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Final Draft-IsA Working Paper (Reviewed)2

Final Draft-IsA Working Paper (Reviewed)2

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  • Background
  • b)Definition of Key Terms
  • Inheritance and Succession
  • Customary Law
  • Property grabbing
  • A Literature and Law Review
  • Introduction
  • Customary Law and the Dual Legal System
  • Domestic Normative Framework
  • International and Regional normative framework
  • The Intestate Succession Act-A Review
  • 1.Application of the Act
  • 2.Distribution of estates
  • 4. Appointment and role of the Administrator
  • 6. Offences and Penalties
  • 7. Prohibition of intermeddling with estates
  • Comparative Desk Study
  • Uganda
  • Ghana
  • 4.16.Positive aspects of the PNDC 111 (1985)
  • Criticisms of the Intestate Succession Act PNDC 1985 111
  • Kenya
  • Criticism of the Act
  • Zimbabwe
  • Key features of the Administration of Estates Act
  • 1.Time limitation for inventory for the estate
  • 2.Conditions for appointment of Administrator
  • 3.Security for due Administration
  • 4. Value of inventory
  • 7. Time limitation for Execution
  • Criticisms of the Act
  • Application of the Act
  • Distribution of Estates
  • Administration of Estates
  • Offences and Dispute Resolution Mechanisms
  • General

CHAPTER ONE Background a) 1.1.

Origin, Method and Justification of the Investigation Discussions on inheritance problems began as far back as the 1970s. In 1976 the

Zambian government commissioned the Zambia Law Development Commission to review the law on inheritance. Despite the Commission’s recommendations for legal reform, it was not until 1989 that the Intestate Succession Act (Act No. 5 of 1989) 1 (herein referred to as ‘the Act’) was passed. It was specifically enacted to regulate administration of estates for people who died without leaving a will. It was hoped that the Act would reduce the incidences of ‘property grabbing’ experienced by women and children after the death of the husband and father. This practice mainly left widows and children destitute as relatives of the deceased claimed a superior right of succession to that of the surviving spouse, children and other beneficiaries. 1.2. The Intestate Succession Act has been said to be a landmark legislation granting equal

inheritance rights to men and women. In spite of this Act, new challenges that were not perceived during its enactment have emerged. In the twenty years following its enactment, it has been criticized in its scope and application with numerous applications coming up before the courts as a result of its enforcement. Decisions of the courts that have set precedents relating to application of the Act have been made. This has happened despite the deterioration of the socio-legal and economic milieu of the country. 1.3. The Act and the related legislation have not been amended and have remained static

despite several policy and legislative changes in the country that provided opportunities for this. Further, works by various scholars suggest that the increase of this jurisprudence is an indicator of issues that need to be seriously dealt with in relation to the Act. There is need to understand whether the deterioration of the socio-legal and economic milieu of the country has rendered the application of the intestate law non-effective, thereby leading to increased jurisprudence on the subject.


Chapter 59 of the Laws of Zambia

1 Peace and Good Governance under the Rule of Law

The investigation commenced with a ‘Defining Workshop’ held to identify the problems relating to the Act. This was followed by literature and law review, data collection through focus group discussions, key informant interviews in selected sites. A comparative desk study of other jurisdictions was also undertaken for purposes of learning from their experiences on the subject. This working paper examines issues that relate to general administration of the intestate estates. 1.4. It takes into account compliance obligations under international, regional and other

human rights treaties and instruments and comments of treaty monitoring bodies on the country’s State Party report. Particular attention is given to the need for protection from violence as required by Convention on the Elimination of Discrimination against Women (CEDAW). Consideration is also given to other challenges and imperatives, specifically those pertinent to the effective implementation of the Act such as the development of Zambian customary law and the decisions of the courts that enforce it. 1.5.
• •

The specific objectives of the investigation are: To examine the efficacy of the estate distribution provided for in Part II of the Act; To examine and identify problems associated with the administration of estates provided for in Part III of the Act and specifically to examine the concept of an Administrator and its compatibility with positive customary law concepts of administration of estates; To examine the role of the Administrator General in the administration of estates in intestate estates; To examine the socio-economic implications of the Act in its present form; To examine customary law concepts of succession and the extent to which these have hindered or facilitated the application of the Act; To promote and safeguard the human rights of a spouse and children in matters of intestate succession; To examine policy frameworks with a view of learning, incorporating and translating their relevant contents into law; To examine other laws dealing with issues relating to succession topics; To identify positive customs and customary law concepts on succession and attempt to incorporate these into the Act so that it can reflect the values and norms of society, thus promoting its acceptability; To examine and reveal the short-comings of the Act in its form; To harmonize all laws that have a bearing on inheritance and succession;

• • • • • • •

• •

2 Peace and Good Governance under the Rule of Law

To ascertain whether chiefs should be allowed to oversee the distribution of estates in rural areas; Ensure that the Act more gender neutral in language and tone. Definition of Key Terms


Inheritance and Succession 1.7. Inheritance is the devolution of property on an heir or heirs upon the death of its owner 2. Certain jurisdictions use the term interchangeably with succession. The concept of inheritance depends on a common acceptance of the notion of private ownership of goods and property, for example, some systems consider land as communal property and rights to it are redistributed rather than bequeathed on the death of a community member. 1.8. Succession to property can either be by an express act or by operation of law. It is express when it is a consequence of transfer or appointment of one by will or by deed. It is by operation of the law when it is by the general appointment of the law in case of intestacy 3. Therefore, succession has been said to be the transmission of the rights, estate, obligations, and charges of a deceased person to his heir or heirs. In addition, it has been defined as the right of the heir to step into the place of the deceased, with respect to possession, control, enjoyment, administration, and settlement of all the latter’s property, rights, obligations, charges etc4. 1.9. According to Black’s Law Dictionary, succession or inheritance is defined as “the devolution of title to property under the law of descent and distribution”5. It connotes devolution of title based on the origins of an individual. In this regard, succession or inheritance excludes those who inherit by deed, grant or any form of purchase contract6. Intestate Succession

2 3

www.britannica.com www.books.google.co.zm 4 ibid 5 Black’s Law Dictionary, 5th Edition 6 Kameri-Mbote, P., (1995), The Law of Succession in Kenya: Gender Perspectives in Property Management and Control, Women and Law in East Africa, p2.

3 Peace and Good Governance under the Rule of Law


The word ‘intestate’ means “a person who dies without having made a will and

includes a person who leaves a will but dies intestate as to some beneficial interest in his movable or immovable property”7. ‘Intestate succession’ is the distribution of the assets when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which apply to a surviving spouse or spouses8. 1.11. It also includes distribution of the assets of the deceased in accordance with the

provisions of the law regulating intestacy as opposed to customary laws of descent. Consequently, ‘intestacy’ is the condition of the estate of a person without having made a valid will or other binding declaration; where such a will or declaration has been made, intestacy only applies to part of the estate that was not included in the will. Customary Law 1.12. Customary law has been defined as a set of rules and values by which the indigenous

people conduct their social activities or day-to-day lives. These rules and values are developed over many years and become custom by virtue of long usage. Customary law is dynamic; this is because it changes with the changing values of the society influenced by new socio-economic conditions9. 1.13. Professor A.N. Allot a recognized authority in the field of African Law defined It is unwritten and the rules can be traced to the people and have been handed down to succeeding generations. The law consists of different bodies of rules that may be invoked in different contexts. These rules are based on conceptions of morality and depend for their effectiveness on the approval and consent of the people. The law has evolved in response to pressures put upon the people by their environment. It reflects their way of life and their adjustment to life in the particular society and environment10.

Customary Law as follows:-

7 8

S.3 of Cap 59 of the Laws of Zambia http://www.legal_disctionary.thefreedictionary.com/intestate, last viewed 30 April, 2010. 9 ZLDC (2006), Report of the Defining Workshop on the Review of the Intestate Succession Act, p.22 10 Zaloumis, F. M., Approaches to Gender Equality under Customary Law, http://(www.vanuatu.usp.ac. last visited 29th April 2010.

4 Peace and Good Governance under the Rule of Law

. that the property should go to them..11 Property grabbing 1. Customary Law as the unwritten African traditional law which consists of a variety of different types of principles.1.14. 11 In Zaloumis. M. Private property owned by an individual is viewed by some members of the extended family especially those that are less wealthy as belonging to the entire family. Gluckman defined. They reason. It is commonly practiced under the guise of custom in which entitled persons under the law are denied the benefit of enjoyment or use of property left by a deceased. therefore. norms and rules. Such relatives often argue that the property was owned and belonged to the deceased. some of them state wide and general principles of morality and public policy to constitute an apparently enduring ideological framework for justice. This is the unlawful or forceful appropriation or deprivation of an entitled person under the law of any property or part thereof belonging to a deceased person.15. Approaches to Gender Equality under Customary Law. 5 Peace and Good Governance under the Rule of Law . Similarly. F.

2 6 Peace and Good Governance under the Rule of Law . An analysis of various literature revealed a lot of apprehensions on the intestate law in its current form. customary laws and statutory law (or written law) operating side by side. Zambia was exclusively governed by customary laws. Customary Law and the Dual Legal System 2. 12 To date.3. It also briefly traces the history of the Zambian legal system which is the root of the concerns discussed in this working paper. (2005) Family Law in Zambia: Cases and Materials. This chapter gives a brief review of scholarly literature and the normative framework at domestic. Zambia’s legal system is regulated by two different systems of law. p. Zambia (Northern Rhodesia) was colonized by the British South Africa Company (BSAC) under the Royal Charter granted to Cecil Rhodes by Queen Victoria. UNZA. regard should be paid to African Customary law especially in circumstances where the application of English law was likely to cause injustice to native litigants. 2. Article 14 of the Charter provided that in the administration of justice by the courts set up under it.CHAPTER TWO A Literature and Law Review Introduction 2. Mushota 12 accordingly asserts. Lusaka. inheritance and succession matters to the extent that it was not repugnant or offensive to morality and good conscience”. international and regional levels on inheritance and succession. Many works conducted on intestate laws reveal similar findings. During the period before 1924.2. Customary law Mushota.1. that “juridical relations between natives continued to be governed by customary law especially with regard to marriage. Before colonization.

Lusaka. e. 7 Peace and Good Governance under the Rule of Law .. determined by rules of male primogeniture. the Lozi16 of Western Province. (1997) Inheritance in Zambia. Under this system.15 2. According to WLSA customary law is based on the particular ideologies operating on the premise that men are biologically superior to women and varies from one ethnic group to another. i.g. and bilateral ethnic groups. CCT 49/03 (2005 (1) BCLR 1(CC)) has however ruled against this practice. the Tonga of Southern Province and the Lunda of North Western Province. recognized and accepted over time through usage.10. Customary law is not codified but comprises unwritten social rules that are mainly passed on from one generation to another. e. with a few exceptions.6. and succession rights were founded on traditional customs and norms that operated within this framework of established patterns of kinship systems and gender segregated patterns of behavior. The kinship patterns were matrilineal ethnic groups which practice matrilocal residence (uxorilocal marriages). values and traditions of the ethnic groups. (1997) Inheritance in Zambia. inheritance is. In patrilineal societies it goes to 13 14 Chapter 10 of the Laws of Zambia Chapter 11 of the Laws of Zambia 15 WLSA. e. e. 16 The Lozi are at times classified as patrilineal due to two main reasons. patrilineal and patrilocal ethnic groups. Lusaka..g.17 2.5. Law and Practice. the Mambwe and Namwanga of Northern Province and the Ngoni of Eastern Province. usually a nephew of the deceased person and not necessarily the sons. property. (most of the region is matrilineal) property normally passes to the nearest matrilineal male.represents customs. So while under matrilineal societies the female line is used to inherit. 2. There are various kinships patterns in the country... (b) the concept of ownership of children is similar to that practised by the patrilineal groups. p.10. Khayelitsha and others.4. 18 The South African Constitutional Court in the case of Bhe V Magistrate. Written or statutory law includes statutes enacted by the Parliament of Zambia as well as foreign English law applicable to Zambia by virtue of the British Acts Extension Act13 and the English Law (Extent of Application) Act14. The customary law notions of marriage. 17 WLSA. matrilineal ethnic groups which practice patrilocal residence (virilocal marriages).e.18 Male preference is effected whether under matrilineal or patrilineal principles. p.g. Law and Practice. the Bemba of Northern Province and the Nsenga of Eastern Province. children are deemed to belong to the man. This logic has also permeated all instructions of socialization. namely (a) they practice patrilocal residence.g.

In most societies. (1997) Inheritance in Zambia. 19 With the breakdown of these social structures more widows are disenfranchised of their livelihoods and forced to return to their natal homes.21 WLSA. These social systems are more prevalent in rural or under customary tenure and their customs. Ultimately the heir is always a male relative. By the time the decision of the Lands Tribunal was made a total of 17 graves had been buried there.20 Women who do remain in their husbands villages labour on their in-laws’ land where they work on their mercy and may be chased at any moment. Some of the customs related to access or ownership of land include widow inheritance which is a practice where the widow becomes the wife of the successor of the deceased. In marriage and widowhood. 2. Presented at the Regional Conference on Women’s Land Rights.the sons or the oldest son of the senior wife (in cases of polygamy). brother or uncle). from 26-30 May 2002. Zimbabwe. then only widows and daughters. This has declined due to the HIV/AIDS pandemic. cultures and even marriages play an important role in inheritance of land or property in a particular ethnic group in case of the death of either the husband or wife. Milimo. all they get are usufruct rights. Legal Framework and Constraints” Zambia Land Alliance. “Women’s Land Rights in Zambia: Policy Provisions. Lusaka Machina H. 20 8 Peace and Good Governance under the Rule of Law . This role lasted for the lifetime of this person. The case of Chilala v.8. siblings. never a female. 2. 2. The burials of deceased persons only stopped after mediation by Royal Foundation of Zambia. held in Harare. the order of priority is thus always male. (2002). In southern province custom requires the selection of a successor upon the death of a person. ascendants. approximately 80% of land in the country is customary land. collateral males. Interestingly.10. The successor turned Mrs. Widows normally return to their natal villages where they start cultivating land that belongs to their matrilineal male relatives.19 This was often the person who then proceeded to take over the estate of the deceased including the wives and was responsible for caring for the children. The Lands Tribunal was unable to adjudge the case on grounds that it was a matter concerning customary land. Women are at the end of the inheritance list and are therefore unlikely to inherit. Law and Practice. The land was held under customary tenure and the custom requires widows who are not inherited to return to their natal home.7.) In this case. The daughters therefore do not inherit in their own right and can only be assigned land to use by the inheriting male (who may be their cousin. Mrs. Chilala was being forced off her husband’s land after his death by the successor whom she had refused to marry. 2. 21 LAT 099/1999. with male descendents.9. Chilala’s front yard into a burial ground.

Zimbabwe. According to Mvunga23 the context of primogeniture amongst the Ngoni means firstly. on a man’s death inheritance is essentially on the principle of primogeniture (inheritance by the first born). 12. Lastly. Chilala had been married for over 30 years when her husband died. 2.22 among the Ngoni of Eastern Province. 1997.O Box 779. the pension of her husband had been used to develop this land which was their home prior to his death.M. 2. Lusaka. Secondly.dubbed “the case of the 17 graves” illustrates this problem. 24 Women and Law in Southern Africa-Zambia. 1997. This operated with a given socio-economic setting that ensured reciprocal obligations and rights.12. In addition. “Women’s Land Rights. it may mean inheritance by the eldest son of the senior house. Inheritance. This socio-economic setting was interfered with by urbanization and the rapid changes in the way society organized itself. inheritance of a man’s estate by his eldest son. 23 9 Peace and Good Governance under the Rule of Law . new forms of wealth. including ‘his house’ from his widow and children. where children are born of various wives in a polygamous marriage. The estate which she had developed with her husband was her home. (2002). and individualization. Maimbo Press. According to Machina. Land Law and Policy in Zambia. The alternative of being inherited by her in law was a violation of her human rights. 12. P. (1982). In this case Mrs.11. 25 Cultural practices began to change and a manipulated version of the traditional inheritance scheme's original form and intent began to emerge. Inheritance in Zambia: Law and Practice. Mvunga P. it may mean inheritance by the eldest male person who by virtue of belonging to a class of paternal relatives can be described as the deceased’s nearest blood relative. The deceased man’s relatives literally grab his property. She would have left years of investment and development. where all his children are born of one and the same wife. She could not be reasonably expected to return to a natal home that she had left so long ago. A phenomenon referred to as property grabbing became common. 25 Women and Law in Southern Africa-Zambia.24 It is said that this created a crisis of expectations and was compounded by differences in values. This sort of inheritance has a special meaning to this ethnic group as they have a social structure that is not only patrilineal but one in which polygamy is common. in the country. This led to an outcry by women’s groups 22 Machina H. Gweru.

The Local Court Act Cap 29. The gendered application of customary law is compounded. The High Court Act Cap 27.2. The Administration of Testate Estates Act.15. the following laws have a bearing on the distribution on intestate estates: i. therefore. Additionally. in many cases. 1 of the Laws of Zambia 2. the High Court Act and the Subordinate Courts Act also provides for the administration of customary law provided that it is not repugnant to natural justice. iii. The Administrator-General’s Act Cap 58. The Lands Act Cap 184. Although a lot of policies and laws have been put in place over the years concerning equality in relation to land issues. iv. The Local Courts have original jurisdiction in matters of customary law. In the Zambian legislation. inheritance and succession. Primary among these is the Local Courts Act 26 which provides that the Local Courts shall administer African customary law in so far as it is not repugnant to natural justice. property settlement and succession. 2. they receive a blind eye especially in rural areas where the land is mostly under customary tenure. v. these laws sometimes cross paths and conflict in standards and values.27 The Constitution also recognizes the application of customary law in Zambia in personal law matters relating to marriage. Cap 60 ii. The Constitution Act Cap. marriage. divorce. by the fact that the Local Courts magistrates do not have formal legal qualifications in addition to their knowledge of customary law and they are. 26 27 Chapter 29 of the Laws of Zambia Section 12 28 Article 23 (4) (c) 10 Peace and Good Governance under the Rule of Law . frequently unaware of developments in human rights law that need to be considered in the application of customary law. and vi.14. morality or incompatible with any written law.28 However. the recognition of customary law is provided for in a number of statutes. Domestic Normative Framework In addition to the Intestate Succession Act.13. morality and good conscience.

The Constitution: The Constitution regulates among other things.”31 2. married. it also protects people from arbitrariness either from government. divorce. devolution of property is discriminatory thereby disadvantaging people that should ordinarily inherit from deceased estates.17. divorced or widowed. The Constitution outlines conditions under which the right to property can be legally interfered with and includes such purposes as: “. Further..33 Therefore. and consequent to this. The High Court Act: In accordance with the provisions of section 38 of the Local Courts Act. the use of state power and also relations between individuals. This is a particularly significant limitation upon the right to be free from discrimination as it is precisely in the areas of family and property law that women are often disadvantaged in relation to men.2.16. the derogation clause in the same Article however permits discrimination on matters of personal law and provides as that Clause (1) shall not apply to any law so far as that law makes provision with respect to adoption. The Constitution protects ownership from arbitrary deprivation without adequate compensation29. including the right to own and use land without arbitrary interference. it guarantees and protects an individual’s fundamental rights and freedoms. marriage. It also creates rights. 30 Under this article. Chapter 29 of the Laws of Zambia 11 Peace and Good Governance under the Rule of Law . duties and obligations on the State and citizens. burial. its agents or from among themselves by stipulating regulations to be followed in the conduct of affairs. The Constitution also prohibits discrimination of any law on any grounds 32. care or custody on behalf of and for the benefit of the person entitled to the beneficial interest therein. Notwithstanding the foregoing.18. devolution of property on death or other matters of personal law. discrimination on the grounds of personal law matters is permitted. an individual’s continued enjoyment of these rights and freedoms is protected regardless of whether one is single.. the High Court receives and hears matters of administration of intestate estates referred to it from the Local Courts.34 Where an application is transferred to the High Court 29 30 Article 16 Article 11 31 Article 11 32 Article 23(1) 33 Article 23(4) (c) 34 section 38 of the Local Courts Act.administration. 2.

The Administrator–General’s Act: The Administrator – General’s Act also deals with administration of intestate estates. the Administrator-General can only apply to court for probate or letters of administration when no person applies for probate or letters of administration within a reasonable time after notice of death of any such person. a) b) Where the deceased has left a will. the High Court shall make such order or give such directions in relation thereto as it shall think fit. or that great expense would be incurred by delay in the matter. This may be a cost on the estate. The Act also provides for the holder of that office to apply for a grant of probate or letters of administration when there is “danger of misappropriation. deterioration or waste of the estate is otherwise to be apprehended. but without prejudice 35 36 Section 7 Section 11 12 Peace and Good Governance under the Rule of Law .21. hence affect the interests of the beneficiaries. For instance Section 6 the Act provides that “any person convicted of an offence under this section shall be liable to imprisonment with or without hard labour for a period not exceeding three months or to a fine not exceeding one thousand five hundred penalty units. c) d) 2.19. However. Where the deceased has left a will. or to both. Where the deceased has died intestate as to his property in Zambia.20. According to this Act. but has failed to appoint an executor. and the executor therein named has predeceased the testator or renounced probate or signified his intention of not applying for probate. However. 2. 2. the aforesaid notice of intention to apply may be dispensed with”36. Where the deceased has left a will appointing the Administrator-General his executor. if the proceedings are lengthy they may affect the size of the estate to be distributed. Further.under subsection (1). It has been argued that the Administrator–General’s Act does not prescribe effective punishment for deprivation or waste of the estate of the deceased. the High Court Act does not provide for a time limit within which such applications should be disposed of. the Administrator-General can apply for probate or for letters of administration in the following instances35.

pregnancy suits. b) in addition to any penalty which is imposed above. where an administrator does not discharge his duties accordingly under customary law or where there is abuse in the discharge of his/her obligations. the Act provides for punitive measures for breach of the provisions of the terms of a grant of the letters of administration in accordance with customary law and provides that. Section 2 (2) provides for administration of properties that are not subject to the ISA and includes. 37 Section 12(1)(a) 13 Peace and Good Governance under the Rule of Law . compensation for adultery and the distribution of the property of persons who die intestate (without leaving a will).37 Where an administrator is appointed under this Act. 2. “where any administrator administers contrary to customary law.22. interested persons can enforce his obligations by making a fresh application for the administration of the estate to the local court to have someone else appointed administrator. child custody.23. the Court undertakes the supervision of such administration. The Local Courts Act: The Local Courts are charged with the application of customary laws in relation to non-statutory marriages. the estate of any person who has died intestate and to whom subsection (2) of section two of the Intestate Succession Act applies”: a) he shall be guilty of an offence and liable upon conviction to a fine not exceeding eighty penalty units or imprisonment for a term not exceeding six months. or to both. divorce. Section 36 (4). Further. that the punishment prescribed by law is too lenient for the offence committed as the estate meddled with may be too big to merit a sentence of three months imprisonment. land held under customary law. acquired institutionalized chieftainship property and family property.to any civil liabilities he may have incurred”. 2.24. payment of lobola. The Court also has the power on application to revoke letters of administration so granted in accordance with section 36 (1). reconciliation. 2. Therefore. the court may order the restitution to any beneficiary the property so deprived of and shall revoke such appointment of the administrator.

the son’s order of appointment was revoked. It provides for the vesting of all land in the President. to present their claims and goes against the fundamentals of natural justice.29. The inconvenience caused by the waste to the estate may not be adequately addressed by the penalties prescribed under the Act. Research findings revealed that the punishment imposed on any person who wastes the estate of the deceased is not adequate to deter any potential offenders. While local court magistrate4s are well-versed in the various customary laws. 423 of 1982 14 Peace and Good Governance under the Rule of Law .25. the criminal sanctions do not help the beneficiaries deprived by the waste occasioned to the estate. they are not trained in human rights law. for the avoidance of doubt. In an unreported Local Court case of “Estate of Jon Jere38” held in Chipata. In this case. 2. 2. Section 7 of the Lands Act provides for the recognition of customary holdings and provides as follows: 38 Local Court Grade ‘A’ Case No. Further. Lands Act: The Lands Act regulates land tenure system in Zambia. the Local Courts must also transfer such matters to either the Subordinate Courts or High Court depending on the value of the estate concerned. who holds it in trust for the people of Zambia. 2. The local court also has the jurisdiction to transfer administration of intestate estate matters to the High Court under section 38 of the Local Courts Act. This often has a prejudicial impact on the ability of the parties and. The ISA places jurisdictional limits on the value of the estate that Local Courts can preside over. Because of these matters the jurisdiction of local courts under the Act must be enhanced. the mother of a deceased invoked the statutory provision of section 36 of the Act by seeking that the deceased’s son be removed from his position as administrator for neglecting the deceased’s dependants by mismanaging the estate.2. this Act does not provide for the transfer of cases whose estates exceed the limit imposed by the ISA under section 43(2). Therefore. enforcement of its provisions is weak. in particular women. the court may also order restitution of property and the revocation of the appointment of the administrator. Section 36 provides for a penalty of fine and imprisonment six months.27.26. In addition. However. Although some provisions of the Local Courts Act are progressive in terms of safeguarding the interests of the beneficiaries. The result is that they seldom take into consideration the gender dimensions or criminal aspects of the cases before them.28. 2.

the rights and privileges of any person to hold land under customary tenure shall be recognized and any such holding under the customary law applicable to the area in which a person has settled or intends to settle shall not be construed as an infringement of any provision of this Act or any other law except for a right or obligation which may arise under any other law. 39 SCZ judgment No. It does not cater for the concerns of major stakeholders in land and therefore raises critical questions of its ownership and has been criticized as a law of the rich who can afford to use it to their advantage. It assumes that there is gender equality in land.31. “the distribution of an estate of a deceased falls under the ISA and the fact that it included land did not bring it within the purview of the Lands Act. the respondents took out an action in the Lands Tribunal against the appellant. The dispute related to the proceeds of sale of a plot of land which fell to be administered under the ISA. Charles Lubasi and 3 others39. the Lands Act does not discriminate against women. their step mother arising from the distribution of the estate of the deceased. even where the estate includes land or real estate”. In making its decision. This Act creates the Lands Tribunal whose jurisdiction does not extend to intestate estates notwithstanding that a dispute relates to land held under statutory tenure. the court held that. ownership and control over land.” The court further said that “the Lands Tribunal has no jurisdiction in matters of inheritance. In theory.1) Notwithstanding subsection (2) of section 32 but subject to section nine. The appellant argued that the complaint to the tribunal did not disclose any dispute relating to the land within the contemplation of the Lands Act. 20 of 1998 15 Peace and Good Governance under the Rule of Law . 2.30. Hence the law has no gender sensitive framework under which this imbalance could be checked and corrected. It however ignores the long historical reality of an unequal society in which women have not had access. 2. In the matter of Ireen Lubasi v. 2) Notwithstanding section 32. every piece of land in a customary area which immediately before the commencement of this Act was vested in or held by any person under customary tenure shall continue to be so held and recognized and any provision of this Act or any other law shall not be so construed as to infringe any customary right enjoyed by that person before the commencement of this Act.

it is not easy for people especially in the rural areas to convert to such secure tenure for such reasons as the centralization of the system. In its preamble. the following instruments have been identified as having a bearing: 2. there was no consultation in this matter and the title was accordingly ordered to be amended to include the names of the brothers. the court ruled that. In deciding the matter. Although the law provides for the conversion of customary tenure to leasehold tenure.32. “in alienating customary land. it affirms the United Nations’ commitment to respect fundamental human rights. Many people in the rural areas are not aware that they can convert their land holding from customary to statutory tenure. it would be beneficial for the rural population to know that the law does provide for such conversion.34. As a member of the international community. the UDHR is the basis for international human rights law. the respondent applied for formal title for his deceased’s father’s land held under customary tenure.35. the President shall first consult parties whose interests might be affected by the grant” and clearly. Zambia is party to several international human rights instruments. Appeal 29/98 16 Peace and Good Governance under the Rule of Law . International and Regional normative framework 2. It comprises guiding principles for the conduct of national and international affairs. 40 41 Section 3(4) (c) SCZ Judgment No. The Lands Act also provides for the conversion of customary tenure to leasehold tenure. In making any tenure conversion application. 2.2.33. He was granted title without the knowledge of his siblings who clearly were affected by the grant. the Act provides that persons whose interests may be affected by the said desire to convert from customary to statutory tenure must be consulted40. Universal Declaration of Human Rights (UDHR): Adopted in 1948 and although not binding. With regard to intestate succession. Ntapalila Siwale41. In the case of Henry Siwale and 6 others v. Although there is marked resistance from chiefs to convert part of their land to statutory tenure. the dignity and worth of the human person and the equal rights of men and women and has determined to promote social progress and better standards of life for all. 24 of 1999.

Therefore. and 17 Peace and Good Governance under the Rule of Law .36. With this in mind. Under the Convention. civil or any other field.any distinction. Articles 7 of the UDHR provides for the equal treatment of all without discrimination of any kind. irrespective of their marital status." 2. exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition. In addition. The convention defines discrimination against women as ". 2. Therefore property rights must be understood as a fundamental human right.37. • to establish tribunals and other public institutions to ensure the effective protection of women against discrimination. enjoyment or exercise by women. including: • to incorporate the principle of equality of men and women in their legal system.2. the Declaration prohibits any form of discriminatory treatment.. of human rights and fundamental freedoms in the political. Article 17 provides that “everyone has the right to own property alone as well as in association with others…No one shall be arbitrarily deprived of his property”. States Parties to the Convention commit themselves to undertake a series of measures to end discrimination against women in all forms. social.. abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women. it is important that efforts are made to remove discriminatory provisions in our national legislation in terms of ownership of property in Zambia. The Convention on the Elimination of all forms of Discrimination against Women (CEDAW): Zambia signed and ratified this convention in 1980 and 1985 respectively. economic. 2. It is imperative to examine the ISA in light of this provision to attain equality. cultural. The Declaration ultimately recognizes that equality can best be safeguarded by law.39. on a basis of equality of men and women. The Declaration requires that there is equality of treatment in respect of ownership of property regardless of status or gender.38.

to take all appropriate measures. The preamble to the ICCPR ‘inter alia’ provides for the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom. International Covenant on Civil and Political Rights (ICCPR) The ICCPR compels States Parties to respect and protect the civil rights (of which ownership of property is part) as well as the political rights of the people without discrimination. Zambia is obliged to respect and take into account its provisions in enacting legislation as well as putting in place administrative measures to safeguard the rights of the people. by being party to this covenant. Such a law would be discriminatory and affects a woman’s practical ability. identical to that of men. acquisition. It accords the same rights to both spouses in respect of the ownership. To respect its obligations under CEDAW. in Article 23. administration. 2.41. justice and peace in the world. 18 Peace and Good Governance under the Rule of Law . and to take appropriate measures to ensure equal rights and responsibilities in marriage and divorce. The family is the natural and fundamental unit of society and is entitled to protection by society and the State. Therefore.42.• to ensure elimination of all acts of discrimination against women by persons. as a State Party. 2. enjoyment and disposition of property. organizations or enterprises. or on the death of a relative. CEDAW requires Zambia to accord to women. thus all laws and activities must be based on this principle. including legislation and temporary special measures. the following are regarded as essential to the existence of the human family: 1. in civil matters. the ICCPR is premised on the fact that equality in forms of activities is cardinal to the development of the human person. therefore. so that women can enjoy all their human rights and fundamental freedoms. Accordingly. regard should be had to the creation of an enabling environment for the attainment of these ideals. management. Zambia should ensure that no law or custom may grant men a right to a greater share of property at the end of a marriage or de facto relationship. to support herself or her family and to live in dignity as an independent person. a legal capacity • 2. As an ultimate goal.40.

States Parties agreed to respect the rights and dignity of the human person. provision shall be made for the necessary protection of any children.2. Zambia ratified it in 1987. clauses 1 and 4 are of particular importance. Zambia ratified it in November 2006. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: Having signed the protocol in August 2005. during marriage and at its dissolution. In the case of dissolution. With regard to the subject matter under discussion. 3.44. 4. 2. 2. States Parties also agreed that every human being shall be entitled to enjoy his/her human rights without any discrimination. they have agreed to abide by the provisions of the Charter (also known as the Banjul Charter). The Charter states that all people are entitled to equitably share the proceeds of goods and services worked for including matrimonial assets even on the dissolution of a marriage. according to the provisions above. Therefore. additionally. It affirms and emphasizes the commitment that States Parties made to the 19 Peace and Good Governance under the Rule of Law . By the provisions of the Charter. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage. States parties are obliged to put in place measures that can guarantee that the ICCPR’s goals of equality of treatment are attained and mechanisms for attaining the same provided. the Charter emphasizes the need for appropriate action regarding the sharing of matrimonial property in order to eliminate retrogressive tendencies that adversely affect the vulnerable persons in society among several other things. No marriage shall be entered into without the free and full consent of the intending spouses. African Charter on Human and Peoples’ Rights Enacted in 1979. The right of men and women of marriageable age to marry and to found a family shall be recognized. In Article 2. 2.45. Thus States Parties are required by the provisions of the Charter to create an enabling legal environment where spouses can equitably share the proceeds of matrimony even when the dissolution of the marriage is before court.43.

It also affords a widow the right to continue living in the matrimonial house. 2. especially women. Article 2(1) of the Charter requires States Parties to put in place measures for combating all forms of discrimination against women through appropriate legislative. This means that as a signatory to the Protocol. people. sub-regional. Zambia is required to make amendments to its domestic laws to give effect to the provisions of the Charter. institutional and other measures. or on stereotyped roles for women and men 42. 2. regional and international levels. All these instruments were designed to alleviate the discrepancies in terms of stereotype treatment between men and women. currently face many obstacles to the realisation of their human rights including discrimination in the application of customary laws relating to family and inheritance rights. Sub-Article 2(1) (d) requires States Parties to “take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist”.Banjul Charter. States Parties are also required to modify their social and cultural patterns of conduct of women and men through public education. The Protocol is important as it compels States Parties to ensure that mechanisms including legal reform are put in place to proscribe any discriminatory provisions in its domestic legislation. with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes.47. education and communication strategies. Hence.48. policies. Article 21 of the Protocol is important in that it requires States Parties to protect the proprietary rights of a widow in inheritance cases after the demise of her husband. Although Zambia has made these commitments to the promotion and protection of all human rights at the national. including discrepancies on intestacy. strategies and programmes with relevant regional and international instruments related to the empowerment of women and girls for the purpose of gender equality and equity43. information. 2. SADC Protocol on Gender and Development: This Protocol was inter alia intended for States Parties to harmonize national legislation. 42 43 Article 2(2) Article 2 20 Peace and Good Governance under the Rule of Law .46.

CHAPTER THREE The Intestate Succession Act-A Review Introduction 21 Peace and Good Governance under the Rule of Law .

3. 3. According to findings of this research. alleviated the hardship caused by the application of harsh customary law rules in matters of inheritance especially in relation to the plight of women.2. Research conducted by the Commission to ascertain compliance with the ISA revealed that the Intestate Succession Act was not a piece of legislation that was acceptable by most people. A significant landmark legislation in family law. Various studies indicate that the progress that could have been made under the ISA has been negated by the discriminatory provisions. 3. most people in rural parts of Zambia have apprehensions regarding the operations of this law. They argue that the ISA is an inequitable piece of law. The enactment of the Act was a response to wanton violation of people’s proprietary rights. the problems of intestate succession in Zambia can be better understood by considering evolution of the legal system from customary tailored values to Article 23 (4) (c) Inheritance Rights in Zambia 22 Peace and Good Governance under the Rule of Law . it has to a great extent. Its application has nonetheless been met with resistance. The Intestate Succession Act is the principal legislation regulating inheritance or succession matters for people who die intestate. Research has established a number of reasons for this. In 1989. 44 45 According to WLSA45. the inapplication of the ISA to customary land has continued to deprive people of their rights to property especially in rural areas of Zambia. In addition.1. it contains discriminatory provisions in favor of women and children.4. Other researchers have suggested that this apparent resistance to comply with the provisions of the Act is because it introduces concepts and an understanding of inheritance and succession alien to Zambian customs and practices. There is evidence of a high number of reported cases of property grabbing at the police stations across the country and at legal advice desks. the adjudicators and the citizens at large. 3. 3. Several studies have been conducted to ascertain the performance of the Act from the time of its enactment. Zambia passed an Act intended to control and curb the incidents of property grabbing and to protect the rights of the surviving spouse and children.3. It has been suggested that this is primarily due to a lack of understanding of the provisions of the Act on the part of legal practitioners. primarily in the Constitution of Zambia 44.5.

the administration of their estate becomes difficult because in the letter of the law. Application of the Act 3. 20 of 2007 Issue Paper. Property in Zambia ( http://www. When such persons have died intestate. Cultural trends at the time of research showed that there was a lot of resistance in terms of changes that radically affected the cultural behaviour of the masses. 50 Section 2(1) 23 Peace and Good Governance under the Rule of Law . The ISA did not repeal any existing legislation.50 Although indigenous Zambians form the majority of the population with seventy three (73) ethnic groups. Marriage contracted under statute affords spouse the right to share in the matrimonial property including their spouse’s property and that acquired during marriage 46.the western influence on our legal civilization. 46 47 Matrimonial Causes Act No.org) 48 Current trends in judicial decisions are increasingly inclined towards the protection of these rights in marriages contracted under customary law 49 COHRE (2004). hence the English Intestate Law applies to people who do not fall under the provisions of section 2(1) of the Act. although domiciled in Zambia. Geneva. 48 A study conducted by the Centre on Housing Rights and Evictions49 revealed that distribution of the estate based on percentages creates a lot of problems in practice. the Zambian population includes a small percentage of nonindigenous people of different origins who have Zambian citizenship or permanent residency status. they may not be members of a community to which customary law would have applied. In this chapter we review various literature pointing out the perceived problems of the ISA. The Act in section 2(1) the Act applies only to persons who at their death are domiciled in Zambia and are members of a community to which customary law would have applied if this Act had not been passed.undp. The study also shows that this is made worse in situations where the estate is small and the estate is meant to cater for more than one wife. A survey of Law and Practice in Sub-Saharan Africa. 1.6. At the same time English Intestate Law may not apply to them. 3. Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women. Findings of the Commission on Legal Empowerment of the Poor47 revealed that women married under customary law are not protected by this law as their property rights emanate from their traditional norms which do not recognize the matrimonial property rights as above.7.

53 Ibid 54 Refer to chapter of this paper 55 Bringing Equality Home : Promoting and Protecting the Inheritance Rights of Women-A Survey of SubSaharan Africa. The Act does not apply to land acquired under customary law. the principle is applied in a discriminatory manner because while male heirs’ land rights remain intact during their absence. The findings emphasized the need to enlighten people especially in rural areas on the existence of the Act. The WLSA study revealed that traditional authorities played an important role in administration of estates.8.53 This is because inheritance under customary law is determined by the rules of male primogeniture discussed earlier. they asserted that the intestate law is a bad law as it has exposed men to 51 52 subsection (2) (a) (b) and (c) Nsemiwe Nsame. especially in the case of widows. The principle of protecting clan land applies to male and female heirs.54 3. the establishment of the Victim Support Unit (VSU) in the Zambia Police Service has created significant stability with regard to succession issues in urban areas. 51 thereby leaving rights accrued under this tenure to be inherited in accordance with customary law. on the assumption that when girls marry away from their parental homesteads. In most of these areas land has assumed the status of a vital asset. Therefore. 2006. 2004. findings56 revealed that most respondents did not understand the application of the Act. However. 56 COHRE 24 Peace and Good Governance under the Rule of Law .10. According to Centre on Housing Rights and Evictions 55(COHRE) and other studies. Due to the foregoing. WLSA research findings also indicate that most local courts are biased against women due to cultural inclinations.3. they allege that women have been killing their husbands so that they could get the properties left behind. 3.9. Gender Dimensions of Land Customary Inheritance under Customary Tenure in Zambia.11. females have no such advantage.52 3. Further. they are not entitled to inherit land exclusively. lest they transfer the land outside the clan or family through marriage. necessitating the need for its protection against alienation outside the clan or family. Most respondents from the nine (9) provinces of Zambia were of the view that the Act only dealt with estates left by deceased husbands and not wives. The problem identified was that the VSU was nonexistent in rural areas of Zambia which were also severely plagued by controversies surrounding intestate succession cases.

Some people have argued that this may be difficult to amicably enforce especially where an estate comprises only one house with children born in and out of wedlock and from different women. Relying on percentages. Customary marriages tend to be polygamous and the 20% has to be divided among the widows. This matrilineal system of inheritance stands in direct contrast to the Intestate Succession Act. 25 Peace and Good Governance under the Rule of Law . These customs and norms have operated within the framework of established patterns of kinship systems and gender segregated patterns of behaviour. and 10% for the dependants. which are themselves founded on traditional customs and norms. 2. On the other hand. if any as the basic distribution pattern. and succession rights.“early death”. some sectors of society have argued that the percentage representing the proportion for parents is too small as compared to that given to the surviving spouse. property. From the above. The law also provides for the sharing of the estate including the matrimonial house among the surviving spouse or spouses and children born in and out of wedlock. the Act allocates the surviving spouse 20% of the deceased's estate whilst the children get 50%.12. The portions allocated to surviving spouses are sometimes criticized as being inadequate and not reflective enough of a spouse’s contribution to marital property. 3. Distribution of estates 3. Customary law relating to inheritance in matrilineal societies is that when a man dies.13. which focuses on priority dependants as defined in the Act.15. The Act constitutes a radical departure from customary law notions of marriage. The deceased's parents are entitled to 20%. 3. it can be deduced that one of the reasons for resistance to the application of the Act was attributed to ignorance portrayed by the majority of respondents consulted. The Intestate Succession Act spells out how the estate of an individual who dies without a Will is to be shared. however many they are while a surviving husband enjoys 20% from each of the deceased wives. It is therefore said to disadvantage women.14. his primary heirs are his nephews (his sisters' children). 3. The mode of distribution described in the Act gives rise to some complaints.

for instance the percentages which each beneficiary gets from the deceased’s estate are not clearly understood. There has also been a view that in arriving at the share of the surviving spouse the duration of the marriage 57 58 See section 5 COHRE. people argue that it is only enforced when the surviving spouse is a woman and not a man. Preliminary research findings revealed that some of the apprehensions on the operation of the Act originate from people’s misunderstanding of the provisions of the Act57. 3. there are allegations that the Act is applied selectively. Further. Still. These are male primogeniture and male preference primogeniture. the deceased’s parents argue that the share they get from the estate of their deceased children’s estate is usually meager compared to what the surviving spouse assumes. However. The Act is perceived as not placing the same restriction when the surviving spouse is a man.19. The Act provides that a woman surviving spouse only has a life interest in the house which is lost on re-marriage.18. Therefore. Concerns have been raised as to the fairness of this provision.17. On the one hand.148 59 Section 8 26 Peace and Good Governance under the Rule of Law . The Act provides that personal chattels of the deceased shall be the exclusive property of the surviving spouse and the children59.58 Parents argue that the education of children is an investment from which they must benefit. Due to the application of male preference primogeniture. others have argued that raising children is a duty of parents which terminates at the time when the children become able to care for themselves and not an investment. 3.16.e. Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women. i. 3. Some estates are very small with little or no money. women argue that the provision in the ISA for the them is not adequate because they work hard to create the wealth with their husbands. whereas on the other hand. sons are preferred to daughters when selecting potential heirs. There are two principles that underlie Zambia's African customary law of inheritance. Geneva. 3. A survey of Law and Practice in Sub-Saharan Africa. (2004). personal chattels may be the only available estate and hence this means parents get nothing. There is a view that the surviving spouse gets 70 per cent of the estate of the deceased as opposed to the 20 per cent which is actually allocated. p.3.20. the Intestate Succession Act provides that all children irrespective of sex of a deceased person have a right to inherit a share from their parent's estate.

An administrator is appointed for the sole purpose of administering the estate of deceased person60. Therefore. The deceased also had his mother still alive. Chansa Mbobola61. “I do not believe that if I appointed the applicant as the sole administrator she would look after the interests of the other beneficiaries to the estate and that it would be necessary for me to appoint somebody to look after their interests”.21. Further. in terms of section 16(1) of the ISA. it has sometimes been argued that certain people take up administration of estates because they have ulterior motives to serve other than the legitimate interest of administering the estate of a deceased person. 4. Appointment and role of the Administrator 3. However. the law needs to clearly spell out the role of the administrator so that administrator abuse is curbed. the applicant and respondent both applied for letters of administration for the estate of the applicant’s husband and respondent’s brother. Often times. 3. 3. The law does not prescribe the period within which the administration of the estate is to commence and terminate. The applicant applied as widow to the deceased whereas the respondent applied as brother and uncle to (deceased’s children) whom he alleged the applicant refused to recognize as such.23.22. In addition. The court said.to the deceased ought to be considered before distributing the estate to a surviving spouse as some spouses are in a marital relationship with the deceased only for a short time but assume very large shares from the deceased’s estate. The deceased had three children outside wedlock whereas the applicant only acknowledged one. the Act does not prescribe adequate guidelines for the appointment of administrators. the court appointed both the applicant and the respondent as joint administrators to distribute the estate to beneficiaries. 60 61 Section 15 1994/HN/489 27 Peace and Good Governance under the Rule of Law . administration of the estate begins when part of the estate has already been wasted. In the case of Mwalimu Beauty Nanyangwe Mbobola v. The court must first take into account the interests of the beneficiaries before a grant of letters of administration.

Corrective Measures in cases of estate abuse 62 63 1997/HP/1882 SCZ Judgment No.25. Delivering the judgment. the court said. Similarly. “from the facts of this case.3. it is clear that there is a complete misunderstanding of the role of an administrator of a deceased’s estate on the part of the respondent”. In Raphael Njobvu and Charity Njobvu v. In the case of Mwenya Mulenga Chitika (suing as next friend of Ruth Chitika) v. 5.63the administrator moved into his deceased brother’s matrimonial home with his wife and children. He also claimed to have enhanced the estate of his deceased brother. This results in offences being committed. Gift Zimba (sued as Administrator of the estate late Sylvia Zimba Chitika64). he had proprietary rights in the deceased’s estate by virtue of that appointment. the case of Gray Nachandwe Mudenda v. the Supreme Court stated that “the duty of the administrator is not to enhance the estate but to collect the deceased’s assets. 12 of 2006 64 2000/HP/368 28 Peace and Good Governance under the Rule of Law . It has been said that some people assume administration of deceased’s estate based on the perception that they are entitled to benefit as beneficiaries by virtue of the task they perform. the administrator labored under the perception that as administrator. In this case. The concept of the administrator was alien to the customs and practices of the various ethnic groups who rather used that of a successor.” 3. In this case. The court stated that. The role of an administrator has sometimes created a lot of misunderstandings between different classes of beneficiaries. Dorothy Chileshe Mudenda. “the administrator is not a beneficiary of the estate of the plaintiff’s deceased’s parents and as such he cannot claim any of the estate or claim to stay in the matrimonial house of the plaintiff’s deceased’s parents by reason of being administrator”. distribute them to beneficiaries and render an account. Kayula Chewe (Sued as administrator of the estate of the late Dorothy Zulu62). the defendant as administrator sought to live in the matrimonial home.24. He also gave himself legal guardianship and custody of the deceased’s and the applicant children contrary to law.26. the administrator used to collect rent from the deceased’s properties which he inherited under his lawful administratorship. 3.

This Act does not provide mechanisms for preventing wasting of estate. some concerned parties may decide not to pursue an erring administrator because of the high cost involved in the process of obtaining redress. Even though there are mechanisms for redress. In addition. 6.29.28. Therefore. it would be important to provide for the express prohibition of intermeddling with the estate prior to the appointment of an administrator. 3. it has been argued that section 35 (2) (a) only makes reference to minors being deprived from benefitting under the estate of a deceased person and leaves out adult persons who may also be victims.3. Offences and Penalties 3. the law provides a penalty of a fine or imprisonment not exceeding two years or both regardless of the size of the estate wasted. 65 Section 35 29 Peace and Good Governance under the Rule of Law . It has been argued that penalties contained in the Act do not adequately deal with the offences. Similarly. Findings thus indicate that there is need for a time frame to be fixed to save the estate from waste and also expenses on the part of litigants. According to section 14 of the Act. Therefore. Although the Act provides means for dealing with administrators and other people that fail in the performance of their duties65. Prohibition of intermeddling with estates 3. they do not adequately address the problem created by the deprivation to the entitled person.27. it would be important that the penalties are enhanced so that deprivation and waste of the estate of deceased persons is curbed and potential violators stopped by the stiffer penalties the law would prescribe. section 35 provides a penalty of fine or imprisonment not exceeding one year for personal representatives who deprive a minor. 7.30. the processes leading to such recourse are lengthy and often times involve very expensive litigation. The law also provides for restitution of property misapplied or value assessed by the court as the value of the property. The argument in relation to these provisions is that.

A comparative desk study of countries that have legal pluralism and have existing legislation regulating customary marriages was undertaken.CHAPTER FOUR Comparative Desk Study Introduction 4.1. The countries selected were 30 Peace and Good Governance under the Rule of Law .

66 Portions are also allocated to the customary heir. the property is shared. Further. who receive the greatest share of seventy-five percent67. In addition. Uganda 4.69 66 FIDA-U and other women’s rights organizations successfully petitioned the Constitutional Court to declare this provision unconstitutional however. The amended Succession Act restricts the application of customary laws and. Widows inherit fifteen percent of the estate. A former British colony. recognizes the right of women to succeed their husbands. all with legislation having been in place over a considerable period of time. Zimbabwe. Research has established that countries with plural legal systems have often had to deal with the conflict that arises between these systems. Section 15 of the Judicature Act68. the Succession (Amendment) Decree (“the Amendment”) was passed and made the Succession Act applicable to all Ugandans. (1972) Cap. 67 Succession Act. Uganda’s legal system is based on both English Common Law and African customary law. and lineal descendents (children and grandchildren). 4. If there is more than one wife. Historically. Ghana and Uganda. girls cannot inherit their father’s property. 68 69 Chapter 13 of the Laws of Uganda Article 33 31 Peace and Good Governance under the Rule of Law .4. § 28(1)(a) (Uganda). 139. inter alia. Under Section 27 of the Succession Act.3. In 1972. the 1995 Constitution provides for equal rights between men and women and holds laws and customs that violate the constitutional guarantees on equality void.2. divorce and the status of women. The purpose of the comparative desk study was to learn lessons from these countries on what kind of legislative provision they have put in place to deal with the mischief that arises following intestate death. the Attorney General had yet to reform the Succession Act to address this issue at the time of developing this paper. limits the application of customary law to the extent that it is not repugnant to natural justice.Kenya. 4. with extensive amendments relating to laws and customs regulating marriage. dependent relatives. customary laws of inheritance operated side by side with the Succession Act of 1964. equity and good conscience and not incompatible either directly or by necessary implication with any written law.

8.9. the custom of male inheritance has resulted in the vast majority of women being excluded from land 70 71 Section 332 of the Succession Act Sections 190 and 333 72 Section 202 32 Peace and Good Governance under the Rule of Law . The Schedule also grants the right of cultivation to the wife or husband who normally cultivated. Although there are no laws preventing women from owning land in Uganda. Minors or people of unsound mind are precluded from being appointed as administrator.7. The Act has provisions for safeguarding the estate from misapplication by the administrator and further limits the categories of people or beneficiaries who can be appointed as administrators. 4. children under 18 years if male and under 21 years and unmarried if female who normally reside in the residential holding. who are normally resident in the residential holding shall be entitled to it. discriminatory statutory. is liable to make good the loss or damage so occasioned.5. With regard to other residential holding owned by the intestate.70 4. The second schedule outlines the categories of people entitled to occupation of the deceased’s residential holdings and includes any wife or husband as the case may be. or under 21 years of age and unmarried if female. 72The Act provides that the principal residential premises of the intestate together with household chattels are held by the personal representative in trust for the legal heir subject to the rights of occupation set out in the Second Schedule of the Act.71 The Act also gives priority to the relative or beneficiary who is entitled to the largest proportion of the estate in appointing the administrator.4. 4. farmed or tilled any land adjoining a residential holding owned by the intestate prior to his or her death. Nonetheless. An administrator who misapplies or subjects the estate to loss or damage. as the case may be. customary and religious laws remain in force. Any other premises owned by the intestate and not falling under the above shall form part of the estate and shall be distributed in accordance with section 27 of this Act.6. It also includes residential holdings owned by the intestate as a principal residential holding but not occupied by him or her because she or he was living in premises owned by another person and includes the category already referred to above. any wife or children under 18 years of age if male. 4.

ownership. children.74 The law is also criticized as it provides under that in the absence of any direction to the contrary by any of the joint administrators. By specifically providing for distribution of the estate after the death of the husband. 2. defined as “a person recognised by the rites and customs of the tribe or community of a deceased person as being heir of that person”. the Chief Magistrates Courts. the law creates an impression that it only applies to men and not women. Court of Appeal. last viewed on 30 April 2010. The law does not place primacy of inheritance on the immediate family members. and finally the Supreme Court. The law73 provides for the recognition of a customary heir. 2006. The law fails to take into account the fact that even among same class beneficiaries there may be need to have differential treatment depending on the peculiar needs. The formal law courts. www.com. the High Court. wife.e. This means that in administering the intestate estate. 4. i. Multiple laws and institutions regulate succession to property in Uganda the laws in question are enforced by different state institutions i. The law fails to appreciate the fact that separation between spouses does not amount to divorce.e. and 3 Magistrate courts. which include Grade 1. 74 75 Section 272 33 Peace and Good Governance under the Rule of Law .12. L. 4. Islamic Qhadis' courts and state institutions.10. Access to Justice: Widows and the Institutions Regulating Succession to Property in Uganda.75 In families where men 73 Succession Act 1906Chapter 162 Kafumbe. the following concerns are worth noting. 4. Despite the progressive provisions of the law.11. Each of these has its own procedures that must be strictly followed before a matter is attended. denying a separated spouse the right to benefit on the basis of separation is implying that separation is synonymous to divorce. the law also takes into account the role custom plays in the cultural life and the administration of intestate estate of the deceased. Therefore. one of the estate administrators can bind and/or commit the rest and the entire estate. such as the formal law courts and the Office of the Administrator General.springerlink.. A. customary law fora. The procedure of obtaining a grant of Letters of Administration is said to be sufficiently complicated as is the procedure of revocation or annulment of Letters of Administration is even worse. all regulate property rights disputes. parents and actual dependents at the time of a spouse’s death.

“spouses shall have equal access to property jointly acquired during marriage” and that “[a] spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”.13. As in many African countries. it is common for the widow to administer an estate with other people who cater for her non-biological children's interests. the Ghana Legislature in 1985 enacted the Intestate Succession Law. 4.15. known as the Provisional National Defense Council Law 111 (“PNDC”) whose main aim was to create some degree of economic security across all forms of marriage. 34 Peace and Good Governance under the Rule of Law .14. The PNDC established a uniform intestate succession law to be applicable throughout the country. With these provisions explicitly providing for women’s inheritance. with clauses addressing the property rights of the spouses. The fraction of the estate distributed to each heir varies according to the numbers and categories of heirs involved in the distribution. 4. Realizing the imbalances. It is a diversion from inheritance based on the lineage system of the people. spouse and parents of the deceased. In its memorandum. the PNDC provides that the statute’s primary objective is to provide greater protection than was provided under customary law for the surviving spouse and children of a person who dies intestate. Ghanaian Constitutional Law goes well beyond Zambia in legally preserving women’s rights. Ghana 4. PNDC Law received the backing of the Constitution in the 1992. The legal system of Ghana is based on the received English Law and customary law people.sire children outside wedlock. Women’s Inheritance Rights in Africa: The Need to Integrate Cultural Understanding and Legal Reform. 76 Human Rights Brief. The Constitution states in Article 22 that. Ghana family customary law disadvantages women.16. 4. for women and their children who survived the intestate spouse. the children. irrespective of the type of marriage contracted or ethnic background concerned. The PNDC recognizes as compulsory beneficiaries. Positive aspects of the PNDC 111 (1985) • • No exception exists for the application of customary law in Ghana76.

which constitute the majority of marriages in Ghana. Although the entire system of property inheritance and distribution were legally uprooted. thereby prejudicing some women who may have depended on a partner for support78. 4. the surviving spouse and/or children are entitled to own it. By Section 12 the Act does not provide for parents unless there is no surviving spouse and children. • Firstly. p. A survey of Law and Practice in Sub-Saharan Africa. the legal revolution has failed to fully translate into cultural transformation. the PNDC also excludes land from application as this is considered to as coming from the lineage. In many ways. the law is impractical in matrilineal communities whose entire social and familial system would be completely debased if the law were to be implemented.61 35 Peace and Good Governance under the Rule of Law . the following notable setbacks exist77. • • The law also provides legal mechanisms for resolution of disputes between the beneficiaries on the application of the administrator to the High Court. • The law does not take into account non-formal unions. hence it cannot be passed on according to this law. (2006). The law also provides mechanisms to account and publish the accounts of the deceased’s estate on the completion of the administration with the Accountant General giving an account to the Attorney General to publicize the said accounts. Therefore.17.16. p. (2004). Criticisms of the Intestate Succession Act PNDC 1985 111 4. The law does not provide guidelines in cases where the surviving spouse is 77 Bodenheimer. • Like the Zambian ISA.• The intestate law safeguards the interests of the surviving spouse and/or children by ensuring that all the household chattels of the deceased devolve upon them. If the estate includes one house. 78 COHRE. • The law fails to mention or recognise polygamous marriages. when applied to these marriages. Geneva. Brigitte. Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women. the law fails to address the complexities arising when a man dies leaving multiple wives and multiple sets of children. Marriage and Intestate Succession in the Context of the Legal Pluralism in Africa.

Although not directly a result of the intestate system of Ghana. Kenya has various laws of succession applying to various categories of marriages. This Act provides for the application of customary law based on the deceased’s community or tribe81. Thus.18. The Judicature Act82 includes African customary law as one of the sources of law in Kenya. 4. it only applies when it is not repugnant to justice and morality or inconsistent with any written law. no effective education program designed to inform the Ghanaian citizenry. This usually causes practical problems of application. the Act precludes application of customary law to properties specified in these areas. For instance. The Law of succession does not apply to certain matters such as agricultural land and crops thereon and livestock in certain designated districts outlined in the schedule. there are setbacks that have affected the implementation of the Intestate Succession System and they include.19. In addition. Many Ghanaian families do not follow the provisions of PNDC Law 111. the Ghanaian Inheritance system is in many ways a step beyond Zambia as it expressly prohibits discrimination of any kind whether on personal law matters or not. there is statutory law.20. 4. define and consolidate the law relating to intestate and testamentary succession and the administration of the estates of the deceased person. However. The Succession Act of Kenya80 was intended to amend.globalpropertyguide. The Ghanaian law tends to create two households in the same matrimonial home due to the arrangement with ownership of property 4. customary law. The administration of the estate vests in the personal representative of the deceased who is by law required to administer the estate with due diligence. The Kenyan Law of Succession gives 79 80 http://www.com/Africa/Ghana/Inheritancelaw Cap 160 81 Section 33 of Cap 160 of the Laws of Kenya 82 Chapter 8 of the Laws of Kenya 36 Peace and Good Governance under the Rule of Law .21. As such families still rely on the dictates of customary law79. that is. Lack of public education about the law as many people do not belong to the educated. However. fearing it would dissipate their property.required to share a house with step children. Islamic law and Hindu law. the Law of Succession Act has also embodied the African Customary Law of succession with the intention of providing Kenyans with a statute that translates the Kenyan customary beliefs and practices into law. Kenya 4.

86 However. the law compels police officers to help protect the estate of deceased persons by reporting the fact of death to the Assistant Chief of the sub-location or the Administrative Officer of the area where the deceased had his last known place of residence88. Further. or with the consent of the court during the period of the life interest the surviving spouse. In an effort to minimize waste to estates and safeguard beneficiaries’ interests.priority of inheritance to the children with the surviving spouse having a life interest (which determines on death or re – marriage) in the whole residue of the net intestate estate83 4. The Law of Succession of Kenya underscores the following: • That the intestate estate is for the benefit of the children. 4. "power of appointment" means power vested in some person to determine the disposition of property of which that person is not the owner” 86 Section 37 87 Section 39 of the Kenya Law of Succession 88 Section 46 37 Peace and Good Governance under the Rule of Law . It empowers84 any child to challenge any power of appointment85 which has been unreasonably exercised by a surviving spouse. • That as beneficiaries to the estate of the deceased. immovable property requires consent being sought from court. Where no person with a legitimate interest comes forth after the expiration of one month. Therefore. the law places an obligation on the public officers to protect the estate of deceased persons.25. 4. • That even as surviving spouse. 4. the surviving spouse also has a right to the personal and household effects of the deceased absolutely. the Assistant Chief or the Administrative Officer may go to the last known residence of the deceased and carry out an inventory of the properties there.22. the Act allows disposal of property with the consent of all the children of full age. It is also important to note that the Kenyan law does not consider parents or siblings of the deceased as beneficiaries except in situations where the deceased is not survived by any children or spouse87. Nonetheless. one is expected to be accountable as the holding of a life interest in the intestate estate does not give one the liberty to use the property in which the life interest exists as one wills. the children have the right to challenge the administration of the said estate.24. disposal of 83 84 Section 35 of the Kenya Law of Succession Subsection (3) of section 35 85 By section 3.23.

The Estate Administration Law has been criticized for giving dominance to customary law. succession. one needs to point out that the law is not alive to the African lifestyle. the Act only provides for the parents and siblings of the deceased when there is no surviving spouse or child. It also refers to ‘letters of administration to refer to the appointment of personal representative either in intestate estates or testate estates. Although the Kenyan legislation has some positive elements. Unlike Zambia.28. It is important to mention that the Administration of Estates Act uses the term ‘executor’ to mean either. Like the other jurisdictions considered. marriage and other personal law and this has in the past resulted in serious discussions on various fora90. Zimbabwe 4. The law relating to succession and administration of estate is regulated by both written statutory law and codified customary law. a woman or daughter as the case may be did not have the right to inherit from her father’s estate whilst her male relatives were alive regardless the type of interest one held. 4. This was the contention that created a lot of controversy in Zimbabwe. It is therefore stated that this is being too divorced from the African reality of family life and inheritance89. Even though the constitution provides for non-discrimination of any kind it permits the application of customary laws in matters of divorce. Zimbabwe has had some fair amount of criticism regarding its intestate legislation. Criticism of the Act 4. 89 90 ibid Section 23(3) 38 Peace and Good Governance under the Rule of Law .27. The Administration of Estates Act Chapter 6:01 provides differential treatment to different kinds of marriages.• the law places a duty on everyone to safeguard the estate of the deceased and consequently. Zimbabwe has codified its customary law. For instance. intestate estates as well as the administration of estates of persons subject to customary law. The Act deals with administration of testate estates. interests of the beneficiaries.26. the person administering testate estates or intestate estates. According to Zimbabwean Customary law. Zimbabwe’s legal system comprises both the received English common law and the indigenous customary law of the people.

By section 3 a surviving spouse now has the right to inherit household goods and effects including the whether jointly owned and whether married in community of property or not.4. 6 of 1997 restricts the beneficiaries to customary estates to the spouse and or child(ren) and any person who may be entitled to inherit any property in the estate in terms of this Act93. Amendment No. 6 of 1997 (Deceased Estates Succession Act Chapter 6:02). The Act also proscribed the appointment of the heir as the mandatory ‘executor’ as previously held under custom.31. 4. they must attack the problem at its source. Magaya made the Legal Age of Majority Act 15/1982 subject to customary law. Therefore. lived immediately before the person’s death and also the household goods 91 92 SC No. the executor has to be chosen on consensus from the members of the family. As indicated already.32. addressing the weaknesses of a legal system.” and. This can be achieved by addressing the shortcomings of judicial reliance upon undefined “custom. the Administration of Estates Act as amended now entitles the surviving spouse to the house or other domestic premises in which the spouses or the surviving spouse.30. the Administration of Estates Act also regulates the administration of customary law estates.29. The decision of the Supreme Judicial Court clearly reflects an antiquated Constitution and outdated laws. In the case of Magaya v. February 16. In addition. The court stated that custom was unaffected by the passing of that Act under customary law a woman had no right to inherit her deceased parents’ estate. illustrating the challenges and difficulties facing legal systems that attempt to incorporate traditional or customary laws into a contemporary framework. 93 Section 68(1) (a) and (b) 39 Peace and Good Governance under the Rule of Law . It has been mentioned by many human rights activists that if the international human rights community and the progressive community within Zimbabwe wish to better the position of women under customary law. the amendment to the law could not grant women rights which they did not have under customary law. Succession law in Zimbabwe is incomplete without referring to the Magaya decision. In this regard. the appellant on the basis that she was a woman because she lacked capacity as she could only be considered a “junior male”. 4. more importantly. 210-98 (Zimbabwe. Magaya91 where the Supreme Court decline to grant administration of the estate to Venia Magaya. 4. as the case may be. This decision saw the Amendment No. 1999) The decision in Magaya v. in reality made written law subject to customary law92. This decision was erroneous because.

less commonly. Time limitation for inventory for the estate Section12 provides for the carrying out of an inventory within thirty (30) days of the demise of a spouse. • • is registered under the Estate Administrators Act [Chapter 27:20]. Conditions for appointment of Administrator The Act imposes conditions for appointment of administrator. Every executor testamentary shall be under the like obligation of finding security. child or surviving spouse of the deceased testator. “the Master shall not grant letters of administration to a person unless that person.and effects which. The Act further imposes a penalty on any survivor who does not provide an inventory as well as one who renders a false inventory as required by section 12. he is the parent. This ensures that the estate of the deceased is not subjected to wanton waste and hence compels the survivor to protect the estate of the deceased by taking an inventory of the estate. 2. Key features of the Administration of Estates Act The Act has some very progressive provisions which are worth noting. or 94 95 Section 3(A) Curator bonis means “the person appointed by the court to manage the estate of a young person in place of his legal guardian or to manage the estate of an adult suffering from mental or. were used in relation to the house or domestic premises referred to in this section94. for such amount as in the circumstances of each particular case is reasonable. section 31 40 Peace and Good Governance under the Rule of Law . 3. immediately before the person’s death. bodily infirmity”. assumed executor or curator bonis95 is required to provide security to the satisfaction of the Master for the due and faithful administration of the estate to which he has been appointed. Section 29 (A) provides that. 1. Security for due Administration Every executor dative. unless— 1. or is a surviving spouse or next of kin of the deceased person concerned.

In addition. 8. every executor is required to render administration and distribution accounts to the Master within a stipulated time. 4. notwithstanding the provisions of this section. Duty on other persons In accordance with section 42. the Act also imposes a penal for any false inventory rendered96. 3. The testator has specially directed in his will that the Master dispense with such security. Further. Remuneration of Executor 96 Section 38 41 Peace and Good Governance under the Rule of Law . the Act also places liability on any person for such failure. Value of inventory The Act also requires the executor to cause the estate (inventory) to be valued including any subsequent estate discovered to belong to the deceased’s estate later. 6. 5. 7. This provision ensures that people that assume the responsibility as executor administer deceased’s estate according to law. The Master shall allow the reasonable costs of finding security to be charged out of the estate. The Master may. 4.2. the Act requires any person not being the executor who comes in possession of any asset forming part of the deceased’s estate to report such fact to the Master. Time limitation for Execution According to section 52. In addition to this duty. Section 55 empowers the Master at the instance of any interested party to summon the executor to show cause before the High Court why such account has not been lodged as aforesaid. The provision also allows the executor to be discharged from his or her duty in the liquidation of the estate once not done to the satisfaction of the Master. Safeguards for interest devolving upon minors and persons of unsound mind The Act in section 51 compels the executor to pay to the Master money devolving upon minors and persons of unsound mind. require any executor to furnish security in a sum not exceeding the liabilities of the estate and any inheritance or legacies bequeathed to third parties.

distribution and final settlement of any estate 97. it creates unreasonable consequences because it does not take into account the fact that nucleus family life is not always an ideal in African setup. Notwithstanding that the law protects the interests of the immediate family. Where a surviving spouse have life interest.The Act recognizes the fact that administering any estate is a demanding task. Should the term child be redefined? 3. Should the provision giving life interest of the house extend to houses built on customary land? If so why? If not give suggestions how rights of spouses removed from such houses would be protected. the law provides for the remuneration of the executor in respect of his or her administration. Should the Act stipulate how the 20% is to be apportioned to several widows? 6. How can the percentages of distribution of the estate be altered to take care of the interests of all the beneficiaries? 4. should the children who were not living in the said house be expressly prohibited from occupying it during the duration of the surviving spouse’s life? 97 Section 56 42 Peace and Good Governance under the Rule of Law . QUESTIONS FOR DISCUSSION Application of the Act 1. Should a surviving spouse be given opportunity to prove contribution to the acquisition of the house of deceased rather than being arbitrarily given a life interest? 2. The remuneration may be fixed by Will or taxed by the Taxing Master. Distribution of Estates 1. should these children inherit equally with the children in the marriage? Or should each set of children inherit whatever property of the deceased was in their possession at the time of his death? 5. In the event that the deceased man had a mistress and children. Criticisms of the Act The most notable criticism is section 68(1) (a) and (b) which has radically narrowed the definition of beneficiary under customary law. In this vein.

Should people co-habiting but not married be entitled to inherit under the Act? 12. If a deceased person concentrated on the nuclear family during his/her life time. What mechanisms can be put in place to prevent the waste of the deceased estate before the appointment of an administrator? 2. Should anyone who can prove that they were being supported by the intestate be accorded the protection of the Act? 9. How can the repugnancy clause be effected countrywide but especially in rural areas? 11.7. Should a surviving spouse be entitled to a house where there is more than one house as opposed to merely having a life interest and being tenants in common with children? 8. 2. why should the extended family benefit after his/her death? 3. The law should provide cheaper but effective dispute resolution mechanisms under the Act. List laws that have a bearing on the administration of intestate estates in Zambia? Suggest any changes that can be made. if any. How can the ISA best be disseminated? 43 Peace and Good Governance under the Rule of Law . Are penalties in the ISA adequate to address the concerns of the people? General 1. to best contribute to the protection of beneficiaries under the ISA. How should property of people married under laws of different countries be treated should they die intestate in Zambia? 10. Should the definition of dependant be reviewed? If yes. Comment and suggest 2. Should the law specify a time limitation for the administration of estates of a deceased person? Offences and Dispute Resolution Mechanisms 1. who should be a dependant in the Zambian situation? Administration of Estates 1.

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