Patriarchal Restrictions and Maternal Manoeuvres: Igbo Women’s Quest for Land Inheritance Rights

2.1 Matters Arising from African Countries

In Nigeria, as in most other African countries, access to land – and, by implication, to the environment and natural resources – is primarily mediated by gender relations centred on kinship and marriage (Baba and van der Horst 2018; Chigbu 2019a). Gender often determines land access, use, control, and inheritance under the customary land tenure system. However, formal or statutory tenure systems and new urban laws foster new social norms with fluid and dynamic frontiers. Consequently, gender-based negotiations and struggles through activism, legislative reforms, and ‘silent politics’ have become prominent in development and policy debates, becoming an attractive talking point in Africa and the rest of the world (Ezeilo 2020; World Bank 2020). The central focus is on female status and roles at the household, community, and other levels and how these impact women’s dignity, cultural acceptance, and socio-economic development. Arguing from a feminist ethnographic study of the Serer ethnic group in Senegal, Evans (2016) demonstrated how the intersectionality of socio-cultural factors (i.e., gender, religion, ethnicity, marital/community status, and generation) and socio-ecological changes constrain land inheritance rights for women (p. 23). She advocates for sequential and sustained studies of gendered struggles in identifiable settings, noting that ensuing women’s rights legislations and campaigns have encouraged progress in reversing contemporary gender-discriminatory trends.

Peterman’s (2012) seminal study on widowhood and women’s asset inheritance across 15 Sub-Saharan African countries found that apart from Rwanda (59.96 %) and Senegal (46.24 %), which rank high in fair widowhood inheritance (FWI) practices, other countries like Tanzania (38.06 %), Zimbabwe (37.31 %), Uganda (36.41 %), and Zambia (31.77 %) showed more restrained prospects. However, FWI trends are much lower in the other nine focus countries: Namibia (29.40 %), Mali (28.86 %), Nigeria (27.87 %), Guinea (25.40 %), the Democratic Republic of the Congo (DRC) (23.80 %), Niger (23.75 %), Benin (21.90 %), Congo (15.81 %), and Sierra Leone (12.65 %). Amidst country variations in asset transfers to widows, Peterman (2012) identified two basic determinant factors: firstly, older, wealthier, and more educated women have a better chance of protecting assets from dispossession (p. 23), and secondly, women who are separated or divorced are often prey to asset grabbing by their male and female in-laws.

A similar Africa-wide study covering 34 countries^[5] by Tsiko (2016) also used data from the Demographic and Health Surveys to verify on the spatiality and determinants of women’s access to land. Tsiko’s (2016) study holds that patriarchal systems limiting women’s access to both their own and family lands prevail in many parts of Africa, although these vary both in degree and kind across geographical boundaries (North, West, East, Central, and Southern Africa), and even within the same country. Factors accounting for such spatial variations include age/stage in the life cycle, marital status (single, married, separated, or divorced), procreation status (number and gender of children), economic and health status, level of education, place of residence, and population density. Expressing the determinant factors in a series of choropleth maps, Tsiko emphasized that while accounting for inherent spatial variabilities is important, it is equally important to highlight local heterogeneity by focusing on delineable local communities and regions.

Chigbu, Paradza, and Dachaga (2019) view such differentiations, whether spatial or codified, as an opportunity rather than a threat in related activism and research, arguing that any attempt at homogenization would diminish the challenge and amount to a lack of recognition for women. In their opinion, this would blur women’s “efforts at all fronts – historical, domestic, human image, industrial, agricultural, social, and political… by putting women all in one basket” (p. 5). This viewpoint emphasizes the means or channels of gendered struggles for land access and security. Literature evidences a wide variety of these feminine struggles for land access (and associated natural resources) both in context and form. Scholars have discussed combinations of individual and collective agencies through mechanisms like legal and policy reforms, court actions, women’s activism (NGOs and women’s groups), and our current emphasis – ‘maternal politics’ or ‘silent politics’, involving renegotiations of social positioning and power (Amadiume 1987; Ammann 2020). Interestingly, ‘maternal politics’ and ‘silent politics’ are two broadly identical concepts – albeit derived from separate contexts of the Kankans (Upper Guinea) and Igbo (Southeast Nigeria) – not confined to matters of land access and inheritance alone, but extending to everyday practices of women throughout their life cycles (as daughters, singles/wives/divorcees or separatees, mothers, and/or widows), study, work, as well as socio-cultural and political engagements (Amadiume 1987; Ammann 2020; Berger 2017). Ammann (2020, p. 5) succinctly puts it: “Women’s agency is manifold as they silently use various ways of influencing their lives and the lives of others.” She theorizes this everyday agency as ‘political articulations’ of women deployed to make a living.

These feminine engagements (maternal manoeuvres or silent politics) are generally portrayed as subtle and imperceptible and are characterised by quiet (as against boisterous) encroachment, resilience, and unorthodoxy as well as verbal/non-verbal social practices (Ammann 2020). Berger (2017) has implicated such quiet encroachments in women search for diverse platforms to reshape difficult situations confronting them through African development history.^[6] Our current interest, however, is how these silent maternal politics are deployed for land access, acquisition and succession rights among the Igbo people of South-East Nigeria.

2.2 Patriarchy and Gendered Land Struggles Among the Igbo People of Southeast Nigeria

The Igbo of Southeast Nigeria is an egalitarian and democratic^[7] society albeit, one with paradoxically entrenched patriarchal culture (Egboh 1973; Uchendu 1965). Hence, male dominance is the central regulating principle of resource access and allocation. Additionally, access to and rights of entitlement to own and family lands and the accompanying natural resources are gender mediated. The culture allows women and girls unhindered access to farming, resource exploitation, and livelihoods but restricts inheritance to only male children (Egboh 1973). The first and other sons of the same family would be entitled to portions of the family land, but not the female children. The implication is that having a male child is more than just adding a new member to the family. Instead, it is the addition of a right-bearing member whose presence guarantees access to land as the primary source of rural livelihood. When a man dies without having a son, only his male siblings or male kinfolk (excluding his female children) will share in the inheritance of his lands, as exemplified by the ili-ekpe custom. The symbolic importance of the male child in material relations with land and succession is the reason for the pervasive preference for the male sex (Nwokocha 2007; Nnadi 2013). The consequence is a sense of desperation among families to have at least one male child. Although the consequences and stress factors weigh heavily on women, the challenge sometimes falls on men, though this is hardly openly acknowledged. Uchendu explains and introduces not necessarily a maternal manoeuvre but a rather consensual covert arrangement called concubinage or iko mbara:

A sonless woman is miserable and if childless she is cursed. The Igbo demonstrate their spirit of compromise by recognizing that an impotent husband can contribute to the misery of his wives. It is concubinage which helps some women to ‘father’ children and raise them and thus demonstrate a right to inherit from their husband (Uchendu 1965, p. 193).

Even though iko mbara (literally means outside lover or paramour) includes diverse forms of extra-marital affairs and liaisons with widows and unmarried partners, the above-mentioned aspect is to all intents and purposes a form of maternal manoeuvre or at least closely connected the practice.

Maternal politics are quite prevalent in Igbo societies, where the rules of patriarchy and male primogeniture dominate. These feminine maneuvers are conceived as ‘political articulations’ that offer women alternative socio-cultural spaces to negotiate their land and succession rights to secure intergenerational wealth transfers, socio-economic entitlements, and life chances (Ammann 2020). In Igboland, as previously mentioned, these practices range from diverse forms such as consensual concubinage or iko mbara, woman-to-woman marriage (female husband) nrachi or nhachi to posthumous or levirate marriage (nkuchi), and male-daughter arrangements (Egboh 1973; Nwoko 2012; Uchendu 1965). Sometimes, the distinctions between these practices may seem subtle. Unlike nkuchi, which involves a male sibling performing reproductive functions with his late brother’s widow, nrachi is a traditional form of single parenthood in which an unmarried daughter raises children to maintain the lineage and retain alienable properties of her father within the same lineage. In the case of a female husband, the custom permits that ‘posthumous children’, conceived by another woman, can be raised by a widow or an unmarried daughter (who has undergone the rites of being socially identified as a man) on behalf of a late husband or father. In her groundbreaking work, ‘Male Daughters, Female Husbands: Gender and Sex in an African Society’, Amadiume (1987) unravels the non-biologically determined gender flexibility inherent in the precolonial Igbo cultural system and institutions that enable daughters to technically assume inheritance and lineage positions as ‘sons’ (male daughters), and allow barren, unmarried, and widowed women to carry on the socio-economic position (even certain cultural and spiritual functions) of men by marrying other women (female husbands). The fluidity of roles only refers to social functions and there is hardly any known case of reversal of such status.

Like Ifi Amadiume, Healey (2020) corroborates the characteristic fluidity of Igbo gender roles and the cultural frame of reference in which these feminine stratagems originated and gained validation. She argued that indigenous Igbo structures afforded women tiered autonomy and socio-political powers and considered the notion that colonial influence on women was chiefly emancipatory to be a farce. According to her, the British-imposed gender binary, “defined by two bodies, two sexes, two identities,” and the consequent differentiation in roles and hierarchies, curtailed women’s social and political attainments within the traditional context (p. 3). These feminine maneuvers counterbalance the pervasive custom of male primogeniture and other pro-male biases among the Igbo people (Amadiume 1987; Nwoko 2012). With growing modernity and the influence of Christianity, new directions in securing women’s rights under customary systems are emerging, both here in Nigeria and Sub-Saharan Africa (Diala and Kangwa 2019; Ojuade 2020; Olijere, Onuoha, and Igwe 2019). One school of thought, critical of these maternal stratagems, bases its rationale mainly on Christian moral ethics. Advocates latch onto the debasement of female/human dignity, touching on issues like promiscuity, absence of paternal care, and associated health, psychological, and social stigmas that ensue whenever accepted norms of family and marriage arrangements are transgressed (Nnaemedo 2020; Urama 2021). However, numerous other perspectives are less disapproving, focusing mainly on discourses on women’s rights and legal activism as viable means of not only challenging discriminatory cultural practices against women and girls but also asserting constitutionally guaranteed rights to land/property inheritance and succession (Ezeilo 2020; Ezejiofor 2011; Nnaemedo 2020; Ojuade 2020; Olijere, Onuoha, and Igwe 2019). Ezeilo summarises the group verdict:

Denial of inheritance to women and girls is nothing but economic violence that leads to extreme poverty and violence against the women folk. It is new dawn that the barriers have been shattered by current judicial jurisprudence from the highest court of the land and what remains to be done is to embark on legal reforms that will clearly be in tune with these stare decisis. (2020, p. 13)

The discontinuation of female disinheritance is, therefore, imperative. Yet, scholars present diverse views ranging from conservation and wide-ranging socio-cultural and legal interventions to equitable land reforms. One reason for this diversity is the existence of many rural dwellers who view customary law as a sacred and ‘unchangeable’ ancestral legacy (Olijere, Onuoha, and Igwe 2019, 97). Another reason stems from Nigeria’s plural law system, which has led some scholars to criticize the utter disregard and misconception of people’s accepted indigenous customs by court pronouncements, especially considering that practices like levirate marriage and female husbands are “not intrinsically or inherently immoral” (Akpamgbo 1977, p. 92). This solicitous view is further reinforced by Ewerlukwa’s (2008) cross-cultural comparison of traditional maternal practices of raising posthumous children and female husbands with evolving modern-day practices of ante-mortem/post-mortem sperm extraction and fertilization, surrogacy, and other assisted reproductive technologies (ARTs) in Nigeria and around the world. With the growing number of court pronouncements nullifying some of the patriarchal norms and rules, women are increasingly favouring law-compliant procedures like child adoption and direct legal actions (Ezeilo 2020; Ewerlukwa 2008; Olijere, Onuoha, and Igwe 2019) as well as options in assisted reproductive technologies (ARTs) (Okonta et al. 2018; Oladokun et al. 2009).

Again, it is uncommon to extend the practice of disinheritance of female children to properties acquired in urban areas, as modernity and urban laws have somewhat diminished this practice. More educated women are exploring new opportunities provided by the law and science to overcome disinheritance. However, such pro-male cultures persist in the context of the customary land tenure system operational in most rural communities. Addressing the lingering gender discrimination in access to land and inheritance is a development imperative critical to women’s dignity and economic well-being (Ajala 2017; World Bank 2020). World Bank (2020) is quite vocal:

Reforms related to property ownership and inheritance are the most difficult to pass, especially in economies where social norms dictate how assets are passed to surviving spouses and children. Equalising women’s rights to own, manage, and inherit property, however, increases their ability to start and grow businesses because access to assets gives them the collateral needed to secure credit. (p. 16)

4.1 Nature and Status of Maternal Manoeuvres in Women’s Land Access under Plural System

As earlier mentioned, the main maternal manoeuvres in place are concubinage, woman to woman marriage or female-husband arrangement, nkuchi or levirate marriage, and nrachi. In a nutshell, at least six major facts about the nature and status of these stratagems have emerged, and they include:

1. These practices preceded colonialism, and with modernisation have become subjects of tense legal battles since 1921.

2. Concubinage is conspicuous in its absence from the analysis. We attribute this to the fact that it is largely a covert (il)legimate liaisons between the husband and wife, and their female/male paramours, and so claims bordering on such cupid relationships are rarely in the open domain.

3. Nigeria’s system of legal pluralism that mixes the formal statutory laws with customary laws of indigenous communities. Notwithstanding conflict of laws that occurs time and again, the extent to which the anticipated women’s rights to inheritance and succession can reach its full realisation is context or place-dependent (rural, urban or semi-urban areas, and urban).

4. The courts generally acknowledge that woman-to-woman marriage (especially as applicable to living – and not dead – husband) is a traditional norm for infertile wives to extend their husband’s lineage. Even though it does not contravene the 2011 Nigerian Evidence Act (Federal Republic of Nigeria 2011), it still considered to fall short of the repugnancy test of natural justice, equity and good conscience. Placing common law repugnancy test side by side with the Igbo worldview in which gender does not coincide with sex, the test may well be a culturally circumscribed judgment. This is well expressed in the work of Achebe Nwando, Female king of colonial Nigeria, where she rightly noted that

   among the precolonial Igbo, gender was flexible and fluid, allowing women to become men and men to become women. This created unique Igbo female masculinities as female husbands and female sons and male femininities such as male priestesses (Achebe 2011, p. 23).

It is this worldview of gender which somehow resonates in post-structuralist’s notion of the contingent and discursive nature of all identities, that offers opportunity for widows or unmarried daughters who wish to, to transform to female husbands if they could marry a woman with her husband’s name and perpetuate his lineage. In the main, this is an opportunity to retain the right of access to land and other resources.

1. As such, the common law position gives the impression that a son or a daughter born out of the union of woman and woman cannot have legal approval to inherit land/property in the putative father’s name although they may in the natal mother’s name.

2. Essentially, the culmination of these landmark court cases is that gender discrimination in property access and inheritance is technically outlawed, affirming the constitutional right of women and girl children not only as heiresses apparent (successors and inheritors of their husbands’ and fathers’ properties).

Contrary to these groundbreaking rulings, in most of Igbo-land, customary law practices still base property inheritance and succession primarily on male primogeniture, and women are typically considered ineligible for such rights (Ezeilo 2011, 2020; Nwapi 2016). Two related customs support this practice. The first is the special significance accorded to land as family goods held in trust for the dead, living, and countless unborn in Southern Nigeria, including Igbo-land (see Amodu Tijani v. Secretary, Southern Nigeria 1921; Tobi 1989). The second custom considers marriage as the transfer of a woman from her natal family to that of her future or substantive husband, leading families to be reluctant to forfeit their land rights to their in-laws (Egboh 1973; Nwogugu 2014; Nnaemedo 2020). Under customary marriage, the payment of bride price is stipulated to deprive women of their legal rights (of ownership and transfer) to their husband’s property, an unfair patriarchal practice that ostensibly excuses the flagrantly exploitative ili ekpe custom (Egboh 1973; Mojekwu vs. Mojekwu, 7 NWLR 283 1997). An exception to this rule exists in matrilineal communities of Afikpo and Ohafia in Igbo land, where women are permitted not only to hold land/property rights but also to bequeath the same to their children or benefactors (Nwogugu 2014; Obi 1962).

Our analysis shows that maternal maneuvers lead to diverse and sometimes conflicting interpretations. A prevalent perspective in the related literature describes them as astute, family-focused strategies used by women to negotiate their gains and losses within the pervasive patriarchal system. These maternal strategies provide avenues for barren or childless couples (both living and deceased), as well as heirless household heads, to procreate children (especially sons) for the perpetuation of their family lineage.

While these customs have been subjected to and, in fact, undermined by moral, religious, and human rights criticisms (including court rulings) (Mojekwu vs. Ejikeme 2000; Nnaemedo 2020; vs. Okagbue 1994; Urama 2021),^[9] the issue raised by Akpamgbo (1977) and Ewerlukwa (2008) regarding the need to re-evaluate these customs from a more contextual perspective remain valid till date. In essence, the two legal scholars question the applicability and relative integrity of the repugnancy (doctrine) test, a colonial bequest in Nigeria’s Evidence Act meant to revoke those local cultures and traditions that come in conflict with “natural justice, equity, and good conscience public policy” (S. 14 ss.3 of the Evidence Act 2011). Just like Clement Akpamgbo, Ewerlukwa (2008) felt strongly that it was a short-sighted misinterpretation and rather autocratic to strike down traditional sources of extending family lineage (like in the case of levirate marriage in vs. Egwu 1976) for those who are either childless or have no male child. This is considering the fact that these maternal practices approximate to sperm donation/artificial insemination and posthumous procreation, which are now acceptable modern practices everywhere, including Nigeria (see Oladokun et al. 2009; Okonta et al. 2018).

The practices of nkuchi, ‘woman-to-woman marriage’, and nrachi not only cater for the interests of women and their children but also play a crucial role in maintaining the lineage of their deceased husbands. Given their alignment with both women’s interests and the sustenance of the patriarchal order, women found it as an expedient tool for navigating inclusion in the traditional phase of their struggles for access to land. The three practices (nkuchi, nrachi and for the continuity or multiplication of their lineage. Women in many situations, submit to the culture of nkuchi even when they do not voluntarily agree to the practice.

They silently conform because access to land, as the dominant means of livelihood, is tied to submission to a male relative of their late husband for reproductive purposes. The woman’s ability to care for her offspring depends on this silent acquiescence, which grants access to the means of production and benefits for herself and her family. However, they strongly opposed these practices when modernity offered alternative land access and inheritance pathways, which suggests their conformance with older practices was a survival strategy. The narratives of women’s struggles highlight the silence, subtlety, and resilience in following customs that perpetuate an unequal system favoring the male gender.

4.2 Shifts and Phases in Maternal Manoeuvres and Current Efforts at Confronting Women’s Land Rights and Inheritance Abuses

Just like social norms, ‘customary law is not static but has a tendency to change, albeit slowly’ (Ewerlukwa 2008, p. 257). The unfavorable adjudications received by some of these traditional stratagems, along with the uncomplimentary (and sometimes obscene) remarks made about them in court reports, contribute to the pervasive social disregard for these native stratagems. As society modernizes, better education and women’s empowerment open new opportunities for asserting equitable rights and liberty. Women are gradually shifting from silent acquiescence to subtle and sometimes assertive objections against suppressive patriarchal cultures. As the preceding narratives indicate, opportunities offered by statutory laws, legal adjudications, and civil rights activism by NGOs have emboldened women’s demands for justice and equity.

The resort to law courts is now part of the new or modernist toolkit or repertoire of women’s resistance against gendered rights over land. Table 2 indicates shifts and phases in maternal maneuvers from the traditional/submissive to the modernist/assertive equivalent. For example, as practices like nrachi, nkuchi, and female husband increasingly fall into disuse (Ewerlukwa 2008; Nnaemedo 2020), they are being transcended and increasingly substituted with new approaches – child adoption, modern single parenthood, litigations, use of legal instruments, as well as ARTs.

Through these emerging means, women can independently exercise their choice and rights of procreation and succession for the putative son or children. Under this new phase, contestations seldom arise due to their law-compliant nature, facilitated by the administration of wills, irrevocable power of attorney, deeds of land ownership, and land registration, excluding extended family interlopers. Little wonder then that these approaches are usually adopted by educated, business, or professional women (Adewoyin et al. 2022; Peterman 2012), who, in most cases, have an inheritance to bequeath. Hence, the education and legal system brought by modernity are among the pathways women adopt in their quiet revolt against the gendered practices of land inheritance and the right of access.

4.3 Determinant Factors of Shifts in Maternal Manoeuvres and the Overall Impact on Women’s Land Access and Inheritance

Beyond direct legal actions, law-compliant procedures, and other emancipatory activities of women, it is essential to emphasize that their access to, and inheritance/succession rights of, land and properties are essentially multi-factorial. For instance, the liberalizing role of commercialization and nascent individualism, as evidenced on both sides of the legal plurality divide, is significant. As has become the norm in statutory transactions, unmarried women can purchase land in their names and can retain ‘non-traditional’ land/property gifted to them by their father during his lifetime, even under customary law (Amodu Tijani v. Secretary, Southern Nigeria 1921; Obi 1962). Despite intrinsic skirmishes within the plural legal systems, the litigations and court rulings have advanced women’s rights in inheritance and succession in Nigeria. In general, they have upheld the constitutional right of all Nigerians not to be discriminated against in land inheritance and succession rights, irrespective of circumstances of birth (including gender). Perhaps due to the high costs involved in litigation and other legal recourses and the virtual restriction of subsisting Supreme Court decisions to the case areas in point (Uwaezuoke 2016), some of these customary maternal practices persist, especially among rural women (see Nduka 2021).

Another facet of women’s silent struggles emerges from broader societal changes driven by modernist trends and other transformative factors, particularly in urban metropolitan settings where customary laws are either too weak or subsumed by statutory laws – in other words, positive change due to urbanization-induced modernization. Rural and urban distinctions in women’s inheritance rights and claims have been underlined by our socio-legal analysis in Table 1 and by numerous scholars (Diala and Kangwa 2019, p. 198; Olijere, Onuoha, and Igwe 2019). Put differently, the case context and the settlement location along the rural-urban continuum matter in women’s land/property and succession claims (refer to column 4, Table 1). For example, Olijere, Onuoha, and Igwe (2019) have expressed concerns regarding the extent to which gender-sensitive reforms can “permeate the lives of people, especially the rural dwellers who view customary law as a sacred and ‘unchangeable’ ancestral legacy” (p. 97).

Equally, urban scholars are no strangers to these processes as peri-urbanization continues to progress, often with the substitution of customary laws by their statutory equivalents (Berrisford and MacAuslan 2017; Onyebueke et al. 2020). The usual patriarchal restrictions then give way to statutory rules that usher in the urban land market, thereby liberalizing land access and opening up opportunities for women with means (Evans 2016; Nwapi 2016). Clearly, forging a sustainable way forward goes beyond maternal maneuvers or other self-help assertive efforts of women, including legal and legislative interventions and rights awareness creation. Other drivers of social progress and transformation include persistent organizational and people activism, and the attendant ‘social policing’ (Worugji and Ugbe 2016, p. 31).