Legal Challenges

The following caselaw has been reproduced with the kind permission of the International Women Judges Association and Interights to serve as a resource for those seeking to pursue cases. The caselaw has been divided into sections for ease of reference.

General Rights of Widows

Canada : Lavell v Canadian Supreme Court 1973Lavell had challenged the law stating that if a Native woman should marry a non-Native man her heritage status as a Native and that of her children would be revoked. In contrast if a Native man married a non-Native woman there would be no such revocation. The Canadian Supreme Court stated that discrimination based on membership rules was not something that affected federal law and therefore her case had no legal merit [http://www.canlii.org]

Kenya : Uke and Another v Iro (1982-1988), Supreme Court of Kenya.The decision of this case attempted to mitigate the “erosion” of women's rights by customary practices in regards to land rights. According to Nneato Nnewi custom a woman cannot testify in court or give evidence in relation to a title to law. This was found to be a grievous injustice within the process of land disputes for its complete exclusion of the female gender. [Source: Without Prejudice: CEDAW and the determination of women's rights in a legal and cultural context ]

Nigeria : Okonkwo v Okagbus (1994), Supreme Court of Nigeria.This case eradicated the customary practice of continuing marriages once the husband had died as well as allowing a living woman to be married to a deceased man. This horrifying practice is common in the smaller villages in Nigeria. The Court ruled that above all else a marriage is a recognised union between a man and a woman and that both parties had to be alive for the union to be consummated. The marriage is terminated if the husband dies making any posthumous ceremonies involving a Nigerian bride or widow impossible. [Source: Without Prejudice: CEDAW and the determination of women's rights in a legal and cultural context ]

India : G vs. New India Assurance Co. Ltd , Bombay High Court, 16 January 2004The petitioner was a widow who had applied to New India Assurance Co. Ltd for employment on compassionate grounds after her husband died while in employment with the company. The company declared that she was medically unfit as she was found to be HIV positive after taking a medical fitness test. In her case Justice Banerjee, speaking for the Bench, observed that the socialistic patterns of society as envisaged in the Constitution had to be attributed their full meaning, and that the law courts could not be mute spectators where relief is denied to an employee's family on account of the death of the bread earner. He further ruled that a person cannot be denied employment only on the ground that the person is HIV positive.

South Africa : Daniels v Campbell No and Ors - Constitutional Court, South Africa 11 March 2004 Case CCT 40/03 (unreported) Daniels married her deceased husband according to Muslim rites, but the marriage was not solemnised by a marriage officer pursuant to the Marriage Act 1961. The husband died intestate, and the High Court ruled that Daniels could not inherit from the estate because she had married by Muslim rites, and was therefore not a 'surviving spouse' under the Intestate Succession Act 1987. T he word 'spouse' in its ordinary meaning includes parties to a Muslim marriage. The phrase in the Act is not “linguistically strained” and it is easier to include Muslim parties than to exclude them. Such exclusion as in the past emanated from a linguistically prejudiced basis that had less to do with the word and more to the bias of the domestic government. This use of the word isn't a question of violation of constitutional rights but rather to “remove the strain imposed by past discriminatory interpretations in favour of its ordinary meaning”. On the other hand the new democratic Parliament's delay in including Muslim marriages cannot be deemed exclusion in contrast to the Constitution but rather a matter of timing regarding legislation. In this situation Daniels could lose a home “which, but for her marriage to the deceased, would have been her property”. The Court of Appeal found that “in these circumstances the under-inclusiveness of the Acts constitutes an obvious breach of Daniels' right to equality on several specified grounds, namely marital status, religion and culture, as well as her right to dignity”. [Source]: Commonwealth Human Rights Law Digest Volume 5 Number 1]

United Kingdom : Hooper and Ors, R (on the application of) v. Secretary of State for Work and Pensions [2005] UKHL 29, May 2005.This court case was initially brought before the Secretary of State by the appellant is regards to the discrimination between widows and widowers by the state in distributing the WP or Widow Pension. They claimed the gender bias was in direct contrast to Article 14 of the Human Rights Act. Although the Secretary of State agreed there was objectively justifiable discrimination the WP was not changed to apply to widowers as well. The widowers argued that the Secretary could have used common law of the Crown to make discretionary payments to widowers but this was dismissed by the Court of Appeal in the later trial (2005). The Court of Appeal determined that, firstly, the WP test was not means based but rather awarded to every widow over the age minimum and secondly there was no social or economic evidence that widows under this age were in need of the WP. Discrimination based on gender was overruled due to the nature of the WP as correcting a factual difference previously and was gradually eliminated by a previous Act in 1999. [Source: http://www.bailii.org/uk/cases/UKHL/2005/29.html]

Morocco : 'The Right of Kadd and Staya'In Morocco the right of Kadd and Staya is the right of a woman to financial support accrued during marriage. The idea of ‘gaining from labour to provide for livelihood' has been a case seen again and again all over the country. There have been 563 cases so far ruling in favour of direct or indirect contributions of wives to marriages which allots them an additional portion added to the traditional ¼ or 1/8 share of inheritance. These cases have even reached the Moroccan Supreme Council (the highest religious court in the country) and the Moroccan Court of Appeal. The Court of Appeal stated in one such case that according to the Qur'an, the holiest source of Muslim law, “men shall benefit from what they earned, and women shall benefit from what they earned.” These courts found it discriminatory to reduce wives' share due to indirect contribution to mutual marriage funds as well as biased towards their gender. [Source: In Search of Equality by the Centre for Housing and Eviction Rights, “A Survey of Law and Practice Related to Women's Inheritance Rights in the Middle East and North Africa (Mena) Region (Centre on Housing Rights and Evictions, October 2006)” ]

Kenya : Veronica Rwamba Mbogoh v Margaret Rachel Muthoni andAnother [2006] e KLR.In this case, the Court of Appeal recognized the existence of a civil union through a long period of cohabitation. Marriage by cohabitation presented a serious problem to women in the event of death of a spouse or if the relationship breaks down and the issues of property ownership are involved [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009]

Land Rights

Kenya: Gituanja vs. Gituanja, Nairobi Court of Appeal (1983). Civil Appeal No. 25 of 1982This case is an appeal to an original land dispute case brought to the Nairobi Courts in 1980. The appellant, the son of the deceased, and the respondent, the deceased’s second wife, were in disagreement over who legally owns the 7.44 hectares of land left to the family. The appellant claimed that as the son of the deceased and his first wife he was entitled to be sole proprietor and his step mother, the second wife, to be a licensee of the land. The original judge had ruled in favour of the respondent granting her control of the land to be shared with the children of her late husband as she so chose. The appellant appealed this decision claiming the judge had made an error in applying the law to this case. The appeal was dismissed and the appellant was to pay the taxed costs for the land inquiry. [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009 and Electronic Kenyan Law Review]

Tanzania: Ephrahim vs Holaria Pastory- Unreported Primary Court, Tanzania. Civil Appeal No. 70 of 1989 AHRLR 236; 22 February 1990.In this case Holaria Pastory was the daughter of a recently deceased land owner for the Haya clan in Tanzania. After his death Pastory inherited the family plot of clan land. Pastory proceeded to sell this land for a profit to Gervaz Kaizilege, a non clan member. The nephew of the deceased, Bernard Ephrahim, brought the case to a Primary Court stating that under Haya customary law female heirs were not eligible to sell clan land and only had the right to use of the land during their lifetime. Law also stated that only this could take place if there was no living male relative. The Primary Court ruled in favour of Ephrahim and Pastory was forced to refund Kaizilege his payment and relinquish control of the land. This decision was overturned by the District Court citing the 1987 Bill of Rights stating that inheritance discrimination based on gender under customary law was a violation of gender and human rights. Ephrahim appealed to the High Court but was unsuccessful in his attempt. [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context (2010)]

Kenya: Peter Mburu Echaria v. Priscilla Njeri Echaria Case No. 75 of 2001, Court of Appeal of Kenya Peal at Nairobi eKLR. The Echaria decision is viewed as a setback to the progressive reasoning and appreciation of the indirect contribution made by a wife to a marriage which should be quantified. Peter and Priscilla Echaria brought a case to court after the latter petitioned for a permanent injunction restraining peter, his employees, servants or agents from trespassing on her 25 acre allotment from their matrimonial land. She accused him or stealing tea from this land. The request for the injunction was not granted and the judge stated that to settle the matter a surveyor was needed to suitably divide and distribute the land according to their litigation agreement [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009]

Nigeria: Uke and Another v Iro, AHRLR 155 Nigerian Court of Appeal, 18 January 2001.This case was brought before the Court of Appeal by the previous defendants, now appellants, who sought to overturn the original lower court ruling. The appellants and respondent were fighting over the property line of a large area of land. The respondent claimed possession of the majority of the land as inherited from his father. The appellants (and neighbours) had been accused of encroaching on this land. The respondent stated that his father chose not to pursue court action due to ill health but the trespassing had been a long standing issue. The appellants claimed that they owned a larger portion of land than that which they live because it was given to them by Okorie Obioha; a kinsman of the respondent. The original lower court visited the land and from court testimony and examination ruled in favour of the respondent. The appellants challenged this decision on the grounds of gender discrimination. The Customary Court of Appeal found ‘no merit’ in the appeal and upheld the original ruling. [Source: http://www.chr.up.ac.za/index.php/browse-by-subject/417-nigeria-uke-and-another-v-iro-2002-ahrlr-155-ngca-2001.html]

Kenya: In re Wachokire, Succession Cause No. 192 of 2000, Chief Magistrate's Court at Thika, 19 August 2002. Jane Watiri petitioned the court to award her one-half of a parcel of land that belonged to her deceased father on which she lived with her four children. Her brother objected, arguing that he had cultivated a larger portion of the land during his father's lifetime than his sister and therefore was entitled to that larger portion. Senior Principal Magistrate H. A. Omondi found that under Kikuyu customary law, an unmarried woman like Watiri lacked equal inheritance rights because of the expectation that she would get married. Magistrate Omondi held that this customary provision discriminated against women in violation of Section 82(1) of the Kenyan Constitution, which prohibits discrimination on the basis of sex. It also violated Article 18(3) of the Banjul Charter and Article 15(1)-(3) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which provide for legal equality between men and women. Consequently, Magistrate Omondi awarded Watiri and her brother each an equal share of their father's property. [Source www.iawj.org]

Tanzania: Alli v. Elphas, Civil Appeal No. 21 of 2002, District Court of Mwanga at Mwanga, December 21, 2002.Appellee Lukio Elphas sought to evict appellants Butuli Alli and Saidi Hassan from their residence on a plot of land that originally belonged to the estate of Alli's first husband. He claimed in part that as a widow, Alli, had no right to occupy land belonging to her late husband. The primary court ordered the plaintiffs evicted from their home. On appeal, Magistrate S.O. Msigiti reversed the lower court's decision, holding that the appellants were entitled to the plot of land and residence in issue. The court held the that the eviction rested on the discriminatory premise that women have no right to own property and do not have a full range of choices in marriage. Magistrate Msigiti stated that: "the rights of women in owning property and eliminating discrimination are not a Tanzanian issue alone. It is an issue touching the whole international community." The court held that the appellants' eviction violated principles of equality between the sexes as to marriage, residence, and marital benefits found in Articles 13(1) and 16(1) of the UDHR, the Law of Marriage Act of 1971, and the Constitution of Tanzania. Magistrate Msigiti further questioned the standing of respondent Elphas to sue for the eviction of the appellants, explaining that he had not shown that he was the administrator of the estate and noting that "it is not proper for every relative to appear in court for a deceased." [Source www.iawj.org]

Zambia: Alfonsina Mwale “This is the case of ALFONSINA MWALE, a woman who was happily married. Alfonsina moved to her husband's village in another province of Zambia. They had seven children, a big house and two hectares of cotton field. After eighteen years of marriage, Mr. Mwale passed away. His relatives chased Alfonsina and the children out of the matrimonial home, seized all her property apart from the pots and pans and told her to return to her parents”. [Source: Arida Chulu – CMJA Conference Brighton 2010]

Other Property Rights

Nigeria: Mojekwu v Mojekwu, 1979 NWLR 1 283, Court of Appeal, 2004 Supreme Court.This case was between the wife and nephew of a deceased Nigerian man. According to ili-ekpe tribal custom because the deceased was survived by a widow and two daughters the next of kin based on primogeniture was his brother’s son Augustine Mojekwu. The widow of the deceased claimed that her son, who had died before his father, had fathered a son who was still an infant at the time. Mrs. Mojekwu stated that this son should inherit the property as he was the closest living male kin to the deceased. The Court of Appeal ruled that under the kola tenancy female relatives to the deceased were eligible for inheritance as well as issuing a repugnancy doctrine. This doctrine states that any customary law that conflicts with natural justice, equity and good conscience is irrelevant. It also prohibits any court from enforcing this contradictory traditional law. In 2004 the case, continued by Augustine Mojekwu and Mrs. Mojekwu’s adult daughter (Mrs. Mojekwu had since died), was brought before the Supreme Court. Although the Court did not overturn the original decision it criticised the Court of Appeal for it’s commentary on the case and the repugnancy doctrine. [Source: http://www.law.utoronto.ca/documents/reprohealth/LG028-9_Nigeria-Mojekwu_cases.pdf]

India: Mary Roy v State of Kerala- AIR 1986 SC 1011 This is a case brought by Mary Roy, a Christian resident in India, against her brother over distribution of their deceased father’s estate. The brother claimed sole ownership to the land under traditional Indian law stating that it governed Christians as well. Mary appealed to the Supreme Court of India stating that the original court’s ruling was unconstitutional and against the Indian Succession Act of 1925 which mandated equality among heirs of an estate regardless of religion or gender. The law was cited and the original ruling overturned giving Mary half of the estate. [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context (2010) and http://www.lawisgreek.com/the-crusade-for-equal-rights-in-mary-roy%E2%80%99s-case/ ]

Nigeria: Nzekwu v Nzekwu (1989), Supreme Court of Nigeria In yet another case about challenging customary law the Supreme Court ruled in favour of an Okpala widow in an estate dispute between her brother in law and her. According to Onitsha custom an Okpala male relative has the right to alienate a widow from her deceased spouse’s property during her lifetime. The court found this to be an “uncivilised and barbaric” custom that contradicted widow’s rights and demonstrated the fragmented treatment of women in Nigeria [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context]

India: C Masilamani Mudaliar and Ors v Idol or Sri Swaminathaswami Thirukoil and Ors, Supreme Court of India 30 January 1996. This case is regarding the property rights of the widow of an Indian man versus the deceased’s cousin’s widow. The deceased bequeathed a portion of the estate to be divided equally among the two widows. He also included a statement that if one should survive the other the remaining widow was free to enjoy complete ownership of the land until the time of her death when the land would be turned over to religious and charitable organisations. When the widow of the deceased’s cousin died the deceased’s widow ‘S’ sold the property to the respondent above for a profit. Family of the second widow ‘J’ fought to gain control of the land and reverse the transaction citing that under Hindu Sastric law women had no rights to sell or buy property. The Supreme Court found that under the Protection of Human Rights Act (1993) India was and is subject to the principles of DEDAW. These principles were enforced giving S sole ownership of the property until her death. The Supreme Court also cited a law stating that women had the right to “enjoy economic, social and cultural rights on an equal footing with men”. [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context (2010)]

Kenya: Nderitu v Nderitu Kariuki [1997] 606 [CAK] Case No. 203 of 1997. Court of Appeal.In this case the Court of Appeal recognized the important role played by women in child bearing and therefore set aside the judgment of the High Court (Case No. 2133 of 1992) in which the wife was awarded 30% share of the matrimonial property and substituted the award with 50% share. In the initial case of 1992 the judge had listened to testimony from both the appellant and the respondent describing the work and contributions each made to the businesses run by the respondent. The respondent claimed that because the last three children of their marriage were delivered by caesarean section over a span of four years the appellant was too weak to work and was rarely seen. The appellant defended that she was not weak and managed two of the businesses herself bringing the profit to her husband. The judge discredited previous oral evidence given by the respondent who claimed she was flighty and only spent time in Nairobi to conceive children or give birth to them. In stating the lack of candid evidence offered by the respondent the judge stated that she did work in the businesses but was weakened by the pregnancies to a certain degree therefore her assets share should be reduced to 30%. The Court of Appeal reached a different conclusion stating that the childbirth and struggle faced afterwards should not be a reason for detraction but rather evidence to support a 50% share for the appellant. The judge reasoned that the birth of these children did weaken the wife somewhat but in the deliverance of more children she was contributing (and caring) for the household as well as further the husband’s progeny. This is something he could not have done on his own. The Court awarded the appellant a 50% share as well as the costs required for the appeal to be paid by the respondent. [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009 and www.kenyalaw.org Case No. 203 of 1997]

Tanzania: Mohamed v. Makamo, Civil Appeal No. 45 of 2001, High Court of Tanzania at Dar Es Salaam, June 8, 2001.Appellant Guliya Mohamed appealed the decision of the district court awarding the appellant wife 5 percent of the marital property and the husband 95 percent upon their divorce. Judge N. Kimaro found that the respondent had introduced no evidence of his own contribution to the property. She found that "With greatest respect to the trial magistrate the decision is discriminatory and a reflection of stereotyped concepts of the roles of man and woman. The appellant was given 5 percent division because she is a woman and women are taken to be inferior in all respects to men." This decision, Judge Kimaro explained, was contrary to Section 114 of the Law of Marriage Act and Article 13(1) of the Constitution of Tanzania, which guarantees equal protection of the law and which is a reflection of Article 7 of the UDHR and Article 15 of CEDAW. Consequently, Judge Kimaro ruled that appellant wife should be awarded 50 percent of the assets. [Source www.iawj.org]

Kenya: Kivuitu v. Kivuitu Civil Appeal No. 75 of 2001, Court of Appeal of Kenya Peal at NairobiThe Court of Appeal of Kenya recognized that a contribution by a wife in a marriage was either direct or indirect and both contributions added value to the family. This case ruled in favour of equitable division of the assets with the court costs being borne mostly by the husband but allowing for half thereof to be taken out of the wife’s share of the assets. The significance of this ruling was that it was unjustified to divide jointly owned matrimonial assets after a divorce based on who could provide evidence for larger financial contribution. This allowed mothers and wives to place a value on their role as domestic supporters and therefore be entitled to a larger share of the assets. [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009 and www.kenyalaw.org (Kivuitu V Kivuitu case record (1991)]

Kenya: Muthembwa v. Muthembwa (2001) ll 3496 [CAK] Case No 74 of 2002.The Court of Appeal exemplified the trend of reasoning recognizing that a wife had a claim over shares held by the husband in a limited liability company which were acquired during marriage. [Source: IAWJ Africa Regional Conference, Arusha Tanzania, August, 2009]

India: Pampi Das v Others, 22 December 2009, High Court of Calcutta 2009. “The Calcutta High Court settled a property dispute in favour of an HIV-positive widow. This decision has been described as setting “a new bench mark,” both because of the outcome of the case and the speed with which a settlement was achieved. The widow, Pampi Das (whose name was changed for media purposes), lost her husband to AIDS in 2006. He had run a transport business with his brothers; however, upon discovering that Pampi was also HIV-positive, the brothers denied her husband’s share of the business. Pampi spent years attempting to regain her share from her brothers-in law, but was unsuccessful until being introduced to an organization known as Solidarity and Action Against the HIV Infection in India (SAATHII), which advocates on behalf of government, U.N. agencies and civil society members for universal access to HIV/AIDS prevention, care, support and treatment services; health and legal policy reforms; and reduced stigma and discrimination for people living with or vulnerable to HIV/AIDS. When Pampi presented her case to SAATHII, the organization promptly filed a petition in the High Court on her behalf. After three hearings, Justice Shankar Prasad Mitra passed an order entitling Pampi to her husband’s share of the company Daily News and Analysis (DNA) India described the judgment as coming “to the rescue of the Indian judiciary, which had become synonymous with inordinate delays,” and as revealing “the humane side of the judiciary” as it “spared the ailing Pampi Das ... the ordeal of doing the rounds of court and spending her savings fighting the case”. SAATHII documentation officer Soma Roy Karmarker shared a similar view of the judgment, stating that “in most cases, victims have to wait years to get justice. But Pampi’s case has given us new hope”. [Source: A Swot Analysis of the Indian Legal System and the Issues of People Living with HIV in the context of SAATHII’s coalition based advocacy project in West Bengal. June 2010]

Samoa: Ulugia Laufili Nose, Samoan Matai of Tulele v The Publich Trustee, a statutory body established pursuant to the Public Trust Office Act of 1975 as the Executor of the estate of Tapeni Ioelu, 24 September 2010. Civil Appeal No. 15 of 2009 Court of Appeal of Samoa.“The Court ordered the Appellant to vacate land held in the name of the Respondent as executor of the estate of Tapeni Ioelu, deceased. The Court dismissed the Appellant's defence of adverse possession. Reverend Tapeni Ioelu was the owner of a 2½ acre block of land at Tulaele near Apia. Various members of his extended family shared occupation of that land during Tapeni's lifetime. Although the Appellant was not related to him, Tapeni took him in and treated him like a son. When Tapeni died on 10 December 1978 he left his widow, Katerina, a life interest with the remainder to the matai of his family and three of his nephews, all of whom lived in American Samoa. The Appellant did not inherit any interest in the land. The beneficiaries authorised their relative, Uelese, to look after the land on their behalf, subject to the life interest of Katerina. When Katerina died children of the original beneficiaries asked Uelese to continue to look after the land on their behalf due to their absence overseas. The Appellant shared occupation of the land for about a year from the end of 1996 or early 1997 to about the end of 1997 or early 1998. At that point, in order to preserve harmony within the family, all others left leaving the Appellant sole occupant. Uelese allowed the Appellant to live on in the property under stated conditions until 2005. Disputes arose when the Appellant failed to comply with said conditions. Uelese demanded that the Appellant leave the land. When the Appellant failed to do so he instructed solicitors who arranged for probate of Tapeni's estate to be granted to the Public Trustee on 8 August 2007. In 2008 the Public Trustee brought the present proceedings seeking recovery of the land from the Appellant and his family. The Chief Justice ruled in favour of the Respondent and granted an order for possession. The Respondent's application for possession would be ignored if the true owner's right of action for possession had allowed more than twelve years to elapse before commencing proceedings. His first ground of appeal was a challenge to the Chief Justice's credibility finding in which he preferred the evidence of Uelese to the effect that, contrary to the Appellant's own evidence, the Appellant had sought and obtained Uelese's permission to occupy. Mr Latu sought to challenge the Chief Justice's finding by referring to the date on which the appellant discovered that he had not received an interest in the property under Tapeni Ioelu's will. It was accepted that the appellant did not learn of the content of the will until 2005. In 2005 the appellant had no reason to assume that he would inherit all or part of the property. The deceased was not his father. Nor did he have reason to assume that those family members who might share the property with him would agree to his sole occupation of it. The appeal was dismissed with costs to the respondent in the sum of $4,000.” [http://www.paclii.org]

Administration of Estates

Uganda: Owagage v. Mudhma, Civ. Suit No. 990 of 1998, High Court of Uganda at Kampala, Nov. 24, 2000. Plaintiff Christine Owagage was the mistress of decedent Emmanuel Owagage and the father of five of his eighteen children. When the decedent died, he left a will bequeathing a piece of property to the plaintiff. Defendant Michael Mudhma, the decedent's first son by his legal wife, obtained a caveat blocking the plaintiff from obtaining letters of administration to the decedent's estate. The plaintiff sued for removal of the caveat. The defendant argued that the plaintiff had no right to administer the estate because she was not a beneficiary. He counterclaimed that the decedent's will was invalid or, in the alternative, that the land in question could not be given away as it was ancestral land that belonged to all of the beneficiaries. Judge S. Bossa found that the will was valid. She held that the decedent lawfully acquired his property from his late father and had the right to bequeath it to whomever he wished. The judge rejected the claim of two clan members that the decedent was simply a trustee of the land, finding that the real reason for their claim was that they did not want the land to pass outside of the clan. This, she explained, was contrary to Article 21 of the Ugandan Constitution, which provides that all persons are entitled to equal protection of the law and prohibits discrimination on account of any of a number of grounds. Finally, Judge Bossa held that neither party was suited to acquire letters of administration because neither was positioned to look after the interests of all of the beneficiaries. She appointed the Administrator General as the appropriate neutral person to look after the estate. [Source www.iawj.org]

Zimbabwe: Magaya v. Magaya, Supreme Court of Zimbabwe, 16 February 1999.This case was a dispute between two children of the deceased in which the son of the second wife, the respondent, and the daughter of the first wife, the appellant, fighting over control of the deceased’s estate. The eldest son of the first wife had declined to inherit control of the estate and the respondent argued that because of this he, the next male kin was entitled to complete control. The case was ruled in his favour initially and when the appellant requested a magistrate re-hear the case she was denied. She then appealed to the Supreme Court citing gender bias directly against equality law that Zimbabwe had adopted. She also claimed that it was against current legislation to continue the discrimination against women in the family due to ‘customary law’. She argued it was in direct contrast to the Legal Age of Majority Act. The appellant also stated that it was highly unlikely that the child of the second wife, the respondent, would take care of the first wife and herself. The judge overturned the community court decision stating that gender bias said to be justified by customary law was in violation of gender rights and therefore the daughter should inherit the entire estate. The respondent was also assigned the cost of the court trials and appeals. [Source: http://jurisafrica.org/docs/lawreports/Magaya.pdf]

Tanzania: Ndossi v. Ndossi, Civil Appeal No. 13 of 2001, High Court of Tanzania at Dar Es Salaam, Feb. 13, 2002. The appellant was appointed the administrator of the estate of his deceased brother by the primary trial court. The widow of the deceased successfully challenged that appointment in the appellate district court. The brother of the deceased appealed, seeking restoration of the primary court decision. Judge E. Munuo, as she then was, held that the widow was entitled to administer the estate on behalf of her children under the Constitution of Tanzania, which provides that "every person is entitled to own property and has a right to the protection of that property held in accordance of the law." She further held that the Article 9(a) and (f) of the Constitution recognizes human rights by requiring "that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights." This clause, Judge Munuo explained, generally domesticated human rights instruments ratified by Tanzania, including the anti-discrimination principles of CEDAW, Article 2(b) & (f), and the best interest of the child principle found in Article 3 of the CRC. She found that these provisions protect widows and children from "uncouth relatives prying and/or attempting to alienate the estate of deceased fathers and mothers under the shield of custom." [Source www.iawj.org]

Uganda: Law and Advocacy for Women in Uganda vs. Attorney General, Constitutional Court, 5 April 2007 UGCC 1-Petition No. 13 of 2005 and 5 of 2006.This case brought by the Law and Advocacy for Women in Uganda group brought forward two petitions stating that section 154 of the Penal Code in the Constitution was inconsistent with Articles 20(7), 21(8), 24(9), 26(10), 33(1)(12) and 44(13). These articles were tipped in favour of men saying that married men and unmarried women could have sexual relations and it wouldn’t be adulterous. If an unmarried woman committed such acts with either a married or unmarried man it would be considered adulterous. The Attorney General argued that this law was justifiable because it existed to ‘foster the sanctity of marriage’ under 43(14). The Attorney General also argued that if section 154 of the Penal Code was declared null and void the result would be increased immorality and promiscuity. The Law and Advocacy argued that in fact these sections were derogatory and ranked women in Uganda at an inferior status to men. The Law and Advocacy group’s second petition was in regards to section 2(n) (i) and (iii) 23, 26, 27, 29, 43, and 44 of the Succession Act. They stated that these articles showed a clear bias towards men in the matter of inheritance and succession. After the death of a male head of a household only the man or next (male) of kin was allowed to name a guardian for all heirs as well as deciding how assets should be distributed to heirs post mortem. Females have no say in succession or inheritance divvying after they die. Both sections of the Penal Code were declared null and void by the court on the grounds that they were inconsistent with other articles of the Penal Code as well as unethical towards women’s rights.” [Source: http://www.ulii.org]

Kenya: Estate of Mugo Wandia (Deceased) eKLR, Nakuru Succession Cause No. 320 of 2007, Decision 20 May 2009. This case involved the claim to plot No. 17 OC of land in Kenya previously owned by the deceased. Mugo Wandia died in 1976 but it wasn’t until 1994 that his son Jessy Kairiuki Mugo petitioned for a grant to transfer the title of the land as well as issue letters of administration giving him control of his father’s estate. He did not claim any other living heirs of the deceased. The letters were issued a decade later in 2004. This case is brought by Mary Wanja Mugo, daughter of the deceased, who argued that her brother had concealed information as she was an unmarried living heir to Wandia. Jessy claimed she and her three sons, who were dependent on the land, were children of a civil marriage Mary failed to disclose to the court. In sworn testimony in 2007 Mary stated that she had never been married and was in fact an eligible heir for the plot No. 17. Furthermore she argued [counsel] that the issuance of the letters without research by the courts and concealment of the petitioner were discriminatory towards her solely based on gender. The facts were so graphic and the Court’s decision quite progressive. The Court held that discriminatory customary practices which perpetuate degrading and differential treatment based on one’s sex could not pass the threshold of the International Conventions especially Article 1 of the Universal Declaration of Human Rights. Despite lack of appropriate laws, the Courts took up the challenge and determined property disputes brought by married women over the matrimonial assets. The court ruled that the letters and grant of the original petition to be returned for cancellation. The land should also be returned to the deceased’s name and a claim for the distribution and transfer of the land to the two children be filed. [Source: www.kenyalaw.org]

Kenya: Otieno v Ougo & Another, Case No. 4873 of 1986, Court of Appeal 13 February 1987, eKLRThis case is a dispute over burial rights between the deceased’s widow and brother. The deceased belonged to a different tribe than his wife who was Kikuyu and according to tribal customs he was supposed to be buried in his homeland in Nyalgunga. His widow wanted to bury him at their matrimonial home which was unrecognised by his tribe. The judge ruled that according to customary law the deceased should be buried in his homeland because while alive he did not make any effort to renounce his tribe and had indicated in his will that he preferred to be buried on his family land. However, the judge also jointly awarded the body to the widow and brother to be brought to his homeland. [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context]

Nigeria: Lewis v Bankhole (1909), Supreme Court of Nigeria, NWLR.This case was brought between surviving female relatives, all sisters, of a deceased man. The customary law stated that the eldest male son should inherit the estate to be divided amongst his siblings but the deceased had only female children. The eldest brought the case to court under CJ Osborne who ruled in her favour stating that in regards to inheritance rights if no son or male relative is present or survives the oldest daughter can automatically be elected head of the family. This decision influenced cases throughout the 20th century and was upheld in the case Folami v Cole of the same nature. [Source: Without Prejudice-CEDAW and the determination of women’s rights in a legal and cultural context.]

Disregard of Widows' Rights - Free Movement

Kenya: Okeyo v. Ogwayi, Civil Suit No. 66 of 2001, Senior Resident Magistrate's Court at Homa Bay, June 13, 2002. Following the death of her estranged husband, Plaintiff Janet Atieno Okeyo sought a permanent injunction against her father-in-law Jacob Ogwayi, enjoining him from forcing her to return with her two children to her marital home. Okeyo and her deceased husband, Joanes Onyago, the defendant's son, had separated one year prior to his death. Several years after Onyago's death, his father had Okeyo arrested on the ground that because he had paid dowry for Okeyo, she was his daughter-in-law and should be living with her children in Onyago's marital home. He also claimed that a relative of the deceased had inherited Okeyo. Resident Magistrate J. A. Wanjala held that forcing Okeyo to return to the marital home would violate her statutory rights of free association and movement. Moreover, as Okeyo did not herself choose to be inherited by a relative of the deceased, there was no proper marriage. Any customary law requiring her return was repugnant to the written law, and under the Judicature Act, Sec. 3(2), the written law prevails. Resident Magistrate Wanjala further found that the age of the children and the fact that they had been living with their mother dictated that they remain in the custody of their mother. The court enjoined the defendant from interfering with the plaintiff and forcing her back to the marital home. [Source www.iawj.org]

Effect on Family

Tanzania: Chilla v. Chilla, Civil Appeal No. 188 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004. Ivona Chilla, sister of the deceased, filed suit objecting to the appointment of Demetria Chilla, the decedent's wife, as administrator of the decedent's estate. She further argued that she should have custody over the decedent's son because his mother was a widow and would be dependent on relatives. Judge N. Kimaro rejected the appellant's custody claim, holding that under the welfare of the child embodied in Article 3 of the Convention of the Rights of the Child (CRC), the respondent was the best person to have custody of the boy as she was his mother and had cared for him since his birth. She held that the appellant's argument that the respondent wife had no right to serve as administrator because she was not chosen to do so by her husband's clan was contrary to the equality provisions of Articles 13, 19, and 26 of the Tanzanian Constitution and Articles 2 and 16 of CEDAW. In addition, Judge Kimaro noted that the trial magistrate's gratuitous finding that only male children can inherit was both irrelevant and contrary to the Tanzanian Constitution, which bars gender discrimination in all aspects. She dismissed the appeal with costs. [Source www.iawj.org]

South Africa: South African Human Rights Commission & Another v President of the Republic and Another 2005 1 SA 580 (CC) This case was heard along with the Bhe and Shibi cases referenced above. The Chief Justice ordered the three cases to be heard together as they all dealt with the same subject matter: intestate succession. The first two cases objected to the previous Black Administration Act of 1927. Under this Act, Article 23 stated that according to the customary inheritance system of primogeniture female descendants were not eligible for inheritance. The court ruled that in cases where the heirs of the deceased agree that the estate should be divide in accordance with customary law the Law of South Africa should distribute the estate and ‘govern the succession’. If there should be any dispute about the application of customary law the case must be heard by the Magistrates’ Court who were awarded sole jurisdiction. They are also obligated by law to perform an enquiry into each case brought before them and make a decision based on what is fair, right and equitable with concern for any minor children and other descendants. [Source: http://www.saflii.org]

South Africa: Bhe & Ors v The Magistrate of Khayelitsha & Ors, 15 October 2004-Constitutional Court-Case No. 49 of 2003 Section 231 of the Black Administration Act 38 of 1927 legitimized the customary tribal law of succession in South Africa. This customary law is one of strict primogeniture meaning only a male relative related to the deceased would be able to inherit the estate of the deceased. “The female and extra-marital descendants of the deceased did not qualify”. Nonkululeko Letta Bhe challenged the Court stating that the law violated the rights of her young daughter, who was born out of wedlock, to be a legitimate heir to the deceased’s estate. The challenge was upheld in the High Court. [Source (Bhe) Case CCT 49/03; (Shibi) Case CCT 69/03; (SAHRC) Case CCT 50/03 and http://www.saflii.org)]

South Africa: Shibi v Sithole & Ors, Case No. 69 of 2003-Pretoria High Court, 2003. In a separate case Charlotte Shibi challenged her ‘ineligibility’ as sole heir to her deceased brother’s estate. According to customary law the nearest heirs were the deceased’s two male cousins. In this case like the High Court ruled in favour of Shibi. Both cases (Bhe and Shibi) were heard together and is a striking example of the High Court determining in a contextual situation where the customary law of succession is applicable or not. [Source (Bhe) Case CCT 49/03; (Shibi) Case CCT 69/03; (SAHRC) Case CCT 50/03 and http://www.saflii.org)]

Kenya: Njau and another vs. Wahito, High Court at Nairobi, September 29, 2006 eKLR, Civil suit No. 303 of 2005. This case is a dispute over the burial rights of the second wife of Joseph Kairu. Mary Wahito is the second wife whose son she had with Joseph, James, was killed in a car accident in 2005. Mary Wahito wanted to bury her son in the family land in a plot next to Joseph and the first wife of Joseph refused this request saying she had no justifiable claim to the land. The court proved that Joseph and Mary Wahito were in fact married de facto and had two children well after Mary’s first husband had died. This entitled any of her children or herself to be buried next to Joseph Kairu. [Source: www.kenyalaw.org]

Cruel and Inhumane Treatment

Nigeria: Yusufu v Okhia (1976), Supreme Court of Nigeria.This case dispelled the customary right of a male relative to inherit the wife of the deceased. This common tradition was found to be in direct contradiction with widow’s and gender rights. The customary law states that marriage continues even after the husband dies until the proper burial rites are performed. If she fails to do so she is eligible to be ‘inherited’ by any male relation of the deceased. The original suit was brought against the widow by the brother of the deceased. The local Court ruled in his favour and the widow appealed to the Court voted in favour of the widow of this case banning widow inheritance from continuing. [Source: Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context]

Zambia: Chilala v Milimo Case No. 99 of 1999, High Court of Zambia. Mrs Chilala had been married for over thirty years when the husband died. The estate which she had developed with her husband was legally her matrimonial home. She could not reasonably be 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 her home prior to his death. In this case, Mrs. Chilala was forced out of 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 required widows who were not inherited to return to their respective natal homes. 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 seventeen bodies had been buried there. The Lands Tribunal was unable to adjudge the case on grounds that it was a matter concerning customary land. The burying of deceased persons only stopped after mediation by the Royal Foundation of Zambia. Otherwise Mrs. Chilala would have been deprived of massive investment jointly made in developing their property. The attempted act of being inherited by her in-law was a clear violation of her human rights. The decision to deprive the survivors of their matrimonial homes is against the Constitution which guarantees and protects an individual's fundamental rights and freedoms, including the right to own and use land without arbitrary interference. [Source: Arida Chulu- CMJA Conference Brighton 2010]

Tanzania: Marandu v. Marandu, Civil Case No. 33 of 2003, District Court of Moshi at Moshi, Oct. 10, 2003.This case involved a dispute between the mother and other relatives of the deceased and his wife over which party had the right to bury the body of the deceased. Resident Magistrate I. P. Kitusi awarded burial rights to the defendant wife, holding that the evidence demonstrated that the decedent told his wife and children that he wished to be buried at the place of his marital home and that he was a devout Christian and no longer bound by customary law that required a first born son to be buried on ancestral land. In rejecting the reasoning of a 1986 Kenyan case, the magistrate explained that the notion that "a woman should sit by and wait for men to decide on what do to with her husband's body may have been true some years ago but it cannot be true today, . . . the laws of this country have changed and a woman no longer sits by." He explained that while he had not found any previously decided cases on the right of a woman to bury her husband, there were several controlling precedents on the right to gender equality. These cases had clearly established the applicability of international human rights principles in Tanzania through Article 9(f) of the Tanzanian Constitution. Magistrate Kitusi further explained that customary laws that discriminate between men and women violate principles of gender equality, privacy, human dignity protected by the Constitution and international law instruments ratified by Tanzania. [Source www.iawj.org]