Final Draft-IsA Working Paper (Reviewed)2

CHAPTER ONE

Background

a) Origin, Method and Justification of the Investigation

1.1. 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.

1 Chapter 59 of the Laws of Zambia

1Peace 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;


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.

b) 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 owner2.

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 www.britannica.com3 www.books.google.co.zm4 ibid5 Black’s Law Dictionary, 5th Edition6 Kameri-Mbote, P., (1995), The Law of Succession in Kenya: Gender Perspectives in Property Management and Control, Women and Law in East Africa, p2.


1.10. 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

Customary Law as follows:-

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.

7 S.3 of Cap 59 of the Laws of Zambia8 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.2210 Zaloumis, F. M., Approaches to Gender Equality under Customary Law, http://( www.vanuatu.usp.ac . last visited 29th April 2010.


http://www.legal_disctionary.thefreedictionary.com/intestate

1.14. Similarly, Gluckman defined, Customary Law as the unwritten African traditional law

which consists of a variety of different types of principles, norms and rules, some of them

state wide and general principles of morality and public policy to constitute an apparently

enduring ideological framework for justice.11

Property grabbing

1.15. 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. 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. 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. Such relatives often argue that the property was

owned and belonged to the deceased. They reason, therefore, that the property should go to

them.

11In Zaloumis,, F, M., Approaches to Gender Equality under Customary Law,


CHAPTER TWO

A Literature and Law Review

Introduction

2.1. Many works conducted on intestate laws reveal similar findings. An analysis of

various literature revealed a lot of apprehensions on the intestate law in its current form. This

chapter gives a brief review of scholarly literature and the normative framework at domestic,

international and regional levels on inheritance and succession. It also briefly traces the

history of the Zambian legal system which is the root of the concerns discussed in this

working paper.

Customary Law and the Dual Legal System

2.2. Before colonization, Zambia was exclusively governed by customary laws. During the

period before 1924, Zambia (Northern Rhodesia) was colonized by the British South Africa

Company (BSAC) under the Royal Charter granted to Cecil Rhodes by Queen Victoria.

Article 14 of the Charter provided that in the administration of justice by the courts set up

under it, 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. Mushota 12

accordingly asserts, that “juridical relations between natives continued to be governed by

customary law especially with regard to marriage, inheritance and succession matters to the

extent that it was not repugnant or offensive to morality and good conscience”.

2.3. To date, Zambia’s legal system is regulated by two different systems of law,

customary laws and statutory law (or written law) operating side by side. Customary law

represents customs, values and traditions of the ethnic groups, recognized and accepted over

time through usage. 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. 12 Mushota, (2005) Family Law in Zambia: Cases and Materials, UNZA, Lusaka, p.213 Chapter 10 of the Laws of Zambia14 Chapter 11 of the Laws of Zambia


2.4. Customary law is not codified but comprises unwritten social rules that are mainly

passed on from one generation to another. 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. This logic has also permeated all

instructions of socialization. There are various kinships patterns in the country.15

2.5. The kinship patterns were matrilineal ethnic groups which practice matrilocal

residence (uxorilocal marriages), e.g. the Bemba of Northern Province and the Nsenga of

Eastern Province; matrilineal ethnic groups which practice patrilocal residence (virilocal

marriages), e.g., the Tonga of Southern Province and the Lunda of North Western Province;

patrilineal and patrilocal ethnic groups, e.g., the Mambwe and Namwanga of Northern

Province and the Ngoni of Eastern Province; and bilateral ethnic groups, e.g., the Lozi16 of

Western Province. The customary law notions of marriage, property, 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.17

2.6. Under this system, inheritance is, with a few exceptions, determined by rules of male

primogeniture.18 Male preference is effected whether under matrilineal or patrilineal

principles. So while under matrilineal societies the female line is used to inherit, (most of the

region is matrilineal) property normally passes to the nearest matrilineal male, usually a

nephew of the deceased person and not necessarily the sons. In patrilineal societies it goes to

the sons or the oldest son of the senior wife (in cases of polygamy). Ultimately the heir is

always a male relative, never a female.

2.7. In most societies, the order of priority is thus always male, with male descendents,

ascendants, siblings, collateral males, then only widows and daughters. Women are at the end

of the inheritance list and are therefore unlikely to inherit. The daughters therefore do not

inherit in their own right and can only be assigned land to use by the inheriting male (who

15 WLSA, (1997) Inheritance in Zambia, Law and Practice, Lusaka, p.10.16 The Lozi are at times classified as patrilineal due to two main reasons, namely (a) they practice patrilocal residence, (b) the concept of ownership of children is similar to that practised by the patrilineal groups, i.e., children are deemed to belong to the man.17 WLSA, (1997) Inheritance in Zambia, Law and Practice, Lusaka, p.10.18 The South African Constitutional Court in the case of Bhe V Magistrate, Khayelitsha and others, CCT 49/03 (2005 (1) BCLR 1(CC)) has however ruled against this practice.


may be their cousin, brother or uncle). In marriage and widowhood, all they get are usufruct

rights.

2.8. These social systems are more prevalent in rural or under customary tenure and their

customs, 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.

Interestingly, approximately 80% of land in the country is customary land. In southern

province custom requires the selection of a successor upon the death of a person.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. This role lasted for the lifetime of this

person.

2.9. Widows normally return to their natal villages where they start cultivating land that

belongs to their matrilineal male relatives.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. This has declined due to the HIV/AIDS pandemic.

2.10. With the breakdown of these social structures more widows are disenfranchised of

their livelihoods and forced to return to their natal homes. The case of Chilala v. Milimo,21

dubbed “the case of the 17 graves” illustrates this problem. In this case Mrs. Chilala had been

married for over 30 years when her husband died. The estate which she had developed with

her husband was her home. She could not be reasonably expected to return to a natal home

that she had left so long ago. In addition, the pension of her husband had been used to

develop this land which was their home prior to his death. She would have left years of

19 WLSA, (1997) Inheritance in Zambia, Law and Practice, Lusaka20 Machina H, (2002), “Women’s Land Rights in Zambia: Policy Provisions, Legal Framework and Constraints” Zambia Land Alliance, Presented at the Regional Conference on Women’s Land Rights, held in Harare, Zimbabwe, from 26-30 May 2002.21 LAT 099/1999,) In this case, Mrs. Chilala was being forced off her husband’s land after his death by the successor whom she had refused to marry. The land was held under customary tenure and the custom requires widows who are not inherited to return to their natal home. The successor turned Mrs. Chilala’s front yard into a burial ground. By the time the decision of the Lands Tribunal was made a total of 17 graves had been buried there. The Lands Tribunal was unable to adjudge the case on grounds that it was a matter concerning customary land. The burials of deceased persons only stopped after mediation by Royal Foundation of Zambia.


investment and development. The alternative of being inherited by her in law was a violation

of her human rights.

2.11. According to Machina,22 among the Ngoni of Eastern Province, on a man’s death

inheritance is essentially on the principle of primogeniture (inheritance by the first born).

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. According to

Mvunga23 the context of primogeniture amongst the Ngoni means firstly, inheritance of a

man’s estate by his eldest son, where all his children are born of one and the same wife.

Secondly, it may mean inheritance by the eldest son of the senior house, where children are

born of various wives in a polygamous marriage. Lastly, 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.

2.12. This operated with a given socio-economic setting that ensured reciprocal obligations

and rights. This socio-economic setting was interfered with by urbanization and the rapid

changes in the way society organized itself, new forms of wealth, and individualization.24 It is

said that this created a crisis of expectations and was compounded by differences in values. 25

Cultural practices began to change and a manipulated version of the traditional inheritance

scheme's original form and intent began to emerge. A phenomenon referred to as property

grabbing became common. The deceased man’s relatives literally grab his property,

including ‘his house’ from his widow and children. This led to an outcry by women’s groups

in the country.

2.13. In the Zambian legislation, the recognition of customary law is provided for in a

number of statutes. Primary among these is the Local Courts Act26 which provides that the

Local Courts shall administer African customary law in so far as it is not repugnant to natural

justice, morality or incompatible with any written law. The Local Courts have original

jurisdiction in matters of customary law. The gendered application of customary law is

22 Machina H, (2002), “Women’s Land Rights.23 Mvunga P.M, (1982), Land Law and Policy in Zambia, Maimbo Press, P.O Box 779, Gweru, Zimbabwe.24 Women and Law in Southern Africa-Zambia, 1997. Inheritance in Zambia: Law and Practice, Lusaka, 12.25 Women and Law in Southern Africa-Zambia, 1997. Inheritance, 12.26 Chapter 29 of the Laws of Zambia


compounded, in many cases, 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, therefore,

frequently unaware of developments in human rights law that need to be considered in the

application of customary law.

2.14. Additionally, 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, morality

and good conscience.27 The Constitution also recognizes the application of customary law in

Zambia in personal law matters relating to marriage, divorce, property settlement and

succession.28 However, these laws sometimes cross paths and conflict in standards and

values.

Domestic Normative Framework

In addition to the Intestate Succession Act, the following laws have a bearing on the distribution on intestate estates:

i. The Administration of Testate Estates Act, Cap 60

ii. The High Court Act Cap 27;

iii. The Local Court Act Cap 29;

iv. The Administrator-General’s Act Cap 58;

v. The Lands Act Cap 184; and

vi. The Constitution Act Cap. 1 of the Laws of Zambia

2.15. Although a lot of policies and laws have been put in place over the years concerning

equality in relation to land issues, marriage, inheritance and succession, they receive a blind

eye especially in rural areas where the land is mostly under customary tenure.

2.16. The Constitution: The Constitution regulates among other things, the use of state

power and also relations between individuals; it also protects people from arbitrariness either

from government, its agents or from among themselves by stipulating regulations to be

followed in the conduct of affairs. It also creates rights, duties and obligations on the State

and citizens. The Constitution protects ownership from arbitrary deprivation without

27 Section 1228 Article 23 (4) (c)


adequate compensation29. Further, it guarantees and protects an individual’s fundamental

rights and freedoms, including the right to own and use land without arbitrary interference.30

Under this article, an individual’s continued enjoyment of these rights and freedoms is

protected regardless of whether one is single, married, divorced or widowed. The

Constitution outlines conditions under which the right to property can be legally interfered

with and includes such purposes as:

“...administration, care or custody on behalf of and for the benefit of

the person entitled to the beneficial interest therein.”31

2.17. The Constitution also prohibits discrimination of any law on any grounds32.

Notwithstanding the foregoing, 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, marriage, divorce, burial,

devolution of property on death or other matters of personal law;33 Therefore, discrimination

on the grounds of personal law matters is permitted, and consequent to this, devolution of

property is discriminatory thereby disadvantaging people that should ordinarily inherit from

deceased estates. 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.

2.18. The High Court Act: In accordance with the provisions of section 38 of the Local

Courts Act, 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

under subsection (1), the High Court shall make such order or give such directions in relation

thereto as it shall think fit. However, the High Court Act does not provide for a time limit

within which such applications should be disposed of. This may be a cost on the estate, hence

affect the interests of the beneficiaries. Further, if the proceedings are lengthy they may affect

the size of the estate to be distributed.

29 Article 1630 Article 1131 Article 1132 Article 23(1)33 Article 23(4) (c)34 section 38 of the Local Courts Act, Chapter 29 of the Laws of Zambia


2.19. The Administrator–General’s Act: The Administrator – General’s Act also deals

with administration of intestate estates. According to this Act, the Administrator-General can

apply for probate or for letters of administration in the following instances35;

a) Where the deceased has left a will, but has failed to appoint an executor;

b) Where the deceased has left a will, and the executor therein named has pre-

deceased the testator or renounced probate or signified his intention of not

applying for probate;

c) Where the deceased has left a will appointing the Administrator-General his

executor;

d) Where the deceased has died intestate as to his property in Zambia;

2.20. However, 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. 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, or

that great expense would be incurred by delay in the matter, the aforesaid notice of intention

to apply may be dispensed with”36.

2.21. 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. 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, or to both, but without prejudice

to any civil liabilities he may have incurred”. 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.

2.22. The Local Courts Act: The Local Courts are charged with the application of

customary laws in relation to non-statutory marriages, divorce, reconciliation, child custody,

35 Section 736 Section 11


payment of lobola, pregnancy suits, 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, the Court undertakes the supervision of such administration. The

Court also has the power on application to revoke letters of administration so granted in

accordance with section 36 (1).

2.23. Section 36 (4), 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, “where any administrator administers contrary to customary law, 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;

b) in addition to any penalty which is imposed above, the court may order

the restitution to any beneficiary the property so deprived of and shall

revoke such appointment of the administrator.

2.24. Section 2 (2) provides for administration of properties that are not subject to the ISA

and includes, land held under customary law, acquired institutionalized chieftainship property

and family property. Therefore, where an administrator does not discharge his duties

accordingly under customary law or where there is abuse in the discharge of his/her

obligations, 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.

2.25. In an unreported Local Court case of “Estate of Jon Jere38” held in Chipata, 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. In this case, the son’s order of

37 Section 12(1)(a)38 Local Court Grade ‘A’ Case No. 423 of 1982


appointment was revoked. 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.

2.26. While local court magistrate4s are well-versed in the various customary laws, they are

not trained in human rights law. The result is that they seldom take into consideration the

gender dimensions or criminal aspects of the cases before them. This often has a prejudicial

impact on the ability of the parties and, in particular women, to present their claims and goes

against the fundamentals of natural justice.

2.27. 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. The inconvenience

caused by the waste to the estate may not be adequately addressed by the penalties prescribed

under the Act. Section 36 provides for a penalty of fine and imprisonment six months. In

addition, the court may also order restitution of property and the revocation of the

appointment of the administrator. Further, the criminal sanctions do not help the beneficiaries

deprived by the waste occasioned to the estate. Because of these matters the jurisdiction of

local courts under the Act must be enhanced.

2.28. The ISA places jurisdictional limits on the value of the estate that Local Courts can

preside over. However, this Act does not provide for the transfer of cases whose estates

exceed the limit imposed by the ISA under section 43(2). Therefore, for the avoidance of

doubt, the Local Courts must also transfer such matters to either the Subordinate Courts or

High Court depending on the value of the estate concerned. Although some provisions of the

Local Courts Act are progressive in terms of safeguarding the interests of the beneficiaries,

enforcement of its provisions is weak.

2.29. Lands Act: The Lands Act regulates land tenure system in Zambia. It provides for the

vesting of all land in the President, who holds it in trust for the people of Zambia. Section 7

of the Lands Act provides for the recognition of customary holdings and provides as follows:

1) Notwithstanding subsection (2) of section 32 but subject to section nine, 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.

2) Notwithstanding section 32, 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.

2.30. In theory, the Lands Act does not discriminate against women. It however ignores the

long historical reality of an unequal society in which women have not had access, ownership

and control over land. It assumes that there is gender equality in land. Hence the law has no

gender sensitive framework under which this imbalance could be checked and corrected. 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.

2.31. 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. In the matter

of Ireen Lubasi v. Charles Lubasi and 3 others39, the respondents took out an action in the

Lands Tribunal against the appellant, their step mother arising from the distribution of the

estate of the deceased. The dispute related to the proceeds of sale of a plot of land which fell

to be administered under the ISA. In making its decision, the court held that, “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 court further said that “the Lands Tribunal has no

jurisdiction in matters of inheritance, even where the estate includes land or real estate”. 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.

2.32. The Lands Act also provides for the conversion of customary tenure to leasehold

tenure. In making any tenure conversion application, the Act provides that persons whose

interests may be affected by the said desire to convert from customary to statutory tenure

39 SCZ judgment No. 20 of 1998


must be consulted40. In the case of Henry Siwale and 6 others v. Ntapalila Siwale41, the

respondent applied for formal title for his deceased’s father’s land held under customary

tenure. He was granted title without the knowledge of his siblings who clearly were affected

by the grant. In deciding the matter, the court ruled that, “in alienating customary land, the

President shall first consult parties whose interests might be affected by the grant” and

clearly, there was no consultation in this matter and the title was accordingly ordered to be

amended to include the names of the brothers.

2.33. Although the law provides for the conversion of customary tenure to leasehold tenure,

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. Many people in the rural areas are not aware that

they can convert their land holding from customary to statutory tenure. Although there is

marked resistance from chiefs to convert part of their land to statutory tenure, it would be

beneficial for the rural population to know that the law does provide for such conversion.

International and Regional normative framework

2.34. As a member of the international community, Zambia is party to several international

human rights instruments. With regard to intestate succession, the following instruments have

been identified as having a bearing:

2.35. Universal Declaration of Human Rights (UDHR): Adopted in 1948 and although

not binding, the UDHR is the basis for international human rights law. It comprises guiding

principles for the conduct of national and international affairs. In its preamble, it affirms the

United Nations’ commitment to respect fundamental human rights, 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.

2.36. In addition, the Declaration prohibits any form of discriminatory treatment. Therefore,

Articles 7 of the UDHR provides for the equal treatment of all without discrimination of any

kind. The Declaration requires that there is equality of treatment in respect of ownership of

property regardless of status or gender. With this in mind, it is important that efforts are

40 Section 3(4) (c)41 SCZ Judgment No. 24 of 1999, Appeal 29/98


made to remove discriminatory provisions in our national legislation in terms of ownership of

property in Zambia.

2.37. The Declaration ultimately recognizes that equality can best be safeguarded by law. It

is imperative to examine the ISA in light of this provision to attain equality. 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”. Therefore property rights must

be understood as a fundamental human right.

2.38. The Convention on the Elimination of all forms of Discrimination against

Women (CEDAW): Zambia signed and ratified this convention in 1980 and 1985

respectively. The convention defines discrimination against women as

"...any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital status, on a

basis of equality of men and women, of human rights and fundamental

freedoms in the political, economic, social, cultural, civil or any other

field."

2.39. Under the Convention, States Parties to the Convention commit themselves to

undertake a series of measures to end discrimination against women in all forms, including:

to incorporate the principle of equality of men and women in their legal system,

abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination

against women;

to establish tribunals and other public institutions to ensure the effective protection of

women against discrimination; and

to ensure elimination of all acts of discrimination against women by persons,

organizations or enterprises;

to take all appropriate measures, including legislation and temporary special

measures, so that women can enjoy all their human rights and fundamental freedoms.


2.40. CEDAW requires Zambia to accord to women, in civil matters, a legal capacity

identical to that of men, and to take appropriate measures to ensure equal rights and

responsibilities in marriage and divorce. It accords the same rights to both spouses in respect

of the ownership, acquisition, management, administration, enjoyment and disposition of

property. To respect its obligations under CEDAW, 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, or on the death of a relative. Such a law would be discriminatory and

affects a woman’s practical ability, to support herself or her family and to live in dignity as an

independent person.

2.41. 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.

Therefore, by being party to this covenant, 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. 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, justice and peace in the world; therefore, as a

State Party, regard should be had to the creation of an enabling environment for the

attainment of these ideals.

2.42. As an ultimate goal, the ICCPR is premised on the fact that equality in forms of

activities is cardinal to the development of the human person; thus all laws and activities

must be based on this principle. Accordingly, in Article 23, the following are regarded as

essential to the existence of the human family:

1. The family is the natural and fundamental unit of society and is entitled to

protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family

shall be recognized.

3. No marriage shall be entered into without the free and full consent of the

intending spouses.


4. States Parties to the present Covenant shall take appropriate steps to ensure

equality of rights and responsibilities of spouses as to marriage, during marriage

and at its dissolution. In the case of dissolution, provision shall be made for the

necessary protection of any children.

With regard to the subject matter under discussion, clauses 1 and 4 are of particular

importance; 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.

2.43. African Charter on Human and Peoples’ Rights

Enacted in 1979, Zambia ratified it in 1987. By the provisions of the Charter, States Parties

agreed to respect the rights and dignity of the human person; additionally, they have agreed to

abide by the provisions of the Charter (also known as the Banjul Charter). In Article 2, States

Parties also agreed that every human being shall be entitled to enjoy his/her human rights

without any discrimination. 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.

2.44. 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. Therefore, according to the provisions above,

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.

2.45. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of

Women in Africa: Having signed the protocol in August 2005, Zambia ratified it in

November 2006. It affirms and emphasizes the commitment that States Parties made to the

Banjul Charter. 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,

institutional and other measures. 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”. This means that as a signatory to the Protocol, Zambia is required

to make amendments to its domestic laws to give effect to the provisions of the Charter.

2.46. States Parties are also required to modify their social and cultural patterns of conduct

of women and men through public education, information, education and communication

strategies, 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, or on stereotyped roles for women and men 42. Hence,

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. It also

affords a widow the right to continue living in the matrimonial house. 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.

2.47. SADC Protocol on Gender and Development: This Protocol was inter alia intended

for States Parties to harmonize national legislation, policies, 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. All these instruments were designed to

alleviate the discrepancies in terms of stereotype treatment between men and women,

including discrepancies on intestacy.

2.48. Although Zambia has made these commitments to the promotion and protection of all

human rights at the national, sub-regional, regional and international levels, people,

especially 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.

42 Article 2(2)43 Article 2


CHAPTER THREE

The Intestate Succession Act-A Review

Introduction

3.1. In 1989, 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. The Intestate

Succession Act is the principal legislation regulating inheritance or succession matters for

people who die intestate. The enactment of the Act was a response to wanton violation of

people’s proprietary rights. A significant landmark legislation in family law, it has to a great


extent, alleviated the hardship caused by the application of harsh customary law rules in

matters of inheritance especially in relation to the plight of women. Its application has

nonetheless been met with resistance.

3.2. Research has established a number of reasons for this. 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. 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, the adjudicators and the citizens

at large. 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.

3.3. Various studies indicate that the progress that could have been made under the ISA

has been negated by the discriminatory provisions, primarily in the Constitution of Zambia44.

In addition, the inapplication of the ISA to customary land has continued to deprive people of

their rights to property especially in rural areas of Zambia. Several studies have been

conducted to ascertain the performance of the Act from the time of its enactment.

3.4. 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. According to findings of this research, 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; it contains discriminatory provisions in favor of women and

children.

3.5. According to WLSA45, the problems of intestate succession in Zambia can be better

understood by considering evolution of the legal system from customary tailored values to

the western influence on our legal civilization. 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.

44 Article 23 (4) (c)45 Inheritance Rights in Zambia


3.6. Marriage contracted under statute affords spouse the right to share in the matrimonial

property including their spouse’s property and that acquired during marriage46. 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.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 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. In this chapter we review various literature pointing out the perceived

problems of the ISA.

1. Application of the Act

3.7. The ISA did not repeal any existing legislation; hence the English Intestate Law

applies to people who do not fall under the provisions of section 2(1) of the Act. 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.50 Although indigenous Zambians form the majority of the population with

seventy three (73) ethnic groups, the Zambian population includes a small percentage of non-

indigenous people of different origins who have Zambian citizenship or permanent residency

status. When such persons have died intestate, the administration of their estate becomes

difficult because in the letter of the law, although domiciled in Zambia, they may not be

members of a community to which customary law would have applied. At the same time

English Intestate Law may not apply to them.

3.8. The Act does not apply to land acquired under customary law,51 thereby leaving rights

accrued under this tenure to be inherited in accordance with customary law. In most of these

areas land has assumed the status of a vital asset, necessitating the need for its protection

46 Matrimonial Causes Act No. 20 of 200747Issue Paper, Property in Zambia ( http://www.undp.org)48 Current trends in judicial decisions are increasingly inclined towards the protection of these rights in marriages contracted under customary law49 COHRE (2004), Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women, A survey of Law and Practice in Sub-Saharan Africa, Geneva.50 Section 2(1)51 subsection (2) (a) (b) and (c)


against alienation outside the clan or family, on the assumption that when girls marry away

from their parental homesteads, they are not entitled to inherit land exclusively, lest they

transfer the land outside the clan or family through marriage.52

3.9. The principle of protecting clan land applies to male and female heirs. However, the

principle is applied in a discriminatory manner because while male heirs’ land rights remain

intact during their absence, females have no such advantage, especially in the case of

widows.53 This is because inheritance under customary law is determined by the rules of male

primogeniture discussed earlier.54

3.10. WLSA research findings also indicate that most local courts are biased against women

due to cultural inclinations. The WLSA study revealed that traditional authorities played an

important role in administration of estates. The findings emphasized the need to enlighten

people especially in rural areas on the existence of the Act. According to Centre on Housing

Rights and Evictions 55(COHRE) and other studies, 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. 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.

3.11. Further, findings56 revealed that most respondents did not understand the application

of the Act. 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. Therefore, they allege

that women have been killing their husbands so that they could get the properties left behind.

Due to the foregoing, they asserted that the intestate law is a bad law as it has exposed men to

“early death”. From the above, 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.

52 Nsemiwe Nsame, Gender Dimensions of Land Customary Inheritance under Customary Tenure in Zambia, 2006.53 Ibid54 Refer to chapter of this paper55 Bringing Equality Home : Promoting and Protecting the Inheritance Rights of Women-A Survey of Sub-Saharan Africa, 2004. 56 COHRE


2. Distribution of estates

3.12. The Intestate Succession Act spells out how the estate of an individual who dies

without a Will is to be shared. Relying on percentages, the Act allocates the surviving spouse

20% of the deceased's estate whilst the children get 50%. The deceased's parents are entitled

to 20%, and 10% for the dependants, if any as the basic distribution pattern. The Act

constitutes a radical departure from customary law notions of marriage, property, and

succession rights, which are themselves founded on traditional customs and norms.

3.13. These customs and norms have operated within the framework of established patterns

of kinship systems and gender segregated patterns of behaviour. Customary law relating to

inheritance in matrilineal societies is that when a man dies, his primary heirs are his nephews

(his sisters' children). This matrilineal system of inheritance stands in direct contrast to the

Intestate Succession Act, which focuses on priority dependants as defined in the Act.

3.14. The mode of distribution described in the Act gives rise to some complaints. The

portions allocated to surviving spouses are sometimes criticized as being inadequate and not

reflective enough of a spouse’s contribution to marital property. On the other hand, 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.

3.15. 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. 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. Customary marriages tend to be polygamous and the 20% has to be divided among

the widows, however many they are while a surviving husband enjoys 20% from each of the

deceased wives. It is therefore said to disadvantage women.

3.16. There are two principles that underlie Zambia's African customary law of inheritance.

These are male primogeniture and male preference primogeniture. Due to the application of

male preference primogeniture, sons are preferred to daughters when selecting potential heirs.


However, 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.

3.17. The Act provides that a woman surviving spouse only has a life interest in the house

which is lost on re-marriage. The Act is perceived as not placing the same restriction when

the surviving spouse is a man. Further, there are allegations that the Act is applied selectively,

i.e. people argue that it is only enforced when the surviving spouse is a woman and not a

man.

3.18. 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;

for instance the percentages which each beneficiary gets from the deceased’s estate are not

clearly understood. 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.

3.19. On the one hand, 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, whereas on the other hand, 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.58 Parents

argue that the education of children is an investment from which they must benefit. Still,

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.

3.20. The Act provides that personal chattels of the deceased shall be the exclusive property

of the surviving spouse and the children59. Concerns have been raised as to the fairness of this

provision. Some estates are very small with little or no money. Therefore, personal chattels

may be the only available estate and hence this means parents get nothing. There has also

been a view that in arriving at the share of the surviving spouse the duration of the marriage

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.

57 See section 558 COHRE, (2004), Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women, A survey of Law and Practice in Sub-Saharan Africa, Geneva, p.14859 Section 8


3.21. The law does not prescribe the period within which the administration of the estate is

to commence and terminate. Often times, administration of the estate begins when part of the

estate has already been wasted. Further, the Act does not prescribe adequate guidelines for

the appointment of administrators. In addition, the law needs to clearly spell out the role of

the administrator so that administrator abuse is curbed.

4. Appointment and role of the Administrator

3.22. An administrator is appointed for the sole purpose of administering the estate of

deceased person60. However, 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. The court must first take into

account the interests of the beneficiaries before a grant of letters of administration. In the case

of Mwalimu Beauty Nanyangwe Mbobola v. Chansa Mbobola61, the applicant and

respondent both applied for letters of administration for the estate of the applicant’s husband

and respondent’s brother.

3.23. 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. The deceased had three children outside wedlock whereas the applicant

only acknowledged one. The deceased also had his mother still alive. The court said, “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”. Therefore, in terms of section 16(1) of the

ISA, the court appointed both the applicant and the respondent as joint administrators to

distribute the estate to beneficiaries.

3.24. The role of an administrator has sometimes created a lot of misunderstandings

between different classes of beneficiaries. The concept of the administrator was alien to the

customs and practices of the various ethnic groups who rather used that of a successor. It has

60 Section 1561 1994/HN/489


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.

This results in offences being committed. In Raphael Njobvu and Charity Njobvu v. Kayula

Chewe (Sued as administrator of the estate of the late Dorothy Zulu62), the administrator

labored under the perception that as administrator, he had proprietary rights in the deceased’s

estate by virtue of that appointment. In this case, the administrator used to collect rent from

the deceased’s properties which he inherited under his lawful administratorship. The court

stated that, “from the facts of this case, 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”.

3.25. Similarly, the case of Gray Nachandwe Mudenda v. Dorothy Chileshe

Mudenda,63the administrator moved into his deceased brother’s matrimonial home with his

wife and children. He also gave himself legal guardianship and custody of the deceased’s and

the applicant children contrary to law. He also claimed to have enhanced the estate of his

deceased brother. Delivering the judgment, the Supreme Court stated that “the duty of the

administrator is not to enhance the estate but to collect the deceased’s assets, distribute them

to beneficiaries and render an account.”

3.26. In the case of Mwenya Mulenga Chitika (suing as next friend of Ruth Chitika) v.

Gift Zimba (sued as Administrator of the estate late Sylvia Zimba Chitika64), the court said,

“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”. In this case, the defendant as

administrator sought to live in the matrimonial home.

5. Corrective Measures in cases of estate abuse

3.27. Although the Act provides means for dealing with administrators and other people

that fail in the performance of their duties65, the processes leading to such recourse are

lengthy and often times involve very expensive litigation. Findings thus indicate that there is

62 1997/HP/188263 SCZ Judgment No. 12 of 200664 2000/HP/36865 Section 35


need for a time frame to be fixed to save the estate from waste and also expenses on the part

of litigants. Therefore, some concerned parties may decide not to pursue an erring

administrator because of the high cost involved in the process of obtaining redress.

6. Offences and Penalties

3.28. It has been argued that penalties contained in the Act do not adequately deal with the

offences. According to section 14 of the Act, the law provides a penalty of a fine or

imprisonment not exceeding two years or both regardless of the size of the estate wasted.

Similarly, section 35 provides a penalty of fine or imprisonment not exceeding one year for

personal representatives who deprive a minor. The law also provides for restitution of

property misapplied or value assessed by the court as the value of the property.

3.29. The argument in relation to these provisions is that, they do not adequately address

the problem created by the deprivation to the entitled person. Therefore, 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. In addition, 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.

7. Prohibition of intermeddling with estates

3.30. This Act does not provide mechanisms for preventing wasting of estate. Even though

there are mechanisms for redress, it would be important to provide for the express prohibition

of intermeddling with the estate prior to the appointment of an administrator.


CHAPTER FOUR

Comparative Desk Study

Introduction

4.1. A comparative desk study of countries that have legal pluralism and have existing

legislation regulating customary marriages was undertaken. The countries selected were

Kenya, Zimbabwe, Ghana and Uganda, all with legislation having been in place over a

considerable period of time. Research has established that countries with plural legal systems

have often had to deal with the conflict that arises between these systems. 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.

Uganda

4.2. A former British colony, Uganda’s legal system is based on both English Common

Law and African customary law. Historically, customary laws of inheritance operated side by

side with the Succession Act of 1964. In 1972, the Succession (Amendment) Decree (“the

Amendment”) was passed and made the Succession Act applicable to all Ugandans, with

extensive amendments relating to laws and customs regulating marriage, divorce and the

status of women.

4.3. The amended Succession Act restricts the application of customary laws and, inter

alia, recognizes the right of women to succeed their husbands. Widows inherit fifteen percent

of the estate. If there is more than one wife, the property is shared. Under Section 27 of the

Succession Act, girls cannot inherit their father’s property.66 Portions are also allocated to the

customary heir, dependent relatives, and lineal descendents (children and grandchildren),

who receive the greatest share of seventy-five percent67.

4.4. In addition, Section 15 of the Judicature Act68, limits the application of customary law

to the extent that it is not repugnant to natural justice, equity and good conscience and not

incompatible either directly or by necessary implication with any written law. Further, the

1995 Constitution provides for equal rights between men and women and holds laws and

customs that violate the constitutional guarantees on equality void.69

4.5. 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

66 FIDA-U and other women’s rights organizations successfully petitioned the Constitutional Court to declare this provision unconstitutional however; the Attorney General had yet to reform the Succession Act to address this issue at the time of developing this paper.67 Succession Act, (1972) Cap. 139, § 28(1)(a) (Uganda).

68 Chapter 13 of the Laws of Uganda69 Article 33


appointed as administrators. An administrator who misapplies or subjects the estate to loss or

damage, as the case may be, is liable to make good the loss or damage so occasioned.70

4.6. Minors or people of unsound mind are precluded from being appointed as

administrator.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.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. 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, children under 18 years if male and under 21 years and unmarried if

female who normally reside in the residential holding.

4.7. 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. With regard to other

residential holding owned by the intestate, any wife or children under 18 years of age if male,

or under 21 years of age and unmarried if female, who are normally resident in the residential

holding shall be entitled to it.

4.8. 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. The

Schedule also grants the right of cultivation to the wife or husband who normally cultivated,

farmed or tilled any land adjoining a residential holding owned by the intestate prior to his or

her death.

4.9. Nonetheless, discriminatory statutory, customary and religious laws remain in force.

Although there are no laws preventing women from owning land in Uganda, the custom of

male inheritance has resulted in the vast majority of women being excluded from land

ownership. The law73 provides for the recognition of a customary heir, defined as “a person

recognised by the rites and customs of the tribe or community of a deceased person as being

70 Section 332 of the Succession Act71 Sections 190 and 333 72 Section 20273 Succession Act 1906Chapter 162


heir of that person”. This means that in administering the intestate estate, the law also takes

into account the role custom plays in the cultural life and the administration of intestate estate

of the deceased.

4.10. Despite the progressive provisions of the law, the following concerns are worth

noting. The law does not place primacy of inheritance on the immediate family members, i.e.

wife, children, parents and actual dependents at the time of a spouse’s death. By specifically

providing for distribution of the estate after the death of the husband, the law creates an

impression that it only applies to men and not women. 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 law fails to appreciate the fact that separation

between spouses does not amount to divorce. Therefore, denying a separated spouse the right

to benefit on the basis of separation is implying that separation is synonymous to divorce.

4.11. Multiple laws and institutions regulate succession to property in Uganda the laws in

question are enforced by different state institutions i.e. customary law fora, Islamic Qhadis'

courts and state institutions, such as the formal law courts and the Office of the Administrator

General. Each of these has its own procedures that must be strictly followed before a matter

is attended. The formal law courts, which include Grade 1, 2, and 3 Magistrate courts, the

Chief Magistrates Courts, the High Court, Court of Appeal, and finally the Supreme Court,

all regulate property rights disputes.

4.12. 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.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, one of the estate

administrators can bind and/or commit the rest and the entire estate.75 In families where men

sire children outside wedlock, it is common for the widow to administer an estate with other

people who cater for her non-biological children's interests.

Ghana

74 Kafumbe, A. L., 2006. Access to Justice: Widows and the Institutions Regulating Succession to Property in Uganda, www.springerlink.com, last viewed on 30 April 2010.

75 Section 272


http://www.springerlink.com/

4.13. The legal system of Ghana is based on the received English Law and customary law

people. As in many African countries, Ghana family customary law disadvantages women.

Realizing the imbalances, the Ghana Legislature in 1985 enacted the Intestate Succession

Law, 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, for women

and their children who survived the intestate spouse.

4.14. The PNDC established a uniform intestate succession law to be applicable throughout

the country, irrespective of the type of marriage contracted or ethnic background concerned.

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.

4.15. PNDC Law received the backing of the Constitution in the 1992, with clauses

addressing the property rights of the spouses. The Constitution states in Article 22 that,

“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”. With these provisions explicitly providing for

women’s inheritance, Ghanaian Constitutional Law goes well beyond Zambia in legally

preserving women’s rights.

4.16. Positive aspects of the PNDC 111 (1985)

No exception exists for the application of customary law in Ghana76. It is a

diversion from inheritance based on the lineage system of the people;

The PNDC recognizes as compulsory beneficiaries, the children, spouse and

parents of the deceased. The fraction of the estate distributed to each heir

varies according to the numbers and categories of heirs involved in the

distribution;

The intestate law safeguards the interests of the surviving spouse and/or

children by ensuring that all the household chattels of the deceased devolve

76Human Rights Brief, Women’s Inheritance Rights in Africa: The Need to Integrate Cultural Understanding and Legal Reform,


upon them. If the estate includes one house, the surviving spouse and/or

children are entitled to own it;

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 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.

Criticisms of the Intestate Succession Act PNDC 1985 111

4.16. Although the entire system of property inheritance and distribution were legally

uprooted, the following notable setbacks exist77;

Firstly, the legal revolution has failed to fully translate into cultural transformation. 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;

Like the Zambian ISA, the PNDC also excludes land from application as this is

considered to as coming from the lineage, hence it cannot be passed on according to

this law;

The law fails to mention or recognise polygamous marriages, which constitute the

majority of marriages in Ghana. Therefore, when applied to these marriages, the law

fails to address the complexities arising when a man dies leaving multiple wives and

multiple sets of children;

The law does not take into account non-formal unions, thereby prejudicing some

women who may have depended on a partner for support78;

4.17. By Section 12 the Act does not provide for parents unless there is no surviving spouse

and children. The law does not provide guidelines in cases where the surviving spouse is

required to share a house with step children. This usually causes practical problems of

application. Although not directly a result of the intestate system of Ghana, there are setbacks

77 Bodenheimer, Brigitte, (2006), Marriage and Intestate Succession in the Context of the Legal Pluralism in Africa, p. 78 COHRE, (2004), Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women, A survey of Law and Practice in Sub-Saharan Africa, Geneva, p.61


that have affected the implementation of the Intestate Succession System and they include.

Many Ghanaian families do not follow the provisions of PNDC Law 111, fearing it would

dissipate their property. As such families still rely on the dictates of customary law79. The

Ghanaian law tends to create two households in the same matrimonial home due to the

arrangement with ownership of property

4.18. Lack of public education about the law as many people do not belong to the educated,

that is, no effective education program designed to inform the Ghanaian citizenry. However,

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.

Kenya

4.19. Kenya has various laws of succession applying to various categories of marriages. For

instance, there is statutory law, customary law, Islamic law and Hindu law. The Succession

Act of Kenya80 was intended to amend, define and consolidate the law relating to intestate

and testamentary succession and the administration of the estates of the deceased person.

This Act provides for the application of customary law based on the deceased’s community

or tribe81.

4.20. The Judicature Act82 includes African customary law as one of the sources of law in

Kenya. However, it only applies when it is not repugnant to justice and morality or

inconsistent with any written law. In addition, 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.

4.21. 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. Thus, the

Act precludes application of customary law to properties specified in these areas. 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 http://www.globalpropertyguide.com/Africa/Ghana/Inheritancelaw80 Cap 16081 Section 33 of Cap 160 of the Laws of Kenya82 Chapter 8 of the Laws of Kenya


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

4.22. Nonetheless, the surviving spouse also has a right to the personal and household effects

of the deceased absolutely. It empowers84 any child to challenge any power of appointment85

which has been unreasonably exercised by a surviving spouse. Further, the Act allows

disposal of property with the consent of all the children of full age, or with the consent of the

court during the period of the life interest the surviving spouse. 86 However, disposal of

immovable property requires consent being sought from court.

4.23. 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. In an effort to minimize waste to estates and safeguard beneficiaries’

interests, 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.

4.24. Where no person with a legitimate interest comes forth after the expiration of one

month, 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. Therefore, the law places

an obligation on the public officers to protect the estate of deceased persons.

4.25. The Law of Succession of Kenya underscores the following:

That the intestate estate is for the benefit of the children;

That even as surviving spouse, 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;

That as beneficiaries to the estate of the deceased, the children have the right to challenge the administration of the said estate;

83 Section 35 of the Kenya Law of Succession84 Subsection (3) of section 3585By section 3, "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 3787 Section 39 of the Kenya Law of Succession88 Section 46


the law places a duty on everyone to safeguard the estate of the deceased and consequently, interests of the beneficiaries;

Criticism of the Act

4.26. Although the Kenyan legislation has some positive elements, one needs to point out that

the law is not alive to the African lifestyle. For instance, the Act only provides for the parents

and siblings of the deceased when there is no surviving spouse or child. It is therefore stated

that this is being too divorced from the African reality of family life and inheritance89.

Zimbabwe

4.27. Like the other jurisdictions considered, Zimbabwe’s legal system comprises both the

received English common law and the indigenous customary law of the people. The law

relating to succession and administration of estate is regulated by both written statutory law

and codified customary law. The Administration of Estates Act Chapter 6:01 provides

differential treatment to different kinds of marriages. The Act deals with administration of

testate estates, intestate estates as well as the administration of estates of persons subject to

customary law. It is important to mention that the Administration of Estates Act uses the term

‘executor’ to mean either, the person administering testate estates or intestate estates. It also

refers to ‘letters of administration to refer to the appointment of personal representative either

in intestate estates or testate estates.

4.28. Unlike Zambia, Zimbabwe has codified its customary law. According to Zimbabwean

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. This was the contention that created a lot of controversy in Zimbabwe. Zimbabwe has

had some fair amount of criticism regarding its intestate legislation. The Estate

Administration Law has been criticized for giving dominance to customary law. Even though

the constitution provides for non-discrimination of any kind it permits the application of

customary laws in matters of divorce, succession, marriage and other personal law and this

has in the past resulted in serious discussions on various fora90.

89 ibid90 Section 23(3)


4.29. Succession law in Zimbabwe is incomplete without referring to the Magaya decision. In

the case of Magaya v. Magaya91 where the Supreme Court decline to grant administration of

the estate to Venia Magaya, the appellant on the basis that she was a woman because she

lacked capacity as she could only be considered a “junior male”. The decision of the Supreme

Judicial Court clearly reflects an antiquated Constitution and outdated laws, illustrating the

challenges and difficulties facing legal systems that attempt to incorporate traditional or

customary laws into a contemporary framework.

4.30. This decision was erroneous because, in reality made written law subject to customary

law92. 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, they must attack the problem at its source. This can

be achieved by addressing the shortcomings of judicial reliance upon undefined “custom,”

and, more importantly, addressing the weaknesses of a legal system. This decision saw the

Amendment No. 6 of 1997 (Deceased Estates Succession Act Chapter 6:02). 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.

4.31. As indicated already, the Administration of Estates Act also regulates the administration

of customary law estates. Amendment No. 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. The Act also proscribed the appointment of the

heir as the mandatory ‘executor’ as previously held under custom. In this regard, the executor

has to be chosen on consensus from the members of the family.

4.32. In addition, 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,

as the case may be, lived immediately before the person’s death and also the household goods

91 SC No. 210-98 (Zimbabwe, February 16, 1999)92 The decision in Magaya v. Magaya made the Legal Age of Majority Act 15/1982 subject to customary law. 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. Therefore, the amendment to the law could not grant women rights which they did not have under customary law. 93 Section 68(1) (a) and (b)


and effects which, immediately before the person’s death, were used in relation to the house

or domestic premises referred to in this section94.

Key features of the Administration of Estates Act

The Act has some very progressive provisions which are worth noting.

1. 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. 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. 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.

2. Conditions for appointment of Administrator

The Act imposes conditions for appointment of administrator. Section 29 (A) provides that,

“the Master shall not grant letters of administration to a person unless that person;

is registered under the Estate Administrators Act [Chapter 27:20]; or is a surviving spouse or next of kin of the deceased person concerned.

3. Security for due Administration

Every executor dative, 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, for such amount as in the circumstances of each particular case is

reasonable. Every executor testamentary shall be under the like obligation of finding security,

unless—

1. he is the parent, child or surviving spouse of the deceased testator; or

2. The testator has specially directed in his will that the Master dispense with

such security.94 Section 3(A)95 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, less commonly, bodily infirmity”. section 31


3. The Master shall allow the reasonable costs of finding security to be

charged out of the estate.

4. The Master may, notwithstanding the provisions of this section, 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.

4. 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. In addition, the Act also

imposes a penal for any false inventory rendered96.

5. Duty on other persons

In accordance with section 42, 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. In addition to this duty, the Act also places liability on any person for such failure.

6. 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.

7. Time limitation for Execution

According to section 52, every executor is required to render administration and distribution

accounts to the Master within a stipulated time. This provision ensures that people that

assume the responsibility as executor administer deceased’s estate according to law. 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. Further, 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.

8. Remuneration of Executor

The Act recognizes the fact that administering any estate is a demanding task. In this vein, the

law provides for the remuneration of the executor in respect of his or her administration,

96 Section 38


distribution and final settlement of any estate97. The remuneration may be fixed by Will or

taxed by the Taxing Master.

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. Notwithstanding that the law protects the

interests of the immediate family; 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.

QUESTIONS FOR DISCUSSION

Application of the Act

1. 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.

Distribution of Estates

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. Should the term child be redefined?

3. How can the percentages of distribution of the estate be altered to take care of the interests of all the beneficiaries?

4. In the event that the deceased man had a mistress and children, 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. Should the Act stipulate how the 20% is to be apportioned to several widows?

6. Where a surviving spouse have life interest, 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?

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?

97 Section 56


8. Should anyone who can prove that they were being supported by the intestate be accorded the protection of the Act?

9. How should property of people married under laws of different countries be treated should they die intestate in Zambia?

10. How can the repugnancy clause be effected countrywide but especially in rural areas?

11. Should people co-habiting but not married be entitled to inherit under the Act?

12. Should the definition of dependant be reviewed? If yes, who should be a dependant in the Zambian situation?

Administration of Estates

1. What mechanisms can be put in place to prevent the waste of the deceased estate before the appointment of an administrator?

2. Should the law specify a time limitation for the administration of estates of a deceased person?

Offences and Dispute Resolution Mechanisms

1. The law should provide cheaper but effective dispute resolution mechanisms under the Act. Comment and suggest

2. Are penalties in the ISA adequate to address the concerns of the people?

General

1. List laws that have a bearing on the administration of intestate estates in Zambia? Suggest any changes that can be made, if any, to best contribute to the protection of beneficiaries under the ISA.

2. If a deceased person concentrated on the nuclear family during his/her life time, why should the extended family benefit after his/her death?

3. How can the ISA best be disseminated?


Documents

Final Draft-IsA Working Paper (Reviewed)2