Vanessa Emery JD/MSW, former student of the University of Toronto
Nigeria, with its complex tripartite legal system, faces a particularly challenging legal situation in the face of the Aids pandemic in maintaining a harmonious and equitable balance amongst its over 250 different diverse peoples. With an HIV prevalence rate of 5.4% amongst the adult population, and approximately 3,600,000 adults and children currently HIV+ the ability of the legal framework to provide support to those affected needs to be critically assessed.
Widows rights are a good entry point into a critical re-examination of
Nigeria’s legal framework. Widows, as a set of individuals who are particularly
vulnerable in the face of HIV, are beginning to come to public attention. As
many AIDS widows have limited rights to inheritance, their ability to subsist in
a land-based economy is placed in jeopardy. At the same time, widows play a
pivotal role in caring for AIDS orphans and sick relatives. Research into
the complex topic of widow’s inheritance rights is therefore a necessary step in
developing a holistic approach to combating the pandemic.
The paper has five sections. In the first section a normative framework is developed which recognizes that solutions must come from within a cultural framework that stems from the people themselves. Working with community leaders to reinterpret customary law for example has greater legitimacy than attempts to impose reform from above. The importance of the cultural transformation approach is stressed. While culture may be seen as a barrier to reform, it can more fruitfully be seen as a dynamic site of tension and resistance that can provide for differing interpretations and potentialities to expand opportunities for women. While both customary laws and the common law have developed to protect particular world views, they must evolve in order to remain relevant to the needs of the people.
The second section focuses on the interaction between common law, customary law and sharia law as the living law of the nation. It also explains how land and marriage impact upon the bundle of rights that individuals possess regarding inheritance. The third section surveys inheritance laws for both testate and intestate succession in all three systems, and the fourth section provides a brief survey of the key social factors that impact upon widows’ ability to access, enforce, and advocate for inheritance rights.
The final section explores both top-down attempts at reform; through legislative reform, adoption of international conventions and judicial intervention, and grass roots options, focusing on cultural transformation rooted in the work of women in developing normative community frameworks, local judicial processes, and revitalizing customary values. The author argues that there is no simple prescription for how to make cultural transformation work. Any successful approach must be multi-faceted in order to engage with different audiences and loci of power, and also negotiate difficult value judgements about the relationship between women, human rights, and culture.
UNAIDS, 2004 Report on the Global AIDS Epidemic, Table of country-specific HIV/AIDS estimates and data, as of end 2003, (July 2004). Accessed at http://www.unaids.org/bangkok2004.
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