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October 3, 2007 - December 2, 2007



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DATE:       16 – 24 JANUARY, 2006.





                             This paper argues that the Protocol on the Rights of Women in Africa provides a strategic platform for advocates seeking to bring women’s human rights to the attention of citizens, organizations, government and policymakers throughout Africa.

          It further argues that there is a significant relationship between the Protocol and the Sharia in terms of the objective, nature and scope of women’s rights.

          Hence this paper seeks to realize the following objectives: -

1.                                                    To provide an overview of the Protocol with special emphasis on the key survival, development, protection  and participation rights of women in Africa;

2.                                                    To establish a significant relationship between the Protocol’s core provisions and the Islamic perspective on gender equality and justice in maters of marriage, divorce, inheritance, abortion, among others.

3.                                                    To conclude with some viable options for effective strategies in promoting and protecting women’s rights in Africa.



This part of the paper seeks to highlight the significance and potential of, and the rationale behind the Protocol; to examine the key provisions of the protocol relating to women’s rights in Africa.



          The African Union adopted on July 11, 2003 in Maputo, Mozambique, a landmark treaty known as the Protocol on the Rights of Women in Africa1 (the protocol) to supplement the regional human rights charter, the African Charter on Human and people’s Rights (the African Charter). The protocol, which entered into force on 25 November 2005 after securing the 15 ratifications by Africa governments, provides broad protection for women’s human rights, including gender equality and justice.

          The significance and potential of the protocol go well beyond Africa. The treaty contains a number of global firsts. For example, it represents the first time than an international human rights instrument has explicitly articulated a women’s right to abortion when pregnancy results from sexual assault, rape, or incest; when continuation of the pregnancy endangers the life or health of the pregnant woman; and in cases of  grave fetal defects that are incompatible with life.2 Another first is the protocol’s call for the prohibition of harmful practices such as female circumcision/female genital mutilation (FC/FGM),3 which have ravaged the lives of countless young women in Africa.

          The protocol can help advocates pressure governments to address the underlying social, economic, political, and health-care issues that contribute to the dismal state of women’s conditions throughout Africa.



          Although the African Charter is the primary treaty providing a framework for human rights in the region, its provisions in women’s rights are largely seen as ineffective and inadequate.

          The charter recognizes and affirms women’s rights in three provisions: - Articles 2, 3 and 18(3); and yet the Protocol notes that “despite the ratification of the African Charter, women in Africa still continue to be victims of discrimination and harmful practices”.4

          The Protocol, which resulted from years of activism by women’s rights supporters in the region, has attempted to reinvigorated the African Charter’s commitment to women’s equality by adding rights that were missing from the charter and clarifying governments’ obligations with respect to women’s rights.5 Only one out of the more than sixty articles in the African Charter makes specific reference to women. The following are the key shortcomings of the treaty as it pertains to women: -

a)                                                                             its failure to define explicitly discrimination against women;6

b)                                                                            its lack of guarantees to the rights to consent to marriage and equality in marriage; and

c)                                                                             its emphasis on traditional values and practices that have long impeded the advancement of women’s rights in Africa.7

Indeed, the Africa Charter has been interpreted to protect customary and religious laws that violate women’s  rights, such as the rights to  equality and non-discrimination; to life, liberty, and security of the person; and to protection from cruel and degrading treatment.8 In a recent ruling by the Zimbabwean Supreme Court, for example, the court held  that domestic laws discriminating  against women carry greater weight than international instruments protecting women from discrimination.9 And in considering whether a woman could inherit her father’s estate, the court relied on traditional conceptions of the family and the male patriarch – as stressed under the African Charter – as the sources of women’s status, rather than on the rights and standards guaranteed under international legal instruments.10

          Advocates for women’s right recognized these weaknesses and sought to address them by adopting an additional protocol that focused solely on women’s rights. In April 1997, a draft protocol was created and was finally adopted some six years later.11 The adoption of the protocol signifies a renewed political commitment to the advancement of women’s rights as human rights in Africa. Furthermore, attempts to strengthen the African human rights system through the reinvigorated African Union, which replaced the Organization of African Unity, and through the creation of the African Court on Human and People’s Rights (the African Court), should embolden advocates to press for more vigorous enforcement of the Protocol.12



          The Protocol provides for the following four clusters of rights of women in Africa: - survival, development, protection and participation rights.



          Survival rights issues in adolescence and for adult women in Africa include the following: - rising HIV prevalence, linked to behavoiural factors and inadequate awareness; early pregnancy and associated risks; high maternal mortality ratio; poor reproductive health services; unsafe abortion and related legal issues; impact of armed conflict and violence on women.

          Africa has the worst indicators of women’s quality of life and health, particularly of reproductive health, of any world region. These indicators include the highest number of HIV positive women and the highest infant, maternal, and HIV – related death rates world wide.13 The ability of a woman to make her own decisions regarding her body and her reproductive life are key to improving these indicators.

          It is against this background that the Protocol provides for respect for women’s rights to life, integrity and security of her person, and requires states Parties to educate, prohibit and punish perpetrators of all forms of exploitation, cruel, inhuman or degrading treatment and punishment. States Parties are also obliged to take all appropriate and effective measures as may be necessary to prevent and eradicate all forms of violence against women.14

          Further, the protocol provides for “the rights to health and access to health care services, including women’s sexual and reproductive health rights. States Parties are required to promote and respect women’s right  to control their fertility; to decide whether to have children, the  number of children and the spacing of children; the right to choose any method of contraception; the right to self – protection and to be protected against sexually transmitted infections, including HIV –AIDS; the right to be informed on one’s health status and on that of partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognized standards and best practices; and the right to have family planning education.”15

            Furthermore, the protocol provides for “ state Parties to take all appropriate measures to provide adequate, affordable accessible health  care services to women including information, education and communication programmes to women especially those in rural areas; to establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast – feeding; to protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”16

          From the above quoted provisions of article 14 of the protocol, it is evident that the protocol is the first legally binding human rights instrument to expressly articulate women’s reproductive rights as human rights, and to expressly guarantee a woman’s right to control her fertility.17 It also provides a more detailed articulation than global human rights instruments of women’s right to reproductive health and family planning services. The protocol affirms women’s rights to reproductive choice and autonomy, and clarifies African States’ duties in relation to women’s sexual and reproductive health.

The protocol is the first human rights instrument to expressly articulate a woman’s right to abortion in specified circumstances. No other human rights treaty explicitly articulates women’s rights to abortion.18

          The protocol is the only treaty to specifically address women’s rights in relation to HIV- AIDS, and to identify protection form HIV – AIDS, as a key component of women’s sexual and reproductive rights. In addition to guaranteeing women’s right to protection from sexually transmitted infections, including HIV _ AIDS, the protocol guarantees women’s rights to adequate, affordable, and accessible health services. It also articulates a state’s duty to protect girls and women from practices and situations that increase their risk of infection, such as child marriage, wartime sexual violence, and FC/FGM.19

          The protocol guarantees women’s right to family planning education, 20 thus reaffirming the right to family planning explicitly recognized in the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC).

          Furthermore, the protocol provides, under article 18, for women’s right to live in a health and sustainable environment.



          Protection rights issues for the girl-child and adult women in Africa include the following: - protection against discriminatory, harmful and exploitative (economic, labour and sexual) practices; protection from physical or moral danger and all forms of violence against women. For example, FC/FGM, Forced/Child marriage, rape, trafficking, forced labour, and inadequate legal protection.

          The protocol goes beyond existing global and regional treaties by affording specific legal protection against gender-based violence, in both the public and private sphere, including domestic abuse and marital rape. The protocol significantly advances women’s right by relocating everyday abuses in the realm of rights violations for which states must be held accountable. In addition, the protocol is unique in its express guarantee of women’s right to be protected from threats of both physical and verbal violence.21

          None of the existing global human rights treaties defines or openly address violence against women.22  This gap in the protection afforded to women was, in part, due to a historic legal distinction between rights violations that occur in the public sphere and those that occur in the private sphere. Until relatively recently, the so-called “private” violence of domestic abuse, marital rape, and harmful traditional practices escaped specific mention and legal scrutiny under international, regional, and national laws.

          Further, the protocol affirms and reinforces the language of CEDAW, which also requires states parties to take all appropriate steps to eliminate social and cultural patterns and practices that are discriminatory to women. The protocol’s provisions on harmful practices also affirm existing provisions in the CRC and the African Charter on the Rights and Welfare of the Child, which both prohibit practices prejudicial to the well-being of the child. Other global standards guaranteeing the rights to life, liberty, security of the person, and health have also been interpreted to include women’s rights to be protected form harmful practices.23

          However, in a significant advancement of women’s sexual and reproductive rights, the protocol goes further than existing treaties in requiring states to prohibit, through legislative measures backed by sanctions, all forms of female genital mutilation.24 No other global human rights instrument expressly calls for the prohibition of FC/FGM by name. The language of the protocol also does not allow for a cultural defence of FC/FGM, whereas the African Charter arguably does.25

          The protocol’s provisions on harmful practices lay to rest arguments that customary and traditional practices can prevail over the rights of women under the African Charter. Under that instrument, the lack of specificity on discrimination against women has left them vulnerable to arguments that “cultural values” and community norms should prevail, even when physical harm results. Since women are underrepresented in the Judiciary and legal community, these arguments have rarely been rebuffed. The protocol affirms the primacy of women’s rights to nondiscrimination and reproductive self-determination under regional law. It requires states to eliminate cultural and traditional practices that discriminate against women and, in this respect, the protocol makes clear what the African Charter omitted: - that the legal protection of tradition ends where discrimination against women begins. The protocol further provides that “women shall have the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies.”26

          The protocol is unique among global human rights treaties in expressly articulating girls’ and women’s right to be protected from sexual harassment as a key component of their right to equality in education. The protocol also affirms women’s right to be free from sexual harassment as a basic social and economic right and as a key component of their right to work.27

          Existing global treaties espouse the right to education and to equality in education, but do not directly address the sexual harassment faced by girls and women in attempting to exercise their right to education. With respect to sexual harassment in the workplace, global human rights treaties do not provide clear protection to women. However, international standards have been interpreted to include women’s rights to be protected from sexual harassment.28

          Furthermore, the protocol provides clearly for the protection of women in armed conflict situations, elderly women, women with disabilities and women in distress against all forms of discrimination, inhuman and degrading treatment, all forms of abuse and violence. The protocol places an obligation on State Parties to ensure that such women are treated with dignity and that their special needs are adequately provided for.29

          Moreover, the protocol under article 8 provides for the equal protection before the law and women’s right to access to justice including judicial and legal aid services. State Parties are obliged to ensure effective promotion and enforcement of gender equality rights. By virtue of article 25 of the protocol, States Parties are finally required to provide for appropriate remedies and mechanisms for legal redress to any woman whose rights or freedoms have been violated.



          The combined effect of Articles 6(a)—(c), 7 and 21 (1) and (2) of the Protocol is that states parties are obliged to ensure the enjoyment of the equal rights of women and men in marriage, divorce and inheritance.

          The protocol clearly specifies 18 years as the minimum age of marriage, affirming girls’ and women’s right to be protected from child marriage. It also provides for freedom from forced marriage and other discriminatory practices during and upon the dissolution of marriage.

          The protocol surpasses current global human rights protections by prohibiting forced marriage practices and articulating a woman’s right to decide herself on matters of marriage and family. It is also the only international human rights treaty to identify monogamy as the “preferred form of marriage”.30 These provisions clearly extend the protocol’s reach into the  spheres of family, community, and tradition, the areas where women are most likely to experience violations of their sexual and reproductive rights.

          The protocol is also unique in its articulation of widows’ right to equality under international law. Its expresses guarantees includes those of a widow’s automatic right to become the guardian and custodian of her children, unless contrary to their interests and welfare; and of a widow’s right to remarry a man of her choice.31 The sexual and reproductive rights violations faced by widows in Africa are acute; these transgressions are specifically addressed under the protocol for the first time in a regional or global human rights instrument.

          The protocol further provides: - “that a widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it. Women and men shall have the right to inherit, in equitable share, their parents’ properties.32

          By virtue of Article 7 of the protocol, States Parties are enjoined to enact appropriate legislations to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage.”



          Development rights issues for the girl-child and adult women in Africa include the following: - continuing disadvantages in educational access for girls, high rates of female illiteracy; heavy burden of domestic labour; extensive participation in agriculture and the informal sector, but much less so in the formal sector, especially in professional, technical and management jobs; large income disparities with men; lack of title to land, limited or no property inheritance rights under customary law, lack of capital and of collateral for access to credit.

          The protocol provides for the right to women’s education and training under article 12. It requires States parties to “- take all measures to eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education  and training; promote the enrolment and retention of girls in schools and literacy among women.

          By virtue of article 13, the protocol guarantees women’s economic and social welfare rights. It provides States Parties shall adopt and enforce legislative and other measures to guarantee women equal opportunities in work and career advancement and other economic opportunities, among others.

          In addition to women’s rights to food security, to adequate housing and to a healthy and sustainable environment, the protocol guarantees further their right to sustainable development. In this connection, States Parties shall take all appropriate measures to, among others, introduce gender perspective in their national development planning procedures; promote women’s access to and control over productive resources such as land and guarantee their right to property; promote women’s access to credit, training, skills development and extension services at rural and urban levels in order to provide women with a higher quality of life and reduce the level of poverty among women.33



          Participation rights issues of women in Africa include the following: - female seclusion and exclusion, patriarchal notions of male responsibility for decision-making and leadership, within the family, in the community and in the wider society; low levels of female participation in politics, administration, government and peacemaking activities, as well as absence of consent inherent in child betrothal and child marriage.

          The protocol guarantees women’s right to participate in the political and decision making process without discrimination whatsoever. It requires States parties to promote women’s effective and equal participation through affirmative action, enabling legislations and other appropriate measures: - in the political life of their countries, formulation and implementation of state policies under article 9; in the promotion and maintenance of peace under article 10; in the determination of cultural policies under article 17; in the planning, management and preservation of the environment and the sustainable use of natural resources  at all levels under article 18; and  in the conceptualization, decision-making, implementation and evaluation of development policies and programmes under article 19 of the protocol.

          It is evident from the above and as confirmed by the Preamble to the  protocol that, African governments and peoples are firmly convinced that any practice, policy or law that hinders or endangers the normal growth and affects the physical and psychological development of women including girls should be condemned and eliminated or outlawed. They are also determined to ensure that the rights of women are promoted, realized and protected in order to enable them to enjoy fully all their human rights.







          The Sharia technically referred to as a ‘believer’s law’ in Islam, has two components. The divine component founded on the provisions of the Holy Quran and the Sunnah of the Prophet of Islam. The human component of the Sharia is largely rooted in the exercise of ijtihad, technically referred to as the human initiatives to embark on research, provide Judicial interpretations of the provisions of the divine component of the Sharia, resort to legal opinions or fatwa, Juristic analysis, discourse or interpretations, as well s analogical deductions of rule by qualified mujtahids or scholars from the letter and spirit of the Holy Quran. Hence while the divine  component is immutable, the human aspect of the Sharia is liable to err and admits of change based on necessity and needs of the human society and for the betterment of the lives of the Muslim ummah in particular, and the humankind in general.34

          It is generally thought that the Sharia treats women unfairly and gender equality and Justice is not possible within the Islamic legal system. This assertion is partly true and partly untrue. Partly true as far as the resort to the process of  ijtihad, the outcome  and application of this process is not reflective of the changing needs and circumstances of the Muslim Ummah and not consistent with the values that the Quran repeatedly asserts in four words: -‘adl (Justice), ihsan (benevolence), rahmah (compassion) and hikmah (wisdom). These Quranic values are very close to, in fact, are the essence or human rights. One cannot think of human rights of any individual of group in the modern world without these values. Justice is very fundamental to human rights as benevolence, compassion and wisdom are. One cannot have a humane society without it being a Just society.35

          It is partly untrue as far as the concept and respect for human rights is quite integral to the teachings of the  Quran and the practice of the Prophet. Both the Quran and the Sunnah have remained for Muslims the framework within which  to promote and protect these individual/group  human rights. And the Quran has  recognized and supported women’s rights in particular to: - independent ownership of property, education, inheritance, free consent in marriage, divorce, child custody, vote, and to full legal capacity. However, there is the need to improve on women’s access to Justice and to practically enhance gender equality in Muslim societies.36



          In order to effectively implement mainstreaming policies, a clear definition of a “gender perspective” is required. An examination of the documents emanating from the 1985 Nairobi, Kenya Africa Regional Conference on Women, which set up the strategies that led to the Beijing World Conference on Women ten years later, reveals that the term “ gender” barely appears. At that point in time, the concern was with “women” or sex,” as defined in the biological sense. It became evident during the period from Nairobi to Beijing in China that there was a need to go beyond the basic biological differences between men and women.37

          Gender refers to the socially constructed roles played by women and men that are assigned to them on the basis of their sex. It is a means of examining similarities and differences between women and men without a direct reference to biology, but rather to expected behaviour patterns and their cultural reinforcements. Since gender relates to the roles of individuals, it implies the possibility for change and, as such, these roles can be subject to public policy.38

          In applying a gender perspective a series of steps can be identified. The first step is to define issues where gender differences can be observed. Second, is to observe and diagnose the differences between men and women. The third step is to confirm that these differences are in fact based on differences in sex. The final step in applying a gender perspective is to examine the function of gender roles during process of change and to identify obstacles. Although these are many assumptions that remain to be proven or explained, a gender perspective can be applied to the way we view the economy, politics, development, law and society. This should provide guidance in the formulation of a research agenda on gender mainstreaming.39

          Two dominant schools-of-thought seek to address how the women’s agenda should be framed. One is a perspective emanating basically from the developed or advanced countries of North America and Europe which asserts that women need more integration, greater visibility, increased participation, and additional resources. An alternate viewpoint, which emanates primarily from developing and least developed countries of Africa, Asia and Latin America, argues that it is not the lack of integration, but the exploitation and unequal conditions into which women are being integrated that have caused gender inequalities, and that their greater integration in the prevailing development strategies will only exacerbate these inequalities.

          Mainstreaming (gender) involves complex issues affecting every stage of the organization of human society, solutions should not be devised only on the basis of the formulation of new standards, enacting new resolutions, and creating new institutions. To be realistic, solutions should be holistic in nature, ensuring sustainability, diversity, and respect for the heterogeneous characteristics of human societies, as well as strengthening the participation of women. We should be sure to avoid the assumption  that an emphasis on mainstreaming women’s issues will automatically open the hierarchical and linear organizational structures in any given society and provide opportunities for women.

          The platform for action adopted at the Beijing Conference on Women in 1995 has contributed to the essential understanding that women should be viewed as fundamental factors in any attempt to understand law, society, human rights, development, economics, and politics.



          The expression “Quranic perspective on Gender Equality” was judged to be most suitable title for it orients us towards discovering those core principles in the Quran itself which form the understanding framework for our societies throughout the Muslim World. It is the society based on Quranic principles which is the goal of all Muslims, even though we many unknowingly deviate from time to time from those principles. It is the conference to a Quran-based society for which we must all work if the Muslim peoples are to enjoy a felicitous future. It is not an Indonesian, Pakistani, Saudi Arabian, Egyptian, Sudanese or Nigerian version of that society that we should regard as indisputable norm, but one firmly based on the teachings of the Holy Quran. Only therein can we find a proper definition of women’s role in society. Since it is these teachings which are the subject of this sub-heading, the above seemed the most proper title.

          By this choice of title one needs to emphasize that we should regard the Holy Quran as our guide in all aspects of our lives. It is not only the prime source of knowledge about religious beliefs, obligations, and practices, it is also the guide, whether specific or implied, for every aspect of Islamic civilization. In the centuries of past glory, it determined the political, economic, social and artistic creativity of the Muslim people. If we are to succeed as members of an Islamic society in the coming decades and centuries, it must again determine our thinking and our actions in an all-inclusive way. ‘Deen’ is not limited to the five pillars of the shahadah, salat, siyam, zakat, and the hajj. Deen in fact defies simple equation with the English term “religion”, for the former’s significance penetrates into every nook and cranny of human existence and behaviour. Surely it should be our goal to relate every action to our Deen. We can only do this by allowing the Holy Quran to in-form and re-form every realm of our lives.

          As a step in this direction, let us consider what the Quran has to teach us about gender equality in the society towards which we should be striving, and ponder its effect on the position of women. What are the basic characteristics of a Quranic society which particularly affect women?

          Five characteristics, which seem basic, crucial and incontrovertible, of Quranic society will be considered. Although they are presented in a series, each one rests upon the others and affects them. The interdependence of these five characteristics makes it difficult to speak of any one of them without mention of the others, and of course they do not and cannot exist in isolation from one another.



          The first of these characteristic of a Quranic society which affect women is that both sexes are held to be equal in status and worth. In other words, the Quran teaches us that women and men are all creatures of Allah, existing on a level of equal worth and value, although their equal importance does not substantiate a claim for their equivalence or perfect identity. This equality of male and female is documentable in the Quran in passages pertaining to at least four aspects of human existence and interaction.



          The first of these Quranic confirmations of male-female equality are contained in statement pertaining to such religious matters as the origins of humanity, or to religious obligations and rewards.

1.                                                                Origins of Humanity: - The Quran is devoid of the stories found in the Old Testament which denigrate women. There is no hint that the first woman created by God is a creature of less worth than the first male, or that she is a kind of an appendage from one of his ribs. Instead, male and female are created, we read, min nafsin wahidatin (“from a single soul or self”) to complement each other (Quran 4:1; 7:189). Whereas the Torah or Old Testament treats Eve as the temptress of the Garden of Eden, who aids Satan in enticing Adam to disobey God, the Quran deals with the pair with perfect equity. Both are equally guilty of sinning: both are equally punished by God with expulsion from the Garden; and both are equally forgiven when they repent.


2.                                                                Religious Obligation and Rewards: The Quran is not less clear in commanding equality for men and women in its directives regarding religious obligations and reward. We read:


Lo! Men who surrender unto Allah and women who surrender, and men who believe and women who believe, and men who obey and women who obey, and men who speak the truth and women who speak the truth, and men who preserve (in righteousness) and women who preserve, and men who are humble and women who are humble, and men who give alms and women who give alms, and men who fast and women who fast, and men who remember Allah and women who remember – Allah hath prepared for them forgiveness and a vast reward.(33:35)40


B.     Ethical Obligations and Rewards

          Secondly, the Quran reveals to mankind the desired equality of the two sexes by establishing the same ethnical obligations and rewards for women and men.


And whoso does good works, whether male or female, and he (or she) is a believer, such will enter paradise and they will not be wronged the dint in a date-stone. (4:124)


Whosoever does right, whether male or female, and is a believer, him verily we shall quicken with good life, and We shall pay them a recompense according to the best of what they do. (16:97)41


          If Allah subhanahu wa ta ala  had not deemed the two sexes of equal status and value, such explicit statement of their equality in ethical obligations and rewards would not have been made in the Quran.


C.     Education

          Although the more specific commands for the equal rights of women and men to pursue education can be found in the  hadith  literature, the Quran does at least imply the pursue of knowledge by all Muslims regardless of their sex. For example, it repeatedly commands all readers to read, to recite, to think, to contemplate, as well as to learn from the signs (ayat)  of Allah in nature. In fact, the very first revelation to prophet Muhammed (S) was concerned with knowledge. In a Quranic society, there can never be a restriction of this knowledge to one sex. It is the duty of every Muslim and every Muslimah to pursue knowledge  throughout life, even if it should lead the seeker to China, we are told.42 The Prophet (S) even commanded that the slave girls be educated,43 and he asked Shifa’ bint ‘Abdillah to instruct his wife Hafsah bint ‘Umar.44 Lectures of the Prophet (S) were attended by audiences of both men and women; and by the time of the Prophet’s death, there were many women scholars. 6


D.     Legal Rights

          A fourth evidence in the Quran for the equality of men and women is its specification of legal rights which are guaranteed for every individual form cradle to grave. Unlike the situation in the West, where until the last century it was impossible for a married woman to hold property on her own, to contract with other persons, or to dispose of her property without the consent of her husband,45 the Quran proclaims the right of every woman to buy and sell, to contract and to earn,46 and to hold and manage her own money and property. In addition to these rights, the Quran grants woman a share in the inheritance of the family (4:7,11), warns against depriving her of that inheritance (4:19), specifies that  the dower (mahr)  of her marriage should belong to her alone and never be taken by her husband (2:229; 4:19-21,25) unless offered by the woman as a free gift (4:44).47

            As with any privilege, these rights of woman carry corresponding responsibilities. If she commits a civil offence, the Quran tells us, woman’s penalty is no less or no more than that of a man in a similar case (5:41; 24:2). If she is wronged or harmed, she is entitled to compensation just like a man.48

            It is clear that the Quran not only recommends, but is even insistent upon the equality of women and men as an essential characteristic of a Quranic society. The claim of the non-Muslim critics that Islam denigrates women is denied emphatically by the Quran. Similarly denied are the arguments of certain Muslims that women are religiously, intellectually and ethnically inferior to men, as Jewish and Christian literatures had earlier maintained.



          Now let us consider the second basic characteristic of the Quranic society which affects the position of women. This is found in the directives for a dual sex rather than a unisex society. While maintaining the validity of the equal worth of men and women, the Quran does not judge this equality to mean equivalence or identity of the sexes.

          Probably all of you are familiar with the contemporary move towards unisex clothes and shoes, unisex jewelry and hair styles, unisex actions and entertainments. In fact, it is often difficult in many contemporary societies to decide whether one is looking at a boy or a girl. This results from the current notion in Western society that there is little if any difference between the two sexes in physical, intellectual and emotional endowment; and that, therefore, there should be no difference in their functions and roles in society.49 The dress and the actions are but superficial evidence of this deeper conviction. Accompanied by a downgrading of the qualities and roles traditionally associated with the female sex, this current idea has generated a unisex society in which only the male role is respected and pursued. Although meant to bring a larger measure of equality for women, the idea that men and women are not only equal, but equivalent and identical, has actually pushed women into imitating men and even despising their womanhood. Thus it is generating a new type of male chauvinism. Tremendous social pressures have resulted in stripping women of their role-responsibilities formerly performed by them, and they are forced to live a life devoid of personality and individuality.

          The society based on the Quran is, in contrast, a dual-sex society in which both sexes are assigned their special responsibilities. This assures the healthy functioning of the society for the benefit of all its members. This division of labour imposes on men more economic responsibilities (2:233, 240-241; 4:34), while women are expected to play their role in childbearing and rearing (2:133, 7:189). The Quran recognizing the importance of this complementary sexual assignment of roles and responsibilities, alleviates the greater economic demands made on male members of the population by allotting them a larger share than women in inheritance. At the same time it grants women the right to maintenance in exchange for her contribution to the physical and emotional well being of the family and to the care she provides in the rearing of children. The unisex ideology generates a competitive relationship between the sexes which we find in many societies and which is disastrous for all members of society: the young; the old; the children; the parents; the single and the married; the male and the female. The dual-sex society, by contrast, is a more natural answer to the question of sexual relationships, a plan encouraging cooperation rather than competition between the sexes. It is a plan which has been found suitable in countless societies through history. Only in very recent times did the idea of sexual non-differentiation or identity achieve prominence, and then primarily in the Western society.

          Protagonists of the unisex society have condemned the dual-sex human organization as dangerous for the well - being of women. If dual sex means that one sex is superior to the other, such a situation could have arisen. But in the true Quranic society, towards which Muslims aspire to move, this is not possible. As we have seen above, the Quran advocates eloquently the equal status of women and men at the same time as it recognizes their generally relevant differences of nature and function. Thus, while acknowledging the religious, ethnical, intellectual and legal equality of males and females, the Quran never regards the two sexes as identical or equivalent. It justifies this stand in its assignment of variant responsibilities and its provisions regarding inheritance and maintenance which match those responsibilities.



        The third characteristic of the Quranic society which is strongly assertive of women’s position is the insistence on the interdependence of the members of society. Contrary to the contemporary trend to emphasize the rights of the individual at the expense of society, we find the Quran repeatedly emphasizing the interdependence of the male and female as well as of all members of society. The wife and husband, for example, are described as “garments” (libas)  of each other (2:187), and as mates living and dwelling in tranquility (33:21; see also 7:189). Men and women are directed to complement each other, not to compete with each other. They are the protectors of each other (9:71). Each is called upon to fulfill certain assigned responsibilities for the good of both and the larger group.

          In order to insure this interdependence which is so necessary for the physical and psychological well-being of both men and women, Allah, in the Holy Quran, stipulated the reciprocal or mutual duties and obligations of the various members of the family –men and women, fathers and mothers, children and elders, and relatives of all degrees (17:23-26; 4:1, 7-12; 2:177; 8:41; 16:90; etc.). The care of and concern for other members of society is equally a duty of the Muslim.


It is not righteousness that you turn faces to the east and the west; but righteous is he who believes in Allah and the Last Day and the angels and the Scripture and the prophets; and gives his wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free….(2:177)


          The Quran thereby instills in the Muslim a sense of place within and responsibility to society. This is not regarded or experienced as a repression of the individual. Instead the Muslim is constantly encouraged in this interdependence by experiencing the benefits it brings. The economic, social and psychological advantages of such close relationships and concerns within these social groups provide more than ample compensation for the individual to sublimate his/her individualistic aspirations. The anonymity and lack of social interdependence among its members in contemporary Western society have caused many serious problems. Loneliness, inadequate care of the aged, the generation gap, high suicide rates, and juvenile crime can all be traced back to the ever-worsening breakdown of social interdependence and the denial of the human necessity for mutual care.



          Closely intertwined with interdependence is the fourth basic characteristic of the Quranic society which serves to improve male-female relations. This is the institution of the extended family. In addition to the members of the nucleus that constitutes the family—mother, father and their children – the Islamic family or ‘a’ilah also includes grandparents, uncles, aunts and their offspring. Normally Muslim families are “residentially extended;” that is, their members live communally with three or more generations of relatives in a single building or compound. Even where this residential version of the extended family is not possible or adhered to, family connections reaching far beyond the nuclear unit are evident in strong psychological, social, economic and even political ties.

          The extended family solidarity is prescribed and strengthened by the Holy Quran, where we find repeated references to the rights of kin (17:23-26; 4:7-9; 8:41; 24:22; etc.) and the  importance of treating them with kindness (2:83;16:90;etc.). Inheritance portions, for not only the nuclear family members but those of the extended family as well, are specifically prescribed (2:180-182; 4:33, 176). Dire punishment is threatened for those who ignore these measures for intra-family support (4:7-12). The extended family of Islamic culture is thus not merely a product of social conditions, it is an institution anchored in the word of God Himself and buttressed by Quranic advice and rules.

          The extended family is an institution which can provide tremendous benefits for both women and men when it exits in conjunction with the other basic characteristics of a Quranic society.

1.                                                                It guards against the selfishness or eccentricity of any one party, since the individual faces not a single spouse but a whole family of peers, elders and children if he or she goes “off course.”

2.                                                                It allows for careers for women without detriment to themselves, spouse, children or elders, since there are always other adults in the home to assist the working wife or mother. Career women in an Islamic extended family suffer neither the physical and emotional burden of overwork nor the feeling of guilty for neglecting maternal, marital or familial responsibilities. In fact, without this sort of family institution, it is impossible to imagine any feasible solution for the problems now facing contemporary societies. As more and more women enter the work force; the unclear family is unable to sustain the needs of its members. The difficulties in the single parent family are of course magnified a hundred-fold. The strain that such family systems put on the working woman are devastating to the individual as well as to the marriage and family bonds. The dissolutions of families which result and psychological and social ramifications of the high divorce rate in  man contemporary societies50  are the growing concern of doctors, lawyers, psychiatrists and sociologists as well as, of course, of the unfortunate victims of these phenomena.50

3.                                                                The extended family insures the adequate socialization of children. A mother’s or father’s advice in a nuclear or single parent family may be difficult to be followed by an unruly or obstinate child, but the combined pressure of the members of a strong extended family is an effective counter to non-conformance or disobedience.

4.                                                                The extended family provides for psychological and social diversity in companionship for adults as well as children. Since there is less dependence on the one-to-one relationship, there are less emotional demands on each member of the family. A disagreement or clash between adults, children or between persons of different generations does not reach the damaging proportions it may in the nuclear family. There are always alternative family members on hand to ease the plan and provide therapeutic counseling and companionship. Even the marriage bond is not put to the enormous strains that it suffers in the nuclear family.

5.                                                                The extended family or ‘a’ilah guards against the development of the generation gap. This social problem arises when each age group becomes so isolated from other generations that it finds difficulty in achieving successful and meaningful interaction with people of a different age level. In the ‘a’ilah, three or more generations live together and constantly interact with one another. This situation provides beneficial learning and socialization experiences for children and the necessary sense of security and usefulness for the older generation.

6.                                                                The ‘a’ilah eliminates the problems of loneliness which plague the isolated and anonymous dwellers in the urban centers of many contemporary societies. The unmarried woman, or the divorced or widowed woman in an Islamic extended family will never suffer the problems that face such women in contemporary societies, for example. In a Quranic society, there is no need for the commercial computer dating establishments, the singles’ clubs and bars, or the isolation of senior citizens in retirement villages or old people’s homes. The social and psychological needs of the individual, whether male or female, are cared for in the extended family.

As marriage-bond grow more and more fragile in contemporary societies, women tend to be the chief victims of the change. They are less able to reestablish marriage or other bonds than men, and they are more psychologically damaged by these losses.

7.                                                                The extended family provides a more feasible and humane sharing of the care of the elderly. In the nuclear family unit, the care of the elderly parent or parents of one spouse may fall entirely on one individual, usually the mother of the family. She must provide for the extra physical care as well as for the emotional well- being of the elderly. This is a tremendous burden on a woman who probably has children’s and husband’s need to attend to as well. If she is a working mother, the burden can be unmanageable; and the elderly are put in an old peoples’ home to await death. With the shared responsibilities and duties that the extended family provides, the burden is significantly lightened.




        The fifth basic characteristic of a Quranic society is that it is patriarchal.

          Any society is made up  of smaller organizations of humans—governments, political parties, religious organizations, commercial enterprises, extended families, etc. each of these organs needs to be  stable, cohesive and maneuverable if it is to be beneficial to its constituents. In order to acquire these characteristics, the organization must assign ultimate responsibility to some individual or some group within its ranks.

          Therefore, the citizens may vote, parliament may legislate, and the police may enforce the law; but it is ultimately the head of state that carries the burden of making the crucial decisions for the nation, as well as the onus or approval, i.e., the responsibility, for those decisions. In like manner, the work of a factory is conducted by many individuals, but all of them are not equally capable of making the ultimate decisions for the company. Neither is each employee equally charged with the responsibility for the organization’s success or failure.

          The family also has need for someone to carry the burden of ultimate responsibility for the whole. The Quran has assigned this role to the most senior male member of the family. It is this patriarchal assignment of power and responsibility which is meant by such expressions as   “wa lil rijali alayhinna darajatun” (2; 228) and       al-rijalu qawwamuna ‘ala al-nisa’i….” (4:34).  Contrary to misrepresentations by the Quran’s enemies, these passages do not mean the subjugation of  women to men in a gender-based dictatorship. Such interpretation shows a blatant disregard of the Quran’s repeated calls for the equality  of the sexes and for its command to show respect and kindness to woman. The passages in question point instead to a means for avoiding internal dissension and indecision for the benefit of all family members. They advocate for a patriarchal society.

          In addition, we would draw attention to the use of the word qawwamun in the statement, al-rijalu qawwamuna ‘ala al-nisa ‘i….(4:34).  Certainly the verb qawwama, from which the verbal noun qawwamun is derived, does not imply despotic overlordship. Instead, the term refers to the one who stands up (from qama, “to stand”) for another in a protective and benevolent way. If an autocratic or domineering role for the male half of the  society had been meant, there are many other verbal derivatives which  would have been more applicable, for example,  musaytirun  and muhayminun. Other instances of the Quranic use of the term qawwamun  confirm this supportive rather than authoritarian or tyrannical meaning of the term (see 4:127-135; 5:9). Ascription of a different significance to the passage in question is, therefore, ideologically inconsistent as well as linguistically unsupportable.

          Why should the Quran specify male leadership for the ‘a’ilah, i.e., a particular family, rather than a matriarchal organization? The Quran answers that question in the following manner:

Men are in charge of women, because Allah has made the one of them to excel the other, and because they spend of their property (for the support of women)… (4:34)

          Physical and economic contributions and responsibility are, therefore, the Quranic reasons for proposing a patriarchal rather than a matriarchal society.

As vicegerents of Allah on earth (2:30), it is our duty to be concerned about the whole and about all of God’s creatures. In the light of the command to propagate the will of Allah in every corner of the earth, we should not neglect to suggest or offer the good that we know to others. It is time for Islam and the Muslims to present their solutions of the problems to contemporary society, not only to the Muslim audience, but to the non Muslim audience as   well. This can and should be done through the living example of true Quranic societies in which the problems of men and women and discussions by our scholars which could be made available to Muslims and non-Muslims alike.

          There is no better way to serve the will of Allah and the whole of mankind. There is no better da’wah than such offering of a helping hand to the struggling victims of contemporary society.51




        Under the Sharia, the term “Justice” has its own meaning. Being a very important right guaranteed to every human being, it is likened to a sacred trust a duty imposed upon man to be discharged most sincerely and honestly. This is to identify one’s own interests with those of others and administer the trust in all sincerity as if an act of devotion. Justice, therefore, is the quality of being morally Just and merciful in giving to every person his due without any discrimination whatsoever. This idea of Justice is expressed in the Quranic verse (4:58): - “God has command you to render back to your trusts to those to whom they are due; and when you judge between man and man, to judge with fairness”. In another Quranic verse (4:105): - “We have sent down thee the book in truth, that thou mightest judge between men as guided by God; so be not (used) as an advocate by those who betray their trust”.

          Justice is thus the duty imposed by God and we have to stand firm for justice though it may be detrimental to our own interests or to the interests of those who are near and dear to us. This is repeatedly asserted in the Quran: - “ O ye who believe, stand out firmly for God, as witness to fair dealing and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just, that is next to piety and fear of God” – (5:9).

          So, justice is a virtue in which there is neither transgression, nor tyranny, nor wrong, nor sin or any form of discrimination and injustice (Quran 2:59; 4:64; 42:41; and 10:54).

          As pointed out earlier there are Quranic verses which have contextual significance. These verses formed the legal foundations of the Sharia or Islamic law in every age of the development of Sharia. But these were not the verses having impress of permanence and principles. There are certainly the verses which lay down norms and principles. Today the Islamic legislation should be based on these verses. Before we examine these verses, we would like to set out certain values which are fundamental to the teachings of Islam. Any legislation which ignores these fundamental values could be anything but Islamic. It is necessary to understand that the classical Islamic Jurist though I did not ignore these fundamental values but the application of these values was constrained by the social ethos of the age.52

          The most fundamental values in Islam, as expounded by the Quran are justice, benevolence and compassion. The Quranic terminology for these values is ‘adl, ihsan and rahmah respectively. The Quran talks of these values in imperative category. The Quranic verse 16:90 testifies to this: - And surely Allah enjoins Justice and benevolence (to others). Thus it will be seen that justice is very central to the Islamic value system as central as love to the Christian ethics. No legislation in Islam which   ignores this value can be valid.

          It is this concern for justice which makes the Quran show deep concern for the weaker sections of society. Thus the verse 28:5 expresses this concern for them and says: - “And we desire to bestow a favour upon those who were deemed weak in the land, and to make them the leaders, and to make them the heirs.” The Islamic Jurisprudence has to imbibe this spirit towards the weaker segment of society as far as the patriarchal society is concerned.53

          It is important to note that the values of justice and compassion cannot be applied independent of the age. The Quran was certainly mindful of what was just in that era when it was revealed and what ought to be just in the transcendental sense. The Quran permitted a measure of conditional male domination, though conditionality of justice was stipulated in the Quranic verse 4:34.

          However, the Quran also did not eternalize the then acceptable notion of justice. The dynamics of ‘is’ and ‘ought’ or interaction between history and eternity informs the whole spirit of Quran. Unfortunately the orthodox Muslim Jurists miss this very spirit while interpreting the Quran from their own perspectives and for their ages. The Quranic verse 33:35 is much more fundamental in this  respect as it clearly  accord women equality with men in all respects while Quran 4:34 is informed by the  spirit of that era, the verse 33:35 deals with the eternal dimension. The orthodox Muslim Jurists, however, do not wish to go beyond the divine injunction expressed in 4:34. They have frozen their minds in the classical age of Islam. What was temporal has become permanent for them and what is permanent is just brushed side as of no consequence. There are many instances of this. The practice of polygamy is one typical example. Firstly, it was a permissive measure in some circumstances (such as large number of war widows and orphans to be taken care of as many men perished fighting in the battle of uhud) with great emphasis on justice to all the wives (their number not exceeding four). It was great advance over the pre-Islamic practice of marrying unlimited and without any obligation towards the wives.54

          Secondly, the verse on polygamy (Quran 4:3) is followed by the verse 4:1 which emphasizes gender equality in the words that  “Lord who crated you from a single being (min nafsin wahidatin) and created its mate of the same (kind) and spread from these two many men and women…” and the Quranic verse 4:2 which talks of justice for orphans and widows. Then polygamy is permitted provided one marries with widows and orphans (and not any woman) and there also justice with all wives is a must failing which one must marry only one. No one before had insisted on such conditionalities for plurality of wives.55

           Thirdly, the verse 4:129 states that even if you desire you cannot do justice between wives and ends by saying that do not leave the one with total disinclination and incline towards the other leaving the first in suspense. If the verses 4:3 and 4:129 are read together, polygamy is as good as not permissible. But the classical Jurist took resort of various explanations to keep possibility of polygamy open. And, much worse, in practicing it, conditionality for justice was hardly enforced. In today’s socio-economic realities polygamy should not be legislatively encouraged in order to implement the Quranic conditionality. This approach will serve the end of gender justice far better than its practice today.56

          The arguments that men are more sexual that in case there are more women than men, it will be better to permit polygamous marriages to avoid immoral relations etc., are all attempts at human rationalization than divine intention. These arguments do not hold much water as there ma y be excess of women over men in one country and vice versa in another. And prostitution and immoral sex thrived even when men could marry any number of wives and also keep slave girls without limit.57

          The Quran therefore must be re-read and re-interpreted in today’s context as the classical Jurists read and interpreted it in their own context. No reformation is possible without such reconsideration of the Quranic verses. The real intention of the Quran namely, that of gender justice and equality comes through several verses. Those verses need to be re-emphasized. The Quranic verse 2:228 (“And women have rights similar to those against them in a just manner”) is quite definitive in this respect. It hardly needs any comment.58

          However, much of this spirit of gender justice and equality was lost when contemporary Muslim scholars and Jurists in many Muslim countries embraced blind imitation in respect of the rulings, legal opinions and interpretations of the Sharia by the founder Jurists of Islamic Jurisprudence. This is to the detriment of the requirements for them to resort to their own interpretations and deduce new rules or fashion out legislations that best address the contemporary needs, issue, problems and challenges facing the Muslim Ummah.59



          Contrary to certain unfounded assumptions the Sharia or Islamic law takes a progressive view of women’s rights. Judicial decisions in Nigeria have endorsed this trend. Thus, for instance, the pre Islamic tradition that treated women as objects of inheritance has been completely supplanted as being rooted in ignorance, oppression and injustice. In the case of Muhammad v. Muhammed,60 two sisters instituted an action against their brothers at the trial court for their own shares in respect of the estate of their deceased father. The estate as a whole was subject to distribution to all legitimate heirs in accordance with the dictates of Islamic law. Their brothers (defendants) got their own legal shares. They, however, excluded their female sisters (plaintiffs) on the ground that female daughters are not entitled to inheritance. The plaintiffs approached the trial court for assistance to recover the estate and give them their own shares.

          The trial court found that the parties are half-brothers and sisters. Their late father left his estate, which had not been distributed as required by Islamic law. The court, accordingly, ordered that the estate be distributed among the heirs under Islamic law. This was done. Dissatisfied, the plaintiffs appealed to the Sharia Court of Appeal, which upheld the judgement of the trial court. On further appeal to the Kaduna division of the Court of Appeal, the Court dismissed the appeal.

          Muntaka - Coomassie JCA, who read the judgement of the court, first offered useful insight into the pre-Islamic status of female children. In his words, “Before the advent of Islam, daughters and young sons of deceased person were not entitled to inheritance. Their reasons were that since infant sons and daughters cannot go to war and secure booty  or loot……………….they should not be allowed to inherit as heirs. Infact females were themselves object of inheritance.”61

          According to his lordship, Islam destroyed that arrangement which was based and rooted in ignorance and oppression. On the crucial  question of whether female children can partake in the inheritable estate of their deceased father, the learned justice of the Court of Appeal, stated the Islamic position, which he held to be the law, thus: -


“Now daughter or female heirs are allowed to partake like their male counterparts in a modified manner, namely a daughter can have as her share, half of what the son will get as his share………this is what is popularly known as the ILILZAKARI formula. That is to say a male person would get twice of the female share.”62


His Lordship traced the religious pedigree of this practice in thee words: -

“The issue of inheritance under Islamic law is sacrosauct. It could be clearly seen that Allah the Most High did not leave it in the hands of human beings. He the Almighty undertook to explain its rule, conditions and classification of the heirs and stated same in the holy Quranic heirs i.e. their shares were specifically entrenched in the Holy Quran; therefore, nobody or institution can deny them shares which God gave them.”63


Criticizing his lordship in the above case, Justice Nweze states that: -64


Now, his lordship endorsed this scriptural formulation and patently discriminatory practice without evaluating the rationale for the preferential treatment, which the ILIIZAKARI formula accords to male children.

The question is whether the sacrosanctity, which the said formula is invested with under the Holy Quran, can stand the test of the non-discrimination norm ordained in section 42 (1) of the 1999 Nigeria Constitution. It is interesting to note that the derogation provisions in section 45 of the constitution do not extend to the provision of section 42. The entrenchment of the ILILZAKARI formula in the Holy Quran, therefore, cannot justify its discriminatory tendencies. Above all, Islamic law is part of the received customary law. It is therefore a law in force in parts of the country. Thus, any rule of Islamic law, which imposes special disabilities or restrictions or accords special privileges or advantages based on sex, is unconstitutional. With due respect to Muntaka-Coomasie JCA, section 42, must per force, vacate the sacrosanctity which the Holy Quran invests the ILILZAKARI formula with. In effect, his lordship ought to have pruned the formula of such interpretations that tended to confer advantages on the male children, namely, the formula which allowed a male person to get twice of the female share. That practice cannot find justification either under CEDAW, the African Charter on Human and Peoples’ Rights, ICESCR or ICCPR. This much, one expected his lordship to say.65



          In the light of the above criticism, the first question that arises is: - whether it is a fair comment to state that the sharing formula in Quran 4 verse 11 is gender discriminatory without first appreciating the rationale behind it, for a proper appreciation of this principle, it is necessary to consider it along with other Sharia provisions that imposed some duties on the male person that has been assigned double the share of his female counterpart, duties which are not imposed on her. While the Sharia places the responsibility of payment of dowry and maintenance of the family on the male person, maintenance of the female person rests with her husband and would revert to her male counterpart when the necessity arises. In addition, the responsibility to look after other close relatives who have no means including the female counterpart that gets half his share, is placed on the male heir. In the final analysis, the female heir who shared the estate with her male counterpart on 1:2 ratio will turn round to benefit from the brother’s share. In the circumstances therefore, the Quran has not discriminated or has done no justice to the female heir in matters of inheritance.

          The second question here is, whether it is a fair criticism of the same Quranic verse without finding out whether the ratio of the sharing formula is absolute. It is worth noting that the distinction in share ratio between the male and female Quranic heirs is not absolute. There are two confirmed instances where a male and a female heirs share equally in the deceased’s estate. According to the second limb of the same Quranic verse 11 chapter 4: - “For parents (that are living) one sixth share of the inheritance to each, if the deceased left children...”  in other words, both father and mother as surviving parents take one sixth share each of the deceased’s estate. Similarly, the uterine or maternal sister or brother, if only one survives, takes one sixth; if both are living they share one sixth equally; but if more than two survives, they share one - third of the deceased’s estate who left behind no ascendants or descendants. In the same Quran chapter 4 but verse 12, the second limb of it provides: -


“If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets one sixth, but if more than two they share in a third.”


The third question here is, whether there are situations where the female heir gets higher share than her male counterpart. Indeed there is an instance where a female heir gets more than the male heir. Such is the situation where a deceased has no children and the parents are the only heirs, here the mother takes one –third while the father takes one – sixth. This is in accordance with the doctrine of Umariyatan based on the interpretation of some companions of the Prophet of Islam and in the light of the second limb of Quranic verse 11 chapter 4: - “if no children left, and the parents are the only heirs, the mother has a third……”

          Hence, it remains doubtful or at best a moot point, justice  Nweze’s declaration that the above mentioned Quranic formula based on “ a rule of Islamic law which  accords to male children special privileges or advantages based on sex is unconstitutional”. For two reasons, the above sharing formula could not be  said to amount to “ according special privileges or advantages based on sex to the male child. First, because the historical context of the rule of Islamic law of inheritance  revealed the fact that it was a cautious reform in favour of women and girls. In pre-Islamic Arabian society, inheritances were mostly restricted to the powerful or the eldest male member of the family to the exclusion of all female and minor members. Marriage as a ground of inheritance favours only the husband who inherits what ever his deceased wife might have left to the exclusion of her other blood relatives. A widow had no capacity to inherit her husband’s estate as she was herself a part of the estate. In most African customs, cultures or societies, women and children have always been, and still remain, at a disadvantaged position in relation to inheritance. The development of Sharia brought about a radical transformation in inheritance from that of the pre-Islamic Arabia. Sharia instituted a system of inheritance where all heirs, male or female, adult and children and even the unborn child are not discriminated against having guaranteed fully their right to inheritance. The widow now becomes at par with the husband, as did the mother with the father, and sister with the brother. The Sharia scrapped the position of woman as a heritable chattel and places her as an heir proper with a fixed and determinable share from the estate of her deceased relation or spouse, such is the legacy of women’s right to inheritance and to date one is yet to come across a system of inheritance that is so comprehensive, complex, dynamic, just, fair and equitable as the Islamic system. The second reason being that the female Quranic heirs were duly compensated  under related Sharia provisions on ‘mahr’ or dower amount being paid to them at the time of marriage; and the sole responsibility of maintenance of women and providing financial assistance to the needy members of the family including the female  heir counterpart falls on the male heir. Admitted this situation in reality today has undergone radical changes with women assuming similar or greater responsibilities in the family. But the contest of the Quran must be understood.66

          The principles of inheritance law are laid down in broad outline in the Quran; the precise details have been worked out on the basis of the Prophet’s practice and that of his companions, and by interpretation and analogy Muslim Jurists have collected a vast amount of learning on this subject, and this body of law is enough by itself to form the subject of life-long study.




2.11.1       MARRIAGE

          First, Islam or the Sharia recognizes marriage as a civil contract capable of being entered into by sane, adult and consenting parties. It is the right of the bride and the groom or their legal guardians or agents (wakil) to conclude a valid marriage after the exchange of offer (ijab) and acceptance (qabul) in the presence of witnesses. The Holy Quran emphasizes mutual consent rather than coercion as a basis for marital relations between women and men, and specifies that the dower (mahr) of her marriage, being the right of the woman should belong to her alone and never be taken by her husband unless offered by the woman as a free gift.67 The Quran reads: - “ O you who believe, it is not lawful for you to inherit forcibly the woman (of your deceased kinsmen) nor (that) you should put constraint upon them that you may take away a part of the which you have given them………….”

          Consent of a woman in marriage is indispensable for a valid marriage. This issue was settled by the Federal Court of Appeal, Kaduna division, in the notorious Nigeria case of karimatu Yakubu v Alhaji Paiko,68 where the court held that a father cannot exercise his power of ijbar (compulsion) recognized under Maliki school of Jurisprudence to marry off his daughter to a man of his choice without her consent and contrary to her choice or preference. This was the practice of the Prophet of Islam in order to please the woman of girl and cultivate congeniality between the parties as well as proving that the best interest of the ward is always paramount.69

          Further, the Quran gives clear instruction about mutual consent between spouses in decisions related to child care, namely breastfeeding and weaning. “A mother should not be made to suffer because of her child, nor should he to whom the child is child (be made to suffer) because of his child…….if they desire to wean the child by mutual consent and (after) consultation, it is no sin for them”:, Quran 2:233.

          Furthermore, there is an authoritative Hadith of the Prophet of Islam concerning the use of contraceptive method, which emphasizes the need to obtain the wife’s consent before practicing “azl” (withdrawal or coitus interruptus) because it may interfere with her sexual right to enjoyment of sex or her desire for children.70

          A number of Quranic verses emphasize the notion that Almighty ALLAH does not wish to burden believers, with the implication that the well-being of children and their mothers overrides concerns for a large family. Hence Islam highly recommends child spacing or birth control and requires respect for the equal rights of the spouses to decide or determine the number of children they require either for health reasons or for the well-being of the mother or child or both. Clearly Islam encourage prolonged breast feeding up to two years which may be seen as a means of the spouses promoting family spacing. This is supported by Quran 31:14:- “ And we have enjoined on man to be good and dutiful to his parents, His mother bore him in weakness and hardship, and his weaning is in two years.” See also Quran 46:15. “And we have enjoined on man to be dutiful and kind to his parents. His mother bears him with hardship. And she brings him forth with hardship and his conception and weaning of him is thirty months…” see also Quran 2:233.

          Several scholars have infact noted  that Islam is quite open in recognizing the importance of sexual enjoyment based on mutual respect for both parents within marriage, and Islamic Jurisprudence is also quite flexible when it comes to the  use of contraceptive methods.71

          There also exists the potential for an approach towards marriage that would be based on agreement and mutual consent rather than dominance and submission. This tendency however has been muted in comparison with the clear asymmetry in gender roles that is apparent in marriage practices in Muslim societies, as well as in the writings about these practices by both Muslim schools and Western analysts. The dominant view is that men have the obligation to financially provide for the family and the right to expect obedience from their wives, while women’s duties are confined to companionship and the care of children, and their rights limited to financial support and equal treatment in the case of polygamy. This asymmetry is built around three key concepts: the first is wilaya (guardianship) which means that woman needs a guardian to act on her behalf and that a father is the legal guardian of his children; the second is nafaqa which refers to the financial support that a man owes to his wife and children; and the third is hadana which summarizes the right and duty of woman to care for their young children, along with the fact that these are limited by the father’s legal guardianship. Analyses of Sharia as it has been codified in the laws of personal status in different Muslim countries demonstrate the unequivocal way in which man’s role as the head of the household is spelt out and the resulting difficulties of defending women’s rights under such a policy and legal environment. These include the potential for the coercion of girls into early marriage, an abuse of divorce rules and procedure that is clearly disadvantageous to women; limitations that a husband can put on his wife’s right to work and freedom of movement, among others.72


2.11.2       DIVORCE

          The contractual nature of marriage under the Sharia males it possible to insert provisions that protect the woman against arbitrary divorce or polygyny and guarantee her right to work or freedom of movement. This method has been regularly used throughout Islamic history but it has been the privilege of those who have both the necessary knowledge of the law and the means to influence its application.

          Under Islamic law a married woman can equalize her right with her husband’s in matters of divorce. She can get the contract to empower her divorce her husband by ending the marriage at her will. The Prophet of Islam permitted a woman called Jamila to divorce her husband against his will and without consulting him just because she did not approve of his looks. Indeed, a wife can even get the contract to empower her to divorce the husband upon taking any additional wife subsequent to their marriage. 73

          In addition to whatever contractual safeguards she may have built into the marriage contract, the wife has the legal right to obtain a divorce on any of the following grounds: -74

i.                                                                                           Husband’s physical or mental cruelty towards her. Mental cruelty includes  such insufferable behaviour as the husband’s drunkenness, licentiousness, being persistently late at night in home coming, etc. physical cruelty includes of  course, beating;

ii.                                                                                         Husband’s withdrawal of his association with her by either physically deserting her or abandoning conjugal relations with her. Desertion is a ground for divorce even though the husband continues to provide maintenance;

iii.                                                                                      Failure to provide maintenance is another ground for divorce even if the husband has not  deserted the wife; and

iv.                                                                                       Husband becomes afflicted with an intolerable disease, physical or mental including insanity.


Furthermore, while the Quranic verse 2:229 permits a woman to liberate herself from an unsatisfactory or unhappy marriage by returning  the dower amount to husband (khulu’), the Quranic verse 4:35 gives her right to appoint an arbiter of her own to settle the marital dispute or agree to divorce. Hence Khul’u (self-redemption) is an irrevocable form of divorce under the Sharia, which is initiated by the wife rather than the husband. In fact, instances abound in which woman sought the divorce and their requests were granted by their husbands without asking for or getting anything in return. Where the husband refuses to grant khul’u (release), or where the spouses could not come to an agreement on the conditions upon which  khul’u is to be granted, it is then the role of the court to resolve the dispute by enforcing her right to obtain release according to Islam  law.

          After divorce, the wife must observe a waiting period (iddah) of 3-4 months during which her right to maintenance still subsists. The waiting period provides a change for both parties to reflect and reconsider their basis of misunderstanding. Sharia also requires equity, benevolence and fairness in treating a divorced woman (Quran 2:228 and 2:241).76


2.11.3       MAINTENANCE

The Quran, recognizing the importance of complimentary sexual roles, grants women the right to maintenance in exchange for her contribution to the physical and emotional well-being of the family and to the care that she provides in the rearing of children. The right to maintenance includes the provision of all her basic needs and in accordance with her social standing; - feeding, clothing, shelter, cosmetics, a cook etc. This right is absolute and does not depend on the wife’s means. Lack of maintenance is accordingly a valid ground for divorce at the instance of the woman.77


2.11.4       ABORTION

          Although there is a remarkable controversy among Muslim Jurists regarding the position of Islam on abortion, the clear indication is that it is prohibited by general agreement if it is carried out after ensoulment or animation. That is roughly after the fourth month of pregnancy, unless the life of the mother or rape victim is in danger.78

          Concerning abortion before ensoulment and without any reasonable cause, juristic views differ and range from permissibility and disfavour to prohibition.79

          Further, one unanimous permissible ground for abortion arises when the pregnancy is a threat to the mother’s life. The Muslim jurists agreed that after the baby is completely formed (that is, beyond four months or after ensoulment), having reliably established that the continuation of the pregnancy would necessarily result in the death of the mother, then in accordance with the general principle of Sharia, namely that of choosing the lesser of two evils, abortion must be performed. The reasons being that the mother is the origin of the foetus and she is established in life with assigned roles as well as being a pillar of the family. Accordingly, it   would not be reasonable to sacrifice the mother’s life for that of a foetus which has not yet acquired a personality and which has no role or responsibilities to fulfill either towards the society, the family or any other individual.80

          Furthermore, abortion is permissible under the Sharia for rape victims before the expiration of the fourth month of the pregnancy or before ensoulment. This is because the victim was innocent and non-consenting. Also, the trauma of the rape and of going through a pregnancy and labour of an illegitimate child could psychologically destroy the rape victim and the child would have to live all its life with a stigma. This qualified permissible approach results in a rather liberal policy.81

          Thus, several important components of a reproductive and sexual rights approach are encouraged in Islam.82



          It is evident from the above analysis that, both the Protocol on the Rights of Women in Africa and Islamic law recognized the crucial role of women in the preservation of family and societal values and seek to promote and protects women’s rights as human beings, then as citizens of their respective states, and finally as members of a vulnerable group that are largely abused, disadvantaged, marginalized and discriminated against in every human society.

          Further, how men and women (especially political and public  office holders, religious and community leaders, gender insensitive scholars, policy formulators and implementers) perceive women’s rights and to what extent their decisions and behaviour reflect a concern over such rights, are questions that require:-  continuing human rights education; aggressive public enlightenment campaign; multidisciplinary  research and a cross-cultural approach  to the understanding, articulation and promotion of women’s rights as human rights in the civil, political, social, economic, cultural, environmental and development contexts.

          At the same time, because legal and policy reforms and ideas about human rights can only provide a receptive context for changes in behaviour and do not by themselves produce these changes, it is important also to devote our attention to the practical realities that would support or hinder these reforms. These range from the economic and health infrastructure, to patterns of family formation and dissolution, and the diffusion of ideas through education and exchange. In other words, to all those conditions that are prerequisite to the effective protection of women’s human rights and the promotion of gender equality and gender justice.



          First, advocates in countries that have not yet ratified the protocol should press their governments to ratify.

          Second, there is the need to uphold the protocol’s objectives. Any state that ratifies the treaty immediately assumes an obligation to uphold its stated objectives: to ensure the promotion and protection of women’s human rights; to ensure the implementation of the protocol at national level; and to submit periodic reports to the African Human Rights Commission, as well as provide appropriate legal remedies to any woman whose rights are violated. The adoption and repeal of legislations, implementation of policies and programmes, and enforcement by national-level courts and other mechanisms of existing legal standards can fulfill the obligations outlined in the protocol.

          Third, advocates can lobby governments to reform national laws and policies that hinder women’s human rights under the protocol.

          Fourth, advocates need to push national and local policymakers to enact policies and programmes that seek to fulfill women’s human rights: - e.g., violence against women; sexual discrimination against women; a woman’s right to sustainable development and to participate in governance, decision-making process at all levels and in politics.

          Fifth, advocates can bring cases before national courts to help address violations of women’s sexual and reproductive rights, rights to a healthy and sustainable environment etc.

          Sixth, treaties help advocates articulate the nature and content of women’s human rights. The language of the protocol, therefore, may be used to educate women and men, policymakers, and advocates on the meaning and significance of legal standards, entitlements, and obligations as they apply to women’ rights in Africa.

          Seventh, conduct trainings for those who protect, promote and advance women’s rights in Africa on the African Human Rights System and the role of the protocol.

          Finally, advocates need to lobby member states of the African Union to ensure that the African Human Rights Enforcement mechanisms are effective.



1.                                                    Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2nd Ordinary Session, Assembly of the Union, adopted July 11, 2003.

2.                                                    See Article 14, Protocol.

3.                                                    Ibid, articles 1(9), 2(2) and 5.

4.                                                    See ibid, preamble.

5.                                                    See J. Oloka—Onyango, Human Rights and Sustainable Development in contemporary Africa: - A new dawn, or retreating horizons' in: - 6 BUFF. HUM. RTS. L. REV. 39 at 66 (2000).

6.                                                    See Adjetey F.N.A., Religious and Cultural Rights: - Reclaiming the African women’s individuality: - The struggle between women’s reproductive autonomy and African society and culture, 44 AM. U.L. REV., p. 1351 at 1376 (1995).

7.                                                    See Women in Law and Development in Africa (WILDAF), WILDAF News, May 18, 2005.

8.                                                    It should be noted that different countries have interpreted their obligations under the Charter in different ways. In the Bostwana case of  Attorney General v. Unity Dow, C.A. Civ. App. No. 4/91 (unreported, 1991), the court used the principles espoused in the African Charter to override traditional customs of unequal treatment of women in their citizenship rights. However, a key observation is that the language of the Charter does not guarantee progressive interpretation of women’s rights in Africa.

The Constitutions of many African countries, for instance those of Kenya, Zimbabwe and Zambia, maintain special protection for personal law systems, often to the disadvantage of women attempting to exercise their right to equality in the family and society.

9.                                                    See Magaya v. Magaya, S.C. 210/98/Civ. App; No. 635/92 (unreported, 1999, Zimbabwe).

10.                                               See Ibid.

11.                                               July 11, 2003.

12.                                               The Protocol Establishing the African Court on Human Rights entered into force on 25 January 2004 and for the establishment of the Court. The African Union has decided to merge the African Court with the African Union Court of Justice in July 2004, which has contributed to the delay in the establishment of the Court. See interights: - A Human Rights Court for Africa, 15 INTERIGHTS BULLETIN Vol. 1, p. 1, (2005)

13.                                               Sub-Saharan Africa: - 25.4 million estimated total no. of persons Living with HIV-AIDS, end of 2004; 52% of HIV-positive adults who are women, end of 2004; 2.3 million estimated total deaths from  HIV-AIDS in 2004; 920 estimated maternal mortality ratio (2000) maternal deaths per 100,000 live births; 247,000 number of maternal deaths (2000); 1 in 16 lifetime risk of maternal deaths (2000); and 104 infant mortality rate (2004) per, 1000): - Sources: - UNAIDS and WHO, AIDS epidemic Update 2004 (2004); UNICEF: - State of the World’s Children 2005 (2004), and WHO et. Al, Maternal Mortality in 2000 (2004).

14.                                               Article 4, Protocol.

15.                                               Ibid, Article 14.

16.                                               Ibid, sub-article 2.

17.                                               Article 14 of the protocol is entitled: - “ Health and Reproductive Rights”.

18.                                               Ibid, Article 14(2)(c).

19.                                               Supra note 2, Article 14 (1) (c-e).

20.                                               Ibid, Article 14 (1) (f) and (2) (a).

21.                                               Ibid, Article 1 (j), 3(4), 4(2)(a).

22.                                               See the Center for Reproductive Rights, New York, USA: - Reproductive Rights in the Inter-American System for the Promotion and Protection of Human Rights, 6(2002); See also the Inter-American Convention on the  Prevention, Punishment and Eradication of Violence Against Women, adopted June 9, 1994, entered into force, May 5, 1995.

23.                                               See CEDAW, articles 2(f) and 5; CRC, article 24(3); and OAU Charter on the Rights and Welfare of the Child, article 21.

24.                                               The Protocol, supra note 2, Article 5(b).

25.                                               See the African Charter, Article 17(2), (3) and 18(3).

26.                                               Protocol, supra note 2, Article 17(1).

27.                                               Ibid, Articles 12(1)(c) and 13 (c).

28.                                               See e.g., Concluding observations of the Committee on CEDAW: - Thailand, CEDAW 20th Session; Tanzania, CEDAW, 19th Session; Ethiopia, CEDAW 51st Session; Human Rights Committee: - Argentina, CEDAW, 70th session etc.

29.                                               See protocol, Article 11, 22 – 24.

30.                                               Ibid, Article 6(c).

31.                                               Ibid, Article 20(b-c).

32.                                               Ibid, Articles 21 (1)-(2).

33.                                               Ibid, Articles 15 and 16, 18 – 19.

34.                                               See Ladan, M.T., “Women’s Rights and access to Justice under the Sharia in Northern Nigeria,” in: -  Sharia and Women’s Human Rights in Nigeria: - Strategies for Action (ed. Joy N.E; and A.A. Afolabi)(2003): - WARDC, Lagos and WACOL, Enugu, at pp. 37-88.

35.                                               See Ladan M.T., “ Women’s Right, Access to and Administration of Justice under the Sharia in Nigeria,” in: - Sharia implementation in Nigeria: - issues and challenges on women’s rights and access to justice (2003) (ed. J.N. Ezeilo, M.T. Ladan and A.A. Afolabi) at pp. 19-44.

36.                                               Ibid at pp. 25-44.

37.                                               See Ladan M.T., “Mainstreaming Gender in governance,” in: - Gender Gaps in the 1999 Constitution of Nigeria(2003) WARDC, Lagos, at pp. 211-224.

38.                                               Ibid at pp. 212-215.

39.                                               Ibid at pp. 220-224.

40.                                               Allah promises the hypocrites, both men and women, and the disbelievers fire of hell or their abode. It will suffice them. Allah curses them, and theirs is lasting torment. (9:68)

41.                                               See also 9:67-72.

42.                                               This is a hadith of the prophet (S). See also Muhammed ‘Izzat Darwazah, Al-Mar’ah fi al-Qur’an wal sunnah (Beirut: al-Mukatabah al-Asriyyah, 1980), p. 44, 47, 51.

43.                                               Muhammed Fu’ad Abd al-Baqi, al-Lu ‘lu’ wal Marjan fi ma ittafaqa fihi al- Shaykhani (Beirut: Dar al-Kitab al-Jadid, 1970), 1, pp. 30-31.

44.                                               Hajji faysal ibn Hajji Uthman, “Woman and Nation-Building: Systematic and Contemporary Analysis of the problem of Woman in Contemporary Malay Muslim Society (Ph.D. dissertation presented to Temple University). P. 85.

45.                                               Muhammed Khayrat, Markaz al-mar’ah fi al- ‘lslam (Cario: Dar al-Ma’arif, 1975). P. 108.

46.                                               Monrad G. Paulsen, “Women Legal Rights of”, Encyclopedia Americana (Danbury, Conn.: Americana Corp.,1980), Vol. 29, pp. 108-109.

47.                                               ……..unto men a fortune from that which the you have earned , and unto women a fortune from that which they have earned…(4:32)

48.                                               See Mustafa al-Siba’I, al-Mar’ah bayn al-fiqh wal qanun (Aleppo: Al Maktabah al- Arabiyyah, 1976), p. 38; Muhammad ‘Izzat darwazah, Al-Dustur al-Qur’ani fi shu ‘un al-Hayat (Cario Isa al-Babi al-Halabi, n.d), p. 78.

49.                                               O you who believe! It is not lawful for you to inherit forcibly the women (of your deceased kinsmen) nor (that)) you should put constraint upon them that you may take away a part of that which you have given them, unless they be guilty of flagrant lewdness. But consort with them wherein Allah has placed much good. (4:19).

50.                                               In describing the Women’s Liberation movement in America, Caroline Bird writes that, “they would abolish the notion of intrinsic differences between the nature of males and females commonly cited to validate these conventions (i.e., marriage, the family, male-female relationships, etc.)” (Women’s Liberation,” Encyclopedia Americana, vol. 29, p. 111a).

51.                                               The argument here in favour of the extended family in the sense of a family including “grandparents, uncles, aunts and their offspring” living together “in a single building or compound.” Although it is true that Islam enjoins close and warm relations between those related by blood (33:50;24:61) and faith (49:10;59:10) there is little evidence in the Quran or tradition for any preference for their living together” in a  single building or compound,” nor such a preference is supported by historical days. However, the argument in favour of the “residentially extended” family is not incompatible with Islamic teachings.

52.                                               Ladan, supra note 35.

53.                                               Ibid.

54.                                               See Ladan M.T., “….Issues and challenges in the application of the Sharia in Nigeria”, in: - Sharia penal and Family Laws in Nigeria and in the Muslim World (2004) Global Rights (ed. J. Ibrahim) at pp. 57-115.

55.                                               Ibid.

56.                                               See Ladan .M.T., Women and Children’s Rights under the Sharia in Nigeria and the Practice of Muslim World (2004)(unpublished manuscript, Dept. of Public Law, A.B.U., Zaria, Nigeria).

57.                                               Ibid.

58.                                               Ladan, supra note 34.

59.                                               See Ladan, supra note 54 at pp. 115-118.

60.                                               (2001) 6 NWLR (pt. 708)p. 104.

61.                                               Ibid, per Muntaka, JSC; at p.112.

62.                                               Ibid, citing Quran 4 verses 11-14

63.                                               Ibid.

64.                                               Nweze, C.C., “ A critical appraisal of Judicial decisions relating to women’s rights in Nigeria:, presented at a  WACOL organized colloquium, at Grand Hotel,  Asaba, Delta State, March 1-2, 2003, at pp. 5-7.

65.                                               Ibid.

66.                                               Ladan M.T., supra note 59.

67.                                               See A.M.J. Mughniyyah, “ Marriage according to the Five schools of Islamic Law”, in: - Al-Tawhid, a Quarterly Journal of Islamic Thought and Culture, Vol. IV, No. 1, September, November 1986, pp. 49-72.

68.                                               Quoted in Ladan, supra note 54.

69.                                               Ibid.

70.                                               See Ulama (2004): - Reproductive Health Issues in Nigeria: - The Islamic Perspective, at pp. 1-25.

71.                                               See Ladan .M.T., Islam and the Permissibility of abortion for rape victims. A paper presented at a national women’s court on sexual violence against women, organized by WACOL, Enugu in collaboration with AWDF, on November 12, 2002, at NCWD, Abuja, Nigeria.

72.                                               Ladan, supra note 56

73.                                               Ibid.

74.                                               Supra note 67 and note 56.

75.                                               Ladan supra note 54.

76.                                               Ibid, note 56

77.                                               Ladan, supra note 35.

78.                                               See Ladan, supra note 71.

79.                                               Ibid, at pp. 4-6.

80.                                               Ibid at p. 10

81.                                               Ibid at pp. 10-11.

82.                                               Ibid at p. 11.



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