Academic journal article The George Washington International Law Review

Property-Grabbing under African Customary Law: Repugnant to Natural Justice, Equity, and Good Conscience, Yet a Troubling Reality

Academic journal article The George Washington International Law Review

Property-Grabbing under African Customary Law: Repugnant to Natural Justice, Equity, and Good Conscience, Yet a Troubling Reality

Article excerpt

I. INTRODUCTION

In many of the world's common law jurisdictions, including those of several African countries, a will is a public document that can be inspected by members of the public.1 However, under African customary law,2 formal wills do not exist. This leaves claims of intestate succession open to manipulation and abuse by members of a deceased's extended family. African customary law is often cited by members of the deceased's extended family to justify disenfranchising a widow from owning property in the matrimonial home left to her by her spouse, including property that the wife owned herself or that she acquired jointly with her husband. This practice is most commonly referred to as "property-grabbing."

There is no single coherent or systematically developed body of jurisprudence that covers precisely what is or what is not African customary law. Instead, one must examine evidence of a claimant's adherence to reasonably well-established norms of African culture and African traditions as the basis of considering whether there is evidence of African customary law. As a result, opportunistic relatives of the deceased have an incentive to manipulate rules and norms relating to African customary law so as to disenfranchise the widow when these relatives have not been provided for in any will of the deceased.

This Article endeavors to answer whether property-grabbing should be upheld under African customary law as a valid legal norm or whether it should be banished as an illegal act that violates norms of civilized nations, public policy, natural justice, good conscience, and equity. The Article is based on both primary and secondary sources of data, including field interviews with twenty people in Zambia conducted by the lead author.3

Specifically, some of the issues this Article addresses include: (1) to what extent a will can be enforced under African customary law by a beneficiary when a deceased, shortly before his death, bequeaths property to his surviving spouse; (2) does African customary law honor such a will, or does African customary law lead to some form of legal reasoning that is far removed from precepts of the English common law; (3) should a wife inherit property that she and her husband acquired for their matrimonial home while her husband was alive, especially when this property is not the subject of a lawful disposition to a third party and the wife is the sole beneficiary under the will; (4) what should be the result when the deceased does not leave a will; (5) when statutes governing intestate succession exist, should relatives of the deceased, relying on African customary law, be entitled to the estate of the deceased regardless of the legislative framework; and (6) what is the relationship between African customary law and the country's legislative framework for intestate and testate succession, on the one hand, and between African customary law and public policy, on the other. As an introduction to these issues, the following story presents an insightful and illuminating picture:

When Tamara Zulu's husband died, leaving her as the sole breadwinner, she turned to her skills as a tailor to support her five children. Then came Ms. Zulu's in-laws. A month after the funeral, relying on tribal traditions that assign inheritance rights to relatives of deceased men, the out-of-towners swooped in and took everything, including Zulu's only sewing machine. The suddenly destitute widow scrambled to rent tailoring equipment and feed her family. 'They don't even write or ask about the children. . . . They don't help you educate the children. So I have to struggle on my own.'4

According to Muna Ndulo, a Zambian legal expert, "[f]or children, it's a double tragedy. It means orphans lose parents but also are deprived of the means of survival."5 Indeed, the widow and her children are left to fend for themselves.6 The property-grabbers are only interested in looting the deceased's estate and not in looking after his children. …

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