Women’s right of inheritance of property:  Perspectives of a female lawyer from South Sudan

Author: Cedonia Victor Legge
Advocate and LLM scholar, University of Juba

Introduction

Women in South Sudan make up more than half the country’s population, yet they have the least influence in the society ¾ especially in the right of access to property ¾ movable and immovable. Whereas the law guarantees the right of women to inherit property, patriarchal traditions continue to deny women from inheriting property. This article discusses my first-hand experiences as a female practicing lawyer in South Sudan. I start by pointing out the legal frameworks on women’s right to own property in South Sudan. This is important to show that South Sudan has legal obligations and a duty to ensure equal access to property by women. It is also crucial for the government to address barriers placed before women in enjoying such a fundamental right. The article proceeds to examine the traditional practices that are opposed to legal frameworks guaranteeing women’s rights to inherit property. The article ends with some recommendations that I put forward to address women’s right to inherit property.

The law on women’s right to own property in South Sudan

South Sudan has adopted progressive laws and has also ratified relevant international human rights treaties that protect and promote the rights of women. At national level, the country’s Transitional Constitution ‘accords full and equal dignity of the person’ to all women (article 16(1). Article 16(5) of the Constitution stipulates in no uncertain terms, that ‘women shall have the right to own property and share in the estates of their deceased husbands together with any surviving legal heir of the deceased.’

The constitution commands all levels of government to ‘enact laws to combat harmful customs and traditions which undermine the dignity and status of women’ (article 16(4(b). One such important legislation to this effect is the  Land Act under which article 13(4) states that ‘women have the right to own and inherit it together with any surviving legal heir or heirs of the deceased’.

These national legal frameworks are complemented by a host of relevant treaties ratified by the Republic of South Sudan. They include Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), among other relevant international treaties all of which oblige respecting women’s rights to property. Despite all these robust legal frameworks, there remains many practical challenges to women’s rights of inheritance of property.

Cultural barriers impeding women’s rights to inherit property

South Sudan has enacted several laws and adopted relevant policies. Yet, their implementation remains a challenge. This is due to many reasons, among which is the fact that a vast majority of the country’s justice and governance system is dispensed through customary or traditional rules. This is, however, no news to many since most South Sudanese prefer traditional systems over statutory legal regimes. Men, for instance, have exploited the overwhelming resort to local systems to validate their domination over women. This phenomenon is even practiced by educated men who go to the villages to marry underage girls claiming the practice is permissible under their cultures despite being clearly an illegal act in law. The list of resorts to customs is long.

When a woman is married, she is considered part of the family of her husband and should, by law, inherit properties left behind by her late husband. This is, however, not the case in many customs. A woman is herself inherited by relatives of the deceased husband and this means she has little or no authority over the estate of her late husband.

When matters go to court, there are instances when the statutory courts even refer matters back to the traditional authorities to address such disputes in accordance with their customs.

Denying women their right to inherit property violates the constitution and the law. This is vividly discussed in a report by International Organisation for Migration (IOM), and UKAID which reveals staggering practice on women’s rights to inheritance. The report finds that:

in a customary tenure system, it is often the case that, with the death of her husband, a widow loses access to land and property and is expelled from their marital home. Widows are seen as not having a right to claim the “ancestral land of their late husbands, as … people feel women have no right to land”. The male relatives of a recently deceased man might also keep his daughters from inheriting any of their father’s estate.

The same report discusses other factors that prevent women from accessing property in South Sudan. They include:

• Social cultural barriers such as male dominance in the South Sudanese society which puts women below men in decision-making. For instance, when a wife’s husband dies, the family of the late husband will appoint another male relative to be in charge of the estate of the deceased even when the wife may be alive.
• Institutional barriers such as changing ownership after the demise of a husband. Whereas the law stipulates that women have right to property, the institutions function very much in tandem with norms and practices that are derived from patriarchal underpinnings.

Doing something about it: Legislative and policy reform suggestions

Women in South Sudan have suffered enough. They continue to bear the brunt of conflict, patriarchal culture that dominates them and denies them access to and ownership of property. This is unconstitutional and calls for urgent attention in legislative and policy reforms. This is why I suggest that:

• More female legal practitioners are appointed into the bench as judges. This is not only representational, but it is for the simple reason that women understand gender issues more than men. After all, it is unfair to have such an overly majority men bench as it is in South Sudan where only a handful have been female judges.
• The government should enact additional and stronger laws and adopt policies that promote women’s rights of inheritance of property. This is essential since the country’s constitution stipulates women’s rights to own property and women’s rights to own property is essential in achieving the ideals of achieving a democratic society based on the principles of non-discrimination and equal protection of the law. In reality, most households are headed by women and women have become if not already the centre of families in South Sudan. Women’s ability to enjoy their constitutionally enshrined right to property is therefore essential to ensuring stable families.
• The government and stakeholders should create awareness on the customs and traditions that discriminate against women and remove barriers that prevent them from owning property.

These recommendations are essential if women’s rights to property are to be protected as guaranteed under the constitution and applicable international law.

About the Author:

Cedonia Victor Legge is a South Sudanese advocate of human’s rights and scholar of Master of Laws, University of Juba. She is a practicing Advocate of human rights with strong experience in strategic litigation in South Sudan. She can be reached on e-mail: cedoniavictor@gmail.com

Disclaimer:

Views in this article do not represent the position or endorsement of institutions which might be affiliated with the author.