The Constitution of the Republic of Uganda, Article 31(2) provides for the rights of the family and it states that Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit property of their deceased spouses and to enjoy parental rights over their children. The same Constitution under Article 292 provides for modification of laws and given the supremacy of the constitution, all laws must conform and those that are inconsistent to it are null and void to the extent of the inconsistence.

However since the promulgation of the Constitution in 1995, inheritance and succession laws continue to be discriminatory against the women. Even after a constitutional case instituted by Law Uganda to nullify those sections that are discriminatory which were annulled by Court, the Succession Act is still not amended to conform to the Court declaration.

The Constitutional Court Declarations made in 2007 a number of sections in the Succession Act created a lacuna in the law and this needs to be addressed to provide for equal treatment of all heirs and to abolish the   preference for male heir and to:

• Provide for female intestate under the law;
• Consider contribution of spouses when distributing property;
• Appointment of testamentary guardians should be done by both spouses;

• Persons appointed guardians should include female relatives;
• Right to domicile should not be dependent on marriage and should left to the choice of a spouse;
• Occupancy of matrimonial home should not terminate when spouse chooses to re-marry.

Article 247 that provides for the Administration of estates, Parliament is mandated to by law establish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and

Under paragraph (a) of this article, ensure that the services of the department or organization established for the purpose are:

Decentralized and accessible to all persons who may reasonably require those services and that the interests of all beneficiaries are adequately protected

All these Constitutional provisions need to be brought into conformity with the constitution and it is the duty of parliament to ensure that the women and men of Uganda benefit from these provisions.

Change to the proposed amendment

Reason for change

• The purpose of this Act is to cure gender inequalities in intestate succession and its administration by amending the following statute:
• The Succession Act, Chapter 162
• Where indicated, this Act relies on definitions in the following statutes:
• The Marriage and Divorce Bill 2009
• The Children’s Act, Chapter 59.
• Land Act 1998.

Succession& Inheritance-Fact Sheet

Introduction:

Under the International Instruments, human rights are the only values where there is consensus. One of the principles of human rights is that, all human beings, including women are equal and should not be subjected to discrimination.  Uganda is a signatory to key International Human Rights instruments including the Universal declaration of human rights (1948), The Convention on Economic, social and cultural rights, African Charter on Human and Peoples rights and The Convention on Elimination of all Forms of Discrimination against Women.

In compliance with its commitments, the Uganda Constitution sets a rights standard by which every legislation on the subject should be measured. It guarantees among others;

• Non discrimination and equality of all before and under the law in all spheres of political, economic and cultural life and shall enjoy equal protection of the law.
• Affirmative action in favor of marginalized groups for the purposes of redressing imbalances against them.
• Women shall be accorded full and equal dignity of the person with men and that right shall include equal opportunities in political, economic and social activities.
• Appropriate laws for the protection of the rights of widows, widowers to inherit property of their deceased spouses and to enjoy parental rights over their children.
• Under Article 237, men and women are entitled to own land in accordance with the tenure systems of Customary, freehold, Mailo and Leasehold.

Legally, land is acquired in three ways, namely; through purchase, gift and inheritance. However, the purchase option is limited to those with purchasing power, the majority of whom being men.

CHALLENGE:

• The main practice of acquiring land is through inheritance. However, the current practice and law on inheritance favors males over females.

• The Succession Act: The provisions of the Succession Act, sections 2n(i) & (ii), 14, 15, 23, 26, 27, 29, 43 and 44, which dealt with the distribution of property of the deceased persons who die without leaving a Will, were pronounced un Constitutional under the Constitutional petition No. 5 of 2006( Law and Advocacy for women in Uganda Vs. The Attorney General).

These provisions provided for only male intestacy and thus The Constitutional Court ruled against the sections, as being inconsistent with the provisions of the 1995 Constitution i.e. articles  20, 21, 24,26,31,33 and 44 of the 1995 Constitution, which deal with equality, land ownership and affirmative Action in favour of women.

• Meanwhile, there were no measures taken to make saving provisions of the law for usage in the interim period, while awaiting parliament to amend the Succession Act or / make Succession laws that conform to the Constitutional provisions.
• The major effect of this is that there is no law to guide the distribution of the Estate of persons dying with no written Wills. This is left to the decision of the beneficiaries and a beneficiary who is aggrieved by the distribution only has the option of going to a court of law for a remedy.

However, in practice the widows and orphans who are the main beneficiaries do not have powers to distribute property and are in most cases, discriminated against.

In Uganda there is dissatisfaction with the responses to ensure women’s access to justice services. An option of going to courts of law for redress is a night mere. This is attributed to;

• Women are ignorant of their right to inherit as beneficiaries,
• Fear to confront the male relatives of the deceased husband as they will be ridiculed.
• Poverty. Many women are too poor to meet expenses of going to court for redress.
• Poor enforcement of laws,
• contradictions between the formal and cultural justice systems, low literacy levels of women,
• poor access to structures of justice,
• Gender insensitively of the majority of the officers.
• Long delays and negative attitudes within the male –dominated judicial system also hinder women’s efforts to access justice.

Recommendation:

• Bills/ Laws should be enacted to protect and promote women’s inheritance rights
• Gender sensitive and victim –friendly judicial services should be established.
• Strengthen the planning structures at the various levels of local governments to enhance meaningful responses to the needs of women.

Strategy:

• To lobby the government to pass Bills/laws that protects women especially on their inheritance rights.
• Raise awareness and consciousness on gender equality and women’s rights for traditional, religious and community leaders
• Advocate for the practical application of the laws that exist especially the general principles.
• Train judicial personnel and traditional court officers on gender sensitivity and victim friendly techniques.
• To increase advocacy and lobbying for resource allocations for programmes that address women’s needs

Conclusion:

There is a big gap that exists in succession and inheritance laws and thus the need for laws that protect and promote the rights of women. However, the passing of the laws will not be sufficient to reverse the entrenched beliefs and control attitude that the traditional system possesses.  There is thus need to ensure that females and males inherit land equally in law and practice.

1.0 The principle

Article 31(2) of the 1995 Constitution of the Republic of Uganda it provides that Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit property of their deceased spouses and to enjoy parental rights over their children.

Article – 247 of the 1995 Constitution of the Republic of Uganda provides that Parliament shall by law establish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and ensure that the services of the department or organization established for the purpose are decentralized and accessible to all persons who may reasonably require those services and that the interests of all beneficiaries are adequately protected.

2.0 Defects in the existing law

In line with Article 137 (3) (a) the 1995 Constitution which provides that a person who alleges that— an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate, Law and Advocacy for Women in Uganda challenged the some sections of the Succession Act.  The issues raised were:

• Whether Section 27 of the Succession Act, which provides for male intestacy and not for female intestacy, is constitutional?
• Whether section 27 which also generally grants a widow of the estate 15%; while the widowers enjoy 100% is constitutional?
• Whether rule 8 (a) of the Second Schedule to the Succession Act which provides that a widow’s right of occupancy in a residential holding terminates upon remarriage while that of a widower terminates upon death is constitutional?
• Whether section 43 of the Succession Act which provides that a guardian is appointed by the father and undermines the mothers’ parental rights?
• Whether section 2 (n) (i) and Section 44 of the Succession which gives preference to the male lineage over female lineage in choosing a legal statutory guardian is constitutional?
• Whether section 14 of the Succession act which awards automatic acquisition of domicile upon marriage to a woman and not to a man is constitutional?; and
• Whether section 15 of the Succession Act which terminates a woman’s acquired domicile upon legal separation is constitutional?

The Constitutional Court in April 2007 declared the above-mentioned sections of the Succession Act null and void. This ruling created a lacuna in Succession Act.

3.0. The objectives of the Bill

The objectives of the Bill are to:

• Fill the lacuna in the Succession Act created by the Constitutional Court ruling.
• Provide for the distribution of any property amongst the beneficiaries to the estate of an intestate. Read more…

Download Presentation on Amendment of the Succession Act by;Hon. Dora C. Kanabahita Byamukama

Director -LAW-Uganda