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The act of discrimination against the female sex is an undeniable phenomenon in virtually all human societies, though the severity varies from one society to another. It is against this backdrop that this paper is aimed at exposing the inadequate nature of the primogeniture rule of inheritance towards the female, as practised by the Esan people. The paper tests the validity of the logic on which the disinheritance of females rests, and discovers that it is invalid as it violates such moral principles as the categorical imperative and utilitarianism, among others. It therefore advocates for possessive right for females for the sake of justice and equity. Keywords: inheritance, Esan, female child, utilitarianism, justice INTRODUCTION The arduous task before African philosophers today is, according to Oladipo (1992: 1), the crisis of relevance. That is, African philosophers should begin to busy themselves with how philosophy can be made effectively relevant to the struggles and destiny of African peoples. It is in acknowledgement of this indisputable fact that this paper is designed to philosophically review the practice of inheritance among the Esan people, particularly the extent to which the female child is affected. Among others, it is aimed at illuminating the idea behind the application of inheritance among the Esan people and outlines its defects in the face of equity and fairness. Suggestions are comparatively made in order for the practice to accommodate contemporary changes. Justina O. EHIAKHAMEN / The Practice of Inheritance THE PRACTICE OF INHERITANCE AMONG THE ESAN PEOPLE In an attempt to fashion a well-ordered society with good human relationships, the Esan people evolved native laws and customs which govern the practice of inheritance. The Esan people are Edo indigenes occupying the central part of Edo State in Nigeria, for whom the issue of inheritance is a highly esteemed socio-cultural heritage. What, then, is inheritance? Inheritance is defined by Black's Law Dictionary as an estate or property that a man acquires "by descent" and which can be transmitted to his heir in the same way on his death on intestacy. Our discussion of inheritance in this context is broader than the one just defined, to include not only the property acquired "by descent" but also, by extension, personal estate. The practice of inheritance among the people of Esan is basically by primogeniture. It is a system whereby the first surviving son inherits the property of the departed father all alone. In the traditional Esan, the properties inheritable are usually land, economic trees, domestic animals, wives, sisters, houses, perhaps brothers, as well as spiritual powers and titles that are hereditary. There are several spiritual powers in various degrees that are inheritable, the commonest being the symbol of authority owned by every family called the ukhure (Okojie, 1994: 125). Through the ukhure, the first son is able to invoke the spirit of his departed father whenever warranted, either for the protection of himself or any other member of the family. Also, where titles and political powers are hereditary, the first son automatically succeeds his father. However, he also stands to inherit liabilities where they are present. Inheritance is legitimized upon the performance of burial rites by the same first son. Failure to perform the burial rites of his father means such inherited property is transferred not to the first son but to his younger brother (Okojie, 1994: 117). Generally, in traditional Africa, a man's fame is measured by the number of children he has; Esan people are common in upholding this belief. Then, one may ask at this point, what happens to other children when only the first son inherits all his father's properties? It has been observed that if the first son is not greedy, if he is wise and peace loving, he would use his discretion to share such properties among the more senior of the brothers; in a large family with several wives, he makes sure the first male child of every wife is given a share of his father's properties (Okojie, 1994: 119). This sharing is, however, not compulsory because by Esan laws of inheritance, the first male child Justina O. EHIAKHAMEN / The Practice of Inheritance has exclusive rights over everything. In the same vein, one may ask precisely what is the place or portion of the female child. This question is the concern of this paper. THE PLACE OF THE FEMALE CHILD IN THE PRACTICE OF INHERITANCE AMONG ESAN PEOPLE From the primogeniture rule of inheritance practised by Esan people, the quest to examine the place of the female child is obviously warranted. The question can be asked thus: what is the place of the female child in this practice? Is she in this dispensation regarded as a child? If she is, why is it that she is not entitled to even a pin as her inheritance? To what extent does this practice dualize and widen the gap between the sexes in Esan? Such questions can be asked ad infinitum. Right from the birth of man on earth, different explanatory models have been sought to order man-to-man relationships and co-existence for a peaceful society to emerge. The Esan people build their explanatory models on some basic beliefs, which inform their act of disinheriting the female child. The first belief is that the people of Esan would want to "possess their possessions". In other words, they would want to keep property within the family. To the Esan, the nature of the female child does not validate this conception. A female child by tradition is necessarily meant to marry. This presupposition is exemplified through the commonest system of traditional marriage called betrothal; in this style of marriage, mere pregnancy is bargained thus, "if the child is a girl, she is our wife, but if a boy, our friend". John Mbiti lent credence to this when he asserted that, for African people, marriage is the focus of existence (Mbiti, 1969: 133). In the contractof marriage, the female is married outside of her immediate family. Inheritance is conceived by the Esan as having great economic value such that, when given to a child, it will boost his or her economic life immensely. Therefore, the female child, who is an item for marriage, is feared as she would rob her biological family of their belongings to the enrichment of her marital family. This is what is often indicated when an Esan person says omon a khuannan (my child alone will inherit my sweat or labour). However, this idiom seems contradic- Justina O. EHIAKHAMEN / The Practice of Inheritance tory as it necessitates the second question we asked earlier: is the female regarded as a child in the Esan practice of inheritance? In the practice of inheritance among the Esan people, the female child is no doubt discriminated against. She is not in this respect given the status of a child as it is with the male. Okojie laments this unfair treatment of the female child in the Esan practice of inheritance. According to him, the Esan often qualify and justify this act with the saying okhuo ila aghada bhe uku (a woman never inherits the sword) or Ei bio omokhuo he ole iribhogbe, literarily translated as "you do not beget a daughter and name her the family keeper, she would marry and leave not only the family but the village, a wasted asset!" This discrimination is epitomized in a case of a man with female children up to the tenth position; if, eventually, the eleventh child is a male, automatically he is the heir. Worse still is a case where there is not a male child at all, in which case, the property of such a man is transferred to his younger brother, either maternal or paternal. By implication, a man with only daughters is equivalent to a man without a child at all. In most parts of Esan, a man with only daughters is seen as a misfit and is never qualified to hold a title among his kinsmen. Perhaps to remedy this ugly situation, the practice of Arebhoa was instituted, although not subscribed to by all Esan (Okojie, 1994: 124). An Arebhoa, where it is practised by Esan people, is a female child who remains in her biological family for life in order to perpetuate the lineage. Continuity is essential to the people of Esan, hence, the Arebhoa becomes a substitute for a male child in the light of propagation, otherwise the family would go into extinction. An Arebhoa is usually a man's first unmarried daughter. At marital age, she is not married out, she is allowed to keep a lover for the sake of procreation. In this system, all the children from this relationship belong to the girl's father. The lover's reward is the companionship he enjoys at the girl's father's compound. Having deprived this female child (Arebhoa) of her social rights in this respect, she therefore qualifies for a possessive right. Consequently, upon this right, she can perform the burial rites of her father, which is not a female's responsibility in normal cases. The Arebhoa's possessive right is not feared because, at death, the property inherited is inevitably transferred to the first male child she raised in her father's name. Even then, the Arebhoa does not have successive rights commensurable with a Justina O. EHIAKHAMEN / The Practice of Inheritance male child in matters of hereditary powers and titles, e.g. it is said that the staff of authority, called Ukhure, cannot be managed by an Arebhoa. Besides depriving a female child of being an heir, she is in most cases an inheritable item. This practice starts usually from the biological family whereby, at the death of her father, if she is unmarried the first male inherits her as part of his father's estate. The heir therefore marries her out to whomever he wishes and collects the bride price for economic enhancement. Also, the yearly dues and services from husbands of the married females of the family also become his right. Wives of a departed father are also inherited. Although Emiola (1997: 194) posits that wife-inheritance is not done in the same way as other inheritance, and that the woman involved has the choice of accepting or refusing, this research found that it is a silent serious offence for any widow to refuse to be inherited. The exception of wife-inheritance is when it involves the Onojie's (king's) daughters. The Onojie's daughters are not inherited at the death of their husbands. The reason adduced for this, according to Okojie (1994: 121) is that the Onojie was a dignified monarch in those days; he took no bride price from his sonsin-law, the princesses married for love. If, at the loss of a husband, they wished to remain, they had to remarry, whatever this involved. From another perspective, if a man traditionally willed his properties to his daughter on account of there being no male child, as against the Esan practice of inheritance, that daughter, along with the property, is inherited by the king. Not necessarily as a wife though, as the king reserves the right to choose what to do with her. Now, what is the importance of this practice of inheritance? How does it sit with the Esan people? In other words, is it an adequate practice? This is the subject of our next discussion. THE ESSENCE/IMPLICATION OF THE PRACTICE OF INHERITANCE AMONG THE ESAN PEOPLE The concept of inheritance is universal to humankind. This explains why it is practised traditionally and legally without any hitch. Corroborating this view, Emiola observes that there is no other area of customary law in Nigeria where the interaction between the law and the English law has produced a hybrid as in the law of inheritance. However, its application varies among people of different beliefs and Justina O. EHIAKHAMEN / The Practice of Inheritance cultural backgrounds. The people of Esan, and perhaps the whole of the then Bendel State, as upheld by Emiola, practice the primogeniture rule of inheritance, whereby only the first surviving male is an heir. Now, a question necessarily arises from this method of inheritance, thus: how does this sit with the Esan people, considering the economic value attached to it? When only the first male stands the chance of inheriting all, what will other male children survive on? If disinheriting the female child is on the account of keeping property within the family, are other male children also disconnected from the family through marriage like the females? This is why the account of the lack of position for the female child in the Esan practice of inheritance falls flat. One may be tempted to say it is a calculated effort to disempower the female child. Inheritance obviously has some benefits, which include economic, socio-political and spiritual benefits. In traditional Africa, when formal education was not available as a means of enhancing children economically and otherwise, inheritance was heavily relied upon. This again explains why Okonkwo's fame was highly reckoned with, as he did not inherit a barn from his father (Achebe, 1958: 1517). Okonkwo's socioeconomic breakthrough was uncommon without the advantage of inheritance. Okonkwo's case, therefore, informs us of the hard corner other disinherited male children could be put into in Esan. And this situation is quite unhealthy among the people of Esan. Okojie makes no pretence of this indisputable fact when he remarks that some wise heirs share some of the properties with the more senior of their brothers. In a case of several wives, they would make sure at least every wife's first male had a share of what their father left behind, for the sake of peace. This, however, is not compulsory because it is not accommodated by the practice of inheritance. This implies that the Esan law of inheritance is inadequate and unhealthy. Evidence abounds where heads rolled in an attempt to be either the heir or the mother of the heir. There is so much to being the mother of an heir because of what accrues from it. Hence, in Africa generally, where polygamy is commonly practised, every woman is interested in her son becoming the heir of her wealthy husband. In this way, it involves many casualties, to the detriment of the immediate family and the larger society. The situation therefore is survival of the fittest, as Darwin would say. Justina O. EHIAKHAMEN / The Practice of Inheritance Added to this is the perpetual marginalization of the female child upon a faulty premise that she is a wasted asset. With the arrival of Western education, there came another means of enhancing children economically and otherwise. To a large extent, male children generally, irrespective of position or number in the family, benefited from it; however, the female child was still denied this opportunity. Buttressing this point, Aigbomian cited Azeke as saying that: A female was considered as not being an economically good investment since, after being educated, she would get married into another family where she would send her earning and income as required by native laws of wedlock (Aigbomian, 2002: 15). This quotation depicts the general notion of African and Esan people in particular regarding the female. She is seen as a drain on her parental family. In order that she could not rob Peter to pay Paul, inheritance denial becomes an option. Surprisingly, even in her husband's house, she cannot inherit. The practice of inheritance among the people of Esan as it relates to the female is like a coin with two sides when tossed; whether it lands heads or tails, the female loses greatly. However, the error in this belief has made it a fallacy in the test of time. Experience has proved that the female is a better asset to both the parental and marital families. The Esan people have individually, directly or indirectly, consciously or unconsciously, contested this unfair and inequitable practice of inheritance, particularly as it affects the female child. Such protest history recorded was a case of the Onojie of Ugboha (a king in one of the constituting villages in Esan) who had no male child but only daughters. When his last days were rolling by, he gave the staff of authority called the Okpo to the first daughter. Envisaging protest from his clan, he instructed his daughter on how to counter their protest, thereby making it baseless. As expected, at the death of the Onojie, his Okpo was demanded for, and the daughter refused to surrender it. Doing as she was instructed by her father, she pegged the Okpo to the ground and asked who among them that would not inherit his father's property to remove it. Instead, all of them walked away quietly. She therefore inherited the Okpo along with other things left behind by her father. This entitled her to give a befitting burial rite to her departed father. By virtue of this Okpo, she became a woman with authority and Justina O. EHIAKHAMEN / The Practice of Inheritance at death she became a deity and she is still worshipped today. This is a glaring way of showing discontentment with an obnoxious law, such as the Esan law of inheritance. Similar to this is the protest put up by Zelophehad's daughters, who were victims of disinheritance in Israel, as recorded in Numbers 27: 311. The Lord's response to this protest was that Moses should turn their father's inheritance over to them. However, it can be argued from another angle that, no matter the protest, the Onojie's daughter still could not inherit the kingship throne. As it is with the saying Okhuo ilo ojie (a woman never becomes a king), it is in the same way that wills to female children are vehemently resisted. The Esan may not be peculiar in this regard as Aristotle (Barnes, 1984: 1998) equally condemns any headship position entrusted to women in ancient Greece. From his perspective, "the male is by nature fitter for command than the female". However, what interest does this serve today? Except that it places the female in a disadvantaged position. Recent discoveries and history have shown that subjugation cannot be justified because it no longer serves any purpose and also because the resistance and ultimate triumph of subjugated people (women) has shown the error of this form of practice. There is no gain in saying that disinheriting the female is baseless and grossly inadequate for peaceful co-existence, social reproduction and societal development. Are the Esan alone in this practice of disinheriting the female child? This will lead us to a comparative analysis of other tribes in Nigeria. A COMPARATIVE ANALYSIS OF THE PRACTICE OF INHERITANCE AMONG OTHER TRIBES IN NIGERIA All through Nigeria, the concept of inheritance is in practice. Among the Yoruba people of Nigeria, a female has as much right as the male to inheritance, except for land (Emiola, 1997: 100). In other words, a female child can inherit every other property but the land. The land defines the limit of the rights of a female child to inheritance. This is, of course, not peculiar to the Yoruba because, until 1935, women had no right to own land or landed property in England either. The logic behind this practice, according to the Yoruba, is that daughters married into other families would have their shares through their children in such families (Emiola, 1997: 100). Another account is that land generally in Africa, as it is with the Yoruba, is held as family land; if it is given Justina O. EHIAKHAMEN / The Practice of Inheritance to daughters, that would amount to encroachment on one fami-ly's land by a different family entirely by their children. But if the land is sold, the female children are entitled to a share of the money. Apart from this singular exception pertaining to female children, all male children, irrespective of age or number, are entitled to the immovable property of their father as joint heirs. In cases where a man does not have a male child, the junior brother takes possession of the land. The importance of this is that the piece of land reverts to the same family as it is their grandfather's property. However, land can be given out to female children as a gift, when interest to build is indicated. An exception to this practice is the modern day method of a will. A daughter can now inherit the land through a will. With the liberal practice of inheritance among the Yoruba, even though the use of a legal will comes through the Western legal system, the Yoruba are at home with it. There is a similar practice of inheritance among the Hausa. Although the female child in Hausa inherits the land among other things, her share is less than half of that of the male child. Even sharia law provides for the widow to inherit one eighth of the deceased husband's property. Having only female children is not as miserable with the Hausa and Yoruba as it is with the Esan. In Hausa, if a man had only female children, at death his property is shared between his daughters and his junior brother. If he had only male children, his junior brother would have no portion of it. Among the Igbo people, the practice of inheritance is closer to the Esan people than any other tribe, except that every male child has a possessive right irrespective of age or number, as joint heirs to their father's property. The female child in this regard does not have any right to her father's property. The reason advanced for this is that, in Igbo, the female child does not belong to her parental family but to her marital family; hence there is no inheritance for her as a child. Then, as a wife, the female has a percentage of inheritance as a right to her husband's property. From the foregoing it is clear that the Esan stand in isolation in disinheriting the female both as a child and as a wife. In relation to the Igbo and Yoruba people's logic for disinheriting the female child, where applicable, it can be argued that the term of marriage in Esan is such that it should allow the female child the right to inheritance. This is because, unlike the Yoruba and Igbo, a married Justina O. EHIAKHAMEN / The Practice of Inheritance Esan daughter belongs to both the husband and the parental families simultaneously, such that if she is not well treated by her husband, she has the choice of returning home. This explains why the female at death is often taken back to her parental home for burial or interment. In Igbo or Yoruba, however, marriage disconnects their daughter from them completely, even at death her corpse is buried in her husband's house. The question is, if a daughter belongs to her parental family even after marriage, why can't she have a right to inheritance? Now, from our understanding of the Esan practice of inheritance, the female is not given a place as a person with rights; rather, she is objectified as an inheritable item both in her parental and marital families. Denigration of the female as she relates to inheritance in Esan calls for moral stand taking. If we apply the universal law formulation of Kant's categorical imperative, which says "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only" (Kant, 1990: 46), we find that the Esan practice of inheritance is inconsistent with this universal law, as the female is often used as a means to the male's end. This universal law of Kant's requires that we treat people with respect irrespective of colour, sex, or biology because these features are accidental. What should determine fair treatment is humanity. Kant further elaborated on this; his position can be expressed with emphasis thus: Male or female should be regarded as a person exalted above any price; for as a person, he/she is not to be valued merely as a means to the ends of others ... but as an end in himself or herself, that is, he/she possesses a dignity (an absolute inner worth) by which he/she exacts respect for himself or herself from all other rational beings in the word. He or she can measure himself or herself with any other being of his or her kind and value himself or herself on a footing of equality with them (Barcalow, 1994: 143). The categorical imperative of Kant shows the inequity involved in the Esan practice of inheritance, as the female is often used as a means to an end. Similarly, the principle of utilitarianism, whether act or rule, of the greatest happiness for the greatest number does not favour the rule of primogeniture. The principle of utility or the greatest happiness principle, as formulated by J.S. Mill, makes it clear that the happiness Justina O. EHIAKHAMEN / The Practice of Inheritance which forms the utilitarian standard of what is right in conduct is not the agent's own happiness alone, but that of all concerned. In the practice of this inheritance, the rule makes for the happiness of one at the expense of others. It therefore does not produce the most total happiness. By utilitarianism what is meant here is the ethical theory that the conduct which, under any given circumstance, is objectively right is that which will produce the greatest amount of happiness on the whole, taking into account all whose happiness is affected by the conduct (Barcalow, 1994: 116). Likewise, Rawls (1971: 190) would condemn any act of discrimination between the sexes. Rawls would argue that equal treatment in matters of inheritance is preferable in Esan, irrespective of sex and number or position. This is based on the fact that free equal beings, who are rational, self-interested and know no particulars about themselves in the original position, would insist on equal treatment. Because they do not know what sex or position they will be in when they emerge from the original position, they will not want members of one sex having special advantages over the other because they may not belong to that sex with special advantages. Similarly, they will not want members of one sex having special disadvantages or handicaps because they could emerge as members of that sex. Rawls would therefore conclude that, because rational, self-interested people in the original position would demand equal treatment, unequal treatment in respect of inheritance is unjust and morally unacceptable. It is hard to imagine how one might construct an argument to defend the practice of inheritance in Esan. It seems clear that it violates formulations of Kant's categorical imperative; it seems clear that rational, self-interested individuals behind the veil of ignorance in the original position would not agree to accept discrimination in inheritance. Also, both act and rule utilitarianism would not sanction the disinheritance of females. Studies have shown that victims of disinheritance are harmed in a variety of ways. CONCLUSION Esan people, in their own wisdom, fashioned a pattern of inheritance according to the rule of primogeniture. This rule is predicated upon some ideas. Ideas have consequences, no doubt. The beliefs we hold Justina O. EHIAKHAMEN / The Practice of Inheritance usually influence our actions, which is the reason why the critical evaluation of the ideas we live by, with a view to determining which ones are adequate and which are mistaken, is a crucial intellectual function a society should neglect only at its peril (Oladipo, 1999: VI). This, again is a philosopher's duty, in the understanding of philosophy of Staniland (2000: 3). In contemporary Africa, there is an imminent need to form more purposefully oriented communities for peace and harmony to reign, rather than jealously guiding practices that are self-destructive. Peace and harmony can reign when we learn to respect the rights of other people and show concern about the disadvantages engendered by our laws and try to accommodate differences either in sex or age. This is the reason why the Esan practice of inheritance deserves a critical review to attempt to cease man's inhumanity to man. More importantly, it affects the female child, who is often used as a means to an end as against Immanuel Kant's ethical principle stated earlier. In the same spirit of fairness and equity, the Supreme Court of Nigeria (1989) ruled that every child in Esan must have possessive rights as a matter of rule, while the first surviving male child retains the exclusive right to the Igiogbe, which is the seat of the family. The Esan are recalcitrant to this ruling because they are bent on guarding their culture jealously and the Customary Court serves to preserve the unfair practice of inheritance. Our culture is dear but truth is dearer. This ruling somehow should not be regarded as a Western solution; rather, from our comparative study of the practice of inheritance among other tribes in Nigeria, Esan is in isolation. From history, we are told that we have our origin from IleIfe, which means we have a Yoruba origin; this ruling is, to a large extent, in agreement with the practice of inheritance among our forefathers (the Yoruba). If we adopt it, it would only mean retracing our ancestral fathers, which is normal within a form of life. Philosophically, it is morally right to reform ideas that are counterproductive. Finally, this paper has critically examined the practice of inheritance among the Esan people, thereby exposing its discriminating act against other male children of the same father and as well as female children, when the first male child alone has the right to inheritance. Essentially, the economic and socio-political benefits, among others, from inheritance have engendered a situation of war; there is crisis among the Esan because of those who are disadvantaged. The need for peace, Justina O. EHIAKHAMEN / The Practice of Inheritance harmony and justice as fairness, in the words of Rawls, is morally demanding. The study submits that the practice of primogeniture rule of inheritance by the Esan people is inadequate and should be reversed in line with the Supreme Court's ruling whereby every child, irrespective of age or number or sex, has a possessive right equivalent to ownership right. This will restore the human dignity in females and enthrone the empowerment needed for development. Acknowledgments. I wish to sincerely thank all those who shared their minds objectively on this issue. Interviews conducted with elders and various kings in Esan serve as a veritable and formidable source of information in place of inadequate literature on the Esan culture.
Cultura. International Journal of Philosophy of Culture and Axiology – de Gruyter
Published: Jan 1, 2011
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