O Xford Pro Bono Publico Http//wwwlawoxacuk/opbp Equality NonDiscrimination And

o xford pro bono publico http://www.law.ox.ac.uk/opbp equality, non-discrimination and male primogeniture research prepared

O xford Pro Bono Publico
http://www.law.ox.ac.uk/opbp
Equality, Non-Discrimination and Male Primogeniture
Research prepared for Justice Dingake of the High Court of Botswana to
assist in the matter of Mmusi and Others v Ramantele and Another
MAHLB-000836-10
September 2012
Contributors
============
Faculty:
Professor Sandra Fredman FBA QC (hon)
OPBP Executive Committee
Research co-ordinators:
Dhvani Mehta
Chairperson, OPBP Executive Committee
DPhil Candidate
Katlego Bagwasi
BCL Candidate
Researchers:
Shreya Atrey
BCL Candidate
Ingrid Cloete
BCL Candidate
Chintan Chandrachud
BCL Candidate
We would like to thank:
*
Professor Timothy Endicott, Dean of the Oxford Law Faculty, for
his support of this project;
*
The Members of the Oxford Pro Bono Publico Executive Committee, Dr
Tarunabh Khaitan, Dr Liora Lazarus, Mr Chris McConnachie, Ms Emma
Dunlop, Ms Alecia Johns, Ms Meghan Campbell and Mr Paolo Ronchi,
for their support and assistance with the project.
Indemnity
Oxford Pro Bono Publico is a programme run by the Law Faculty of the
University of Oxford, an exempt charity (and a public authority for
the purpose of the Freedom of Information Act). The programme does not
itself provide legal advice, represent clients or litigate in courts
or tribunals. The University accepts no responsibility or liability
for the work which its members carry out in this context. The onus is
on those in receipt of the programme’s assistance or submissions to
establish the accuracy and relevance of whatever they receive from the
programme; and they will indemnify the University against all losses,
costs, claims, demands and liabilities which may arise out of or in
consequence of the work done by the University and its members.
Introduction
============
The customary law rule which is under challenge is that of the
Ngwaketse tribe in Botswana, the effect of which is to deprive a
female child from inheriting from her father’s estate. This report
will detail various provisions of the Constitution of Botswana which
the rule of male primogeniture can be read against. A comparative
analysis of how other countries have dealt with this issue will also
be made, and where necessary, reference to international instruments
to which Botswana can draw inspiration.
In our view the starting point is the statutory definition of
customary law. Customary law, as defined in the Customary Law Act CAP
16: 01, means:
[I]n relation to any particular tribe or tribal community, the
customary law of that tribe or community so far as it is not
incompatible with the provisions of any written law or contrary to
morality, humanity or natural justice.
Thus, the Customary Act preserves customary law that is not repugnant
to the written law, morality, humanity or natural justice. Locally,
there is not sufficient judicial guidance over the meaning of
“morality” and “humanity”. Natural justice is broadly understood as
basic fairness.
From this definition, the first question arises, whether in light of
the definition of customary law above, the rule of male primogeniture
which permits only male offspring to inherit intestate is compatible
with provisions of written law; specifically the Constitution of
Botswana, and moreover, principles of morality, humanity and natural
justice.
We begin with the provisions of the Constitution. Section 3 of the
Constitution of Botswana provides as follows:
Whereas every person in Botswana is entitled to the fundamental rights
and freedoms of the individual, that is to say, the right, whatever
his or her race, place of origin, political opinions, colour, creed or
sex, but subject to respect for the rights and freedoms of others and
for the public interest to each and all of the following, namely-
(a) life, liberty, security of the person and the protection of the
law;
(b) freedom of conscience, of expression and of assembly and
association; and
(c) protection for the privacy of his or her home and other property
and from deprivation of property without compensation,
the provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms subject to such
limitations of that protection as are contained in those provisions,
being limitations designed to ensure that the enjoyment of the said
rights and freedoms by any individual does not prejudice the rights
and freedoms of others or the public interest.
In its literal reading, section 3 of the Constitution guarantees every
person in Botswana fundamental rights and freedoms without distinction
as to their race, place of origin, political opinions, colour, creed
or sex.
Section 3 of the Constitution has been interpreted by the courts. The
Court of Appeal in the Attorney-General v Dow1, Amissah J.P. said at
p. 135 H
In Botswana, when the Constitution, in Section 3, provides that 'every
person . . . is entitled to the fundamental rights and freedoms of the
individual', and counts among these rights and freedoms 'the
protection of the law', that fact must mean that, with all enjoying
the rights and freedoms, the protection of the law given by the
Constitution must be equal protection. Indeed, the appellant
generously agreed that the provision in Section 3 should be taken as
conferring equal protection of the law on individuals.
This view was echoed in Kamanakao I and Others v AG and Another,2 in
which the High Court pointed out: ‘….that the rights declared in
section 3 of the Constitution inhere in every person in Botswana
without exception or discrimination’.
According to Marumo J (as he then was) in Muzila v The Attorney
General3 ‘…these words, emanating as they do from the highest court in
this land, establish conclusively that unequal treatment by the law is
a species of discrimination.’ The judge continued to say:
In my view therefore, the principle of non-discrimination by the law,
which can also be expressed as the principle of equality before the
law, or, regard being had to the ipsissima verba of s 3 of the
Constitution, as 'the protection of the law', requires inter alia that
all persons, regardless of their social and economic rankings, or
personal antecedents, or their prominence or obscurity in society are
entitled to be treated no better nor worse than any other, unless
there be an ascertainable valid and legitimate reason for differential
treatment.4
And at p. 480-481, the Judge, after reviewing persuasive authorities
from United Kingdom and South Africa, says:
The clear message emerging from the authorities, both local and from
elsewhere, is that mere discrimination, in the sense of unequal
treatment or protection by the law in the absence of a legitimate
reason is a most reprehensible phenomenon. It is founded on the
morally depraved and thoroughly repugnant notion that some within a
society are of superior standing and are deserving of a privileged
status reserved only for themselves and a few others. It is a
standpoint at direct odds with the establishment and promotion of an
egalitarian society in which all are secure and content in the
knowledge that both the law and the exercise of public authority
recognize them as human beings equally deserving of respect, regard
and consideration. History teaches us that the most callous and brutal
of human excesses, the most immoral and degenerate of legal orders and
the most wicked and dissolute of authorities have been founded on
various versions of the notion of superiority and distinction on the
part of those in a position to influence the course of events. Such
debauched attitudes must never be permitted to take root in our
society, and those of us who find ourselves in a position to
influence, in whatever small way, public discourse and opinion must be
firm and unapologetic in our denunciation of them and their adherents.
In Good v The Attorney General (2) 2005(2) BLR 337 at 365, Lord
Coulsfield JA, defined the right to protection of the law as:
Protection of the law' means at least, that any penalty or
disadvantage inflicted on a person in Botswana by any organ of the
state must be in accordance with or capable of being justified in
terms of the domestic laws of Botswana.
Further, in a recent ruling by Lesetedi J in Tidimalo Jokase v
Gaelebale Mpho Seakgosing,5 the learned judge said at para 10:
[O]ne of the fundamental civil rights protected under Section 3 (a) of
the Constitution is protection of the law. In his view, a customary
rule that completely disregards this right of equality and equal
protection of the law runs foul of this protection under Section 3 (a)
as it gives a male child favourable treatment on inheritance by virtue
of his sex.6
In light of these authorities, we endorse the position that the right
to the protection of the law contained in section 3 of the
Constitution leads to the principle that all laws must treat all
people equally save as may legitimately be excepted by the
Constitution. Consequently, we submit that to the extent that this
rule denies the rights of females to inherit intestate solely on the
basis of their sex violates their constitutional right to equality
(protection of the law) under section 3.
Consequently, an enactment or even a provision of the common law or
customary law that is inconsistent with the Constitution is prima
facie liable to be struck down by the High Court.
Section 15 of the Botswanan Constitution provides:
1.
Subject to the provisions of subsections (4), (5) and (7) of this
section, no law shall make any provision that is discriminatory
either of itself or in its effect.
2.
Subject to the provisions of subsections (6), (7) and (8) of this
section, no person shall be treated in a discriminatory manner by
any person acting by virtue of any written law or in the
performance of the functions of any public office or any public
authority.
3.
In this section, the expression "discriminatory" means affording
different treatment to different persons, attributable wholly or
mainly to their respective descriptions by race, tribe, place of
origin, political opinions, colour, creed or sex whereby persons
of one such description are subjected to disabilities or
restrictions to which persons of another such description are not
made subject or are accorded privileges or advantages which are
not accorded to persons of another such description.
4.
Subsection (1) of this section shall not apply to any law so far
as that law makes provision-
a.
...
b.
...
c.
...
d.
for the application in the case of members of a particular race,
community or tribe of customary law with respect to any matter
whether to the exclusion of any law in respect to that matter
which is applicable in the case of other persons or not; or
Any attempt to argue this case under section 15 of the Constitution of
Botswana is immediately defeated by the saving clause in section
15(d). This provision specifically removes customary laws or
principles that are discriminatory in nature or effect from
constitutional protection.
However, in our considered opinion, this is not a final blow to the
case. There are two reasons for this. First, section 3 protects the
right to equal protection of the law. In Dow, the Court of Appeal
said:
In Botswana, when the Constitution, in section 3, provides that "every
person . . . is entitled to the fundamental rights and freedoms of the
individual", and counts among these rights and freedoms "the
protection of the law", that fact must mean that, with all enjoying
the rights and freedoms, the protection of the law given by the
Constitution must be equal protection. Indeed, the appellant
generously agreed that the provision in section 3 should be taken as
conferring equal protection of the law on individuals. I see section 3
in that same light. That the word "discrimination" is not mentioned in
section 3, therefore, does not mean that discrimination, in the sense
of unequal treatment, is not proscribed under the section.7
Secondly, the decisions of Dow and Kamanakao held that section 3 of
the Constitution is a stand-alone substantive provision from Section
15. In Dow, the Court of Appeal said:
From the wording of section 3, it seems to me that the section is not
only a substantive provision, but that it is the key or umbrella
provision in Chapter II under which all rights and freedoms protected
under that Chapter must be subsumed. Under the section, every person
is entitled to the stated fundamental rights and freedoms. Those
rights and freedoms are subject to limitations only on two grounds,
that is to say, in the first place, 'limitations designed to ensure
that the enjoyment of the said rights and freedoms by any individual
does not prejudice the rights and freedoms of others', and secondly on
the ground of 'public interest'. Those limitations are provided in the
provisions of Chapter II itself, which is C constituted by section 3
(but effectively, section 4) to 19, of the Constitution.8
Consequently, it can be argued that the saving clause under section 15
only relates to the argument against discrimination, and not to
section 3 on equal protection of the law. According to this argument,
these provisions suggest that the exception under section 15 does not
apply to section 3.
Apart from the aforementioned line of argument, it is also difficult
if not absurd to accept that Botswana would deliberately discriminate
against women in its legislation whilst at the same time
internationally supporting non-discrimination against women or a
section of them.9
Even though in Good v The Attorney General,10 Tebbut JP (as he then
was) held that
... I am of the view that the phrase used in s 3 of the Constitution
that every person in Botswana is entitled to the right to 'life,
liberty, security of the person and the protection of the law' (my
emphasis) means the protection of the domestic law of Botswana.
We submit that the domestic law must be interpreted in a manner that
does not conflict with the international obligations of Botswana. In
the Dow case, Amissah JP, who delivered the main judgment, said at p
154E:
[T]hat Botswana is a member of the community of civilised States which
has undertaken to abide by certain standards of conduct, and, unless
it is impossible to do otherwise, it would be wrong for its courts to
interpret its legislation in a manner which conflicts with the
international obligations Botswana has undertaken. This principle,
used as an aid to construction as is quite permissible under section
24 of the Interpretation Act ...
Comparative Law
===============
I South Africa
--------------
a) Equal protection and non-discrimination in the South African
Constitution
Section 9 of the South African Constitution provides:
1.
Everyone is equal before the law and has the right to equal
protection and benefit of the law
2.
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may
be taken.
3.
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sec, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
4.
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
5.
Discrimination on one or more grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair.
b) Striking down the customary law rule of male primogeniture
The South African Constitutional Court, in Bhe v Magistrate,
Khayelitsha, and Others,11specifically considered the relationship
between section 9 of the Constitution,12 and customary law – more
specifically, the rule of male primogeniture. By way of background, it
is important to note that the South African Constitution recognises
customary law as part of South African law; however, it is only
applicable insofar as it is consistent with the Constitution and other
legislation dealing with customary law. Section 211(3) provides that
courts must apply customary law where it is applicable – subject to
the Constitution and any other legislation that deals with customary
law. Further, section 39(2) provides that, when developing customary
law, a court is obliged to promote the spirit, purport and objects of
Bill of Rights. Finally, section 39(3) provides that the Bill of
Rights does not deny the existence of other rights or freedoms
conferred by customary law as long as they are consistent with the
Bill of Rights.
Thus, the South African Constitution – like the Botswana Constitution,
specifically provides that customary law is applicable only insofar as
it is consistent with the Constitution.
c) Bhe v Magistrate, Khayelitsha, and Others
Facts
The constitutional court dealt with three matters concurrently,
because they were all concerned with challenges to the customary law
of intestate succession. In the Bhe matter, the applicant had
approached the court on behalf of her two minor daughters for an order
declaring the rule of primogeniture unconstitutional in order to
enable the daughters to inherit.13 The applicant further challenged
this rule in the public interest, in the interest of female
descendants, descendants other than the eldest descendants and
extra-marital children.14
The applicant’s daughters were born of a relationship between herself
and their deceased father, who had died intestate.15 The magistrate of
the Khayelitsha Magistrate’s Court had, after the death of the
deceased, appointed the father of the deceased as the sole heir of his
estate in accordance with section 23 of the Black Administration Act.16
The deceased’s father indicated that he intended to sell the
deceased’s immovable property, on which the applicant and the minor
children lived, in order to pay the funeral expenses incurred as a
result of the deceased’s death.17
Under the system of intestate succession flowing from section 23 and
the regulations, in particular regulation 2(e), the two minor children
did not qualify to be the heirs of the intestate estate of their
deceased father’s estate.18 According to these provisions, the estate
of the deceased fell to be distributed according to black law and
custom. The issue to be determined was whether or nor these provisions
were consistent with the Constitution.
Equality analysis
The court stated that to the extent that the primogeniture rule
prevents all women, female children and extra-marital children from
inheriting, it was discriminatory.19 In the words of Deputy Chief
Justice Langa:
The exclusion of women from inheritance on the grounds of gender is a
clear violation of section 9(3) of the Constitution. It is a form of
discrimination that entrenches past patterns of disadvantage among a
vulnerable group, exacerbated by old notions of patriarchy and male
domination incompatible with the guarantee of equality under this
constitutional order.20
He then went on to say:
In denying extra-marital children the right to inherit from their
deceased fathers, it also unfairly discriminates against them and
infringes their right to dignity as well. The result is that the
limitation it imposes on the rights of those subject to it is not
reasonable and justifiable in an open and democratic society founded
on the value of equality, human dignity and freedom…In conclusion, the
official system of customary law of succession is incompatible with
the Bill of Rights. it cannot, in its present form, survive
constitutional scrutiny.21
The Constitutional Court recognised that the manner in which customary
law operates must be seen in context:
The rules…were part of a system which fitted in with the community’s
way of life. The system had its own safeguards to ensure fairness in
the context of entitlements, duties and responsibilities. It was
designed to preserve the cohesion and stability of the extended family
unit and ultimately the entire community… Property was collectively
owned and the family head, who was the nominal owner of the property,
administered it for the benefit of the family unit as a whole. The
heir stepped into the shoes of the family head and acquired all the
rights and became subject to all the obligations of the family head.
[He] acquired the duty to maintain and support all the members of the
family who were assured of his protection and enjoyed the benefit of
the heir’s maintenance and support.22
However, the court found that the context in which the rule of
primogeniture operated had changed:
Most urban communities and families are structured and organised
differently and no longer purely along traditional lines. The
customary law rules of succession simply determine succession to the
deceased’s estate without the accompanying social implications which
they traditionally had. Nuclear families have largely replaced
traditional extended families. The heir does not necessarily live
together with the whole extended family which would include the spouse
of the deceased as well as other dependants and descendants. He often
simply acquires the estate without assuming, or even being in a
position to assume, any of the deceased’s responsibilities.23
Order
The Constitutional Court thus found that section 23 of the Black
Administration Act was unconstitutional and regulation 2(e) had to
fall away. The Constitutional Court found further that the application
of the rule of primogeniture to intestate succession was not
consistent with the equality protection under the Constitution.24
The Constitutional Court, as part of its order, declared the
applicant’s daughters the sole heirs of their deceased father’s
estate; ordered that the deceased’s father sign all documents and take
all reasonable steps required of him to transfer the entire residue of
said estate to the daughters and that the Magistrate, Khayelitsha, do
everything required to give effect to the provisions of the judgment.25
d) Application to Botswana
Both the South African law and Botswana law provide that customary law
may only be applied insofar as it is consistent with the Constitution.
However, an important textual difference is that while Botswana’s
Constitution specifically provides that discrimination through
application of customary law is acceptable, the South African
Constitution has no such provision. Thus, in the Bhe case, there was
clearly discrimination against women that was not justifiable in terms
of the South African Constitution. However, as the parties to the case
have conceded, it is not possible to reach a similar conclusion on the
basis of section 15 of Botswana’s Constitution, given the saving
clause.
To rely solely on South African discrimination law, then, would be
problematic from a comparative law perspective, as the text of the
constitutional provisions regarding discrimination is significantly
different from the text of Botswana’s Constitution regarding
discrimination.
The applicants now rely on is section 3(a) of the Constitution of
Botswana – the right to equal protection before the law – rather than
the prohibition on discrimination. Thus, from a comparative
perspective, it is perhaps more useful to focus on jurisprudence
surrounding the right to equal protection of the law, as opposed to
the probation on unfair discrimination. The South African
Constitution, like Botswana’s Constitution, provides for the right to
equal protection of law independently of its discrimination
provisions. Thus, it is useful to look more closely at how this right
has been interpreted in South Africa.
e) Equal protection of the law
Section 9(1) provides for the right to equal protection and benefit of
the law, whereas subsections (3) and (4) prohibit unfair
discrimination. Thus, like the Botswana Constitution, there are two
separate provisions dealing with equal protection of the law and
non-discrimination. However, in the South African Constitution, both
of these rights are contained in a single section, whereas Botswana’s
Constitution separates them into two distinct sections.
Since the applicants are now focusing their case on an alleged
infringement of section 3(a) of Botswana’s Constitution – the right to
equal protection of the law – it is helpful to look to how this right
has been interpreted in South Africa. What constitutes a violation of
section 9(1) of the South African Constitution, and how does this
differ from a violation of the section 9(3) and (4) unfair
discrimination provisions?
The seminal case on the application of section 9 is Harksen v Lane NO.26
In that case, the court held that the first question to be asked is
whether or not the challenged law differentiates between people or
categories of people. If so, the court must ask whether the
differentiation bears a rational connection to a legitimate government
purpose. If it does not, there is a violation of section 9(1). If
there is a rational connection to a legitimate government purpose, the
court must inquire into whether or not the differentiation amounts to
unfair discrimination. The Harksen test provides as follows:
a.
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to a legitimate government purpose? If it does not then there is a
violation of section 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
b.
Does the differentiation amount to unfair discrimination? This
requires a two stage analysis:
i.
Firstly, does the differentiation amount to “discrimination”? If
it is on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or
not there is discrimination will depend upon whether,
objectively, the ground is based on attributes and
characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.
ii.
If the differentiation amounts to “discrimination”, does it
amount to “unfair discrimination”? If it has been found to have
been on a specified ground, then unfairness will be presumed. If
on an unspecified ground, unfairness will have to be established
by the complainant. The test of unfairness focuses primarily on
the impact of the discrimination on the complainant and others
in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is
found not to be unfair, then there will be no violation of section
8(2).
If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified under the
limitations clause (section 33 of the interim Constitution).
Thus, the South African Constitutional Court has interpreted section
9(1) as requiring that any differentiation between people must bear a
rational connection to a legitimate government purpose; section 9(1)
tests whether or not the law has a rational basis. As the court held
in Prinsloo v Van der Linde,27 the purpose of this aspect of equality
is, therefore, to ensure that the state is bound to function in a
rational manner.
Section 9(1), then, deals with cases of differentiation that do not
meet the requirements of discrimination in sections 9(3) or (4). In
cases where the differentiation does not amount to discrimination, the
court has nevertheless been able to use section 9(1) to invalidate the
law or conduct, where that law or conduct bears no rational
relationship to a legitimate government purpose.
This was the approach followed by Heher J in National Coalition for
Gay & Lesbian Equality v Minister of Justice.28 Finding that the
common law offence of committing unnatural sexual acts and the offence
created by s20A of the Sexual Offences Act 23 of 1957 had no rational
basis and were therefore a violation of section 9(1), he proceeded to
consider whether there was any justification for the violation in
terms of section 36. Finding that there was none, he held that the
offences were unconstitutional and did not consider whether they also
constituted unfair discrimination.
Another example of a case that failed the rational connection test is
S v Ntuli.29 This case concerned a challenge to a law that
differentiated between appellants in criminal cases with legal
representation, and those without. Those without legal representation
were prohibited, in terms of the law, from appealing their conviction
without a judge first certifying that there were reasonable grounds
for the appeal. The purpose of the judge’s certificate requirement
could be considered legitimate – the aim was to create a screening
mechanism to sift out appeals without prospect of success. However,
the court found that there was no legitimate connection between this
differentiation and the purpose, as there was no rational basis for
placing an extra burden on unrepresented appellants.
Essentially, the point of section 9(1) is to prevent arbitrary
differentiation, as opposed to unfair discrimination – differentiation
on illegitimate grounds.
f) Potential application of the South African approach in Botswana
It is important to remember that the rationality test is not very
exacting. The court will simply evaluate the reasons given by the
government for a law and will consider whether there is a rational
relation between the purpose of the law and the differentiation
imposed by the law. As was held in Jooste v Score Supermarkets Trading
(Pty) Ltd:30
[T]he only purpose of the rationality review is an inquiry into
whether the differentiation is arbitrary or irrational, or manifests
naked preference and it is irrelevant to this inquiry whether the
scheme chosen by the legislature could be improved in one respect or
another…
If we were to apply the South African courts’ understanding of
‘equality before law’ to the Botswanan case at hand, it could be
argued that even though there is no discrimination because section 15
provides that this case cannot be considered discrimination, there is
nonetheless differentiation. As a result, if there is no rational
connection between this differentiation and a legitimate government
purpose, there is a violation of section 3(a)’s guarantee of equality
before law.
If the South African interpretation of equality under law were to be
adopted, the burden on the respondents is to show that the rule of
male primogeniture promotes a legitimate government purpose.
II Ghana
--------
a) The place of customary law in Ghanaian law
The 1992 Constitution of Ghana recognises customary law as part of the
laws of Ghana. Article 11(1) of the Constitution provides that the
laws of Ghana shall comprise of, inter alia, the common law. The
common law of Ghana comprises the rules of law generally known as the
common law, the rules generally known as the doctrines of equity and
the rules of customary law including those determined by the Superior
Court of Judicature.31 Customary law is a personal law applicable only
to members of a particular community.32 Thus, the Constitution defines
customary law to mean ‘the rules of law which by custom are applicable
to particular communities in Ghana.’33
b) Equality and freedom from discrimination
Article 17 of the Constitution prohibits discrimination and affords
equal protection to all persons irrespective of their sex. It
specifically provides that ‘[a] person shall not be discriminated
against on grounds of gender, race, colour, ethnic origin, religion,
creed or social or economic status.’34 To discriminate under the
Constitution ‘means to give different treatment to different persons
attributable only or mainly to their respective descriptions by race,
place of origin, political opinions, colour, gender, occupation,
religion or creed, whereby persons of one description are subjected to
disabilities or restrictions to which persons of another description
are not made subject or are granted privileges or advantages which are
not granted to persons of another description.’35 The Constitution
however gives Parliament the power to enact laws that are reasonably
necessary to provide for inter alia matters relating to devolution of
property on death or other matters of personal law.36 This does not
mean that Parliament can enact or validate the customary law rule of
male primogeniture in Ghana. Where that happens, the Supreme Court of
Ghana has the power to strike down that law as being unconstitutional37.
The Supreme Court has already indicated its willingness to do so when
it emphatically stated in Fianko v Aggrey (2007-2008) SC. GLR 1135 at
page 1145: ‘the children of a deceased person both male and female
have a right to inherit their deceased mother's property; this is
regardless of whether the woman came from a matrilineal or patrilineal
family’.
c) The Ghanaian courts’ rejection of male primogeniture
Before the promulgation of the 1992 Constitution, the courts in Ghana
had already indicated their unwillingness to sanction the customary
law rule of primogeniture in the few cases in which it reared its ugly
head. There is no better place to start than with the decision of one
of Ghana’s most celebrated customary law jurists, Justice Ollennu. In
1962 Ollennu J (as he then was) had the opportunity to pronounce on
the legitimacy or otherwise of the customary law rule of primogeniture
in Ghana in the case of Nartey v Nartey and Another [1962] 1 GLR 184.
The plaintiff claimed in the local court for the recovery of real and
personal properties alleged to be the self-acquired property of his
deceased father, on the grounds that by customary law he and other
children of his father were as of right successors to their father and
that the defendant, their deceased father’s sister, being a woman was
not entitled to succeed to the deceased and was only entrusted with
the estate of their deceased father because of their minority at that
time. He further contended that the co-defendant, being the mother of
the deceased, had no interest in the estate of her said son as theirs
was a patrilineal family society. The local court ordered that since
Prampram (a community in Ghana) was a patrilineal society, the
defendant alone could not administer the estate ‘because her sons must
inherit their father’ and appointed a brother of the deceased jointly
with the defendant as administrators of the estate, real and personal
and directed them to distribute the properties in a certain manner.
The plaintiff appealed to the High Court. In the High Court, Ollennu J
held:
1.
Succession is a matter of election or appointment by the family
and there is no rule of customary law that a male must be
appointed to succeed to a male. Although the deceased was survived
by his brother, the family was therefore within its rights in
appointing the defendant; whom it considered the most suitable
person;
2.
the only course open to the local court therefore was to dismiss
the plaintiff’s claim and enter judgment for the defendant and
co-defendant. Having failed to do this, the orders and directions
made were ultra vires and should be declared null and void and
judgment entered for the defendant and co-defendant.
Ollenu J thus dispelled the local magistrate misgivings about the
appointment of a woman to inherit from a male when there were men
available.
In Akrofi v Akrofi [1965] GLR 13 the plaintiff, a native of Buem
state, brought an action against the defendant, her paternal uncle,
for a declaration that she was entitled to succeed to her late
father’s properties. She contended that succession in the state was
patrilineal and that females, could, in the absence of males, succeed
to the self-acquired properties of their father. Since she was the
only child of her father, she submitted that she was the rightful
person to succeed to his properties. The defendant, though admitting
that succession in the state was patrilineal, denied that a female was
entitled to succeed to her father’s properties. He maintained that he
had been appointed a successor to the properties by the family. His
Lordship Sowah J(as he then was) found on the evidence before the
court that succession to property in Buem state is patrilineal and
male children take in preference to female, but where there are no
male children, female children are not excluded but are within the
range of persons entitled to succeed. His Lordship held that the
plaintiff was equally qualified to be appointed a successor to inherit
her father. The court did not mince words in condemning the customary
law rule of primogeniture which the paramount chief of the Buem people
sort to render as the applicable customary rule. In the words of the
court, a ‘custom which discriminates against a person solely on the
basis of sex has outlived its usefulness and is not in conformity with
public policy; if customs are to survive they must change with the
times.’
The High Court however got it wrong in Golo III v Doh and Others
[1966] GLR 447 when it held that in the Kpeve area in the Volta Region
inheritance was patrilineal and children, both male and female,
inherit their fathers’ estates but the daughters had only a life
interest in the property descending to them from their father. On the
death of a daughter such property would revert to her father’s family.
Her children would have no right to inherit such property. The court
indirectly created the distinction between the incidence of
inheritance by male and female children: that a male child had more
than life interest in the inherited property while female children had
only a life interest. With the greatest respect to the Judge, the
proper position in customary law is that the person who is appointed
to inherit – whether male or female – has only a life interest in the
property. The property is family property and cannot be devolved to
one’s children. It is the prerogative of the family to meet and
appoint the person to inherit. And female children are as much
qualified as their brothers. The courts have thus drawn a distinction
between beneficial interest in the self acquired property of a man and
the right to inherit and take charge of family property.
Ghanaian law does not favour the customary rule of male primogeniture.
In the few cases in which the rule has come before the courts, the
courts have been confident in dismissing such practice as being
outdated and not in tune with good conscience and equity. In the
current Ghanaian constitutional dispensation, any rule of that nature
would be declared unconstitutional as being a serious violation of the
fundamental human rights of female children. The true position under
Ghanaian law with respect to inheritance is that a successor to the
property of a person who dies intestate is appointed by members of the
family of the intestate at a meeting convened for that purpose.
Succession to family property does not confer an absolute title but,
at most, a determinable life interest; if the successor was still in
possession of the property on his death, it goes to the person
appointed by the family at a meeting of members of the family convened
for that purpose. And the person could be male or female.38
III India
---------
a) Constitutional provisions
Article 14, the umbrella equality provision of the Indian
Constitution, prohibits the State from denying to any person equality
before the law or the equal protection of laws in India. The State is
prohibited from discriminating against citizens on the grounds of
religion, race, caste, sex or place of birth under Article 15. Article
300A frames the constitutional right to property conferred upon all
persons in negative terms.39
Indian laws of succession are based on religious personal laws. Thus,
the crucial question is whether customary and personal laws in
existence prior to the Constitution are required to comply with the
right to equality and other constitutional provisions: there are
divergent judicial opinions on this question.40
b) Case law
A customary rule of inheritance under which a mother who remarries
could not succeed the property of her deceased son was challenged
under Article 15 of the Constitution.41 Rejecting the challenge and
upholding the personal law of the parties, it was held that “rights of
succession varying between different heirs belonging to different
sexes have to be determined according to the personal law or the
usages by which a party is governed and it is too much to suggest that
all heirs belonging to any sex must have the same rights of
inheritance”.42
However, in other cases, Indian courts have been reluctant to accept
the separate classification of men and women in matters concerning
ownership and succession of property. In Madhu Kishwar v. State of
Bihar43, the Supreme Court of India observed that the danger of
fragmentation of land holdings is a misconceived and unjust rationale
for denying equal rights of succession to men and women. Similarly, in
Cracknell v. State of Uttar Pradesh,44 the petitioner challenged the
constitutionality of a statute that allowed the Court of Wards to
assume the superintendence of the estate of persons disqualified from
managing their own property. The constitutional challenge under
Articles 14 and 15 was based on the argument that the Act
discriminated against females, since they were given modest due
process rights compared to males. The Allahabad High Court upheld the
challenge, finding that no reasonable classification between women and
men could be made in proprietary matters.
IV The Human Rights Committee
-----------------------------
General Comment No. 28 of the Committee highlights the significance of
conferring equal property and inheritance rights upon men and women.
In the context of giving effect to Article 23 of the International
Covenant on Civil and Political Rights (ICCPR) (equality of rights and
responsibilities of spouses as to marriage, during marriage and at its
dissolution), it specifies that ‘[w]omen should… have equal
inheritance rights to those of men when the dissolution of marriage is
caused by the death of one of the spouses’.45 It also clarifies that
the rights which persons belonging to minorities enjoy under Article
27 of the ICCPR in respect of their language, culture and religion do
not authorize any State, group or person to violate the right to the
equal enjoyment by women of any Covenant rights.46
V International Instruments
---------------------------
Here, reference is made to the CEDAW, especially its text and General
Recommendation 21 by the Committee. Articles 15 and 16 of CEDAW
specifically deal with women’s property rights. Article 15(2), of
CEDAW states that: ‘States parties shall accord to women, in civil
matters, a legal capacity identical to that of men and the same
opportunities to exercise that capacity. In particular, they shall
give women equal rights to conclude contracts and to administer
property and shall treat them equally in all stages of procedure in
courts and tribunals.’
Further, Article 5 stipulates that states parties shall take all
appropriate measures ‘to modify the social and cultural patterns of
conduct of men and women, with a view to achieving the elimination of
prejudices and customary 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 men and women’. This schema must be read
in accordance with Article 2 of the CEDAW which obligates state
parties to ‘take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and practices
which constitute discrimination against women’. Tanzania and Zambia
are two countries in the African region which have been successfully
persuaded to change their laws by including sex as a ground of
non-discrimination in the Tanzanian Constitution and by amending the
Zambian customary law in the Intestate Succession Act to include all
types of marriages.
The CEDAW Committee’s General Recommendation No. 21[1] on ‘Equality in
Marriage and Family Relations’ in paragraph 28 states that—
Any discrimination in the division of property that rests on the
premise that the man alone is responsible for the support of the women
and children of his family and that he can and will honourably
discharge this responsibility is clearly unrealistic. Consequently,
any law or custom that grants 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, is discriminatory and will have a serious impact
on a woman's practical ability to divorce her husband, to support
herself or her family and to live in dignity as an independent person.
Similarly, paragraphs 34 and 35 have seriously criticised the
customary laws which result in unequal treatment of women in receiving
a share of inheritance from husband’s or father’s property.
The CEDAW Committee has made twelve pronouncements under the Optional
Protocol allowing individual complaints. Two of them - B.J. v Germany47
and Dung Thi Thuy Nguyen v The Netherlands48 have generally
highlighted the growing concern over the poor financial situation of
women in cases of divorce and pregnancy respectively. Although
declared inadmissible,49 Cristina Muñoz-Vargas y Sainz de Vicuña v
Spainwas50 brought by an author who claimed discrimination on the
basis of sex because she was denied the right as a first born child to
succeed her late father to the nobility title.51 Whilst nobility
titles were considered purely symbolic, as neither human rights nor
fundamental rights; it is arguable that a case relating to Articles 15
and 16 of CEDAW can be seen as discriminatory because it involves
ordinary property rights.
Not much arises from the Convention on the Rights of the Child (CRC)
Committee jurisprudence. In fact, except property as a ground of
non-discrimination, there is no mention of children’s property rights.
1 1992 BLR 119 at para 135H
2 2002 (1) BLR 110 (HC).
3 2003(1) BLR 471 at 478.
4 At p.479.
5MAHLB 000661-10
6Ibid, para 10
7At p. 135.
8At p.133.
9 Botswana is a party to the International Covenant on Civil and
Political Rights as well as the Convention on the Elimination of All
Forms of Discrimination against Women.
10 2005(2) BLR 337 at p. 356.
11 2005 (1) SA 580 (CC).
12 Constitution of the Republic of South Africa, 1996.
13 Para 10.
14 Para 10.
15 Para 12.
16 Para 15.
17 Para 17.
18 Para 16.
19 Para 93.
20 Para 91.
21 Paras 95 and 97.
22 Paras 75 and 76.
23 Para 80.
24 Para 100.
25 Para 136, 11(a) of the order.
26 1998 (1) SA 300 (CC).
27 1997 (3) SA 1012 (CC) para 22.
28 1998 (6) BCLR 726 (W).
29 1996 (1) SA 1208 (CC).
30 1999 (2) SA 1 (CC) para 17.
31 Article 11(2) of the 1992 Constitution
32 See Section 54 of the Courts Act, 1993(Act 459)
33 Article 11(3)
34 Article 17(2)
35 Article 17(3)
36 Article 17(4)(b)
37 Articles 2 and 130 of the 1992 Constitution
38 AKROFI v. AKROFI [1965] GLR 13; FIANKO VRS: AGGREY(2007-2008) SC.
GLR 1135.
39 ‘No person shall be deprived of his property save by authority of
law’.
40 Mihir Desai, ‘Flip-flop on personal laws’ Volume 3, Issue 4 (2004).
41 Gurdial Singh v. Mangal Singh, AIR 1968 P&H 396.
42 ibid.
43 AIR 1996 SC 1864.
44 AIR 1952 All 746.
45Human Rights Committee, General Comment 28, Equality of rights
between men and women (article 3) (March 29, 2000).
46ibid.
47 General Recommendation No. 21 on equality in marriage and family
relations, UN doc. HRI/GEN/1/Rev. 6 (12 March 2003), pp. 250-258.
48 CEDAW/C/36/D/1/2003
49 It was declared inadmissible on the basis that the succession of
her brother occurred before the entry into force of CEDAW and the
Protocol for Spain.
50 CEDAW/C/36/D/3/2004.
51 CEDAW/C/39/D/7/2005.