THE LAW OF SUCCESSION IN RELATION TO WOMEN RIGHTS IN
UGANDA.
(CASE STUDY OF BUGANDA)
BY
NYAMWATA A. LINDAH
LLB/ 7266/521DF -.
LA’!.’ I’ D\! C.F~ .4 L..~irc. I — * * I)i’~ I 1 *
A DISSERTATION SUBMW~ED TO THE FACULTY OF LAW IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF A DEGREE IN
BACHELOR LAWS OF KAMPALA INTERNATIONAL
UNWERSITY
DECEMBER 2009. DECLARATION
I, NYAMWATA A. LINDAH declare that this dissertation is my original work and has never been presented for an award of any degree in any university or any other institution of higher learning. I further declare that all materials cited in this paper which are not my own have been fully acknowledged.
Signature. ~‘ Date.
NYAMWATA A. LINDAH
LLB/ 72661521DF APPROVAL
This dissertation has been done under my guidance and supervision as a University Supervisor.
Signature ~...... Date...~ Mfs ANNET BIRUNGI
SUPERVISOR DEDICATION
I especially dedicate this dissertation to the most imoortant peonle in my life: the OTIENDE’S family members.
iv ACKNOWLEDGEMENT
This study is as a result of the guidance and assistance given to me by my supervisor Mis ANNET BmUNGI.
I do acknowledge the work of my family members,ftiends and classmates for their moral and material support during the course of my sLudy at KAt4PA~A INTERNATIONAL UNIVERSITY.
I also thank the Dean of the Faculty of Lass for the encouragement and guidance.
I thank God for has ing given life,
V TABLE OF CONTE~ ~TS Declaration.
Approval iii
Dedication iv
Acknowledgement v
Table of Content vi
List of Abbreviations vii
List of Statu~es viii
List of cases ix
CHAPTER a TE I
1.0 Background of the study 2
1.1 Statement of the problem 3
1.2 Hypothesis 3
1.3 Objectives of the study 3
1.4 Scope of the study 4
1.5 Significance of the study 4
1.6 Justification of~he study 5
1.7 Literature Re~:iew 5
1.8 Research Methodology 7
CHAPTER TWO 10
2.0 Introduction 10
vi 2.1 Presentation of study flndings. 10
2.2 Modes of access to property and reali.sation of their rights 11
2.3 Women’s rights under the law of succession in Buganda 12
2.4 Customary Law and Succession 13
2.5An analysis of the Law of Succession in relation to Women’s rights in Uganda 13
2.6 Property Rights in m.arriage 15
2.7 Inheritance Rights 17
2.8 Rights to make wills 20
CHAPTER THREE 24
3.0 Procedural aspects of Succession 24
3.1 Domicile for the purpose of Succession 25
3.2 Weakness of the Laws of Succession and institutions in Uganda 26
3.3 Institution mechanism for women’s Succession Rights 28
3.4 Procedural aspects of Succession 29
CHAPTER FOUR 32
4.0 Introduction 32
4.1 Conclusion 32
4.2 Recommendations 34
INDEX 36
Questionnaire 36
Bibliography 39
vii LISTS OF CASES Uganda V Jemiina Kyanda. (1977) HCB 111 Mary Ntambirweki V~Grace (1993) HCB 104 Kasimu Miti for Bijowal Balikomanyi V. Nula ondola Unreported in the customary law reports (1940~1985) Yowana Naiwanga V~ Edinuind Kyeyune Principal court case no 116 of (1 945) Estate of Alex Wakadala (1991) HCB 91 Chelanga vJuina (2002) 1 KLR 339 James katende v, Dan Byamukama Administrative Cause 201\92 Sara Nabaggala and Anor V. Joyce Nakku and A.nor (1993) KALR 60 Administrators General V~ Norah Nakiyaga and Ors (1993) HCB 127 Rwabaganda V~ Bahemurwabusha (1970) HCB 121 Christine Male V Namanda (1993) HCB 109 Yudesi Kasisi V. Kyakambule Principle Court Administrative Course No~ 11611948 Mboijana v~ Mboijana Civil Suit No $711996 Konde V. Bulandina Nankya (1992-1993) HCB 192 Re Kibiego (19$0)HCB 104
x CH~~PTER O~’E GENERAL INTRODUCTION The law of succession deals with distribution of property in a family relationship between
husband, wife and children’.There are three t~ pes of recognize succession in Uganda. Testate succession is where a arson dies having mawi ~ ~alid will2 .the deceased died having set out to whom his or her propery is to go. Intestate succession is where a person ales without leaving valid will. The law here comes in to set guidelines on who to .abe the properta~ Sometimes this no the, person to whom the deceaswi actuall~ wanted to give to. Lastly there is partial intestacy v here a person propery p sses under a will and partly under intestacy.3
BACKGROUND OF THE PROBLEM,
The history of law related to succession in Uganda dates before the colonial times. Different tribes were governed by different norms and rules but colonialism in 1894 brought foreign religion of Christianin’ and Islamic Aat die ated new ethics, tProperty relations in Buganda in pre-colonial times were differen~ f-om what exists today. The need civilized Africans facilitated the reoep ion of English aw by virtue of 1898 and 1902 order in council thus the succession taw tha~ brought the plural cultures under one central and instructional frame work5. The 1900 Buganda Agreement brought about a transformation of laws in Buganda especially in the area of property ownership. Property like land was only owned by the Namasole who was the mother o the kir g and most share went to men. The historical position of the law of su~arss’on s tha it is nredominance of customary laws of inheritance positions omen in a oiscrimina ory ansi ion due to their characters and gender complexion.
Percy Tuhaise. And others Women & Law n East frica,Women & inhertitance in Uganda Laws, customs and practices,l 995. Kampala Pubhshers Antony Kinuthia Mwicigi,famih Law tn.l ucm~ion manual.’ 9~ ,Lun~man Publishers, Nairobi. 3H.F Mor~s: ~Ihe1awo’succecsi ninLgmsa~, 9~’ Lcathnpw s ~ Supra note 1 page 1 ~ ibid The division of marit& properly was ~ vta~ ~spee~ in many settings .New divorce laws
brought a bout radical changes in the traditional Society. A spouse whose name was on the title to the property tsar the o vner of the property in mosticases tnis was done on the basis of who contributed he most money. The husband usually took the largest share on the property, the woman’s homemaking and child rearing efforts counted nothing in the traditional method of properly dir ision, Post colonial laws such as the Succession ha ‘a not been practical in the protecting women’s succession righ a since here is no single Ia providing for saccession rights in Buganda. Before colonialism Buganda had a sing e ustomars tear re system which rested upon traditions and customs that served to e ‘ifor”e joup cont o ro er its disposition. The 1962 and 1967 constitu ions o~ renubli” of Ugrr da paid little regard to women’s succession rights since there v’as o soec’fic arovisior catering for special treatment to be accorded to rronien~ The 1995 Constitut’on o~ repub ic of Uganda has beer regarded as he most appropriate gender sensitire since ti pro’ ides thr affirma~ive a ‘on under article 33.This has got a great impact in ensuring women realization of their suc”ession rights since women both married and unmarried are treated at equal leveis with men. Succession rights today ham nosed a step forward since r onwn are on the alert and on the move to fight for their succession rights. DEFINiTION OF TERMS. Women Succession Rights refers to the rights accorcied to women regarding to property both family and matrimonial8 Succession refers to the process of distribution of family property between husband, wife children and relatives.9 A will refers to a document in r hc’i a aerson expresses his or he1 wishes on death.’°
6 Supra above number 1 Kabonesa Conso1ata[2O~ 2~’ (ren&r Re edons and tim women’s Rights in Uganda. Fast African Publishers, 511.F Monis;The Law of a~es~ion in ‘bawL, 1 71 imadon Pram 9Percy Tuhaise and others: nomen ard L v in Las s~~a,U omer and Inhaimance in Uganda laws,customs and practices. 1995, Kampala publLhers. “ibd
2 Domicile refers to a person’s permanent place of residence”.
LI Statement of the problem.
Weakness of the legal frame work of the iaw of succession in Uganda has resulted to violation of women’s rights ,women need to have access to family property. They have suffered due to lack of capital, socio~economic and bad legislation which need to be addressed. Unequal property ownership rights maker women vulnerable to be subject to private sphere. A married woman who owns nothing such land can easily submit to the wishes of her husband since she has nothing like land and fam.ily can not accept him since in many societies a wom.an is separated from. the faniiiy.’2~
12 Hypothesis The law of succession has an impact on women’s rights in Uganda. The law of succession pays little regard to women’s rights. Illiteracy is one of the underm.ining factors to die realization o f women’s succession rights. Women are less active in participation ofsuccession matters. Low economic power affects the succession rights of women. HIV Aids has led to tb.e denial of women property rights.
13 OBJECTiVES OF THE STUDY. Overall Objectives. The study was premised on the following objectives: To postulate the guiding principles of the law of succession and established the factors contributing to violation of women’s rights in Uganda. To establish the weakness oflaw ofsuccession and its institution in Uganda. To established various avenues which undermine one growth of law of succession.
° Supra note 7 page 2
‘~hap/fw~v.un.orgfwomen watchBeijihg platform , Pm article by Magret Boelin,20° november2009 To establish governments contribution towards pro•motion and protection of women’s rights. Specific Objectives. To establish the significance of succession iaw and the reforms which can be done. Tojusti~’ how the law of succession pays little regard to women’s rights. To enlighten Ugandan women to be well conversant with the succession laws and the rights accruing therein. To analyze various statutes and how they promote or undermine the rights of women under succession law.
1.4 Scope of the Study. Ths research covers the women’s rights under the s•uccession law and the legal implication therein relating to women’s rights. The study involves generally the law of succession and its implication in Uganda. It is limited to Ugandan context only and covered the period during which the succession act was enacted in 1972 to present date. It also looks at the discriminatoiv provision of varions statutes contributing to violation of women rights under the law of succession’3.
1.5 Significance of the study To promote awareness on women on their legal rights under the law of succession. To contribute to the facilitation of the general unders.tanding the major weakness in the succession law in Uganda. To propose other available reforms in Uganda. To benefit other researchers especially in the field of succession law on the strong holds and weaknesses, To am.end discriminato~r legislation affecting Ugandan women under succession.
1.6 Justification of the study
13 These laws include The Divorce Act,Marhage Act, The 199g Lced Act.
4 This research is justified in the sense that there are traditional customs th.at still sideline women in the law of succession regm ding property for example women do not inherit land or property and that if a woman lost a husband, the property devolves to the late husbands clan unless there is an adult son left in the dec.eased family to take over the property.’4 Various statutes which are aimed at providing a unified system through which women could com.municate contain dis.cri.minatory provisions which still form part of Uganda’s operative laws to date. ‘5This laws favours practices which requires women to be subordinates. The promulgation of the 1995 gender sensitive Constitution in the Uganda has addressed specifically to the status of the women and out laws discriminatory legislation save with respect to marriage, devolution of the property upon de.ath in the case of particular race or tribe. L7 Literature Review There is a wide literature review and discussion on•• the women’s rights under the law of succession, however very few authors have com.mitted themselves to address the issue of women’s succession rights.
Night Percy and Edith Kibalama$1995J ‘East African Joumal of Peace And Human Rights”°These two authors accessed provisions which form part of the operative laws in Uganda for example the Divorce Act’7and succession laws which are discriminatory on the property settlement contrary to Article 3 i[1]of the 1995 Uganda constitution which accords spouses equal rights in marriage and upon itsviissolution. Their work however was not exhaustive on various issues affectin.g women for example the issue of wife inheritance. Christine Birabwa-Nsubuga[2OO6~ ‘Women under customary marriage in Uganda” A critical look at their property tights at the dissolution,’8This author worked exhaustively
14Np Tuhaise, Women and The ConstiPadon ,Un.published paper presented at ia~ers semndr, 1991 at Kampala 15The Divorce Act cap 125 laws of Uganda, °~ Women and inheritance in Uganda 1995, Kampala,Fountain Fublishers 17 Cap 125 Laws ofUnanda ~ partnership 2/2006, The Danish Institute for iduman Rights.
5 on anmyzing various l~w tha embrace -‘amen’s ~ighs tu access and own property. The author bears in mind the fact that the ~aw has some ‘oopholes in the institutional framework which calls for refomw like proper education to women. It is worth noting that the author does not address her mind on the fact that women representation in such institutions is very low thus having a greater impact on decision making’9.
Kabonesa Consolata[2002’ “Gender Relations and the women’s Rights in Uganda’ ‘20.The author generall” analyses the issues of vomen’s rights under the law of succession, she examines th~ traditional customs and cultural aspects that hinder them over control since Uganda is a pa riarchai society in rature .Th~ r~seacher however limits the study to Kabarole Distric rot bearing in mind that the factors affecting realization of women’s succession n~hts are almost simiar in the ahole of Uganda.
Lawrence Christy [OW f ~omen’ Righ i r agri~uitur~”~’The author was of the view that Family law restncts the capacity of a mamed s ‘oman to engage in property administration legally. The fact that there ar~ sorre aws which empower women to own and access property were ne er addressed2 despite the fact that their are some conceptional gaps in existence, the taws remain effective.23
Sylvia Tamale[1993]”Law Refom s anti women’s rights in Uganda2~The author is divorced from reality by suggesting sweeping changes in the law without considering the social and economic circumstances in which the ~aw operates. She further appreciates government efforts to help bnng into force the necessary reforms in marriage divorce and succession are recognized b:’ the author but it is only on the positive side, The author
‘~ An example of such instimtk r is ih I cdl -:huw’ m~ ~ ~re gwen CL of the existing positions. ~ _,e~;~ 22’-24. 21 The East A~can Journal 0’ peace and H~rnan Rigbtr vol 1 nw2 oJ 1903 .published by Makerere Human Rights and Peace centre The 1995 Uganda consLitution \i~icle 26 give. ~ll ci ize w the righ. to awn property either individually or jointly. The East African Journci of peace and lumen RUins’ oil no 2 of 19i3. 2$ The New Vision. 20 octomber 1997.in The perliarner: of I ~arda.’ ‘he presidents speech where he denied the bce- o’~ncbedp ~ tue ei~ 6w >0~ 2.~nf 961.
6 fails to criticise some of th.e govern.ment policies making it hard for women to realize their rights.
Jennifer Okumu Wengi[20051: the law of succession i.n Uganda .women, inheritance laws and practices essays and materiai&25 The author has a good analysis on how particular provisions of certain laws have worked to the detriment of women especially with regard to succession. Margaret 0wenj1996]”A world of widows2&I~h.e author addressed her mind on injustices demonstrated to widows when it comes to inheritance of property ~This study in itself is discrim.inative in nature since it does not cater for other women who are not widows and are facing unfairness when it comes to access to property.
Benschop Marjolein[2002]’ Rights an.d Reality” A woman’s equal rights to the land, housing and the property impi.emented in East Aftica27The author sheds some light on how some other laws are discriminatory against women regarding property ownership. These findings however are not updated since with the current laws since they were done when the old laws were still in existence.
L8 METHODOLOGY. This study adopted a muiti$aced research design in order to gather data on a spectrum of variables related to women’s rights under the law of succession and its likely economic impact on the development. This comprised the use of various techniques such as quantitative, su.rvey, qualitative methods, case study, focus group discussions, key informant interviews and questionnaires.
Library research was also used from various Universities and institutions. This included, The Foundation of Human Righ.ts Library, M.akerere University. Kampala International
25 Uganda Law watch (2005). 26ZED BOOKS ,Lonon and New Jersey Press 27Unjted Nations Human Settlements Pro~amnse Nairobi Kenya.
7 University and Mukono Christian University, Law Development Centre, Uganda Human. Rights Commission library, newspapers, worl.dwide web intemet was used.
1.9.0 Study Limitations Language barrier was a problem since many respondents speak. Luganda which I could hardly understand thus requiring an interpreter. The rain kept on interrupting since some areas were so flooded and thus rendering them inaccessible Some respondents were so hoshle and could not fill the questionnaires Financial constraints were also another problem.
L9.lArea of study Mengo because it is in the central region which is Buganda
1.9.2 Pro-field Activities These were the activities carried out for data coiiect.ion and they included; magazines, text books, news letters, intemet, statutes. These were done in various institutions like Makerere University library, Foundation of Human Rights library, Kampala Intemational university library, Law Development Centre, and Uganda Human Rights Commission library.
1.9.3 Study population This study targeted women and men of above twenty eight years, single, married, widowed, self employed, unemployed of various social classes. A total of 20 men and women were chosen as respondents for the purpose of carrying out interviews.
1.9.4. Selection of respondents, The method used was cluster sampling, This was detemiined by the socio-economic configuration of Bu.ganda because it reveals tie relative levels of income differentials.
$ L9~5 Data Collection The following methods were used to collect data; aJ Questionnaires The questionnaires were administered to seiecte.d respondents. including local leaders
9 CHAPTER TWO
Presentation of study Findings. 2.0 Introduction Women by virtue of bemg human beings and citizens of Uganda have rights of property, equal treatment and rights upon and on marriage. Women play a big role in family relations and their efforts are usually taken for granted Research has also granted that they are chief producers of food and helping economic development. Thus it is a well known fact in order for women to fully participate, contribute and enjoy the benefits of development through agricultural production, they need an enabling environment which allows them unlimited realization and implementation of their succession right and also on property ownership. ~
2.1 Presentation of Study findings The major finding of this report indicates that first and foremost, it is largely unheard of for women to realize their succession rights, let alone inherit it and this state of affairs is dictated by their economic status and traditional customs. Unlike what it is extremely difficult to separate custom from evely day life and to a large extent it does exist in urban areas. Understanding women’s rights, particularly those who access, control and ownership requires gender relations within the socio-economic and political factors as well as the context ofthe cultural system in which our societies are structured.
The field work was carried out in Buganda in particular Mengo.The study sought to investigate how conversant women are concerning their succession right and proper ownership and decision making in families
-:1- LAW
______Llt3~AF?Y ~L’ 28 Nations International Children’s Educational Fund (1998) Report ‘I \~\* )\ I~ N~O0fl~~ A succession right basically embodies women rights in marriage which include property ownership, management and inheritance rights. Right to m.ake wills and right to apply for letters of administration29.
A total of 20 people (l2femaie and 8 male) were interviewed of the total sample 10 were married, 3 widowed, 3 separated/divorced and 2 were living together. Out of the 20 respondents, 6 lived in female headed households, 14 in male headed households. In addition 2 employees of Administration general’s office and two advocates from FIDA Uganda, Women’s Netwoik respectively were chosen as key informants. A total of 10 people formed a focus discussion for group for the men and wnmen i.espectively. In order to determine succession rights in.. Buganda and how well women are empowered or rather informed as well as factors hindering women realization oftheir rights 22 Modes of Access to property and realization of their rights In the study conducted, it was found that the majority of women, most of whom depend on their husbands for their livelihood, are either sauatters or have limited and insecure
rights in the home . Through inheritance and purchase it is in very rare cases that women acquire property through gifts from their relatives and friends. Inheritance is one of the cheapest modes of people acquisition, yet it is a practice almost exclusively reserved for men and women. The guidance principle in inheritance has it that land should remain within the lineage, in Buganda this has been the patrilineal lineage. Since women mai~r outside their lineage only in rare cases do they inherit land or property? Many of the women interviewed said that they gain access to land by inheritance through their male relatives, for example husbands, fathers, brothers in inheritance through their capacity as wives, daughters, sisters ~°. However the rights of access to land are not permanent and can. be terminated ay time depending on any change in the relationship with their male relatives. As one woman in Masaka parish resorted ‘women in this wwrld belong nowhere, not at their fathers’ home
29Nawangwe B and others. (2003). “reseerch Repo~ on women and administrative issues in Kampala city and their effects on urban Development”, 30Kabonesa Consolata. (2002). “Gender Relations and women’s RighF”, East peace Journal of peace and Human Rights VOl. 8, No. 2.p245
11 because they will b.c married somevihere else, and rot at their husband’s because they where not born there.
In this study only a third of the respondei.ts said a woman can inherit land or property the father and the third also said a woman could inherit from a husband. Most widowers admitted for not being aware of their right under succession to apply for letters of administration. Making will have also helped women realize their rights in marriage in that can devolve their property
Women’s Rights Under the Law of Succession in Buganda, 2,3 Introduction The provision of women’s right under the lam’ of succession of 1972 are derived from of the Nai.ionai Objective m.d Directives Principles of the State Policy in the 1995 Uganda constitution while provides what the state shall recognize the signification role women play in society~.
Women were not allowed to own propriety under tire law of succession until 1977 case of Uganda V Jenrima Kyanda.32 In this case Asthma 3 held Ihat ‘~A woman in Uganda is capable in law to hold and own her own property.”
The women’s property right under the law of succession as provided for by the Ugandan law still remain a paper law because as far as it exists it is far from the lived reality of women in tenu of implementation.33
It is worth nothing that whereas there is need to preserve any cultura[ practice one must not ignore the fact that culture is not neutral particularly in its impact Emphasis on the
‘~ 1995, Ugandan constitution ~2[I977]HCB III ‘~Jua1ie Stewart[Research Findings on ~wrnan property rights’] 1996
12 right to culture gives those in power grounds to renege on implernenti.ng action plans un.der the guide of respecting culture34
2A Customary law and succession ~Basi.cally all customs point to tim fact that all women are vested with the affairs of the family. That is to say the husband children and their home.. Customs had a great influence on the laws and it still has as far as woman properly right are concerned Customary a spouse whose name was on the title of the property was the owner of the property. In most cases, this was a husband a wife was awarded not more than one third of property, ~
Joint ownership of property was done on basic o•f who contributed the most money. Since women were rsuaily involved in the private sphere thus had little money. The husband usually took the lions share. Thus a wife was given no credit for her non momentary contribution to the marriage or to the purchas.e of property her home making and child rearing assures counted nothing in the traditional rrethods of property division.
Patriarchy played a very important role in customary property ownership. Men were more propertied than women. As societies grew that allowed practice that had their origin in tradition society.36 23 An analysis of the law of succession in relation to women right in Buganda Women and men access property differently. This is influenced by social economic, legal political or cultural systems.
Majority of women access property for esam.pie land through a male relative where they have only usufruct rights they also gain access throu marriage in which case they provide labour to product food to their families. Most women are destructed on the use of property itself and benefits that accrue from. there in.37
3’~Multip1e Patronig, Gender Relations in Ugaisda, Lilian Tibaternwa. 1998 ~ Supra note 4 ~ Supra above note 4. ~7Women’s property Rights findings in Uganda, 2008.Capetown press
13 The relevant maniage laws in Uganda are silent about property right and therefore most property related issues in marriage have now been addressed through common laws principle and customa.iy law which is usually unfair bearing the state3ss of women in the society. Section 15 of the Divorce Act38 provides that in case in judicial separation, wife is to be treated as unmarried with respect to property she may ac.quire or which may devolve upon her, sim.ilarly Section 18111 of the Succession Act provides that will in whose property a husband has acquired an interest by virtue of marriage m.ay, if deserved by him, apply to court for an order to protect any property she may have obtained of after desertion. This provision is to the effect that her property against the husband and his creditor would be protected only it such property was obtained after desertion. This is to imply that any property acquired after desertion is thereby not protected.
Under Section 18~5)~~ the husband has a right to apply for discharge where th.e desertion has ceased .this right however, is not given to the wife, the owner of the property at stake and thus the wife is not protected resulting to violation of her rights to own property.
Another c.rucial issue is that of Adultew Section 26 of the Divorce Act4° where a decree separation of dissolution of marriage or of judicial separation is pronounced on account of adu]teiy by the wife and the wife is entitltd to any property, the court may not withstanding the existence of the disabilities of covertures order the whole or any part of the property to be settled for the benefit of the husband or of the children of the marriages or of the both. This provision clearly states that only women’s property is eyed on account of adulte~ and not the man’s.. The m:an is usually protected.
Registration of Titles Act~ section 3 recognizes the right to own land property by any person as long as it is lawfully in his or her name .In reality women in Buganda have a
38 215 laws of Uganda 390ap2 15 laws of Uganda 40ibid ~‘ Cap205 laws of Uganda limited access to land due to unfavorable customs, laws and low economic power. The impact of low econom.ic power is that it makes women unable to control proceeds.
The land Act42 section 2 of the 1995 Constitution, of the Republic of Uganda all the land in Uganda is vested in the citizens and shall be owned by Customaiy, Freehold, Mailo and Leasehold. However land being a major economic resource in Ughnda, a few women has access and control over jt.~3 Statistics show that 93% of male had easy access to land only 32% females were in similar position. Most society’s exh.ibit a tendency of gender inequality in land accessibility. Culturally girls have been taught that boys are the ones who inherit~. Thus in Ma17 Ntainbinveki V~Grace ~ where the plaintiff the mother of the deceased challenged an. application for letters of administration of daughter
in law, Grace. Maiy pleaded that ‘ Grace should not be entitled to apply. Thus implementation of this tight would be particriarly challen.ging in a culture where girls and women are not allowed to own property since themselves are property to their husbands. This shows that women are always thrown out of tk eir land.
2~6 Property R.ights in Marriage This includes marital property like house land livestock, household chattels, Cars and many others. Property acquired through marri.age is considered to be owned in equal or equitable shares by both spouses regardless of whose name is on the title.46 Article 26~~ provides for a tight of all Ugandan citizens to own prope~, In this regard both men and women under the constitution are allowed to own property either individually orjointly. Article 31(1) of Uganda constitution accords both men and women equal rights in marriages and upon dissolution of it. To this effect division of property is based on a
~ Cap227 laws of uganda 4~Busingye Research 1993 Western Uganda(~aper unpubiish) Inheritance Among the Bakiga;Frank Mugisha pp 112 ~ [1993]RCB 104 46World Bank[1998l Uganda; The Role of women in the economic Development. ~ [1 ~95l Ugandan Constitution
15 view that mani.age is an essentially equal partnership rather than on a determination of who con.tributed the more during marriage, In practice, this has not been followed in the case of Kasimu Mid for Bijowal Balikomanyi V. Nula ondola48court held that a wom.an whose husband died intestate and with no children could inherit all the property, but if the property included land and money then the deceased’s parents and male relatives supported by the clan would share that wealth. Here we see interference from outside despite the fact that a family institution is private. The injustices demonstrated by this decision in the above case cannot be over emphasized. Thus courts did not recognize any equitable contribution of a wife to the maintenance or acquisition of matrimonial property. It only made sure it deprived the women of their property. Section 33 (1) of the land Act provides that no person shall a) SeP exchange transfer, pledge. mortgage or lease any land b) Enter into a contract for sale, exchange, ttansfer, pledge or .mortgage or lease of any land or c) Give a way any land int.er Vivo or enter into or Any other transaction in respect of land in the case of lan.d on what the person ordinary resides with his or her spouse and from which they desire their sustenance, except with prior written consent of the spouse.
In practice much consent is usually obtalned under un.due influence and some go to the extend of obtaining it from other persons other than their spouses. Thus women lose matrimonial property rights. In the case of Yowana Naiwanga V. Edimund Kyeyune49 the plaintiff wanted from her husband a sum of shs. 1,1.48 value of crops grown by her on plot occupied by the couple when the husband wanted to sell the plot and move to another area. The court stated according to Kiganda customs when a woman marries a man, she lives in her husbands absolute nnntrol and the husband can move from one place to another going with his wife.The plalntiff cannot be treated as an independent woman
~ in the customary law Reports 19404985 4~Principa] courts case noi 1651945
16 where by the crops are treated as her personal property. She is obliged to abide by her husban.d orders as it is the custom in Buganda to vacate from one place to another. The effect of the above court’s decision is that it shades light on how the judicial system. goes as far as denying women their succession right?0 and also regarding them to be property to their husbands an-d therefore ircapable of making decisions on their own.
2~7 Inheritance Rights This involves women’s hereditaiy succession to title or property, especially the practice of passing on property upon th.e death of an individual.. Majority of male testators do not usually leave property directly to their wives but to their children and other dependent relatives~ Evidently many estates in Uganda continue to be regulated under the fonsial and inthnnai laws of succession that are not favorable to women. 51
The aspect of legal pluralism has widely affected the situation th~i4. atwiw of denying women of their succession rightr despite the provision of Article 3352 which prohibits laws and traditions which are against the di~ity of women. To this effect women are regarded as property or rather chattels to be inherIted also. Research in Buganda community shows that out of one hundred widows, sixty of them are inherited by the immediate family members as it is perceived that on paying of the bride price, they also become property of the husband’s home, hi need this perception is far fetched as women need to be treated with almost di~iity in marriage.53
Article 31(3) ~ provides for consent in marriage in this regard not ve~’ m.any women wish to be inherited because this makes them vulnerable to domestic violence and REV
Aids infection thus a violation oftheir rights.
50This rights include;to own property,make decisions regamling their lives and equal treatment. si Christine Birabwa Nsubuga( 006)’ women under customary law in Uganda:a critical look at their property rights dissolution”the Danish institute of human rightn pg 18 u 1995 Ugandan constitution 53Human Rights Watch Report,”double standards,2003 u Supra note 41
17 More over the succession Act provides that that no ~erson shall by marriage acquire any interest in the property of the person whom he or she marries. In other words marriage does not culminale into co~wnership of the parties’ property. Although this may be fair in relation to property acquired by either party befbre marriage, injustices may a rise in relation to property acquired during marriage and so succession.
Through wife inheritance, women loose their rights to ownership and control over matrimonial property because the man now takes over the whole estate of the deceased. In the case of Estate of Alex Wakadala~ the relatives of the intestate disposed off the property the deceased left a widow was p•ermanently deprived of her entitlement.
Section 27 (1) (a) (hr provide that subject to section 29 and 30 the estate of a person dying intestate except in his principle residential holding shall be divided among the following classes in the following manner, Where the intestate is survived by a customary heir, a wife, a linear descendan.t .and a dependant relative the wives shall receive 15% b) ii) where the instance is survived by a customary heir, t.d wife and a dependent relative but not linear descendant. T.he wife shall receive 50%. c) ii where the interest is survived by customary heir a wife or a dependent relative but not linear descendant. The wife or the dependant relative as the case may be, shall receive 99% ofthe whole ofthe property of the intestate.
As illustrated above, the law of succession provides the percentage of property which a wife should acquire upon die demise of her husband who dies intestate. This does not happen in reality especially where intestate succession is customary since customary intestate does not recoartizes the woman’s contribution to d.c estate. In the Estate of Suleiman~7 the brother of the deceased distributed properte with auth.ority and converted the vehicle and business of the estate, The widow had no support from the relative of the brother had customary right to dispose off the property. When the Administrator general
~[1991] f{C13 91 ~ Succession Act ~ [1991] HCB 109
18 requested the police to prosecute the brother, they refused on ground that it was a purely domestic affair.
ISLAMIC INHER.ITANCE Quaran contains most provisions relating to inheritance in Islam Allah is a law giver. Distributing property is part of worship. This is contai.ned in Sura 2:41 and 2:56.In. Islam, property acquired has to be shared on dissoiutio.n of marriage an.d if there is a dispute, Imam has to intervene and oath taking be done to determine ownership.
There are branches of succession. A person dying•-•: testate and intestate. One cannot distribute 100% or a will but m.ay be a 1/3. Fami.iy members have got a specific share in the Quaran.
A Muslim is free to make a will in favor of a non Muslim. Constitution Article 129 1 (d) provides for establishment ofKadhi courts, marriage divorce inheritance guardianship.
A girl gets half (1/2) of the boys inheritance if there is nay residue it goes to the estate if there are no boys the girls take 2/3 of the estate if provided for under Sui.a 4:12, fu the case of Chelanga viuma58 The issue before court were whether the widow and her brother were entitled to the grant of letters of administration m.d whether the mother of the deceased his illegitimate daughters and brother were entitled to a share of the deceased estate. It was had that under Islamic law a widow is entitled to anything of their husband gifted to them during their life time but for the rest she only’ owns that share which she is entitled to under the law of distribution According to the rules of sharia and an illegitimate child does not inherit the estate of father but mother under Islamic law. A widow gets 1% of the whole part of the estate under fulamic inheritance and the rest goes to the Muslim Ummah community for the poor. Since Islamic inheritance is govemment by the Quaran and the legal rules of interpretation applicable to the particular sect they are subjected to near servitude in the
~[2OO2]1KLR339
19 practical operation of the Shoria law and are not permitted ~o challenge any male relatives especially husband any legal and human right issues.
2~8 Right to make wills A will refers to generally what a person wishes to happen on his death. Statutory it refers to a docum~n in which a person expresses his or her ~wishes on death 59 A person making a will is called testator ~f a male and Testatrix for case of female. A will can be altered by adding to it any number of codicils. A codicil comes part of the will and must be executed with he same thr~’alities as a will. The right to make a vrill affects women’s property tights in the sense that since a will is a legal document expressing ones inren non upon death and it omen are usually denied that chance to make it because they lack property. upon heir dea F for hose own property ,it goes to ti’ose people whom ‘e’ ne er desir to md thua end un being msused by men. Capacity to make a will Section 36 of the act° proxides that every parson of will age eighteen years) ofo~ond mind may make a will but may be set as~de by the court if ti is produced by fraud or coersion. James katende v. Dan Bvamukama,tmThe above section was reflected in this case A female person whether married or not has the right to make a will as does have a make person. The state laws of succession are unknown to most women in the country. This has adverse consequences for women succession rights. For example women and men may be aware of the importance of a formal will, howe’ier, it is no~ common knowledge that to be valid in law a will should be si~med by he deceased and wimessed by at least two people as required by section 50 of the succession Act cap 162. In Sara Nabaggala and Anor V. Joyce N~mkku and Anor6t
~ Succession Act Cap 162 60supra note 4-8 61 Administration cause 201/92 119931iv KALR 60
20 The evidence of the olaintiff pro ied ac the deceased did not assign the will in the presence of ~o withess as required b~ section 50 1 of the succession ActS Therefore the will is invalid.
The above case illustrates the fact wills are forged to deny women their hghts. The succession Act should be waitten in locai langn~e to ensure that women understand their rights in matters up success~on~
Section 43 of the Succession Ac~ orovides that a father who makes a will may appoint testamenta~’ guardians for his child en dating rninori~. The position applies on the death of a father and not a mothen First in line of p iori~ for appointment are the father and mother of the deceased and to ~rr moir~~ o ti c~ ild
The essence of testate succession is the a’~ailabilit~ of a ~alid will. A will on the other hand does not limit the testator’s tight of owaership there ore he or she remains free to sell and give a way his or her estate far as h is s i alive bec~us~ a wiil can not confer benefits while a testator is still alive.
A will must be attested to bj a Ieas~ vn wit tesses according to the case of Administrators Genei~1 V. Noash Nakiyaga and Oas ~ it was stated mat a wiii whch has been signed by a testator but tas not been witnessed is in~aiid because of lack of attestation by witnesseff The effect of such requirement is thrt it denies a chance to those to whom the will was mean for.
The issue of revocation of a wills under section 56 1 of the succession Act is also undermining nomen tights under successio This section further prw ~ides that every will shall be revoked by the marriage of the maker, In the case of Rwabaganda V. BahemurWabUsha~ the deceased ‘\Tote a will in August 1966 and subsequent entry married the plaintiff in 1970. Coutt held that at the time of the deceased’s death there was
63 []993]HCBI27 64[1970JHCB 12]
21 a valid marriage between the plaintiff and the deceased and th.erefore there being no subsequent will after the marriage the deceased was declare•d intestate.
The law of succession also pays little regard to women ~aio cohabit Section 27(3)6~ provides for departu.re from the distribution scheme by family arrangements or sanctions of court. This is to the effect that a person can only claim to be a wife or a husband if there was a valid marriage existing between frat person and ftc deceased. ~ the case of Christine Male V Nanlandaas court held that the first plaintiff was the widow of the because there was a valid marriage and the first defendant was never a wife because of the mere fact that she had children with the deceased did not entitle her to shares in the deceased’s estate and th.erefore the plaintiff was the only person entitled to apply for letters or administration of the deceased estate.
The 1995 constitution of Uganda67 accords both men and women equal rights in marriage and upon the dissolutiom Section 36(1) ~ contravenes it. It is to the effect that the Spouse must not have separated from the deceased at the time of his death or othe~se he or she looses interest on the estate. This ~as held in the case of Mboijana v. Mboijana69 In this case the defendant was lawfully wedded wife to the deceased but separated over 20 years, she failed to prove substantial dependence to the deceased .Court held that the plaintiff (son of the deceased was entitled to the grant of letters of administration because the defendant was separated from the testate of the time of his death ,Thus disqualified from obtaining letters of administration per section 30[i] ofthe Succession Act Cap 162.
According to the research carried out on Buganda widows most them admitted on having been denied the right to apply for letters of administration an.d some never know of the existence of such rights in the case of Vudesi Kasisi V~ Kyakambule7° the court held that a girl could not inherit her father’s proper~. As much as she could not or sue her
65 Succession Act Cap 162 661993 HCB 109 6~Article31[1] ~ Succession Act cap 162 ~ Civil suit no. 87 of 1996 70 courtAdministration cause no 1 16/.1 948
22 patem~ uncle for denying her possession of her fa he~ cows. ~ this respect culture has played a veer big role in denyin~ women of th~ir nghts under succession.
23 CHAPTER THREE
3~O Procedural aspects of succession Introduction The law of succession deals with the devohition and transmission of the estate of deceased person. It is a process through which one became untried to the property of a
deceased person by operation of the laws ri
Article 31 (23 of the Uganda constitution •empowers parliament to make law for the protection of the tight of widow and widowurs to inherit prope~ of the deceased. The succession act provides for both the substance and the procedure of dealing with large estate and these are estate whole value is estimated to be a above 100,000 and such matter are only handled by the Hi.gh court,
In additional to be a bove, the form.al laws of succession regulation property are scattered in various places of legislation, creating problem of inteipretation and enforcement for example there is Administrator of (small estates> special provision act 72deals with estate whose valve is estimated to be below 100,000 such estate are handled by the aggravates court the administration of estates probate and administrative rules provide for the procedure of attaining probate and letters of intestates administration. The Administration General’s Act ‘3provide for administration of the estate of a deceased person by the administration general. The probate Resealing Act~4 provide for the resealing Uganda of probate or letters of administration validity obtained from another jurisdiction. The administration of persons of unsound mind Act ~ applies to people who have been certified as being of unsound estates of mind. The certification procedure is provided for in the mental treatment Act
~ H.F Monis; The law of succession in Uganda, 1971 ‘2Cap 35 laws of Uganda ° Cap 36 laws of Uganda ~ 38 laws of Uganda a Cap 39 laws of Uganda
24 estates of missing persons Acts ~6, This governs sittiations when a person disappeared and has never seen ab~e but lest prope . These scahered las a are prejudici~ to the rights of women under succession, once most m vomen in Uganda are illiterate according to the report released b~ the minist~ of finance, economic planning and development. This report stated that 45% of women ar~ iHterate77. 3J Domicile for the purpose of succession Different rules apply m regard to succession reating to movable and immovable property. Domicile refers to a person’s permanent place cf residence’8. It is important factor in determining the law applicable in succession matters. Section 4 1) Succession Act provides that succession to a deceased persons immo iable prope~ in Uganda must be regulation by the law of Ubanda as ong as hat oerson oom~cile fin Uganda at the time of the his death.
Section 4 (2) provides that a deceased nerson movable property is regulated by the law of the countly in which that person is domiciled at the ~me ofhis or her death.
Section 4 (3) provide that in case of intestate succession a deceased person is deemed to have domiciled in Uganda if for a petiod ot not less than two years by his or her death that person was residing in Ugandd or if 1h~ deceased is sun’~ved by a spouse or child w~io where at the time of hat person death resident in Uganda
It can however be noted that the cursent source of laws of succession are old fashioned that of 1906 and the administrator Genemi Act in 1933 Radical reforms to harmonize such are yet to be made since this laws were pmmulga~ed at a hme when English law was based on the flawed assump ~ons that the a wido ~er nust pass onto his blood relative such as children. It was assumed that wives do not conttibute to he acquisition of
estate prope~. These laws remthn in force in spite of the fact ~he they cannot in any way
~ Cap 40 1a~s of Ugan~a 77Minis~y of finance, Economic planning and Developmentll 99 t report 78HF Morris,The LL~ of succession in Uganda, I~9~1 I
25 be recounted with the superior provisions of the 1995 constitution such as Article 20(1) which states. “Eveiy person has a right to mm property either individually or in association with others.” Article 273 of the Ugandan constitution provides for the creation of cultural institutions
.This cultural institution have a great impact in un.dermining women’s succession rights in Buganda. 3~2 Weakness of the laws of succession and institution of Uganda~ The laws do not advance substantive equality between men and women are discriminatory and a barrier to the promotion of a modem and just society in Uganda79. This is a problem which manifests itself in many ways firstly some of the laws are discriminatory to women. Secondly, multiple laws and institutions regulate prope~ rights of succession80. There are custom.aiy laws ~forces, Islamic and Khadhis courts and the office of the Administrator General.
The problem is now m.anifested in the widespread poverty among widows who are among the most poverty stricken categories of people in the present Ughnda society. The mechanism that regulate peoples property rights at succession is not appropriate despite being rhetoric on the contrary, it is inevitable the current laws of succession and institution regulating property rights of women continue to contradict the country’s international treaty obli.gation with impun.ity.8’
The formal succession Act prescribe that when an intestate is survived by a some children and dependent relative the surviving spouse 15%, children take 75% and the dependant relative 9% of the estates. Although this laws applies to both widows and widowers equally, in a country where polygon and not polyandiy is permissible there are more widows sharing the already small entitlement than. widovmrs. Equality of the sexes under
~ The Federation of Women’s lawyers TJganda[ F~A1 Ugenda 10th July 2007.s 80Examples of this laws are the succession act, The Administrator Generals Act,The Trustees Act. ~ CEDAW .Uganda Ractified it in 1987, [Convention on Elimination Against all Fonns of Discrimination to womenj
26 such a law is exciusivety impossible, state laws of succession are unlmow~ by most people in the county. This has had adverse consequences tor women’s property rights. For example women and men may be aware of the importance of a formal will in law; a will should be signed by the deceased and wimessed by a~ least t ~ people. Arnon~ many tibal communities in Uganda, written valid wi11 as understood in v’estem legal s~ stem is different those of the African system .Making a will i~ any, was oral, more over today there is a belief that making a will invites a bad oment2. and he subsequsot death of the testator faithflil to patriarchy, majority of male testators don’t lease prope~ directly to their wives majority of men leave property not to tlwir wi ‘es, but to children. Evuiently many estates in Uganda continue to be regulated under the formal and inLormal las ‘a of succession that are not favorable to women. The ~on~en of ‘he statutory las a of succession is also a problem for women’s prope~ nghts. The stat~ laws of succession seen to be based on the flawed assumption that the bulk of a deceased person’s property even where there is a widow or widower must pass on ~o his relatives such as children. Even if is assumed that wives do not contribu o the acquisition of the esta e properties i a not justified for them not to take over the entire estate propeines ~en the husbands pass way. This is especially so in monogamous relationshipsi3,
Marriage is regarded as a contract between ~o persons, this are the husband and wife who contract and the children are born ~er this contract. Privity of contract is a principle which states that non parties to a contract are not supposed to claim an interest in it84. In this regard non- parties such as children, should not benefit more out of it than the contracting parties that is husband and wife,
As if the wealmess wirn the state laws of succession ~sere not enough, the state instlmtions implementing these laws are net any better. Firstly the official language of all state courts is English this means that an accoun~ of the language of courts many women both in urban and niral areas where local langnsages like Luganda are widely spoken find
82~~DP[United t ations De~ elopment progratrar 19~9 ‘~epon Ne”~ York S3 [1991) report stated that 45?o of Ugandan v’unen ~re iI1iara~e n D.JBakibinga. Ian of coneset in Uganda page 183 East~ daicanPubksherS
27 the law courts inaccessible Although there may be interpreters but these are not reliable given that Uganda has more illiterate women than men, wom.en are bond to find the state courts more unwelcomi.ng to them. than to men.. State administration institutions regulating property right at succession are not any better also. Prominent in this category is the office of the Administrator General, The office is an administrative institution charged with the responsibility of ensuring that estates of deceased persons are administered in accordance with state laws of succession. The office is centralized in Kampala. It is yet to be decentralized to ensure fairness to all estate beneficiaries implying that it does not as yet have the capacity to ensure that all estates in Uganda are administered in accordance with state laws. hr this regard there is need to create smaller and affiliate institutions with well equ.ipped staff to help handle disputes in a more speedy manner.
33 Institutional mechanisms ~or women’s land Right The institution frame works are very important tools br the promotion of women’s succession rights. Institutions are created to ensure that the provisions of the succession Act are implemented on the ground and not simply remaining on paper. Since land is usually a very contentious issues when it comes property rights, it is also one of the contented aspect in succession.
The office of Administrator General. Under section 5 and 6 Administrator General’s Act. This act empowers the wife of the deceased with the right to apply for issuance of certificate of no objection to her husband’s estate within a period of two months after the deceased death. Most wives however, in Uganda are illiterate according to the report of ministry of finance and economic p1anning8~ and do not understand the process obtaining the certicicate of no objection Further more the office is over centralized under staffed and officers are under paid subjecting them to corruption in the case of Konde V. Bulandina Nankya~ due to
‘~ Supra note 71 page 26 {1992-93JHCB 192
28 corruption, a letters of administration were given to the step brother that is the deceased woman instead of her mother to the deceased. this is some hindering factors of women’s realization of succession rights. The Administration General’s Actn deals with the offence of intermeddling the property of deceased person’s. Although of the face of it such law should protect widows from greedy relatives and as such often interfere or grab widows property. The provision has not been protective to widows because of inter~ alia the fine of two hundred shillings or three months imprisonment or both on conviction are mild. This shows why property dispossession from widows still thrives leaving widows desperate.
The Land Act Cap 227~ It provides for a number of institutions such as land committees and tribunals. Sections 47~4) states that. at least one third of the members of the District land committee shall be women.
Section 58(3) states that at least one third of the mem.bers of the District land board shall be women. However section 64 does not provide for any women representation in the land committees and yet these are rural based and is of great importance to the nation as far as implementing land rights is concemed.
3A Procedural A.spects of succession Before an estate can be lawful.ly administered, letters of administration or grant of probate must be obtained from court, and administrator is defined as a legal heir or a person appointed by court to administer an. estate of a deceased person were there is no executor. Under section 163 of the Succession Act it is to the effect that even if tie deceased died testate but did not appoint an executors, the procedure is by letters of administration .This has an effect in that a woman needs to be in possession of certificate of marriage which not many women have since they cohabit,
~ Cap 157 laws of Uganda.
29 Probate is defined under section 2 of the Succession Act as a grant by a court authorizing an executor named in a v~ dl to adminis er the estate of a testator
Section 244 of the Succession AcL pro ides for application of probate which is by a petition, a will must annexed to it: petitioner must show the following. a jThe time o the testator death, This is evidenced by the production of a death certificate or a person who saw the deceased and attended the burial b} That the annexture attached ~s a duly executed will of he testator c] That the petitioner is tue execured named in the tesrator wifl dithe amount of assets to be administered In most cases women are not in po:session of tde death certificate especiaily is the death was as a result of HIV ~ ids. it is assumed hat it is f e woman ~o brought88 it thus a hindering factor. Failure to be mentioned in 1he ~ll means d~nia of probate even in instances ~ere one is in possession of a marriage certificate. The government shculd address its mind on such matters.
Where the will is not written in the language of court, ranslation must be made but the
original must also be attached letter of probate can only be given to an executor named in the will. Section. 246 of the Succession Act8~ provides for application for letter of administrators which is by a petition stating the followin~: a). the time and place of the deceased’s death b) The family and relative of the deceased and their residence c)The hght in which the petition claims d) The jurisdiction in which the estate is located e)An estimate of the deceased estate
u Human Rights VVa~ch Repo~’Doubic sunda~s 2 3~t ~~fl8 .org repods 2003~ganda 0303. 89 Cap 162 Lay’s o~Uginda
30 In the case of Re Kibiego9° court held that the most suitable person to obtain Letters of Administration to the wife to the deceased person because she is the person who can rightfully and honestly safeguard the assets of the estate for herself and the children
Section 202 Succession Act provide that l.eflers of administration are granted to persons entitled of the greater proportion of the Estate.This calls for immediate dependents. SectionJ90 exempts minor and my person of unsound mind from obtaining letters of administration. Section 252 Succession Act requires for petitioner to.. obtain a certificate of no objection. This certificate is issued by the administrator general after being satisfied that the matters relating to the nature of the estate, size and composition of the deceased the family. The administrator general authorizes one or more members of the family to apply for letters of administration Section 235 jurisdiction which the estate is located
A.fter petition is lodged in court for both probate and Letters of Administration, a notice is issued to the general public stating that an application for the same has been received and calls upon creditors and debtors to lodge their claims within 14 days after the expiration of 14 days from the date of notice then the application are granted. After the lapse of this period, any person claim.ing an interest can. lodge the objection
Where there is no objection to the application is lodged, the court proceeds to hear the application on i.ts merit before a grant is issued.
9O[ t980 1HCB104
31 CHAPTER FOUR
CONCLUSSION AND RECOMMENDATIONS 4.0 Introduction Women by virtue of being human beings and citizens of Ugan.da have tights of property, equal treatment and tights upon and on marriage. Women play a big role in family relations and their efforts are usually taken for granted Research has also granted that they are chief producers of food and helping economic development. Thus it is a well known fact in order for women to fully participate, contribute and enjoy the benefits of development through agricultural production, they need an enabling environment which allows them unlimited realization and implementation of their succession right and also on property ownership.
CONCLUSION Majority of women, most of whom depend on their hu.sbands for their livelihood, are
either squatters or have limited and insecure rights in the home . Through inheritance and purchase it is in very rare cases that women acquire property through gifts from their relatives and friends. Inheritance is one of th.e cheapest modes of women’s acquisibon of property, yet it is a
practice almost exclusively reseived for men . The guiding principle in inheritance is that land should remain within the lineage, in Bugan.da this has be~n the patrilineal lineage. The fact that women marry outside their lineage, only in rare cases do they inherit land or property. Many of the women gain access to land by inheritance through their male relatives, for example husbands, fathers, brothers in ini.eritance through their capacity as wives, daughters, sisters. The rights of access to land are not permanent and can be terminated any time depending on any change in the relationship with their male relatives.
32 Making will have &so helped women realize their rights in marriage in that they can devolve their property
Decision making at household level point to the fact that most women do have access to property lack powers of control and decision making over it. Most of the families in Buganda are patriarchal in nature rue men hold the dominant decision making mechanisms in the family.
The aspect of women subordination indennines realizatio 1 of their succession rights this is usually as a result of stereotyping winch starts household level.
Discrimination in the soci~ against women has had a cry great impact on reaiisation of wnmen ‘s succession tigh s. Th1s has caused both p0 ~cal and economic inequality.
The cultures and customary nrac ices in our socie ies a~so contribute to the factors constraining women’s succession righ~. Our cultures and customs dic~ate that women are not capable to own property in heir personal status and the right is simply endowed upon men.
Women succession has suffered due to bad ~egislation, the iaw~s relating to succession are scattered in small different statutes which are unknown to most women
Lack of proper education among women enhances women being discriminated. Women themselves also perpetrate the aspect of patriarchy. it further keeps the women ignorant of their legal sigh s in respect of access to prope~, which the men have taken advantage of by grabbing their property
The govemment has been reluct&w to ensure that ~he succession rights are implemented on the ground bin not simply remaining on paper. Due to this, women’s rights have been neglected.
33 Thare is need to have an effeclhe Jransparent end ve!l~eauipped Administrator Generahs office and other implementation mechanisms so as ~o make fast resolution of disputes arising out of the succession marrtrs.
The issue of preferring a male o~er female heir in succession should be avoided and discriminatoiy customs declared nuil and nid.
The proposed Domestic Relations Bill should be passed in parliament basing on marriage, divorce, operation and succession.
The law should also provid~ time righ for women to reatize heir contribution in family proper.
The govemmeni should promo e education for a I even n higher leaming institutions. Judicial officers should be sensitized or the importance of proper use ofoffice.
The media should create awareness on vumen’s succession rights.
Cultural practices undermining women’~. succession rights should be rendered null and void.
Their should be succession rights education to v~omen starting from grassroot to national level.
Women should be empowered economically.
The state should educate the pr bile about gender imbalances and Affinnative Action. There is need for networking of legal aid services for women to encourage them bring claims to court.
35 INDEX
QUESTIONNAIRES Background information My name Nyamwata A. Lindah, a law student at Kampala li~temational University carrying out research on the law of succession in relation to women rights in Uganda. This questionnaire is seeking to find out whether and to wh.at extent the succession act and other law have had an impact on wom.en’s rights. The findings will be vital in establishing how women and men obtain access to, ownership an control property.
Socio~demograpliic characteristics of respondents 1. Name 2. Sex (i) Male Female 3. Marital status Single married widowed seperated 4. Age 5. Main occupation (i) Civil sewant iii) s•elf employment (iii)any other 6. Highest level of formal education (i) A level (ii) O’level (iii) any other 7. Who is the head ofyour household? (i)Husband (ii) wife (iii) male child (IV) female child (v) any other
36 WOMEN’S SUCCESSION RIGHTS Access to property I Do you have aaccess to any property? (i) Yes (ii) No 2 Through who have you had access to it? (i)Self (ii) husband (iii) father (iv) mother (v) any other 3 Who has aright to allocate property
4 Under what conditions may property be allocated to you if any
5 Do you have any control over any matrimonial property?
6 Are women involved in decision making, family, property disposal and utilization of the benefits that accrue from the property and making of wills? (i) Yes (ii) No
Ownership of property 1 Do you own property? (i)Yes (ii)No 2 How did you acquire the property (i) Purchased it (ii) inherited it (iii) gift any other means 3 If yes in whose names is it registered? 4 Does ownership guarantee control over property 5 What factors may cause a woman not to own property in the area? (i) Customs (ii) lack of money (iii) bad laws any other 6 Should women own property (i) Yes (ii) No 7 Should a woman be entitled to share ownership of her husband’s property? (i)Yes (ii) No 8 Give your reasons to your answer to number 8
37 Making ofwills I Do you have a will? (i)Yes (ii) No 2 If yes move to question 4, If no move to question 3 3 Do you understand the importance? Give reasons 4 Why do you have? Give reasons
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