Do Inheritance Laws Make Second-Class Citizens of Women?

Much has been made of the recent legal battle in Botswana in which a group of elderly sisters successfully fought off their nephew to hold on to the family property...

Much has been made of the recent legal battle in Botswana in which a group of elderly sisters successfully fought off their nephew to hold on to the family property.

80-year-old Edith Mmusi argued that since she and her sisters lived in the ancestral family home and had invested in improving it, they should inherit it. Their nephew, as the closest male relative, asserted his claim - even though he didn't live in the house or contribute to its upkeep and owned property elsewhere.

The case was remarkable partly because it was so rare.

In many countries in Africa, men are still favoured by inheritance laws, particularly in rural settings where wills are unusual. Instead, unwritten customary laws and tradition are used to decide property and land disputes.

But how do these norms affect and reflect the role of women in society - and is there a case for change? Could other countries follow the Botswana example?

Many traditionalists argue that allowing a widow or daughter to inherit land could undermine links between people and their ancestral home - taking land away from the family once the woman is married or re-married and threatening traditional communities and power structures.

Maureen Atuonwu, a women's rights activist in south-eastern Nigeria, explains the situation there:

"If you are a married woman and your husband dies, if you don't have a male child, your in-laws will start fighting for the land and property of your late husband. They will tell you that your daughters will get married, leaving no one to inherit the land. In many communities, families therefore don't allow women to inherit."

Another challenge comes from the nature of marriage in many countries. If a man and woman are living as a married couple, but not married in the eyes of the law, then it can be difficult for a widow or her children to lay claim to any land or property. It can also be difficult for a man's family to ascertain the nature of his relationship with a female partner and the strength of her claim.

But organisations like WIN - Women's Inheritance Now - argue that property rights are fundamental to women's economic security, social and legal status, and sometimes their survival. They say that many women - particularly widows and orphans - are being denied those rights, and that depriving women of land can lead them directly into poverty.

In the Botswana case, traditional practice was deemed at odds with constitutional principles of equality and fairness. Justice Isaac Lesetedi of the Court of Appeal said that "there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems."

A similar decision was reached in South Africa, where in 2004 the Constitutional Court declared that the rule of primogeniture was unconstitutional because it violated women's rights to equality and dignity.

There are also movements for change elsewhere, although progress is slow. In Cameroon, Anne Stella Fomumbud has been at the forefront of the fight. She was inspired by the number of women left widowed by the HIV/Aids epidemic, and has succeeded in getting widows officially recognised by government as a vulnerable group, although not in changing written law.

Her task has been an uphill one: "For someone who has been born and bred within a culture, to stand up and fight against that culture wasn't easy. At first people thought I was not normal, they approached me with disbelief."

The nature of customary law has added to the challenge - unofficial practices which are accepted by the community but not written down. "Where there are no laws at all it can be very difficult to start up something - what would be your base?"

Indeed, a majority of inheritance cases across the continent are settled through customary courts, presided by chiefs or traditional rulers, who have no legal training. Lawyers are not allowed. The recent Botswana case went through three customary courts before it reached the High Court and Court of Appeals.

But the story is not as simple as a clash between tradition and progress.

Chief Klaas Motshidisi is a traditional chief in central Botswana - he says that in his area, men and women have equal inheritance rights and that their customary law is progressive.

Even the majority of those trying to change inheritance practices recognise the value of the traditional court system. Priti Patel points out that community-based customary courts are accessible and affordable, whereas "modern" courts are not. They give women in rural settings with limited means a route of seeking justice when otherwise they may have none.

Sylvia Chirawu, a lecturer in family law at the University of Botswana, points out that often the laws themselves are not the problem, but rather the implementation: Women don't know their rights and therefore aren't able to demand them.

"Even when gender equality is a constitutional right" - as it is in most countries in Africa - "people will say that the laws are against local culture and customs - so there is a need to change people's attitudes."

In many ways, the Botswana case has been a bigger story outside the country than within. Legal brains in Botswana wonder how much of an impact one ruling can really have. Meanwhile, ordinary opinion appears to be divided partly on generational lines. Does that mean, fifty years from now, women will have equal rights to men when it comes to inheritance? For activists across the continent, that's certainly the hope.

Do inheritance laws make second-class citizens of women? Listen to the BBC Africa Debate at 1900gmt on Thursday October 24 and 1400gmt on Sunday October 27 on BBC World Service. Or join the debate via the BBC Africa Facebook and Google+ pages and on Twitter: #bbcafricadebate and #100women.

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