Abstract
Widows form a sub-set of an already beleaguered gendered minority in societies where law is but one of a competing number of social orders. This can render widows vulnerable and often outside the protection of State law and at the behest of (discriminatory) customary laws. Ghana enacted the Intestate Succession Law 1985 (P.N.D.C.L.111) to grant widows the right to inherit from the estate of the deceased. However, the law has had little impact. Personal narrative analysis was used to ascertain the reasons for this through interviews conducted with widows. Proposals are then made as to how law reform can promote and effect gender equality.
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Notes
Burck discusses why personal narrative analysis is a useful methodology for researching women’s lived experiences (Burck 2005).
Fraser observes that “[n]arrative research should not only reflect ‘reality’ but also challenge taken-for granted beliefs, assertions and assumptions, including those made by social theorists… This means that narrative and social structures surface in the stories participants and researchers tell [footnotes omitted]” (Fraser 2004, 182).
Kent’s study compares how Sierra Leone and South Africa deal with these conflicts in relation to custody, maintenance and succession (Kent 2007).
Hereinafter referred to as Law. III. or Intestate Succession Law.
Bennet et al. discuss the difficulties encountered in Uganda where discriminatory customary intestacy laws prevailed. A collaboration between academics from the United States of America and Ugandan gender rights advocates resulted in a draft bill which would have given widows rights to a share of the estate. It has yet to be put before Parliament (Bennet et al. 2006).
Section 2 (1). The Wills Act, 1971 (Act 360) regulates testate estates.
Section 1 (2). The law did not apply to any property belonging to chiefs or other traditional leaders.
Ghana is not alone in this, the Law Commission of England and Wales noted the same in their proposed reforms of the Intestacy laws. See, Law Commission, ‘Intestacy and Family Provision Claims on Death’ (Law Com No 331), p. 1. <http://lawcommission.justice.gov.uk/docs/lc331_intestacy_report.pdf> (accessed 13 June 2012).
Bosman was one of the earliest Europeans to document the experience of pre-colonial Ghana.
Nukunya identifies three family types: nuclear, polygamous and extended. For the purposes of intestacy, the extended family were regarded as the family of the deceased. The traditional or consanguine family for the purposes of succession, varies according to the ethnic origin of the deceased. For ethnic groups which practice patrilineal inheritance, this would include children, siblings and paternal uncles and cousins, but not the spouse. Matrilineal inheritance proscribes that inheritance runs through the female line and therefore the members of a man’s family would exclude his wife and children (Nukunya 1992).
An interesting rebuttal to this oft made contention was elegantly reasoned by Muchechetere JA in Mugaya v Mugaya (1999) (1) ZLR 100 S a Zimbabwean case on intestate succession. This decision was the recipient of a great deal of criticism, not all of it valid (Knobelsdorf 2006).
See section 26(2), although this has yet to be utilised. In Mami v Paulina [2005–2006] S.C.G.L.R.1116, the Supreme Court examined the Krobo’s tribe customary law, which debars a married daughter from inheriting from their father’s estate on the grounds that they belong to their husband’s family, and found that it should be abolished in line with Article 39(2).
See section 22 (1).
However, in other jurisdictions constitutionalism has been used as a means to circumvent discriminatory intestacy laws. In Nigeria in the case of Mojekwu v Mojekwu [1997] 7 N.W.L.R. 283 the Court of Appeal overturned the Igbo customary law on inheritance whereby widows and daughters were precluded from inheriting from the estate of their deceased husband/father. Justice Tobi ruled that the law was inconsistent with constitutional provisions on equality and were against good conscience and equity. However, the Supreme Court in Mojekwu v Iwuchukwu, 11 Nig. Wkly L.R. 196 (2004) 5 Nig. Weekly Law Report 402 overturned the decision. Iwobi felt that this was a grave missed opportunity to outlaw such discrimination and promote gender equality (Iwobi 2008). The South African courts adopted a far more progressive approach as seen in the case of Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curae) 2005 (1) BCLR 1(CC) (S.Afr.) which shall be discussed later.
At the same time the law came into force, Ghana ratified the Convention on the Elimination of Discrimination Against Women (CEDAW).
The others were: The Customary Marriage and Divorce (Registration Law) 1985, (P.N.D.C.L. 112), the Administration of Estates (Amendment) Law 1985, (P.N.D.C.L. 113) and the Head of Family Accountability Law 1985, (P.N.D.C.L. 114).
The Customary Marriage and Divorce (Registration Law) 1985, (P.N.D.C.L. 112), section 1.
Flew et al. (1999) argued that not all women activists regard themselves as feminists, and when they do use the concept of feminism, it can have different meanings in different contexts.
Tskiata notes that the impetus for reform came from President Rawlings, who under considerable lobbying from women’s groups one of the prominent ones being run by his wife (Tsikata 1989).
hooks has been extremely critical of the perceived exclusionary and essentialist nature of early mainstream feminism and its lack of interest in the experience of knowledge of minority, ‘other’ women.
It also proved problematic as sometimes men would marry women without disclosing the fact that they may be in an existing relationship; registration would compel them to reveal this.
See section 1. This issue had already been addressed by the courts in Adade v Dade [1991] 1 G.L.R. 267, CA where it was held that section 15 of the Customary Marriage and Divorce (Registration Law) 1985 was not a condition precedent to the exercise of rights provided by Intestate Succession Law.
The Intestate Succession Amendment Law 1991 (P.N.D.C.L. 264) makes it a criminal offence to eject a spouse from the matrimonial residence before the distribution of the estate of the deceased, where the matrimonial home is the self-acquired property of the deceased, or where it is rented accommodation unless there is a court order to such effect section 16 A (1) (a) and (b). Section 17 also makes it a criminal offence to unlawfully eject a surviving spouse or child from the matrimonial home contrary to section 16A, or unlawfully interferes with the property of the entitled person and increases the fine payable and increased the maximum term of imprisonment.
Franzosi observes that there are downsides to this approach. There are questions as to representativeness and objectivity, but the advantages are that it allows for detailed accounts and experiences from marginalised groups who rarely have their own experiences documented in their own words (Franzosi 2001).
The widows in Adukrom were from the Guan ethnic group, and the widows from Bolgatanga hailed from the Frafra ethnic group. Interviews were carried out in 2002 and 2007.
80 % of the widows interviewed had been married under customary law though only a small number had been in polygamous unions.
There are great disparities in terms of economic development and wealth between the two parts of the country. In the areas visited widows faced high rates of illiteracy and poverty. Often men died leaving no self-acquired property. Disputes were often resolved in the traditional manner leading to the continuance of customs which had been outlawed by the State to continue.
Ardayfio-Schandorf (1994) makes the point that married women often turned to male relatives such as brothers and uncles for financial support when husband’s failed to financially provide for their children.
Okwaning v Pesah (1998) Unreported HC, which concerned a dispute over whether a property alleged to be the self-acquired property of the deceased was family property. Omari-Sasu J in his judgment felt compelled to draw attention to the fact that the case took 5 years and 4 months to complete and that the parties had attended court 66 times.
Legal Aid Scheme Law, 1987 (P.N.D.C.L. 184), which was repealed by the Legal Aid Scheme Act, 1997 (Act 542). The Act provides for the provision of legal aid to those who are party to a legal matter and earn the minimum wage or less. Amongst those entitled are parties seeking representation for inheritance cases with particular reference to Intestate Succession Law 1985.
Clark notes that the Asante (the largest Akan group) prioritise relationships between matrilineal kin and not spouses. In her study of urban Asante women, interviewees deemed it scandalous when spouses were put first and such people were often viewed as being under the spell of witchcraft (Clark 1999).
Out of the 39 widows interviewed 9 husbands died leaving no property only personal effects.
This is what often happens when a customary law will known as Samansiw is made. This is an oral declaration made by the deceased during their lifetime, of how the estate should be distributed, providing that the requisite formalities have been complied with. Kludze (1972) suggests that this only applies to matrilineal communities.
This was unlike the matrilineal system, where they only had a right to maintenance from the successor, but not a portion of the estate.
In re Kwo v Nortey [1984–1986] 1 G.L.R. 144, CA it was held that the customary successor, in this instance the paternal uncle, as a caretaker and fiduciary of the estate was liable to provide an account of the estate when the trust property had been improperly converted to cash and the money treated as family funds. The court held that the beneficiary could sue to recover such property not only from the fiduciary but also from any third parties to whom the estate had been transferred.
These were primarily members of the legal profession and academics.
This was formerly known as the Women and Juvenile’s Unit, its remit was expanded with the introduction of the Domestic Violence Act 2007 (Act 732).
They were referring here to FIDA Ghana the International Federation of Female Lawyers who have a high campaigning profile and are renowned for their promotion of women’s rights.
Also the Children’s Act 1998 (Act 560) section 125 (7) amends section 5 of the Intestate Succession Law, to provide that reasonable provision be made for a minor child in education before the estate is distributed.
For Muslim widows the situation is more complex, as the state law system is in conflict with religious dictates on intestacy.
See Akoringa v Akwagare [1987–1988] 2 G.L.R. 562, CA.
Iwobi gives the example of a law introduced by the Enugu State government; the Prohibition of Infringement of a Widow’s and Widower’s Fundamental Law, Enugu State Law No. 3, (Widow’s Rights Law) 2001. Edo and Oyo States also introduced reforming legislation (Iwobi 2008).
The Government has issued a call for the public to give their views see Parliament Solicits Public Views on Intestate Succession Bill, see http://www.ghana.gov.gh/index.php/news/general-news/14038-parliament-solicits-public-views-on-intestate-succession-bill (accessed 1 July 2012). But this has been decried as a stalling tactic by male MPs who do not want the law to be strengthened. See ‘Women lawyers Advocate for the passage of Spousal property and Intestate Succession Bills’ http://www.ghananewsagency.org/details/Social/Women-lawyers-advocate-for-the-passage-of-Spousal-and-Intestate-Succession-Bills/?ci=4&ai=39151 (accessed 1 July 2012).
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, ratified 25 November 2005. Ghana is a signatory but has not yet ratified the protocol.
Kent notes that this was the case in Sierra Leone, whereas South Africa with its more progressive constitution was able to instigate change when Sierra Leone did not.
The Wills Act 1971, s.13 allows for reasonable provision to be made for a dependant of the deceased including spouses and children. This would avert the situation where testamentary disposition could be used to circumvent the laws on intestacy, however any provision would be limited to a life interest and would not enable the beneficiary the dispose of property themselves. Such provisions are necessary otherwise widows could be disinherited (Levy and Pinto 2011).
This dealt with the intestate estate of Black Africans, see footnote 15.
This is an argument made by Fenrich and Higgins in their examination of the Intestate Succession Law (Fenrich and Higgins 2001).
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Akoto, A. “Why Don’t They Change?” Law Reform, Tradition and Widows’ Rights in Ghana. Fem Leg Stud 21, 263–279 (2013). https://doi.org/10.1007/s10691-013-9252-y
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DOI: https://doi.org/10.1007/s10691-013-9252-y