Widows
in Malawi
Inheritance
Rights
The
laws of inheritance in Malawi are a complex mixture of customary
law and common law. Although the constitution of 1994 has invalidated
a large proportion of colonial legislation, some have remained.
One such example, and critical to widows, is the Wills and Inheritance
Act 1937.This Act recognises the various dichotomies in inheritance
– testate/intestate; matrilineal/patrilineal; polygamous/monogamous
– factors which are crucial to the economic survival of a widow
and her children. [1]  Under
this Act, where there is a Will, property must be distributed according
to the wishes of the testator/deceased. If there is no Will ( i.e
intestate) property is distributed according to the type of customary
marriage that took place. Therefore, the type of customary marriage
is crucial in determining the widow's entitlement to her husband's
property. There
are two fundamental types of customary marriages – patrilineal
and matrilineal. The patrilineal tradition applies to all districts
of the Northern Region, in Northern Kasungu, Nsanje and Chikwawa.
The matrilineal tradition prevails in the remaining districts. A
notable difference between both types of marriages is that, in matrilineal
marriages, the husband moves to the wife's village. Generally,
it is the customary law applicable in the area where a woman is
from that will be observed during marriage. However, both parties
must expressly agree on the type of customary law to be adopted
during marriage. Both forms of marriage observe rituals which must
be followed. This is important particularly when there is a dispute
- the parties will sometimes rely on the type of rituals that took
place during marriage as evidence of the marriage. Under
the matrilineal system, the widow and her children only inherit
two-fifths of her late husband's estate in contrast with the patrilineal
system, where the widow and her children inherit a 50 per cent share.
His relatives, who are heirs under customary law, are entitled to
inherit the rest of the estate [2].
Intestate
succession is more relevant to many widows in Malawi owing to high
number of spouses who die without Wills. The inequitable distribution
of property under customary law has resulted in poverty and severe
hardship for many widows and their children. A significant number
of widows have fallen victim to “property grabbing” –
a phrase used to express the exclusion of widows from inheriting
her late husband's estate and the loss of the property to his customary
heirs.  [3] Property
grabbing is common in both rural and urban areas and is carried
out under the disguise of customary law. Shernard Mazengrera, a
human rights lawyer in Malawi explains “One of the practices
which some grabbers are hidden under is known as `Kusudzula'. Under
this custom, a widow after her husband's death is expected to be
cleansed and then freed from all matrimonial responsibilities. When
being released on such terms, everything is under the control of
the husband's family and at times the widow is sent back to her
home area with only a handful of property or no property at all.”
Furthermore, he explains, that the traditional practice of lobola
(dowry) payment from the husband's family entitles the husband or
his family to assume ownership of the wife and children. [4] Although,
widows are entitled to apply to the Courts for a Receiver to be
appointed to administer the estate, many widows do not make such
applications for fear of repercussions from family members or because
they are not familiar with the legal system. “It is pathetic
to note that when a wife tries to protest, she is often dispossessed
of everything, including her children, leaving her helpless and
miserable,” added Mazengra. A recent amendment to the Wills
and Inheritance Act makes it a criminal offence punishable by 20,000
kwacha ( approx. US$500) or five years imprisonment for anyone who
seizes property without lawful entitlement [5].
However, clearly the amendment does not go far enough as it does
not address the inequities in the distribution of property.
Legal
action against relatives can be an expensive and protracted affair.
Lawyer's fees, travelling to and from courts and other authorities,
are expenses that many widows cannot afford when left with very
little. One widow was left with almost nothing after her husband's
life policies were mistakenly paid out to his relatives by the insurance
company. His relatives who did not present any documentation, were
successful in acquiring all the money and even removed some household
belongings. The insurance company did not inform the widow of this
fact until several months later. She then had to seek legal representation
to fight for the return of her money, by which time the money had
been spent on luxury items. While his relatives were enjoying these
luxuries, the widow had to struggle to survive, pay for bus fares
to get to her lawyer and the legal aid department, and her son had
to be removed from school. There are many widows with similar tales
in Malawi [6]. Malawi's
constitution provides that “Any law that discriminates against
women on the basis of gender or marital status shall be invalid
and legislation shall be passed to eliminate customs and practices
that discriminate against women, particularly practices such as
discrimination in work, business and public affairs”. Malawi
is also a signatory to the United Nations Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW). To redress
the disparity in distribution of property, a task force has been
set up to lobby for greater entitlements for widows- i.e. about
80 per cent for the widow/widower and the children - and for better
enforcement of the existing provisions. Garton Kamchdzera of Unicef
said, “The philosophy of the whole legislation is flawed. It
assumes men own property and women cannot inherit. It needs a complete
overhaul [7]” Footnotes
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[1]
©Graphics Map at . Reproduced with kind permission.
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[2]
“Women and the Law in Malawi”, Ministry of Women and
Children Affairs; 1996
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[3]
Mother and Child; photograph courtesy of People & the Planet™
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[4]
From “Property Grabbing Rages on in Malawi”; by Joel
Chipungu, PANA correspondent; available on Africa Online
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From
Malawi: Widows, Children can now inherit property”; by
Hazwell Kanjaye (END/IPS/hk/mn/98)
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[6]
from http:// www.greatepicbooks.com/epics/december99b.html
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