AFRICANEWS
MalawiProperty grabbing of deceased estatesby Brian Ligomeka
In Malawi's commercial capital Blantyre, a 48-year-old school teacher, Juma Matemba dies of a heart attack. Before his body is fetched from Queen Elizabeth Hospital for burial in his village, his relatives invade his house, sharing all the property that the deceased had without allocating anything to his wife and children.
In the absence of a will, the widowed wife and children of the deceased
school teacher are defenceless. They just shed tears as they witness the
disappearance oftheir property. Shernard Mazengera, a human rights lawyer says, "one ofthe commonest problems relating to infringement of human rights in relation to deceased estates which directly affects widowsand can be called "property grabbing." Mazengera defines property grabbing as a practice whereby a widow is forcibly disposed of all the deceased property whatsoever or a larger part thereof, by relatives of the husband during sickness, funeral ceremony or immediately thereafter. Centre for Advice, Research and Education on Rights (CARER) a human rights non-governmental organisation says over 50 per cent of legal and human rights related cases it handles are issues about deceased estates. Dr Vera Chirwa, Executive Director for Women's Voice says it is a pity that property grabbing is now common practice in both rural and urban areas and rages on with total disregard to the present provisions of the Constitution of Malawi. She says that Section 24 of Malawi's Constitution recognises the rights of women and puts them as a special category apart from other rights. "Section 24(2)(C) protects women from being deprived of theirproperty including property obtained by inheritance," she points out. She adds, "the constitutional provision extends to invalidating any law and eliminationof customary practices that discriminate women on marital status." Dr Chirwa observes that women become victims of property grabbing because most of them are not aware of the present provisions of the Wills and Inheritance Act. According to Chirwa, the second part of the Act deals with situations where the deceased has died without a will. "This is more relevant to widows in Malawi as most people do not yet leave wills. The interstate property left by the deceased is distributed depending on what type of marriage one contracted," she explains. The Wills and Inheritance Act stipulates that the general rules of distribution of the deceased estate where the deceased is a man and in both matrilineal and patrilineal is as follows: "Firstly, all household property used by the widow before the death will automatically go to her. Secondly the remaining property will be distributed between the widow, her children and all his direct dependants on one hand and their heirs as recognised by customary law. Thirdly wherethe marriage was matrilineal, the widow children and direct dependants will get two fifth of the property while customary heirs will get a fifth. If marriage was patrilineal the distribution between these two is 50-50."
The law further provides that as between the widows, children and direct
dependants, they are entitled to equal shares unless there are good
reasons justifying departure from this formula. "One of the practices which some grabbers have hidden under is known as 'kusudzula' under this custom, a widow after her husband's deathis expected to be cleansed and then divorced. When being released on such 'divorce' 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 property or no property at all." Lobola (dowry payment) is another customary practice which accordingto Mazengera seriously infringes on women's rights. Under this practice once a man has paid lobola he is taken to literally own the wife and children. When the man has died all he owned, his wife and children are supposed to belong to the family ofthe deceased. "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," laments Mazengera. Emmie Chanika, Executive Director for Civil Liberties Committee in Malawi (CILIC) attributes the problem to poverty and greed. "Poverty is also one of the major causesof property-grabbing. In most cases parents and relatives of the deceased argue that their son was their investment and therefore cannot let go of the property he has left behind. As for the wife she is just cast aside," says Chanika. Seodi White, a Wilsa Malawi human rights advocate says law enforcement is amongst the problems that bedevil issues related to deceased estates. She says property grabbers take hold of property for which they have no entitlement and get away with it because that law is not strong enough to deter their customs. "The problem is that there are no punitive sanctions to punish those who dispossess widows and children of deceased estates before the same is distributed," she says. Seodi further explains that in such a situation it is a civil action which can be taken against a propertygrabber. She notes that a civil actions in such instances has to follow cumbersome procedures because it is either the one with letters of administration who can take up the matter or an interested beneficially who is intending to apply for letters. (Letters of administration are an authority given to an applicant, who is an interested party to the deceased estate in question asking the High Court to manage the distribution of the deceased estates). Seodi White however says the majority of Malawians are not aware of this procedure and cannot afford to hire lawyers to represent them. Due to this setback most of the deceased estates end up being administered by the Administrator-General who is an office created by an Act of Parliament for the purpose of administering deceased estates. The administration of a deceased estate by the Administrator General has its own problems. In districts where the Administrator general has no office, the District Commissioner's office is an agent for distribution of these estates. This often causes problems and confusion especially to the widows. "My husband passed away a year ago. Almost every month, I travel to the district of origin of my husband to check whether the estate is ready for distribution -Truthfully speaking, I am tired of being told 'check next month'," laments a Mrs Maseko of Mulanje district in the southern Malawi. Dereck Chimombo, 22-year-old youngman who lost his father two years ago complains of bureaucratic inordinate delays, he has experienced. "Yorked with the problem of delays is the glaring inefficiency and maladministration displayed by those responsible," says Dereck explaining that some people have been victims of loss of files and subsequent loss of benefits to intended beneficiaries. Official corruption and bribery has added to the affliction of widows who approach the Administrator General's office for their benefits. Many have complained of corruption by officials which has led to the missing of files or lack of enforcement against property grabbers who simply palm oil the said officials in order to have decisions made in their favour. Sometimes clerical officers ask for bribes in order for them to process benefits. These problems have created a situation of insecurity to widows and affects the enjoyment of rights by widows. Meanwhile the wife of the late Juma Phiri the school teacher like the majority of widows in Malawi continue to suffer from deprivation of property.
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