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Inheritance Rights in Uganda: How Equal Inheritance Rights Would Reduce Poverty and Decrease the Spread of Hiv/Aids in Uganda

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Inheritance Rights in Uganda: How Equal Inheritance Rights Would Reduce Poverty and Decrease the Spread of Hiv/Aids in Uganda INHERITANCE RIGHTS IN UGANDA: HOW EQUAL INHERITANCE RIGHTS WOULD REDUCE POVERTY AND DECREASE THE SPREAD OF HIV/AIDS IN UGANDA RACHEL C. LOFTSPRING* 1. INTRODUCTION Her husband has died, leaving her economically vulnerable in a society where women seldom own land and, due to devastatingly unequal inheritance laws and customs, have little means to support themselves or their children when widowed.1 In order to survive, she is left with no choice but to submit to "wife inheritance," a customary practice in Uganda in which a widow is inherited, just as property would be inherited, by a relative of her deceased husband. 2 There is a chance her in-laws will take advantage of her vulnerable situation, forcing her to have intercourse with multiple male in-laws before being inherited by a single relative, probably the brother of her deceased husband.3 In a country where 6.7% of the population, or 1,000,000 people, between the ages of fifteen and forty-nine are infected with 4 HIV/ AIDS, the results of this custom can be catastrophic. * J.D. Candidate, 2008, University of Pennsylvania Law School. My sincerest thanks to Professor Bridget J. Crawford for her inspiration and invaluable guidance and to Professor William W. Burke-White for his inexhaustible insight into international law. 1 See Valerie Bennett et al., Report: Inheritance Law in Uganda: The Plight of Widows and Children, 7 GEO. J. GENDER & L. 451, 453 (2006) (describing how "[to be a widow in Uganda is to be an outcast."); HUMAN RIGHTS WATCH, JUST DIE QUIETLY: DOMESTIC VIOLENCE AND WOMEN'S VULNERABILITY TO HIV IN UGANDA 35 (2003), available at http://www.hrw.org/reports/2003/uganda0803/ uganda08O3.pdf [hereinafter JUST DIE QUIETLY] (discussing paternal control over families in Uganda). 2 See JUST DIE QUIETLY, supra note 1, at 35 (describing the difficulties Ugandan women encounter when their husbands die). 3 Id. 4 UNAIDS JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS, UGANDA COUNTRY SITUATION ANALYSIS (2004-2005), available at http://www. unaids.org/ en/Regions-Countries/ Countries/Uganda.asp [hereinafter UGANDA COUNTRY SITUATION ANALYSIS]. The percentage of people living with HIV/AIDS in Uganda is not nearly as high as in Botswana, which has an estimated 24.1% rate of Published by Penn Law: Legal Scholarship Repository, 2014 U. Pa. 1. Int'l. L. [Vol. 29:1 The situation in Uganda is not unique. Throughout the world, particularly in developing countries, women suffer due to extreme gender inequality.5 Not only is this unacceptable from a human rights standpoint, but studies indicate that such inequality hinders economic growth and exacerbates poverty.6 Resolving this inequality is a challenge of epic proportions. One way to lessen the burden is by focusing on narrow issues within a specific country. This Comment offers an analysis of one country - Uganda - and one particular right - inheritance - as a small piece within a much larger discussion. This Comment argues that if women in Uganda had inheritance rights, there would be less poverty and a reduction of the spread of HIV/AIDS in the country. Had the widow in the all- too-common scenario hypothesized above owned land or been able to inherit from her deceased husband, she would not have been forced to have sex for survival. This Comment explores the current situation faced by women in Uganda and offers suggestions for improvement. Section 2 explores theories of inheritance rights generally, illustrating the importance of such rights in society. Section 3 describes the Ugandan situation, taking into account the statutory law in Uganda, the spread of HIV/AIDS, and women's lack of inheritance rights under traditional Ugandan law. Section 4 examines the selective enforcement of property rights for women and considers the positive effects equal inheritance rights would have in Uganda. Finally, Section 5 suggests the potential advantages of Uganda adopting a law modeled after the United States' Uniform Probate Code ("UPC"). infection, or South Africa, where an estimated 18.8% of the population is infected. Uganda has a higher rate of infection, however, than neighboring Rwanda, which has an estimated 3.1% rate of infection, and Senegal, which has an estimated 0.9% rate of infection. Rates of infection in other parts of the world are much lower. North Africa and the Middle East have a 0.2% infection rate, Asia has a 0.4% infection rate, and North America, Western Europe, and Central Europe each have a 0.5% infection rate. Globally, about 1.0% of the population is infected with HIV/AIDS. UNAIDS JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS, 2006 REPORT ON THE GLOBAL AIDS EPIDEMIC 11, 13 (2006), available at http://www.unaids.org/en/HIV-data/2006GlobalReport/default.asp [hereinafter REPORT OF THE GLOBAL AIDS EPIDEMIC]. 5 THE WORLD BANK GENDER AND DEVELOPMENT GROUP, IMPROVING WOMEN'S LIVES: WORLD BANK ACTIONS SINCE BEIJING 7 (2005), available at http:// siteresources.worldbank.org/INTGENDER/Resources/Beijingl0Report.pdf [hereinafter IMPROVING WOMEN'S LIVES]. 6 Id. at 9. https://scholarship.law.upenn.edu/jil/vol29/iss1/5 2007] UGANDAN INHERITANCE RIGHTS 2. INHERITANCE RIGHTS THEORIES To aid the discussion of inheritance rights in Uganda, a brief overview of general inheritance theory is helpful. The basic institution of inheritance dates back to pre-Roman times.7 As individual ownership replaced family ownership, severing the family's rights and obligations to property, "rules of succession became necessary."8 Centuries later, during the Middle Ages, primogeniture mandated that all of a parent's land automatically pass to the oldest son.9 Today, inheritance is present in some form in all legal systems.10 In the United States, the right of inheritance is deeply ingrained in the national conscience. Still, the U.S. Constitution does not guarantee the right of inheritance, and estate taxes limit inheritance to varying extents." The right of inheritance directly relates to the duty to support one's surviving spouse and children upon one's death.' 2 While some countries place an emphasis on children, in the United States, spouses receive the greatest protection against disinheritance.' 3 The notion behind this protection for spouses is two-fold. First, the surviving spouse, rather than a minor child, is usually more competent to manage the inheritance and usually will do so in a way that also benefits any surviving children.14 Second, the surviving spouse most likely contributed to the accumulation of property during the marriage and is therefore entitled to it.15 The contemporary view of marriage in U.S. probate law is that of an economic partnership 16 in which each partner enjoys half the 7 THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS AND OTHER PRINCIPLES OF SUCCESSION INCLUDING INTESTACY AND ADMINISTRATION OF DECEDENTS' ESTATES 6 (West Publishing Co. 1953) (1937). 8 Id. 9 WILLIAM M. McGOVERN, JR. & SHELDON F. KURTZ, WILLS, TRUSTS, AND ESTATES 128 (Thomas West 2004). 10 Id. 11 ATKINSON, supra note 7, at 30. 12 McGOVERN & KURTZ, supra note 9, at 121. 13 Id. Blackstone said that a parent's duty to support his child was "a principle of natural law." Id. 14 Id. at 122. 15 Id. 16 Lawrence W. Waggoner, The Multiple-MarriageSociety and Spousal Rights Under the Revised Uniform Probate Code, 76 IOWA L. REV. 223, 236 (1991). The economic partnership theory is also referred to as the marital sharing theory. Id. Published by Penn Law: Legal Scholarship Repository, 2014 U. Pa. J. Int'l. L. [Vol. 29:1 fruits of the marriage.'7 The policies behind the partnership theory aim to encourage spousal cooperation, allow for the spread of risks and benefits within gender roles, promote equality, and provide for greater support of children and the elderly.' 8 To disinherit a spouse is to renege on the partnership bargain, and this is not permitted.' 9 To ensure a spouse is provided for, some jurisdictions offer a restitutionary solution, granting the surviving spouse an entitlement of compensation for non-monetary contributions made to the marriage. 20 In other jurisdictions there is a forced share.21 In forced share jurisdictions, the surviving spouse has an automatic right to elect to take part of the decedent spouse's probate estate.22 This actually limits testamentary freedom by recognizing the surviving spouse's claim to some of the estate, regardless of the deceased's final wishes.23 Eighteen states follow the UPC.24 The UPC grants the entire intestate estate to the decedent's surviving spouse if no descendant or parent of the decedent survives the decedent, or if all of the surviving descendants of the decedent are also the descendants of the surviving spouse.25 Where a parent of the decedent is still alive, the surviving spouse has children who are not also children of the decedent, or the decedent has children who are not also children of the surviving spouse, the surviving spouse will inherit a portion "off the top" of the estate and then a fixed percentage of the remainder.26 17 Id. 18 Id. at 237. 19 Id. 20 Id. Nine jurisdictions provide this restitutionary solution: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Angela M. Vallario, Spousal Election: Suggested Equitable Reform for the Division of Propertyat Death, 52 CATH. U. L. REV. 519, 525 n.27 (2003). 21 Waggoner, supra note 16, at 237. These jurisdictions follow the common law. See, e.g., N.Y. DOM. REL. LAW § 236 (McKinney 1999 & Supp. 2003) (describing forced share division of assets in New York). 22 Terry L. Turnipseed, Why Shouldn't I Be Allowed to Leave My Property to Whomever I Choose at My Death? (Or How I Learned to Stop Worrying and Start Loving the French), 44 BRANDEIS L.J.
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