Self-Determination and Women’s Rights in Muslim Societies

9 | Unsatisfactory Aspects of Women’s Rights to Property in Uganda and Proposals for Reform

219 A N T H O N Y L U Y I R I K A K A F U M B E Unsatisfactory Aspects of Women’s Rights to Property in Uganda and Proposals for Reform This chapter examines women’s rights to property in marriage, on divorce and on the death of a spouse in Uganda, highlighting the unsatisfactory aspects in both the state-made (statutory) and other (customary and religious) laws. It argues that with the exception of the 1995 Constitution, laws regulating the ownership of property during marriage, on divorce, and on the death of a spouse discriminate against women. It shows that even where the relevant statutory laws are protective of women’s rights to property, their implementation is hindered by customary practices and the generally weak economic position of women. The chapter delves into the even weaker position of women’s rights to matrimonial property under customary and religious laws. Under Islamic law regulating intestate succession to property, the entitlements for widows fall short of the constitutional standards for equality and nondiscrimination. Reform proposals including the adoption of an immediate community property regime are suggested. 9 T H E L AW I N A C T I O N 220 Introduction Except for Uganda’s 1995 Constitution, laws regulating the ownership of property during marriage, on divorce, and on the death of a spouse, whether state-made (statutory laws) or not (customary and religious laws), discriminate against women. This chapter discusses the problematic aspects of these laws and practices and suggests reforms. Owing to legal pluralism—a situation where many conflicting laws operate in the same jurisdiction—even where the relevant statutory laws are protective of women’s rights to matrimonial property, their implementation is hindered by customary law practices (which are entirely tribal and vary from tribe to tribe), socialization, and the generally weak economic situation of many women. To address this situation, Uganda must reform both religious and customary laws regulating rights to matrimonial property besides the statutory laws. Whereas customary and religious laws are theoretically subordinate to statutory laws, this is not always the case in practice. For example, for Ugandan Muslim women, discriminatory Islamic sexist norms regulate their rights in marriage, on divorce, and in widowhood. This state of affairs undermines the formal provisions granting women equal status with men and contradicts the Constitution and the un Convention on the Elimination of All Forms of Discrimination against Women (cedaw).1 In Uganda, pre-independence social stratification based on patriarchal values continues to exist. Worse still, although there is judicial review and courts on petition by aggrieved individuals strike down norms inconsistent with the Constitution, in practice access to courts is limited by high costs and judicial delays. Given the foregoing, the cedaw Committee, while considering the combined fourth, fifth, sixth, and seventh reports of Uganda at its 954th and 955th meetings, on 13 October 2010,2 expressed concern over the country’s laws that conflict with both its 1995 Constitution and cedaw commitments. Concern was also expressed over Uganda’s slow progress in removing provisions from its laws that discriminate against women. In particular, the committee expressed concern at the low priority given to comprehensive legal reform to eliminate sex-discriminatory provisions and bring the country’s legal framework fully into compliance with the provisions of cedaw and achieve women’s de jure equality.3 The committee was also concerned that legislation and customary W O M E N ’ S R I G H T S T O P R O P E R T Y I N U G A N D A 221 practices that discriminate against women and are incompatible with the convention remain in force. The committee noted that although rural women form the majority of women in Uganda, they are in a disadvantaged position, and their lives are characterized by, for example, lack of participation in decision-making processes . The committee reiterated its concern that customs and traditional practices that are prevalent in rural areas prevent women from inheriting or acquiring ownership of land and other property.4 The committee urged Uganda to eliminate all forms of discrimination with respect to the ownership, sharing, and inheritance of land. It further urged the introduction of measures to address customs and traditional practices, especially in rural areas, that affect the full enjoyment of the right to property by women. The committee expressed...