In 2005 the Sierra Leone Court Monitoring Programme (SLCMP) published an article critical to the Government’s involvement in gender issues. The article addressed provisions in our statute books that reinforce inequality between the sexes. It touched on sections in the 1991 Constitution, the Citizenship Act of 1973, the Christian Marriage Act, Cap 95, the Mohammedan Marriage Act (Cap 96), the Administration of Estate Act, (Cap 45), the Matrimonial Causes Act (Cap 102), the Criminal procedure Act and Customary Law that reinforce discrimination against women in Sierra Leone. The article concluded with proffered recommendations directed at the Government to repeal or amend the sections that promote gender disparity in Sierra Leone.
In June 2005, the Parliamentary Committee on Human Rights in collaboration with the Law Reform Commission drafted a gender bill. The Draft Bill sponsored by the United Nations Development Programme touched on all the areas under sec 27(4) d that permits discriminatory practices against women. It dealt with the issue of marriage, divorce, property devolution and customary law. It even goes a bit further to inculcate a domestic violence act. In view of that, this current article does not delve on the Bill. Rather, it gives a synopsis of the first two areas (Intestate Succession and Matrimonial Causes) that the Draft covers, examining the provisions that put women in an advantaged position. In addition it discusses the status of the draft and proffers recommendations aimed at ensuring the swift enactment of the Bill.
The Intestate Succession Act, 2005
The proposed Intestacy Succession Act, 2005 was to provide for intestate succession and other inheritance related matters. It repeals sec 26 of the Christian Marriage Act, (Cap 95), which states that the law governing all natives that are a party to a Christian marriage in the area of property is customary law. Customary law as is well known allows men to retain all properties on the dissolution of the marriage and further regard women as chattels to be inherited together with the properties of the deceased husband. In addition, it repeals sec 9(1) of the Muslim Marriage Act (Cap. 96), which provide that if any person being a party to a Mohammedan marriage or being a Mohammedan but unmarried and dies intestate his estate both real and personal shall be distributed in accordance with Mohammedan law. Apparently the Mohammedan law prohibits women to act as administratrix; the persons entitled to take out letters of administration are the eldest son, the eldest brother of the intestate if of full age according to Muslim law or the official administrator. However sec 3 of this draft bill accords women the right to apply for letters of administration in respect of the intestate’s estate.
Additionally, it repeals the Second Schedule of the Administration of Estates Act (Cap 45), which discriminates against women in the distribution of an intestate’s estate. On the other hand, it gives absolute right to the surviving spouse regardless of sex together with the surviving child to inherit the personalty and realty of the intestate. Sec 5 of Cap 45 provide for the father of the intestate to succeed the whole of his estate if the deceased is survived by parents only. However, the proposed Bill provides that three fourth of the intestate’s estate shall devolve to the parents equally. Sec 17 of the propose Bill further makes it an offence to evict a surviving spouse/child from the deceased home before the distribution of the estate. The sanction levied for such an offence is a fine of Le 500,000.00 or imprisonment not exceeding one year.
Moreover sec 18 of same provide for current/former spouse(s) who is yet to be remarried and is a dependent of the testator. This spouse whether current/former can apply to a court of law in the event a testator fails to provide reasonably for him/her in the Will. The draft grants power to the court to make provision as it seems fit for the benefit of the surviving spouse. This also applies to the child and other dependents of the testator.
The Matrimonial Causes Act 2005
The proposed Bill amends sections of the Matrimonial Causes Act (Cap.102). It addresses issues relating to divorce and strives to create equality between the parties to the divorce. It touched on divorce, child support, spousal support and custody orders. It provided that the court could only grant a petition for divorce in situations wherein irreconcilable breakdown of marriage is established. Breakdown of marriage can be established by adultery, desertion, physical and mental cruelty, lack of maintenance and failure to consummate marriage. However, the court owes a duty to inquire into the facts allege by the petitioner and the respondent before granting a petition for divorce. The court also has right to restrict a petition for divorce presented within 2 years of the marriage unless such application is made on the ground of substantial hardship. Contrary to this, sec 3 of (Cap 102) makes a provision that restrict the presentation of a petition to divorce until 3 years from the date of marriage. It further states in sec 7 that the court can dismiss a petition for divorce if it is found that the petitioner condoned the cruelty. Under the proposed Bill, the petitioners conduct is no bar to divorce.
Part 3 of the draft Bill provides for application for a decree of nullity in respect of void and a voidable marriage. A marriage upon application by the petitioner could be pronounce void if there is proof of bigamy, mental incapacity, lack of consent and below marriageable age. In such a case the court shall not grant a petition until proof that the petitioner at the time of marriage was ignorant of the allege facts, that proceedings was instituted within a year of the marriage and that sex did not take place since discovery of existence of the grounds for decree. An application will be made for decree of nullity in respect of voidable marriages if no consummation, venereal disease of a communicable nature and pregnancy is established.
Furthermore, the draft Bill by virtue of sec 19 grants powers to the court pending suit or subsequent to a divorce to make orders, award maintenance or financial provision as it thinks just and equitable to either party to the marriage. The condition precedent is that, the court must have considered the standard of living of the parties and their circumstances. The court by virtue of sec 24 can also order one party to pay the other a sum or money or convey to the other movable or immovable property as part of settlement property in lieu or as part of financial provision. Sec 23 provides for collateral in the event the court is convinced that the party ordered to make payment is unlikely to pay. Sec 28 provides that a party to the marriage shall cease to be entitled to financial provision for him/her if he/she is remarried or is dead. In addition, an order for care, custody or support of a child shall be terminated when the child reaches the age of the majority.
Having looked at the area of succession and matrimonial causes it could be envisioned that there are provisions if enacted into law that will make a positive impact in the life of women. Therefore it is the mandate of every sierra Leonean woman to do everything humanely possible to ensure the passing of this law. With regards to the remaining aspects; customary law and domestic violence they will be extensively dealt with in subsequent publications.
The Current Status of the Bill
In as much as the SLCMP commends the Government initiative in trying to forestall discrimination against women, yet more needs to be done with regards to the draft Bill. Since the proposed Bill was drafted 15 months ago it is still
far from being enacted into law. At present the Bill is yet to be put before parliament for deliberations and subsequent ratification. Having interviewed various stakeholders including women organizations and dignitaries within the Parliamentary Human Right Committee the SLCMP thinks there is a force to reckon. As both sides are throwing the ball in the court of the other as the reason for the delay in enacting the Bill. The reason given are numerous some of which are that women shows absolutely no interest to support the bill, that the GoSL is always reluctant in passing laws pertaining to women and that women groups would be willing to lobby parliament if they are aware of the Bill but as it is few have heard but do not know what it entails, etcetera.
That said the SLCMP has taken the charge to sensitize the Sierra Leonean populace by way of writing and advocating through the media for the draft to be passed into a law. It urges women organizations and civil society to make the Bill an election issue by lobbying parliament to pass the bill into law. It reminds the GoSL that the time has come to treat women issues with the significance it deserves as women and girls were one of the group of people that suffered the brunt of the decade long civil war. The TRC, under its imperative recommendations submitted that sec 27(4) d and e of the 1991 Constitution be repealed. In the interim the SLCMP will continue to monitor progress of the draft Gender Bill.