Do inheritance laws make women second-class citizens?

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.

Eighty-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 did not live in the house or contribute to its upkeep and owned property elsewhere.

The case was remarkable partly because it was 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?

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 Nigeria, explains the situation there:

“If you are a married woman and your husband dies, if you do not 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 cohabiting, 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 Women’s Inheritance Now (WIN) 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: “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.

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 those community-based customary courts are accessible and affordable, whereas “modern” courts are not. They give women in rural settings 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 are not the problem, but rather the implementation: Women do not know their rights and therefore, are not able to demand them.

“Even when gender equality is a constitutional right, 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 the impact one ruling can have. Meanwhile, ordinary opinion appears divided partly on generational lines. Does that mean 50 years from now, women will have equal rights to men when it comes to inheritance? For activists across the continent, that is certainly the hope. n

—Mary Morgan is producer, African News and Current Affairs, BBC World Service