Browsing by Author "Diala, Anthony C"

Now showing 1 - 5 of 5
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    Muslim family law and judicial protection of women’s rights in Kenya: an assessment
    (University of the Western Cape, 2023) Kunyuk, John Tito; Diala, Anthony C
    The status of women in Muslim majority and minority states is a major question in the articulation of rights in non-Western settings. Contestations over women’s rights in these societies are thought to stem from conundrums that Muslims face when they struggle to comply with constitutional and statutory norms that reify equality and non-discrimination, while staying true to the teachings of their religious tradition, which may not necessarily reflect those norms. This study set out to explore the practice of Muslim Family Law in Kenya in order to assess whether and the extent to which the law, as it is currently adjudicated in Kenyan courts, protects the rights of women. The study examined the evolution of Muslim family law and the legal and institutional frameworks that underpin the protection of Muslim women’s rights in Kenya. The study relied on case law from the Kadhis’ court, the High Court and the Court of Appeal in the assessment of judicial protection of women’s rights. Findings reveal that women assert their family law rights in the courts by using tools within the Islamic legal tradition and taking advantage of state laws, which promote an egalitarian vision of rights. Courts are found to be proactive in allowing women’s access to their rights and redressing violations of rights in the adjudication of Muslim family law. However, the lack of clarity on jurisdictional questions and the absence of a definitive madhhab or school of law in the administration of Muslim family law are found to be drawbacks that may hamper women’s enjoyment of their rights. It is recommended that amendments of the laws be made to redress legal indeterminacy.
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    Normative intersectionality in married women’s property rights in southern Nigeria
    (University of the Western Cape, 2020) Diala, Anthony C; Diala, Jane C
    The fate of marriage gifts during a customary law divorce is significant for the interaction of legal orders in sub-Saharan Africa, especially in the context of scholars' fixation with conflict of laws. In analysing this fatet, this article introduces normative intersectionality as a theoretical framework for a nuanced understanding of how laws and socio-economic forces interact in post-colonial settings. Normative intersectionality rejects a legal positivist view of rights, which neglects people's adaptation of indigenous norms to socioeconomic changes. In this sense, normative intersectionality is useful for addressing the traditional Igbo law of matrimonial property, which regards a married woman's property rights as subsumed in her husband's rights. Using the division of marriage gifts in Southern Nigeria as a case study, the article draws attention to how legal orders speak to, rather than against, each other, and in so doing, stresses the adaptive character of indigenous laws. It argues that normative intersectionality illumines the interplay of gender equality, property rights and legal pluralism. Accordingly, it urges judges to use the imitative nature of legal pluralism in post-colonial settings to remedy entrenched systems of injustice and inequality, which often hide under the banner of tradition.
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    Normative intersectionality in married women’s property rights in Southern Nigeria
    (2020) Diala, Anthony C
    The fate of marriage gifts during a customary law divorce is significant for the interaction of legal orders in sub-Saharan Africa, especially in the context of scholars’ fixation with conflict of laws. In analysing this fate, this article introduces normative intersectionality as a theoretical framework for a nuanced understanding of how laws and socio-economic forces interact in post-colonial settings. Normative intersectionality rejects a legal positivist view of rights, which neglects people’s adaptation of indigenous norms to socio-economic changes. In this sense, normative intersectionality is useful for addressing the traditional Igbo law of matrimonial property, which regards a married woman’s property rights as subsumed in her husband’s rights. Using the division of marriage gifts in Southern Nigeria as a case study, the article draws attention to how legal orders speak to, rather than against, each other, and in so doing, stresses the adaptive character of indigenous laws. It argues that normative intersectionality illumines the interplay of gender equality, property rights and legal pluralism. Accordingly, it urges judges to use the imitative nature of legal pluralism in post-colonial settings to remedy entrenched systems of injustice and inequality, which often hide under the banner of tradition.
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    Peacebuilding and the Interface of State Law and Indigenous Market Laws in Southern Nigeria
    (2020) Diala, Anthony C
    How the interface of state law and indigenous market laws contributes to peacebuilding in Nigeria is an unexplored question that demands attention. First, law, human security and peace are interrelated through the cultural ideas and norms that inform human behaviour. Second, the co-existence of normative orders in Africa favours a top-down approach that inadequately acknowledges indigenous law, neglects its economic, cultural and religious influences, and thereby affects human security. Based on key informant interviews, focus group discussions and observation of markets in southern Nigeria, this article finds that although indigenous market laws are much altered, their foundational values inform market union constitutions, bye-laws and dispute resolution mechanisms. Union officials draft these laws with the assistance of Western-trained legal practitioners and apply them in close co-operation with state organs, who recognize market tribunals as quasi-judicial bodies. The article urges policy attention on the manner people adapt indigenous market laws to socio-economic changes.
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    Statutory laws of intestate succession in south-east Nigeria: addressing the gaps of legal pluralism
    (University of the Western Cape, 2024) Eboh, Nnenna Joy; Diala, Anthony C
    This research investigates the regulation of intestate succession in Anambra and Ebonyi states of South-East Nigeria. It highlights the difficulties suffered by women and children who are disinherited under customary law and unveils the inadequacy of constitutional provisions and intestate succession laws regulating the property rights of women and children. It also shows that irrespective of court decisions, lack of awareness and the customary practice of male primogeniture hinder the inheritance rights of women and children. It argues that in the South-East, women and children are disadvantaged by both state and customary intestate laws because these laws do not guarantee their full right to intestate property, compared to adult males. This fosters inequality and hinders women’s economic development. The research historically traces the customary rule of male primogeniture, reveals the unsuitability of this rule in modern times, and makes a case for a balancing of constitutional values with the changing nature of customary law. Using case analysis and comparative research methods, it shows the need to define the interaction of legal orders in Nigeria’s 1999 Constitution. This need includes a gender sensitive Bill of Rights, a defined right to culture, and the jurisdictional expansion of customary courts. The research also analyses unreported customary law judgments on intestate succession in South-East Nigeria with the aim of uncovering the approach of customary courts to intestate distribution of property in Igbo land compared to superior courts. Furthermore, it compares Nigerian and South African intestate succession laws in order to draw lessons for law reforms. Ultimately, the research finds that the inadequacies of Nigeria’s legal framework on intestacy deprive women and children of property rights in intestate situations in South-Eastern Nigeria. It therefore recommends a review of the legal framework on intestacy, a synergy of plural succession laws through a federal intestate succession law, an enforceable right to culture, and an expanded jurisdiction of customary courts in Nigeria’s Constitution.