How fair is the new family property law?

Thursday April 08 2021
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Nsubuga Mukedi

The media on April 1, was splashed with news of a new set of family property sharing legislation that intends to overhaul the incumbent succession Act of 1906 in Uganda.

The justification for this overhaul was cited to include various aspects that have been overtaken by events in light of the Constitution, government policies and plans, emerging international best practices and the prevailing legal environment among other factors.

The new law makes it compulsory for men to provide for their spouses, lineal dependants and relatives in the following statistical manner; spouse of the deceased 20 per cent, lineal dependants, 75 per cent, other dependants 4 per cent and the cultural heir 1 percent according to intestate situations.

The law doesn’t provide a mechanism on how the proposed family property fragmentations shall be secured to deter wastage and promote joint family use for sustainable wealth creation, job creation and socio-economic development.

The new law provides for a 20 per cent share for a spouse in an intestate situation but ignores or neglects to name a particular spouse (wife) in the case of a polygamous marriage or multiple relationships. This is outright discrimination, totally unfair and a terrible human rights abuse initiated in families especially where several women and child bearing relationships are involved.

The law provided that a spouse who remarries before the estate of an intestate is distributed shall be entitled to the share he or she would be entitled to under the former marriage.

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Spouses, especially those under problem families, not God hearted or property/wealth obsessed may accelerate the invisible death of their wives or husbands in positioning themselves to capture and accumulate quick wealth as they move on into several new relationships for a similar mission. If not deterred, marriages may become business under this unfortunate article.

The law provides for a two to four years period to resolve and distribute the estate of a testator and an intestate. This is a very unfair timeline for the executors in the case of l etters of probate and administrators in the case of letters of administration.

Whereas estates are required to be speedily collected and distributed to their beneficiaries, some estates have multiple challenges, conflicts and court cases which cannot be quickly handled and dispensed. A land case takes a minimum of five years in Ugandan courts before being resolved due to certain and uncertain judicial challenges. Some estates are not for immediate distribution but rather onward administration. How shall estate governance be effectively conducted under these stricter terms? It is practically impossible and technically not feasible to work within this new legislation according to experience.  For the few articles I have observed and critiqued, the new law does not provide for family land, clan and ancestral lands and also doesn’t effectively define a family home and its holistic composition.

Whereas the law protects a family home from being distributed, it prescribes nothing on the family burial grounds and other relevant lands or estates that may be conserved by the past generations for family continuity and intergenerational use and excellence.

The new law criminalises the improper services of administrators and executors with very heavy sentences but does not provide for a minimum pay or compensation for their holistic services. This is ridiculous, terribly horrible and inconsiderate for the great work administered by these officials towards the deceased’s estates.

This kind of unfairness should be rejected and completely discarded. Probate and administration roles should be adequately described, upheld, secured and paid for under the new law established.

Be it as it may, this new legislation endeavours to jump –start the equality in property ownership in Uganda. The ball is now in the hands of my beloved head of estate to say yes or no to this new legislation given the circumstances.

Mr Mukedi is a development expert and senior public management scientist.

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