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Friday, 9 May 2008

Hidden in the Mealie Meal

We have been discussing the lack of "legal enforcement" as an hindrance to reducing informality. Now here is another area identified by the Human Rights Watch as critical. As always, poor enforcement like corruption, always beats people when they are down. Excerpt :

Zambian women do not enjoy effective legal protection of their property rights and as a result practices like property grabbing (the unlawful appropriation of marital property upon the death of a spouse by in-laws) and the unequal distribution of marital property according to customary law for women who divorce are widespread. Women who are subjected to these practices often suffer abject poverty and are unable to afford transportation to clinics or even afford food to take along with HIV treatment. They therefore experience increased vulnerability to HIV and a reduction of their capacity to respond to the pandemic. Fear of divorce in a context of discriminatory customary laws and where women are economically dependent on men leads some women to remain in abusive marriages, which in turn can impede treatment. This discrimination is sanctioned by Article 23 of Zambia’s current constitution—currently undergoing review—which gives primacy to customary law in marriage-related matters. Although Zambia has a law that regulates distribution of inheritance where the deceased did not leave a will (the Intestate Succession Act of 1989, amended 1996), which should help counter property grabbing, this law is ill-enforced.

10 comments:

  1. It's not as simple as an enforcement issue. On those issues, it seems like the law is at best ambiguous, at worst, clearly bad.
    Add to that, the fact that apparently most judges, lawyers and victims do not have a full grasp of the legal issue, the fact that repression for those crimes is weak in theory, the enforcement issue of course and you have this mess.
    Here are a few quotes on the Intestate Succession Act:

    "Under the traditional customs prevalent in most ethnic groups, all rights to inherit property rest with the deceased man's family.  The 1989 Intestate Succession Act was designed to provide women with a share of the joint estate.  Under the act, the children of the deceased man equally share 50 percent; the widow receives 20 percent; the parents receive 20 percent; and other relatives receive 10 percent.  A 1996 "reform" of the act places the widow's share at 20 percent, to be divided equally with any other women who can prove a marital relationship with the deceased man, thus granting inheritance rights to other wives, mistresses, and concubines.
    In practice, "property grabbing" by the relatives of the deceased man remains rampant, particularly when local customary courts have jurisdiction.  These courts often use a different law, the Local Courts Act, to distribute inheritances without reference to the percentages mandated by the Intestate Succession Act.  Ignorance of the law on the part of victims is also a problem.  As a result, many widows receive little or nothing from the estate.  The fines that the Intestate Succession Act mandates for property grabbing are extremely low. "

    "Article 23 of the Republican Constitution of 1991, amended in 1996, forbids
    laws that discriminate on the basis of sex. At the same time, however, the
    Constitution explicitly excludes from this provision, personal law – such as that
    concerning inheritance of property – and the application of customary law."

    "When a person dies without a will, which is usually the case, the Intestate
    Succession Act (1989) is supposed to protect the interests of the surviving
    spouse and children. The Act allows the surviving spouse to inherit 20 per
    cent of the deceased’s estate and, together with the children, the house.

    However, land under customary tenure is excluded and cannot be inherited.
    The Law notwithstanding, the deceased’s man’s relatives typically grab his
    property, including “his” house. Female relatives of a deceased man usually
    participate in property grabbing, not understanding that they will likely suffer
    from the practice themselves in the future. Non-enforcement of the Intestate
    Succession Act, the exclusion of land under customary tenure and property
    grabbing are such serious problems in Zambia that these are long-standing
    issues on the agenda of the women’s movement."

    "The most pernicious problem that women face in getting access to land, and
    having security of tenure, is customary law. This law is not codified (that is,
    written down), and certain common practices today are not “traditional” (that
    is, unchanged from the past). Property grabbing, for example, is not
    traditional. In the past widows and children were looked after by their in-laws,
    rather than robbed. People invoke the sanctity of customary law when it suits
    their personal interests. A male farmer, for example, who benefits from his
    control over his wife’s labour on his fields will not altruistically allow her to
    have her own land. Women who stand to gain from the misfortune of a
    widowed in-law will be in the forefront of property grabbing. Discrimination
    against women under customary law is protected by the Constitution, the
    Lands Act and the Intestate Succession Act. "


    "The Constitutional Review
    Commission (1995) recommended that “the Constitution should reaffirm the
    principle of equality for men and women in all respects ………. [including] that
    women have equal rights with men regarding the use, transfer, administration
    and control of land and enjoy the same rights with men with respect to
    inheritance.” This recommendation was not accepted."


    Also, I really really want to know what they were smoking when they gave prevalence to customary law in family matters.
    Unless one planned on a future where Zambians didn't move outside their home region and didn't marry outside their ethnic group, it only makes sense to standardize the law.
    And beyond that, with customary law being uncodified, why are people surprised that it's made up on the spot half of the time ?

    ReplyDelete
  2. You correct that "customary" law introduces some inefficiencies in the system. But such changes have to be gradual and move with society. Again these are trade-offs which need to be made between the "local values" and national goals.

    ReplyDelete
  3. ou correct that "customary" law introduces some inefficiencies in the system. But such changes have to be gradual and move with society. Again these are trade-offs which need to be made between the "local values" and national goals.

    Cho, why do you hate women ?

    But more seriously, are "propriety grabing" local values ? Or are the local values that justify them worth preserving ? Is "propriety grabing" and the effect it has on children, widows just a mere inefficiency ? What's the point of gradualism when "Property grabbing, for example, is not
traditional. In the past widows and children were looked after by their in-laws,
rather than robbed. People invoke the sanctity of customary law when it suits
their personal interests."

    How do you make that change except by making it clearly illegal in any case all the time ?
    Will traditional law really be in danger if it's stated that it cannot justify horrible practices ?

    ReplyDelete
  4. Just as well my wife does not read this, though my father in law may! So for the record I am pro gender equality, for fairness reasons. My point really is that we simply need to be clear WHY we are arguing for a certain position.

    I think change is gradual purely from an enforcement point of view. Simply saying something is legal does not make the practice change.

    ReplyDelete
  5. I think change is gradual purely from an enforcement point of view. Simply saying something is legal does not make the practice change.

    Yeah but if a practice is legal, there is nothing to enforce.


    In Zambia, gender discrimination is legal within family law. (article 23 of the constitution)
    The Intestate Succession Act is unapplicable when it comes to land under costumary tenure, making it valid for what ? 10 % of the land ?

    What is there to enforce with such laws ?

    So for the record I am pro gender equality, for fairness reasons. My point really is that we simply need to be clear WHY we are arguing for a certain position.

    Half of the population doesn't have secure propriety rights. Not only it's immoral and unfair but it won't exactly help growth and devellopment.

    ReplyDelete
  6. Shakara,

    Half of the population doesn't have secure propriety rights. Not only it's immoral and unfair but it won't exactly help growth and devellopment.

    Excellent and essential point. Without secure property rights, people can't invest in their property, whether that is a piece of land, a building or a farm.

    So the question is - what is the solution?

    Individual property rights, including in communal areas? Collective property rights?

    In the case of individual property rights, would it be best to simply give people or families the right to their own piece of land? Or should chiefs stay in control of the communal areas?

    ReplyDelete
  7. You know Shakara was me, right ?
    (something weird happened to my wordpress openid)

    And when I said half of the population, I refered to women. I mean to an extend, people do have *some* propriety rights even in communal areas. Of course those are rather insecure both in theory and in practice but they're close to non-existent for women.


    In the case of individual property rights, would it be best to simply give people or families the right to their own piece of land? Or should chiefs stay in control of the communal areas?

    I think communal rights are a slippery-slope (and that's one of my beefs with Zimbabwe, the fact that after independence they mantained those in the former "tribal areas"). However, while communal landholdings do slow investment, have "tragedy of commons" issues, switching to individual propriety rights is not exactly easy or painless. And it's possible to improve tenure security (or maximize private returns) within communal holdings. That's what China did, through the Village Entreprises, and that worked well.

    Because I can't see chiefs making any effort to modernize the system (mostly because they're the big beneficiaries of the current one), it's definetly a bad idea to give them anymore control than they have by simply being influential citizen.

    What do you think ?

    ReplyDelete
  8. Random,

    "Yeah but if a practice is legal, there is nothing to enforce."

    A new bill of rights has been proposed as part of the new draft constitution...

    My point was simply that good laws don't make good societies..

    ReplyDelete
  9. A new bill of rights has been proposed as part of the new draft constitution...

    Does it include full gender equality ? And if yes, does that clause override religious or traditional law ?

    Do you have a link to the new bill of rights ?

    My point was simply that good laws don't make good societies..

    I think we both agree on that.
    But may be you shouldn't have taken an example where the law was bad. Or shouldn't have tried to defend the badness of the law.

    ReplyDelete
  10. It is contained in the Mungomba Draft Constitution, which is currently being debated by the National COnstitution Conference.

    The Bill of rights will overide all other laws. Thats why people want it fully enshrined.

    ReplyDelete

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