Women claim their right to property and inheritance: a mature African woman with a matronly figure stood and declared to a conference hall packed with strange faces that she was a prostitute.
Robbed in broad daylight
The conference brought to light that many women and children are literally thrown out into the streets when their husbands or fathers die. This is not done by a special militia force or organized criminal gangs--it is done by members of one's own family ... sisters- and brothers-in-law, aunts, uncles, and grandparents. In the process, children--who are the major victims of these crimes--are emotionally and physically robbed of what little financial and social security they possessed.
Nevertheless, in Namibia prostitution is illegal under the Combating of Immoral Practices Act 21 of 1980. According to a 2002 study by the Legal Assistance Centre, "the statute does not criminalise the actual act of engaging in sex for reward ... Instead, it criminalises a number of the surrounding activities." For example, it is illegal to knowingly live on the earnings of prostitution, but what about the children of sex workers? Do they have a choice in the matter?
Defending her mahangu field
Again and again the conference was alternately silenced and then filled with a litany of muffled sobs and loud sighs as men and women wept on hearing the testimonies of women and children who had been cruelly disinherited by people they had regarded as relatives until the death of a loved one, or as in the above case, until a father decides to abandon his children to fate.
Women and children who live through such experiences have little choice in what they can do to stay alive. A nine-year-old boy from the Caprivi, Likando, testified as to how his grandfather robbed the family of every little item they possessed, leaving nothing.
A woman from Omusati Region told of how she stood in her mahangu field, ready to fight to the death for this last possession with which she could at least feed a family that had effectively been left out in the cold by greedy relatives. Some of her zinc roofing sheets had been removed from her house, carried off by her late husband's brothers. No one carried away any children. By the day of her husband's burial, the cattle kraal was empty.
Can a woman look after a family?
Even after hearing such testimonies, some men including traditional leaders asked questions such as the following:
"But how can a woman be expected to look after a family? Can a woman hold a family together? The man is gone, why should she remain on the land? It belongs to her son--if he is old enough--or else it reverts to the man's family. How can a stranger claim title to the land she found in her husband's family?"
What then is this thing called 'marriage'?
Many questions ... many answers ... but the main concern of the many women present was--'then what was meant by this thing called marriage'? What was marriage? Lawyers of the Legal Assistance Centre (LAC) came in to help with definitions. Unless one was married in a civil ceremony, the current laws on marriage in Namibia do not recognise customary marriages because they are usually not registered with any legal authority. However, the proposed Customary Marriages Act will legalise customary marriages by providing the option of registration.
If a customary marriage is registered by a court, there would be no chance for a man to enter into another marriage without first dissolving the customary marriage. Polygamy will not be allowed under the proposed Act.
One husband, two wives
Participants observed that due to transient labour patterns, many Namibian men had two marriages--the 'original' marriage in their hometown which was usually the customary union and the 'civil' marriage to a 'city lady' which would then be registered, effectively disinheriting the 'hometown' woman because the man's entire possessions would be legally inherited by the city girl.
The problem of how to provide for stepchildren on the death of a parent would then arise and hence the need for a law that can recognize all children, whether born in or out of wedlock. According to the LAC lawyers, the pending Children's Status Bill was expected to address this issue of inheritance effectively. However, this Bill has yet to be re-tabled in parliament following its controversial debate and withdrawal last year.
If only I had known ...
Mama Rosalina from the Omusati Region in Ovamboland hit the nail on the head when she confessed: "If I had known what my status was in this family, if I had known the consequences of my husband's death, I would never have chosen to marry."
A young woman who listened to her story was adamant that such a thing would never happen to her. "Property grabbing? Whose property? I really would not care whether it was my father-in-law involved or whoever--no one will grab my property if my husband were to die. It belongs to me and my children. At my discretion, I would decide to give my parents-in-law 'a little something' in remembrance of their son, but they would certainly not have any say in my possessions," she said with conviction.
The heart of the conflict
The traditional leaders from Ohangwena Region responded from their own perspective. "These children of today--when their husbands die they want to keep everything--they forget that the man had a father and mother who he was looking after. Let us not forget where we are coming from and our circumstances. Our children are part of our wealth in Africa. Surely, this man had worked hard and used to look after his parents in the village--can you just cut off those ties because he is dead and not give even a part of his estate for them to acknowledge his death?" they asked. Therein lay the conflict.
What the law says
Lea Namoloh, under secretary in the Ministry of Lands and Resettlement, said in a statement to the conference that all communal land was vested in the state. She also confirmed that women and men had equal legal right to all the land that they acquired during the tenure of their marriage.
With the adoption of the National Land Policy in 1998, a unitary system was proposed under which all citizens "shall have equal rights, opportunities and securities across a range of tenure and management systems."
Namoloh said the Communal Land Reform Act of 2002 attaches great importance to the development and administration of communal areas taking into consideration women as household heads in rural areas.
Violating the law in the name of custom
But many traditional customs do not allow a wife ('married into the family'), to inherit her husband's land given to him by the tribal authority. The woman is regarded as a stranger and told to return to her relatives in the event of his death. She is not provided any economic means with which to relocate. In most cases, all the property acquired during the tenure of her marriage is taken away by her husband's family upon his death.
As a result of this forced entry into a state of desperate poverty and servitude, women living with HIV may fall sick and die of Aids-related illnesses when they might have had another 20 or more years to their lives if left to continue life normally.
If only ...
These silent crimes often go unnoticed by the authorities, even though the law of the land exists to address their effects. There only remains a long wish list ...
If the people who committed such crimes could be arrested ... if the women who experienced such acts could speak up ... if more widows went to the courts to fight for their rights ... if only ...
There are myriad obstacles to justice. Many rural women live hundreds of kilometers away from the nearest police station, let alone a magistrate's court. The perpetrators of these crimes usually strike at the most vulnerable moment--when a loved one has just died and a widow is still confused and in a state of mental anguish trying to come to terms with the event.
What should be done?
The challenge of the conference was to address these gaps and to see what could be done to bring women back to their original position if they were ever to experience dis-inheritance and also how to prevent future occurrences of property grabbing. The recommendations rained thick and fast and were wide ranging. The main focus was on the role of traditional authorities.
It was found that unless traditional authorities were well schooled in the Constitution and the legal framework protecting women's rights and promoting gender equality, there would be little progress in the fight against property grabbing. Traditional authorities need basic paralegal training. There is also a need for information campaigns in the various communities through workshops, pamphlets and village meetings regarding laws that touch on inheritance issues.
Who is failing women and children?
The conference also touched on livelihoods and the marginalisation of many women and children from society because of poverty. The needs and voices of women and children are ignored and excluded by the governance system because they do not have the means to participate in the affairs of the state.
The woman who declared to the conference that sex work was the only way she could hope to feed her six children explained that their father had literally run away from the responsibility. He refused to pay maintenance for his children and for the last 12 years had developed a habit of conniving with court clerks to escape the responsibility. The woman had no money to counter-bribe the court clerks.
But when one examines the issue--who had really failed this woman? Was it her husband or the system? Definitely her partner had failed her, but more importantly, she had been let down by the system. As a citizen of the state looking after six little human beings who did not have any choice in entering the world - the system had failed her.
For 12 years, she had been denied the right to be heard before a magistrate, and her last recourse was bring this issue to the attention of the conference. The Minister of Justice, Pendukeni Ivula-Ithani, was present and asked that the case be brought to her attention. She hoped that she could assist.
Women cannot survive on hope
There are many other women out there who do not have the chance to get their story heard by a justice minister. Some of them eke out an existence as hawkers selling food and other goods in markets and on the streets. A lot of other women have been defeated by the system and are now on the streets selling their bodies, or dying in little cold zinc shelters built on the outskirts of the city--the only place there is for poor urban women suffering from illness including depression, while their children roam the streets, become juvenile delinquents, suffer disabilities due to poor maternal health, work on farms instead of attending school. As the wise woman from Omusati said: "Please, remember that these children are the caretakers of tomorrow."
The road to finding solutions
Following all these testimonies of destitution and despair, the conference resolved to go back to the drawing board and devise better ways of dealing with these social problems. But one thing was clear: nothing was to be done without the involvement of traditional authorities as well as representatives of women's organisations.
"We might not have come up with solutions, but it is good that we are on the road to finding solutions," said Minister of Gender Equality Marlene Mugunda when she closed the conference.
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|Title Annotation:||LAW REFORM|
|Date:||Oct 1, 2005|
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