Why women need to know property rights

For many family and women advocates, the amendment of the Succession Law is one they have longed for for so long. Naima Isa, a programme associate at FIDA during a webinar – ‘Understanding the succession amendment bill and what it means for women in Uganda, shared that the Succession Law, then was obsolete. She cited that it says widows should give up matrimonial property once they remarry. However, widowers who remarry are not talked about. “We need to ensure equality even when one loses their husband,” she said.

According to a ruling by the Supreme Court in the case of Law Advocacy For Women in Uganda Vs Attorney General – Constitutional Petition No. 13 of 2005, activism by human rights groups, politicians and ordinary persons pushed for the amendment of the law on succession. Several suggestions were made as captured on the parliamentary website.

Contestation

However, when it was presented before the President, it suffered a glitch as he did not assent, citing a couple of reasons. Joyce Nalunga Birimumaso, a lawyer and member of the leadership code tribunal said he wondered what would happen when the widow had no children yet there are dependant relatives!

“The spouse takes 80 percent and the others have 20 percent. Why not maintain the ratio of 50 percent for the spouse, 49 percent for the relatives and 1 percent for the customary heir?”

Other affected parties are women, who should share the property with relatives upon the demise of their parents. One of these was Ms Skitter Nanteza, whose paternal uncle raised an issue to the lands commission in State House, against her paternal aunts in April 2019.

He believed that they had fake letters of administration though the land was under caveat and the issues were before the administrator general for sharing among the family. A family meeting was convened but he did not attend this meeting.

“We called him (Mr Hassan Njakasi Kigozi) on phone and he agreed with most of the conclusions of the meeting. Unfortunately, he later changed his mind, asked for bigger shares, far different from what had been agreed in the meeting. I consulted with a lawyer who advised that we go back to the State House land commission,” she explains.

While she put all things in writing, she says the commissioner at State House was not as helpful as she expected. Nonetheless, she stood strong to seek justice.

“We arranged for the meeting and it was clearly stated that that my uncles and aunts had already had their share and what was left was for the other family members. The former had already sold their share of the family land. In the middle of all this, they had already processed fake letters of administration to claim ownership over the land,” she narrates.

Land wrangles

In January 2020, Nanteza says those who were opposed to her, fought and destroyed her plantations of bananas, coffee and cassava, in an attempt to sell the land. “I immediately called the OC station Zirobwe although he did not come in time. I later involved the District Police Commander (DPC), Criminal Investigation Department (CID) at Luweero, Resident District Commissioner (RDC), Anti-corruption Unit of State House and media, who helped me get justice,” she added.

There is stigma against women who own property. Many have been pushed to have the property registered in the names of the husband or male family member.

However, the Constitution of the Republic of Uganda provides for equality in marriage encapsulated in Article 31 (1) That men and women are entitled to equal rights at the point of entering marriage, during marriage and at its dissolution. This is further enshrined in Article 21 where everyone is equal regardless of gender.

One of the contentious topics is the definition of ‘family land’ and within the premise of Section 38A (4) of the Land Act is defined as land a) on which is situated the ordinary residence of a family; b) on which is situated the ordinary residence of the family and from which the family derives sustenance; c) which is treated as family land according to the norms, culture, customs, traditions or religion of the family;

Anthony Zziwa of Muhumuza, a lawyer working with Kiiza Advocates and Legal Consultants, says it is important to note that the said customs, traditions or cultures should not be repugnant to natural justice, equity and good conscience (see section 15 of the Judicature Act, Cap 13). This essentially means that the said customs should embrace the rights of women and not discriminate against them.”

At the point of divorce

Additionally, the property a couple chooses to call home will be considered joint matrimonial property. Family and matrimonial home are synonymous but the Mortgage Act of 2009 clarifies that a couple can have as many matrimonial properties as possible and location is not an issue. However, properties that people own individually do not qualify. Additionally, one could be married yet have property that is not matrimonial.

Zziwa says in the case of Muwanga versus Kintu,  High Court Divorce Appeal of 1997, (Unreported), Lady Justice S B Bbosa also noted that matrimonial property is where a spouse makes a substantial contribution to the property. The contribution may be direct and monetary or indirect and non-monetary.

This was drawn from the case in the Court of Appeal of Kenya in Kivuitu versus Kivuitu, [1990 – 19994] E.A. 270.  Here, Justice Omolo found that the wife indirectly contributed towards payments for household expenses, preparation of food, purchase of children’s clothing, organising children for school and generally enhanced the welfare of the family. He thus ruled that this amounted to a substantial indirect contribution to the property.

On pledging property in the bank

Zziwa says the law requires that one declares their status - that is not what it originally was but the Land Act, section 38 (a) was amended to say before one creates a change on any land or property, they need consent from the people who have interest in that property and the spouse comes into play. “Of course, they start with the spouse, children, and then any other persons.”

Property given to women

A spouse can give their partner land either verbally or in writing. This is common in rural areas, where the husband will divide up the pieces of property among his wives. They usually know their demarcations and in that case, allocation is easy to prove. Nevertheless, in cases where the spouse says that the allocation happened during a conversation in the night, it is not easy to prove.

On sharing property

Upon the death of a husband, Counsel Zziwa says the first question to be asked is if he left a will. “If he did, then (barring the will being invalidated) the property would be shared as stated in the will. Where there is no will, then the property would be shared under the laws of intestate succession; after obtaining Letters of Administration.

Generally, a legally wed (religious and customary) spouse is the first priority to obtain letters of administration and thus need not obtain a Certificate of No Objection from the Administrator General’s office,” he expalins.

On the other hand, if people have been cohabiting, the law does not protect these in case of the demise of the other party, in the absence of clear evidence of separation or joint ownership.

In case of disgruntlement

In this case, the law has made an exception of two types of caveats that can stay on until the matter is resolved. In fact, the one disturbed by the caveat existence will go to court.

Caveat by a spouse

Its removal is tantamount to announcing that the property is no longer matrimonial property. This ruling can only be done by the courts and never the land registrar.

The beneficiaries caveat

This is filed by a beneficiary of an estate after the demise of say, a parent or husband. It is only contested in court and the grounds of removal are if the court declares that the said beneficiary is actually not one. However, it is still tricky for children because while the Land Act has recognised their rights on land, it states that children are those below 18. “Therefore, it is redundant to find a 30-year-old placing a caveat on a piece of land as a child because such is deemed as an adult not dependent on their parent. Nonetheless, one who is disabled yet above 18 can be a dependant.” In as much as caveating is legal, it is better to take the matter to court because it will bring a final court pronunciation. However, owing to the case burden- an injunction (an order to stop something from happening) can be done.

For example, to delay a sale or takeover of property, an injunction will help you buy time. “Since it needs hearing, the courts of law have given court registrars powers to make interim orders – to preserve a certain situation and they expire after 60 days. They work for registered and unregistered land although the risk is higher for the latter because it is exchanged by a mere agreement and fraudulence cannot be checked,’’ says Ziwa.

Equality

Justus Abitekaniza, a field officer at FOWODE in Luwero says decisions made on land that affect women and girls have to be equally and equitably made. “Our intervention in land matters and/or cases of that nature is project-based but also initiated from our beneficiaries. As a women’s rights organisation, our main participation in land cases or related matters is after building the women’s and girls’ capacity to demand, enjoy and protect their land rights. That is majorly through civic education of masses and target women groups. We also have organised meetings and training on women’s rights- including land rights,” he explains.

Abitekaniza says between 2018 and 2021, the office registered more than 15 complaints of land rights violations on women and girls. These are centred on land succession, forceful eviction, land grabbing and land administration. “We intervene through making referrals for the women, networking with the relevant offices and land rights organisations to help women get justice through our contacts,” he shares.

Land issues

From their interactions, Abitekaniza says there are basically four prevailing drivers to these land problems. These are deficits in land administration and land conflict resolution, corruption, ignorance of the law on both land rights and land dispute resolution processes as well as poverty index among women.

He says these can be solved through enhancing the knowledge of women to prevent, mitigate, resolve and manage land-related conflict, building women’s capacities to join enterprise, enhancing women’s financial literacy thus increasing their access to credit to improve their businesses and later get capacity to access and control land as well as popularising the law among women.

New ammendments

With the suggestions from different parties harmonised, early last month (March), the succession bill was amended and the changes include:

Clause 21 of the Bill amended Section 2 of the Act by way of repeal, to remove distinctions between children, who were classified as those born in and out of wedlock for intestate estates. Intestate refers to an estate where the deceased left no will. In the new law, 20 percent of a deceased’s property will not be shared, but left to see minors, if any, through school.

Clause 24 also now implies any parent of a minor may, by will, appoint a guardian, ending the man-only affair that this activity previously was.

The passing of clause 31 now means all witnesses will write their names and sign against every page of a will, for it to be valid in law, giving it an extra fool-proof layer.

The law also creates the offence of evicting or attempting to evict from a residential holding lineal descendant or dependent relative who is entitled to occupy the residential holding.

Fines

Offenders will now suffer a fine of Shs1.36m or imprisonment for up to seven years or both imprisonment and fine.Disposing of residential property will now contend with the consent of lineal descendants and the living spouse, a move activists say will end the habit of rendering homeless especially widows, after the death of their spouses because of family members ganging up to dispose of residential property.

Section 27 of the Act, which dealt with percentages of shares that are obtained by lineal descendants or relatives was declared unconstitutional in the case of Advocacy for Women in Uganda Vs Attorney General, necessitating the amendment to provide for a new legal regime that conforms with the court ruling, whose substance was that the law discriminates against women.

Clause 17, the most contentious, related to the right of divorced wives to stake a claim to the estate. The new legislation now says a woman, whether divorced, has a claim to the estate, especially on things achieved while the marriage subsisted.

What women must know

Zziwa urges women to go with their husbands for land inspections if they are considering to buy. ‘‘Do not leave everything to the man. Ensure that your name appears on the agreements. Be involved. Ensure that your name is on the agreements,” he says. In instances where a woman must validate her contribution to the property in cases where it is said she has no right in it, Zziwa advises that they can show evidence of contribution through payment receipts and sale agreements. The wife can also lodge a caveat on the title to protect her interest in family land.

There is also need to educate women about their property rights. “The community and local authorities should also be involved. ” he urges. Women should not be afraid to buy property on their own and have it in their names,’’ Ziwa adds.