|
Rulings advance gender equality with respect to inheritance
In recent years, several rulings have advanced gender equality with respect to inheritance in various countries, including in relation to India, Tanzania, Nigeria (in two cases), and South Africa. According to a UN Habitat report, “[i]nheritance is one of the commonest ways for women to acquire or access land…. However, the pursuit of gender equality in inheritance rights has been one of the most difficult challenges in rights-based approaches owing to the complexity as well as well entrenched patriarchal characteristics of socio-economic, cultural and religious practices.” Women around the world still own less than 20 percent of the world’s land.
In the 2018 decision Danamma Suman Surpur & Another v. Amar & Others, the Supreme Court of India, in upholding gender equality in inheritance law, ruled that daughters have the same rights of inheritance as sons with respect to commonly owned property partitioned after the 2005 amendment to the Hindu Succession Act. The decision categorically clarifies the legal position rooted in the 2005 amendment to the Hindu Succession Act, that daughters now have the same rights as sons with respect to commonly owned property partitioned after the amendment to the Act,
regardless of when they were born.
Regarding Tanzania, the United Nations Committee on the Elimination of Discrimination against Women found in 2015 in favor of two widows, E.C. and S.C., who, under Tanzania’s customary inheritance law, were denied the right of inheriting or administering the estates of their late husbands. Thereafter they were, along with their minor children, evicted from their homes by their in-laws. In its decision the Committee criticized the patrilineal inheritance law (inheritance by persons related through male kin) that left E.S. and S.C. "economically vulnerable, with no
property, no home to live in with their children and no form of financial support." The Committee emphasized that women's equal rights to own, administer and enjoy property is “central to their financial independence and may be critical to their ability to earn a livelihood and to provide adequate housing and nutrition for themselves and for their children, especially in the event of the death of their spouse”. The Committee held that Tanzania, by condoning legal restraints on inheritance and property rights that discriminate against women, had violated several articles under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), including, among others, provisions pertaining to
equality before the law [15 (1), 15 (2)], the right to bank loans, mortgages and other forms of financial credit [13 (b)], and the same rights for both spouses in respect of the ownership, management, administration and enjoyment of property [16(1)(h)].
In the 2014 Nigerian judgment of Mrs. Lois Chituru Ukeje & Enyinaya Lazarus Ukeje v. Mrs. Gladuy Ada Ukeje, the Supreme Court, in an unanimous decision, confirmed that the Igbo customary law of inheritance, which excludes female children from inheriting the property of their deceased fathers, was in conflict with the non-discrimination provisions of the Nigerian Constitution of 1999, and therefore void. In December 1961, Lazarus Ogbonnaga Ukeje died intestate with real property in Lagos State. The appellants are his wife Mrs. Lois Chituru Ukeje and her son, Mr.
Enyinnaya Lazarus Ukeje, both of whom obtained Letters of Administration for and over the deceased’s Estate. The plaintiff/respondent is the daughter of the deceased and brought this suit seeking a declaration from the court that as the daughter of the deceased she is entitled to a share of his estate. The Supreme Court upheld as inviolate the finding by the lower courts that that Igbo customary law which disentitles a female from inheriting the property of the deceased father is void as it conflicts with the fundamental right to freedom from discrimination set out in section 42(1)(a) and (2) of
the 1999 Constitution. Based on a textual interpretation of the Constitution, the Court further clarified that no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate. This would indicate that it does not matter whether the female child is born out of wedlock.
The Supreme Court of Nigeria handed down the ruling for Ukeje v. Ukeje on the same day it handed down Anekwe v. Nweke, which challenges the customary law of male primogeniture (the right of succession belonging to the eldest son) of the Awka people in Nigeria. The Supreme Court of Nigeria found that any custom that denies women, particularly widows, their inheritance, is repugnant to natural justice, equity and good conscience and is condemned by the Supreme Court.
And the 2004 Bhe v. Magistrate Kayelitsha & Ors. judgment by the Constitutional Court of South Africa, concerned three related cases (Bhe, SAHRC and Shibi), which were decided together. In the first action, the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had died, and the mother (the third applicant) brought an action to secure the deceased's property for her daughters. Under the African customary law rule of primogeniture as well as section 23 of the Black Administration Act, the house became the property of the
eldest male relative of the father, in this case the grandfather. The South African Human Rights Commission (SAHRC) and the Women's Legal Centre Trust brought the action in the public interest and as a class action on behalf of all women and children in a similar situation. In Shibi, a sister was denied the right to inherit from her brother's intestate deceased estate under African Customary Law. In all three cases, the Constitutional Court declared the African customary law rule of primogeniture unconstitutional and struck down the entire legislative framework regulating intestate deceased estates of black South Africans. According to the Court, section 23 of the Act was anachronistic since it ossified
“official” customary law and grossly violated the rights of black African persons relative to white persons. With regard to the customary law rule of male primogeniture, the Court held that it discriminates unfairly against women and illegitimate children on the grounds of race, gender and birth. The result of the order was that all deceased estates are to be governed, until further legislation, by the Intestate Succession Act 81 of 1987, whereby widows and children can benefit regardless of their gender or legitimacy. The Court also made orders for the division of deceased estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse.
Various studies reveal that women’s rights to own and inherit property, including land, are vital to breaking the cycle of poverty. Human rights mechanisms and United Nations bodies have strongly advocated for strengthening women’s rights to property, land and other resources through effectively addressing discriminatory laws and practices. The decisions highlighted above challenge such deeply ingrained
injustices.
Special thanks to ESCR-Net member: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University
Visit the caselaw database for more information on the case summary, the judgment and other related documents.
|
