Who do you want to inherit your property?
Jun 23, 2010
I applaud President Museveni’s declaration that “his girls will inherit from himâ€. This declaration, from the highest office of the land, precipitates change; and advances the bid for equal inheritance rights for boys and girls in Uganda and the African region.
I applaud President Museveni’s declaration that “his girls will inherit from himâ€. This declaration, from the highest office of the land, precipitates change; and advances the bid for equal inheritance rights for boys and girls in Uganda and the African region.
Most of us have watched an emotional story on battles of inheritance in a film titled Neria. This film was based in Zimbabwe but rings so true for most Africans who live lifestyles that are dictated by a mixture of customary, religious and statutory laws and practices.
The Neria story highlights the plight of a widow who lived an urban, modern lifestyle and had to grapple with customary practices and the law to retain her property upon the sudden death of her husband. Stories of a husband dying followed by the untold suffering of the widow and orphans abound in Africa.
These are not mere stories; they are real life experiences of torture, which can be mitigated and stopped if only we can put in place laws, structures to enforce these laws and create awareness in order to establish a culture that recognises orderly and equitable inheritance practices. We indeed have a foundation for doing this.
The Constitution states as follows:
lArticle 31(2): “Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their childrenâ€.
lArticle 247: “Parliament shall by law establish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and under this law, ensure that the services of the department or organisation established for the purpose are decentralised and accessible to all persons who may reasonably require those services and that the interests of all the beneficiaries are adequately protected.â€
In addition to these provisions,
lArticle 129(1)(d) – “ The Judicial power of Uganda shall be exercised by courts of judicature, …including Qadhis courts for marriage, divorce, inheritance of property and guardianship, as maybe prescribed by Parliament.†Adequate protection of all beneficiaries requires mainly three things; legislation, awareness and machinery for enforcement of the law.
In respect to legislation although, the constitutional provisions are clear, the main law on inheritance which is the Succession Act has gaps which were created in 2007.
On April 5, 2007, the Constitutional Court declared several sections of the Succession Act null and void because they were inconsistent and contravened articles of the Constitution on freedom from discrimination; rights of the family and rights of women. This declaration was in respect to a petition filed by Law and Advocacy for Women in Uganda, which raised the following issues in respect to the Succession Act:
lWhether Section 27 which provides only for “male intestacy†is constitutional. Intestacy refers to situations when one dies without making a Will. This Section did not provide for female intestacy; it was presumed that women did not own property.
lWhether Section 27 which generally granted a widow 15% of the estate; while widowers got 100% upon the death of a spouse was constitutional. This section also provided for automatic division of property when a widow was still alive and had the capacity to manage the estate.
lWhether Rule 8(a) of the Second Schedule that a widow’s right of occupancy in a residential holding terminates upon re-marriage while that of a widower terminates upon death was constitutional.
lWhether Section 43 which provided that guardians are appointed by the father undermined a mother’s parental rights was constitutional.
lWhether Sections 2(n) (i), 5 and 44 which gave preference to the male lineage over the female lineage in choosing a legal and statutory guardian were constitutional.
lWhether Section 14 which awarded automatic acquisition of domicile upon marriage to a woman and not to a man was constitutional.
The Constitutional Court declared all the afore-mentioned sections null and void; these sections are currently of no legal consequence. There is thus urgent need to enact laws to fill this gap.
Legal reforms, educational and enforcement initiatives could include the following substantial changes to the law:
Equal inheritance rights to girls and boys; women and men.
Granting the surviving spouse full ownership of “matrimonial propertyâ€.
Increasing the surviving spouse’s share in the rest of the estate, other than the matrimonial property, to 50%, in order to bring the Succession Act into conformity with the Constitution.
Setting different distribution schemes for polygamous marriages to protect widows’ and children’s rights, where the distribution of matrimonial property depends on the number of wives, contribution, and duration of each wife’s marriage to the deceased.
Granting the surviving spouse the automatic right to administer the estate.
Criminalising the practice of widow inheritance.
Granting the surviving spouse automatic custody and guardianship of their children.
Allowing a surviving spouse the right to continue living in the matrimonial home; in case of re-marriage, this right should be retained if the house belongs to the spouse or was inherited by the spouse.
The right to domicile should not be dependent on marriage.
Enforcement of the law initiatives could include establishing new administrative rules and practices, including further decentralisation of the Administrator General’s office in order to produce greater accessibility and enforcement.
Currently, the Chief Administrative Officer of each district convenes meetings and records information on cases of inheritance. Records of such meetings are forwarded to the Administrator General’s office for final determination. There is need to establish a department at each district that can provide fully fledged services as per Article 247 of the Constitution.
There is also need for enforcement of laws that punish unlawful eviction of widows and provision for investigation and punishment of offences that harm widows and orphans. Creation of awareness could include promotion of writing of Wills and educational initiatives that include training of law enforcement agents and sensitising the public on human rights.
All inheritance laws and practices must be consistent with Constitutional principles of equality and freedom from discrimination.
Indeed, your individual action and support is critical in order to foster a culture that promotes and protects the rights of widows and orphans.
Most of us have watched an emotional story on battles of inheritance in a film titled Neria. This film was based in Zimbabwe but rings so true for most Africans who live lifestyles that are dictated by a mixture of customary, religious and statutory laws and practices.
The Neria story highlights the plight of a widow who lived an urban, modern lifestyle and had to grapple with customary practices and the law to retain her property upon the sudden death of her husband. Stories of a husband dying followed by the untold suffering of the widow and orphans abound in Africa.
These are not mere stories; they are real life experiences of torture, which can be mitigated and stopped if only we can put in place laws, structures to enforce these laws and create awareness in order to establish a culture that recognises orderly and equitable inheritance practices. We indeed have a foundation for doing this.
The Constitution states as follows:
lArticle 31(2): “Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their childrenâ€.
lArticle 247: “Parliament shall by law establish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and under this law, ensure that the services of the department or organisation established for the purpose are decentralised and accessible to all persons who may reasonably require those services and that the interests of all the beneficiaries are adequately protected.â€
In addition to these provisions,
lArticle 129(1)(d) – “ The Judicial power of Uganda shall be exercised by courts of judicature, …including Qadhis courts for marriage, divorce, inheritance of property and guardianship, as maybe prescribed by Parliament.†Adequate protection of all beneficiaries requires mainly three things; legislation, awareness and machinery for enforcement of the law.
In respect to legislation although, the constitutional provisions are clear, the main law on inheritance which is the Succession Act has gaps which were created in 2007.
On April 5, 2007, the Constitutional Court declared several sections of the Succession Act null and void because they were inconsistent and contravened articles of the Constitution on freedom from discrimination; rights of the family and rights of women. This declaration was in respect to a petition filed by Law and Advocacy for Women in Uganda, which raised the following issues in respect to the Succession Act:
lWhether Section 27 which provides only for “male intestacy†is constitutional. Intestacy refers to situations when one dies without making a Will. This Section did not provide for female intestacy; it was presumed that women did not own property.
lWhether Section 27 which generally granted a widow 15% of the estate; while widowers got 100% upon the death of a spouse was constitutional. This section also provided for automatic division of property when a widow was still alive and had the capacity to manage the estate.
lWhether Rule 8(a) of the Second Schedule that a widow’s right of occupancy in a residential holding terminates upon re-marriage while that of a widower terminates upon death was constitutional.
lWhether Section 43 which provided that guardians are appointed by the father undermined a mother’s parental rights was constitutional.
lWhether Sections 2(n) (i), 5 and 44 which gave preference to the male lineage over the female lineage in choosing a legal and statutory guardian were constitutional.
lWhether Section 14 which awarded automatic acquisition of domicile upon marriage to a woman and not to a man was constitutional.
The Constitutional Court declared all the afore-mentioned sections null and void; these sections are currently of no legal consequence. There is thus urgent need to enact laws to fill this gap.
Legal reforms, educational and enforcement initiatives could include the following substantial changes to the law:
Equal inheritance rights to girls and boys; women and men.
Granting the surviving spouse full ownership of “matrimonial propertyâ€.
Increasing the surviving spouse’s share in the rest of the estate, other than the matrimonial property, to 50%, in order to bring the Succession Act into conformity with the Constitution.
Setting different distribution schemes for polygamous marriages to protect widows’ and children’s rights, where the distribution of matrimonial property depends on the number of wives, contribution, and duration of each wife’s marriage to the deceased.
Granting the surviving spouse the automatic right to administer the estate.
Criminalising the practice of widow inheritance.
Granting the surviving spouse automatic custody and guardianship of their children.
Allowing a surviving spouse the right to continue living in the matrimonial home; in case of re-marriage, this right should be retained if the house belongs to the spouse or was inherited by the spouse.
The right to domicile should not be dependent on marriage.
Enforcement of the law initiatives could include establishing new administrative rules and practices, including further decentralisation of the Administrator General’s office in order to produce greater accessibility and enforcement.
Currently, the Chief Administrative Officer of each district convenes meetings and records information on cases of inheritance. Records of such meetings are forwarded to the Administrator General’s office for final determination. There is need to establish a department at each district that can provide fully fledged services as per Article 247 of the Constitution.
There is also need for enforcement of laws that punish unlawful eviction of widows and provision for investigation and punishment of offences that harm widows and orphans. Creation of awareness could include promotion of writing of Wills and educational initiatives that include training of law enforcement agents and sensitising the public on human rights.
All inheritance laws and practices must be consistent with Constitutional principles of equality and freedom from discrimination.
Indeed, your individual action and support is critical in order to foster a culture that promotes and protects the rights of widows and orphans.