'No peace in the marriage' inheritance disputes and law reform possibilities: when Essa Zumbuku * married her husband, a teacher, in 1993, she did not foresee that her husband's untimely death would cause a rift between her and her in-laws.
Property grabbing is theft and violence
Inheritance primarily deals with the transfer of wealth and performs an important socio-economic function. Poverty, unemployment and the impact of HIV and Aids all lead to the impoverishment of the family, causing members to be ever more vulnerable. Increasing competition over scarce resources is leading to a growing number of inheritance disputes. Particularly vulnerable are widows and children. Property grabbing is thus more than just an act of theft but also an act of gender-based violence.
Outdated laws are discriminatory
Namibia still has outdated and racially discriminatory laws dating back to 1928 which aggravate inheritance disputes for the majority of black Namibians. Existing laws on inheritance create a dual system, so that either customary or the common law apply in a dispute depending on the race of the persons involved. So for example, in respect of estates of white and coloured persons, the common law applies and the surviving widow and children of the deceased will inherit his property.
In respect of black persons, either customary or common law may apply, depending on where a deceased person was resident, whether they married in community of property and whether they contracted a civil or customary marriage. In addition to discriminating on the basis of race, the current laws also promote discrimination on the basis of sex, status and birth through the application of customary law. For example, customary law denies women property rights, thereby making them vulnerable to spousal abuse and HIV/Aids.
Court orders law reform by end of 2005
In 2003 the High Court of Namibia gave notice to government to review the entire area of inheritance and to bring these laws in line with the Constitution. The government was given until 30 December 2005 to do so. The tricky question of course is what to do with customary law? Customary approaches to inheritance do provide positive aspects of flexibility, and in some cases spread assets amongst a wide range of family members.
Customary law is also recognised by the Constitution together with the common law. To simply discard customary law may worsen rather than reduce the conflict that often arises between the surviving spouses and children on the one hand and the customary law heirs on the other hand.
How do different cultures regulate inheritance?
To the majority of Namibians, kinship and customary rules on inheritance continue to strongly influence the way in which estates are distributed. We distinguish between patrilineal (Nama and Damara), matrilineal (Owambo and Kavango communities), double-descent (Herero) and 'cognatic' kinship systems (Caprivi). Especially in matrilineal or double descent systems, the surviving spouse, daughters and sons may have limited or no right at all to inherit. In matrilineal communities, the kin group appoints a successor (usually the nephew) to take control of the property and manage it for the benefit of the inheriting group. Because spouses are not members of each other's matrilineage, a widow does not inherit from her husband under customary law in matrilineal and double descent systems if he dies without leaving a will. In addition, because children in matrilineal communities belong to their mother's lineage, they also have no right to inherit from their father's estate. In patrilineal systems the estate goes to the children, especially the youngest son, and the widow acts as trustee of the estate until the children come of age. Property is often already dedicated to specific family members before death.
Is there already a backlash against securing women's inheritance rights?
Law reform to secure the rights of surviving spouses and children should not necessarily be at the expense of the customary heirs, as they cannot completely be disregarded if incidences of property-grabbing and conflict are to be minimised. More often now we hear statements such as "women are the real perpetrators or instigators of property-grabbing," suggesting that male perpetrators are merely acting on the instructions of women, the 'real' beneficiaries. As these statements are made without the backing of any empirical evidence, it suggests that already there is a backlash in respect of attempts to secure the inheritance rights of women in particular. However, we also need to recognise that women have competing interests, such as sisters of the deceased versus his wife, or multiple wives in polygamous marriages.
Should Namibia have a dual system of inheritance?
The Legal Assistance Centre recommends that Namibia's approach to inheritance should be to retain a dual system that incorporates the positive aspects of customary law, whilst at the same time ensuring respect for all constitutional rights. What would such a compromise approach encompass?
If a person dies without leaving a valid will, we suggest allowing the estate to be divided so that the surviving spouse(s) and children inherit a portion of the estate, with the primary customary law heir(s) inheriting another portion. The customary law heir should be defined carefully so that only the key persons who have traditionally taken on family assets coupled with family responsibilities are recognized.
Should inheritance provide for maintenance?
As a practical approach, to ensure equitable economic protection of vulnerable women and children, we also recommend transforming some inheritance issues into issues of maintenance. Provision should be made for dependants of the deceased to apply for reasonable maintenance from the estate within a specified period of time. We believe that this option should be available regardless of whether the deceased left a will or not. Dependants need not only be the surviving spouse and children, but could also include, for example, partners in informal relationships, minor children informally adopted in terms of customary law or a parent who was maintained by the deceased. Providing maintenance for dependants in this way will ensure that the most needy family members are provided for, and would most likely prevent many disputes about inheritance.
How should inheritance be regulated in polygamous households?
In polygamous households each wife establishes a separate house when she marries, and the property of her household is kept strictly separate from other property. It is therefore recommended that house property be excluded from immediate distribution so that all surviving spouses retain their home and household effects. The rest of the estate should be distributed equally among the wives. However, administrators should also consider such factors as the educational needs and economic means of the various children.
Should widows have the right to continue living in the house?
Both in polygamous and monogamous marriages, surviving spouses and minor children who were residing in a house at the time of the death of the deceased should have a continued right of residence. This right should end when the spouse re-marries or when the children attain the age of majority. This approach may disadvantage other heirs if the house is the main component of the estate, but we believe that the advantages of this approach would outweigh the disadvantages.
Customary law distinguishes between house, family and personal property. Family property belongs collectively to family members and carries with it an emotional attachment. Personal property is property of an 'intimate nature' which serves the interests of the individual only, such as clothing and similar personal items. It is recommended that both family property and the personal property of the surviving spouse, whether purchased or acquired through other means, be excluded from the deceased's estate that is to be distributed. This should apply regardless of whether the marriage was in community of property or not.
Make property grabbing a criminal offence
Often, a woman's contribution to the building up of the estate is not recognised, and she is generally perceived as incapable of owning property. However, far-reaching reforms to the division of marital property under customary law should be addressed in a separate initiative, rather than as part of law reforms on inheritance. We also recommend that the proposed law should make property grabbing a criminal offence with stiff penalties and provide restitution or compensation for the victim.
Broad consultation needed
These recommendations attempt to harness some of the more positive aspects of customary law, whilst still providing a unified framework for all persons in Namibia. We believe above all, that law reforms on inheritance deal with complex issues that are very important to people's lives. Whatever law reforms are considered, and despite the tight deadlines imposed by the court, we urge policy-makers to utilise as much public consultation as possible in this endeavour.
This is a shortened and edited version of the story first published in The Namibian.
The Legal Assistance Centre has just published a research report entitled Customary Laws on Inheritance: Issues and questions for consideration in developing new legislation. It is available for free on the LAC website: www.lac.org.na, or for N$20 from Naomi Kisting at the LAC offices (NKisting@lac.org.na). A companion volume of essays by academics who have studied inheritance in different Namibian communities, The Meanings of Inheritance, is also available from the LAC.
* Essa Zambuku was a participant at the recent National Conference on Women's Land and Property Rights held in Windhoek.
RELATED ARTICLE: Glossary
estate: the money and property of a deceased person
* If the deceased was married in community of property, the spouse takes his or her half of the property first. Then the remaining half is the deceased's estate.
* If the deceased was married out of community of property, then the spouses' property stayed separate. The property that belonged to the deceased is the deceased's estate.
* If the deceased was married in a customary marriage, then the customary laws on marital property apply. The property that belonged to the deceased in terms of customary law is the deceased's estate.
will: an oral or written statement saying who should get your property when you die
matrilineal: descent traced through the mother
patrilineal: descent traced through the father
cognatic: descent traced through both mother and father
spouse: husband or wife
heir: anyone who is entitled to receive some of the property of a deceased person
customary law heir: anyone who is entitled to receive some of the property of a deceased person in terms of customary law
inheritance: a system for deciding who should receive the property of a deceased person
dual system: allowing two systems of law to operate side-by-side
restitution: giving back something which was taken
by Mercedes Ovis, Legal Assistance Centre
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|Title Annotation:||LAW REFORM|
|Date:||Nov 1, 2005|
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