Introduction
This is the second in a series of articles by the SLCMP dealing with the ‘Gender Bills’, which have theoretically been before Parliament since summer 2005. The SLCMP is urging the government to enact the Bills as this will lead to the empowerment of women in Sierra Leone. In taking a look at the Intestate Succession Bill we need to define Intestate Succession, which according to Black’s Law Dictionary is the method used to distribute property owned by a person who dies without a valid will.
A look at the present laws of Inheritance in Sierra Leone
In reality, only small fractions of the Sierra Leone population actually make valid wills or even attempts to make wills. In the event that wills are not made, inheritance is governed by three laws, Mohammedan law, customary and general law, which applies to those individuals who are neither Muslim nor governed by customary law. All of the above laws discriminate against women.
The general law is covered by the second schedule of the Administration of Estates Act, Cap. 45 of the Laws of Sierra Leone 1960. It states that where neither customary nor Mohammedan laws apply, on the death of the husband, the wife is entitled to one third of the estate whilst the remaining two thirds goes to the children. If the husband has no children, the wife inherits half of the estate. The other half is divided amongst the husband’s close relatives or next of kin. This Act does not provide for unmarried couples.
Under the Mohammedan Law, the estate is distributed according to the Holy Koran. Section 9(2) of the of the Mohammedan Marriage Act Cap. 96, states that only the eldest son of age 21 and above, and the eldest brother if there is no son of the said age, can carry out letters of Administration. The wives and daughters cannot take out letters of administration. There are no rules on how the estate should be administered after the letters of Administration have been taken out, and so it is for male relatives to decide how the estate is distributed, with no protection in law for female relatives. On the other hand if the woman dies everything goes to the husband. Hence they are deprived of the right to administer, and sometimes inherit nothing at the end of the day. They may be forced out of their homes at a time when they are in mourning and most vulnerable. Some Muslim communities use the Quran-Sura-Tul Nisa which also gives more rights to men than to women. The adoption of these laws often leads to the eviction of widows regardless of their input towards acquiring the properties. This also affects the welfare of children who may consequently be deprived of proper care (in terms of food, shelter, education, medical needs and recreational facilities).
In customary law, the rules of inheritance vary from one ethnic group to another. Generally it is common practice under customary law for a woman not to inherit property after the death of the husband. Female children are also discriminated against. The Mende and Temne communities present examples of ethnic groups that do not allow women to inherit either real or personal property. In fact, under some tribal customary law, women are ‘inherited’ along with the rest of their deceased husbands’ estates, depriving a woman of the right to choose who she wishes to marry. This is repugnant to the modern standards by which we function in the rest of society. One example of this practice that SLCMP has encountered, was where a woman who had effectively brought up and mothered her husband’s young brother from infancy was told on the death of her husband that she had to marry him. Law provides that the application of customary law should not offend the principles of natural justice, fairness and equity but this practice clearly runs to the contrary to such principles.
Problems created by the present law
Needless to say, the present applicable law has grave implications for women in that its discriminatory nature has a severe impact upon their economic independence and ability to make decisions over their own lives. The above provisions are severe limitations upon a woman’s ability to own property, and by extension, her ability to obtain credit for business expansion and development. Ultimately they contribute to the feminisation of poverty in this country.
It should be noted that Art. 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (which Sierra Leone ratified on 11th November 1988) specifically requires State parties,
“…to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”
Moreover, General Recommendation No.21 of CEDAW has this to say on such legal limitations:
“……..Any such restriction prevents her from holding property as the sole owner and precludes her from the legal management of her own business or from entering into any other form of contract. Such restrictions seriously limit the woman’s ability to provide for herself and her dependants.”
The present state of the law also contributes to the high levels of domestic violence found in our society. A recent study of eight villages in Namibia showed a fundamental link between women’s economic status in society and their experience of intimate partner violence. Women in four of the villages were given loans with which to establish small sustainable businesses over a two year period, and at the end of that period their experience was that the level of domestic violence had reduced significantly as their economic status improved. The four remaining villages were left as a control, with no loans, and by the end of the period their experience of domestic violence was still high and had not changed. This shows an evident link between women’s economic status and their experience of violence, and accordingly if women were able to inherit property, that their position in society would improve, affording them greater control over their lives and bodies.
There are also serious health implications in denying women the right to inherit property. Women lacking in economic power are far less able to exert power over their own bodies, or to insist on the use of contraception, making them more susceptible to contracting HIV/AIDS from male partners. This clearly has huge implications for the economy and society as a whole.
The Intestate Succession Bill
The object of this Bill is “ to provide for intestate succession and other inheritance related matters”. The interpretation section provides several instructive definitions. For example, the definition of child includes children born to the deceased prior to his/her marriage, children born to the deceased and his or her lawful spouse during the marriage, children born to the deceased during such marriage who were recognised by the deceased as such and accepted by the deceased’s spouse as children of the family; and any children adopted by the deceased under any applicable law. The aforementioned definition is elastic enough to include illegitimate children who under the present law are disadvantaged when it comes to succession. Likewise the definition of “spouse” encompasses persons legally married to the deceased as well as single persons who cohabited with the deceased as if they were married, for a period of not less than 10 years prior to the death of the deceased. This definition gives protection to people who though not married to the deceased are nevertheless considered to be “spouses” by virtue of cohabitation for the prescribed period of years.
When considering the distribution of the estate of the deceased person under the Bill, there is a distinction between household chattels on the one hand and houses on the other. “Household Chattels” include all moveable objects, such as jewellery, furniture, motor vehicles, etc. The Bill provides that where the deceased is survived by a spouse or child or both, then the said spouse or child (or both as the case may be) shall be entitled absolutely to the deceased’s household chattel.
Houses are dealt with differently. The distribution of houses depends upon the number of houses forming part of the deceased’s estate. Where there is only one house, the spouse or child (or both as the case may be) are entitled to such house. Where both a child or spouse survive the deceased they are entitled to such house as tenants-in–common that is, one or two or more tenants who hold the same land by unity of possession but by separate and distinct titles, with each person having the equal right to possess but no right to survivorship. Where the estate includes more than one house the surviving spouse or children shall determine who is entitled to which house and in the event of disagreement of this issue an application may be made to a court. Furthermore, where a deceased who only has one house is survived by only a spouse or only a child, then such spouse or child is entitled to the house absolutely.
The Bill also deals with the residue of a deceased’s estate (i.e. all that part of the estate that is not household chattels or property). The Bill provides that such residue be utilised for the maintenance of the natural children of the deceased, as well as a proportional division of such residue amongst the spouse(s), children and surviving parents, such proportion varying according to who survives the deceased. Where the deceased is not survived by a spouse, child or parent, the estate shall devolve in accordance with Muslim or customary law (whichever is applicable), and where neither is applicable the estate shall devolve to the nearest relatives or next of kin, and in default of the latter, to the State (s12).
Moreover, the Bill would make it an offence to eject a surviving spouse or child from the matrimonial home before the formal distribution of the estate. Any person convicted of such an offence would be liable to a fine not exceeding Le 5,000,000 or a term of imprisonment not exceeding 2 years. Additionally, the court could make an order that the ejected person be re-installed or compensated.
Conclusion
In conclusion the Bill acts to protect the interests of the surviving spouse and children, moving away from the current position where the extended family frequently sweep in avariciously upon a deceased’s property to the detriment of closer relatives. It also affords protection to illegitimate children and women who though not married to the deceased, have cohabited with the latter for a lengthy period, and may have indeed contributed in no small way to the acquisition of the property that forms part of the deceased’s estate. In addition it affords women the opportunity of owning and possessing property free from the customary interferences that have kept them downtrodden in the past. Simply put, the Bill is a step in the right direction for women’s economic empowerment in Sierra Leone, which in turn would contribute to the economic security of the country as a whole and would simultaneously bring the country into conformity with internationally recognized standards.