers, which they gave, reflected the dominant male perspective that women did not have need for independent land rights since their husbands, fathers, male relations/in-laws were there to cater for them. The response of Hajiya Safiya Siriddaw, one of the respondents in our survey, was representative of the answers we got when she stated that:
"A woman has rights over her personal effects, her husband has rights over her property also. This is due to the fact that a woman must consult her husband about every activity she undertakes in his house. She cannot engage in any activity-business, trade etc. without his instruction, consent or approval. A woman's property is under the control of her husband. She cannot dispose of it without his consent. If a husband wants to use any part of his wives property she cannot object. This code is enshrined by both tradition and religion that a woman is under the guidance of her parents or husband. A woman can have independent thinking only when she is divorced and does not have surviving parents or male kin. Under this condition she can decide for herself what is best for her. This is only for well-disciplined women". (Yabo, 15/2/98)
Callaway (Op.cit) and Jumare (Op.cit) observed this practice in their studies of Kano and Sokoto respectively. However, while Callaway questioned this practice Jumare on the other hand did not. Callaway comments that:
"Women do have specific property rights through inheritance, but this is not the same as actual control...While women have access to property in that they inherit and technically own it and in that they can keep and spend or invest any income they might generate, in Kano actual managerial rights (particularly to land and real estate) usually belong to fathers, brothers and husbands" (27).
Jumare, for his part, observed that:
"In Sokoto where propertied women spent most of their lives in purdah, management of their land and estates usually remained with one of their male relations...This did not in any way affect women's right to own land. Men are more visible in land matters because of their direct connection with agricultural production, livestock grazing and construction of houses" (P.275).
Jumare argued further that this practice of male managerial control does not affect women’s right to land tenure. This maybe true to some extent. However, the fact that women have no direct contact with the outside world, their male managers might cheat them. Their properties might be sold without their knowledge/consent and where they consent to the sale proper account might not be rendered (See Jumare, 1994:10). When such does happen, the women go to court to seek redress. Of what use will land ownership be to women if they do not have the independent rights to take or make decisions in relation to the land?
Although inheritance/ownership rights of Muslim Hausa and Maguzawa women are recognised, they however, do not have full rights of control over such lands. Muslim Hausa women can bequeath the land to their children or any other person, but they cannot sell, lease, or mortgage the land without recourse to a male guardian. Maguzawa women on the other hand, can neither sell, mortgaged, bequeath, rent nor lease out such lands because of the social constraints on such land. But they do have control over land they have purchased with their own money. For divorcees, childless widows and widows without male child(ren) among the Maguzawa, and in Southern kaduna, where women are not allowed to inherit land, women, can through the benevolence of a male relation/in-law, or village head, be given use right to land. This land can be used for as long as the benefactor wishes but it cannot be claimed as her property.
V111. Religion, Law, Custom/Tradition: Findings From the Field
As mentioned in the introductory section of the essay, the study will not only focus on the ways in which women’s land rights are shaped by religion, law and custom, but will look at how these parameters have acted and interacted to condition the definition and practice of women’s land rights. By doing this, we were able to identify the various strategies women have used to safeguard and/or establish their land rights and the impact of Christianity and Islam on women’s inheritance rights and gender relations.
Strategies Employed by Women to Safeguard their Land/Inheritance Rights
Given that the Islamic formula of sharing out inheritance is biased against women and that current economic realities make it impossible for male relatives to shoulder the burden of their female relations, we had expected that Muslim women in our study sites to go to English court to seek redress
1. Have Muslim women gone to English court (because they think it is more just) to seek redress? If yes, how was the case resolved? If no, why haven't they accessed the system?
2. How has Christianity and Islam affected gender relations (especially inheritance practices) among the Maguzawa?
3. Do women in the non-Muslim areas know that conversion to Christianity? (Christian Marriage) does not make them eligible to inherit their husband's estate? If yes, what strategies are they developing to solve the problem?
Religion and Gender Relations
Issues for further Investigation
1. Since marriage is very fluid in our research sites (see Tables 1 and 2) what strategies (rent purchase or cleared land) have women who opt to stay out of marriage developed/adopt to secure their access to land?
2. Are women registering their lands? If yes, what is their motive (is it for their children to inherit from them or just to have secure tenure for themselves?)
3 Have women gained access to land through group formation?
4. Are women organising to change this and challenge the existing power relations?
Women Using the Law to Establish their Rights in Land
What we intend to do in this section is to present cases of women who have used the law to secure and establish their land rights. The fact that none of the Muslim women in our sample went to court to establish their land rights, should not detract us from the recognition that this is the main avenue through which women can seek redress when they are disinherited or want to establish their land rights. Some of our respondents noted that they inherited from their husbands’ and parents’ properties. Those that did not inherit have refused to use the law to establish their rights because they do not want to cause disaffection in their families, but also their situation is not desperate.
|Kubura, a widow lives in her deceased husband’s house and inherited farmlands, which they sons are cultivating. She and her four sisters have refused to lay claim to their father’s house, which is now controlled by their nephew. because it is over sixty years since their father died and their only brother’s son has now taken it over. They do not want the house divided according to Islamic rules of inherit|
Chirstelow (1991) and Jumare (opcit; 1994) in their historical studies of Kano and Sokoto respectively, illustrate how women have used the law successfully to demand and defend their land rights. For instance, Christelow in his study of judicial records in early twentieth century Kano, points out the successes achieved by widows in claiming their children's land rights. In granting trusteeship of the land to the women, the emir ruled that the lands should not be sold, loaned out, pawned or donated to a third party. (138).
In our study of Yabo Area Court records in Sokoto (we were refused access to court records in Dawakin Tofa), we found that women went to court not only to defend their rights against their husbands relations but also against co-wives and step-sons.
Case number 1.: 272/73 (Muinna Vs Maidamma) Date: 17/7/73
|Muinna, a widow went to the Alkali court demanding that the court should grant her children their share of her deceased husband's property. She instituted a case against Maidamma, her husband's first son because of his refusal to divide the estate. Her husband, Maiyara of Ruggar Magaji village had two wives, ten sons and three daughters. The husband's estate comprised of five farmlands (three large bush track and two cultivable grain farms) and a house. The court granted her request. The property was valued, sold and the proceeds divided among the wives and the children. The property was divided into eight parts; the wives were given one share. The remaining seven parts were divided into thirteen shares with each male child taking two shares and females one share each.|
Case number 2: 461/72 (Manga vs. Ligo); Date: 30/10/72
Concluding Remarks: Making a Case for Women's Independent Land Rights
This paper has focused on the need for women's independent land rights in order for them to have secure access to land. Land security for women in our research sites means:
"Rights to a piece of land on a continuous basis, free from imposition or interference from outside sources, as well her ability to reap the benefits of labour and capital investments in land either in its use or upon its alienation" (Lawry et al, 1992:3).
We argue for women's independent rights in land because it will lead to their autonomy (ability to take and make decisions, control of resources and incomes and sexuality) and thereby enhance their status in society. Furthermore, independent land rights will empower women to challenge existing gender inequalities and ultimately lead to a re-ordering of social relations in society.
However, the above cannot happen in a vacuum. It should go hand in hand with woman-sensitive land and law reform programmes aimed at a fundamental restructuring of existing gender relations in society. The programme must include the following policy statements:
1. Traditional land allocation practices should include women more centrally as independent entities
2. Gender equality in title deeds and inheritance rights
3. Land rights through occupancy should be recognised with or without title deeds so that women cannot be disspossed at divorce or widowhood;
4. Uniform inheritance laws
5. The reform programme should be situated within the wider development programme of the state to ensure increase income
The land reform programme must be accompanied by educational and enlightenment campaigns to be undertaken by non-governmental organisations, including women's religious groups, community-based organisations and members of the legal profession. It is important for these groups to undertake the above because:
"Law reform to protect the human rights of women must be accompanied by educational measures to foster social change and economic and political initiatives to advance women's status if it is to have a significant impact on women's de facto rights" (Sullivan, 1992:854).
Rather than build upon Maguzawa norms and improve the status of women, Christian organisations working in the area have adopted a traditionalist Christian doctrine on women's status in society: "women are like sheep, they have to be organised by men" (Ibid: 21).
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NAK/KanoProf 5/1/4042: Islamic Law of Inheritance: Application to Christian Converts, 1939-1940
NAK/KanoProf 512038: Recognition of Marriage Between Moslems and Non-Moslems, 1933-1948
NAK/KanoProf 2/31/LAN 32 11:Land Tenure in Northern Provinces
NAK/KanoProf 5/1/5579:Inheritance of Farm and House Property in Kano Province
NAK/KanoProf 5/1/5579A: Ruling as to Farm and House Inheritance by Women
NAK/KanoProf2/31/LAN 32:Rural Land Tenure
A.H.K***/16032:Rights of Non_Mohammedans Before Mohammedan Courts
AHK/15246:Missionary Enterprise in Moslem Districts of northern Province
*-National Archives Kaduna
**-Kano Provincial Office
***Arewa House Kaduna