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Uganda Law Reform Commission Study Report on the Review of Laws on Succession in Uganda

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Uganda Law Reform Commission Study Report on the Review of Laws on Succession in Uganda UGANDA LAW REFORM COMMISSION STUDY REPORT ON THE REVIEW OF LAWS ON SUCCESSION IN UGANDA JULY 2013 TABLE OF CONTENTS CHAPTER ONE .......................................................................................................... 3 INTRODUCTION AND BACKGROUND TO THE STUDY ................................ 3 1.1 Introduction ......................................................................................................... 3 1.2 Background and context .................................................................................... 4 1.3 Statement of the problem ................................................................................... 8 1.4 Objectives of the Study ....................................................................................... 9 1.6 Scope of the study ............................................................................................. 12 CHAPTER TWO ........................................................................................................ 13 LITERATURE REVIEW ............................................................................................ 13 2.1 Introduction ....................................................................................................... 13 2.2 Gaps and Anomalies ......................................................................................... 14 2.3 Discriminatory provisions ............................................................................... 24 2.4 Customary heir .................................................................................................. 43 2.5 Separation and its resultant effects ................................................................. 43 2.6 Right of the widow to letters of administration ........................................... 45 2.7 Cohabitation ....................................................................................................... 46 2.8 Entitlement of dependant relatives ................................................................ 49 2.9 Customary Practices of Succession ................................................................. 52 2.10 Legal pluralism ............................................................................................... 54 2.11 Religious Practices (The position of Islam) ................................................ 56 CHAPTER THREE .................................................................................................... 86 METHODOLOGY OF THE STUDY ....................................................................... 86 3.1 The Study Design .............................................................................................. 86 3.2 Population and Area of study ........................................................................ 86 3.3 Data Collection Techniques ............................................................................. 88 3.4 Data collection methods .................................................................................. 90 3.5 Procedure ........................................................................................................... 90 3.6 Fieldwork ........................................................................................................... 91 3.7 Data Analysis and Report writing .................................................................. 91 FINDINGS OF THE STUDY .................................................................................... 92 4.1 Introduction ...................................................................................................... 92 4.2 Knowledge of the law ....................................................................................... 92 4.3 Areas of the Law Requiring Law Reform ...................................................... 94 4.4 Testate Succession ............................................................................................. 98 4.5 Intestate Succession ........................................................................................ 116 4.6 Cohabitation ..................................................................................................... 130 4.7 Customary Heir ............................................................................................... 131 4.8 Challenges faced by implementers of the law when dealing with administrators of estates ........................................................................................ 132 4.9 Mechanisms in place to check the powers of an administrator ............. 133 4.10 Challenges in enforcing the available mechanisms ................................ 134 4.11 How implementers address mismanagement by Administrators ....... 134 4.12 Office of the Administrator General ......................................................... 136 4.13 Services offered by the Office of the Administrator General ................ 137 4.14 Intermeddling with property of the deceased ......................................... 143 4.15 Judiciary/ Formal Courts ............................................................................ 146 CHAPTER FIVE ...................................................................................................... 152 CUSTOMARY NORMS AND PRACTICES OF SUCCESSION IN UGANDA .................................................................................................................................... 152 5.1 Introduction ..................................................................................................... 152 5.2 Nilotic Ethnic Group ...................................................................................... 152 5.3 Nilo‐Hamites Ethnic Group .......................................................................... 153 5.4 Bantu Ethnic Group ........................................................................................ 155 5.6 Influences of customary practices on succession ....................................... 160 5.7 Distribution of property /Property inherited .............................................. 163 5.8 Decision making by women in matters of inheritance of an intestate .... 167 5.9 Effectiveness of customary practices of succession ................................... 169 5.10 Perception on the growing influence and equality of women in property ownership and succession ..................................................................................... 170 5.11 Conclusion and Recommendations ........................................................... 171 BIBLIOGRAPHY ..................................................................................................... 172 Annex 1: LEGAL AUDIT OF SUCCESSION LAWS .......................................... 176 2 CHAPTER ONE INTRODUCTION AND BACKGROUND TO THE STUDY 1.1 Introduction The Uganda Law Reform Commission with support from the Justice Law and Order Sector undertook a study to review the laws of succession in Uganda. The purpose of the study was to ensure among others that; the provisions of the laws of succession are in conformity with the 1995 Constitution of the Republic of Uganda, national laws and international and regional human rights standards and practices, are up to date with the changing socio‐ economic circumstances of Uganda, and that the law is accessible to the people and its implementation can be better realised. Succession means the acquisition of rights and/or property of a deceased person by law. The terms “Succession” and “inheritance” are commonly used interchangeably. For purposes of this study, we shall restrict ourselves to the use of the term succession which is the legal term. In Uganda, succession is provided for under various laws. These include; the Constitution of the Republic of Uganda, 1995, the Succession Act1, the Administrator Generals Act2, the Estates of Missing Persons (Management)Act3, the Administration of Estates (Small Estates) (Special Provisions)Act4 , the Local Council Courts Act5, the Probate (Resealing) Act6, the Trustees Incorporation Act7, the Public Trustee Act,8 the Administration of Estates by Consular officers Act9, the Administration of Estates of Persons of Unsound Mind Act10, the Church of England Trustees Act11 and the Local Governments Act.12 1 Cap 162. 2 Cap 157 3 Cap 159 4 Cap 156 5 Local Council Act, 2006. 6 Cap 160 7 Cap 165 8 Cap 161 9 Cap 154 10 Cap 155 11 Cap 158 12 Cap 243 3 These laws set out the substantive law and procedures for matters of succession such as: the succession rights of widows/widowers and children during both testate and intestate succession, protection accorded to the different sexes in succession matters, powers and duties of the office of the Administrator General; powers and duties of an administrator or executor of an estate; jurisdiction of the courts; procedure for obtaining letters of administration or grant of probate; and offences arising there from. Owing to the large scope of the succession legal regime via avis the limited resources, this study mainly focused on the succession Act, Cap 162 and the Administrator General’s Act, Cap 157 and occasionally made reference to the other laws on succession afore mentioned. 1.2 Background and context 1.2.1 Historical background 1.2.1.1 Succession Ordinance, 1906 The origin of Uganda’s law of succession can be traced as far back as the Succession Ordinance of 190613, which was adopted from English law. The Ordinance introduced the British models of succession and inheritance into Uganda as the law applicable
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