GENDERED ESTATE ‘CLARIFICATION’

I reference my thoughts to the ongoing inheritance woes of women married under customary law. This not only brings to mind, gendered cultural practices, also, gendered institutions.

As a country we need to confront the gendered nature of culture, traditional institutions and institutions based on Roman Dutch Law. In what universe is it fair to consider a grown woman, mother, wife and grandmother, as a child? I am reminded of some very sad research findings that I once came across during the days of the youth. The conclusion from that study touched my heart, the author concluded their paper as follows; “In Eswatini (Swaziland), as girls women belong to their fathers or uncles, in marriage they are under the control their husbands, and at widow ship, they are either placed under the control of their first-born son or a male in law”.

I read this paper in 2010 during post graduates. I would have thought that we had come far as a country in pursuit of gender equity. I dare say equity because one understands that the road to equality is a long one if that statement was anything to go by. This regression in the interpretation of our inheritance laws is a huge blow for women and honestly, it is a sad day for the kingdom as a whole, we cannot afford to regress on even the minor progress we have made.

Regression

I join the nation and concerned groups in calling the decision to reverse a directive on the former, issue by the erstwhile minister of Justice and Constitutional Affairs. I find this to be an unjust and discriminatory action by the chief justice (CJ) and the attorney general (AG). I am not a legal scholar, but I do believe the right course of action would have been to align the laws with the directive and not take us back in time. This also, paints a bad picture about the value that the legal fraternity places on our cultural practices and beliefs. Would I be amiss to interpret the actions of the CJ and the AG, to mean that they as human beings, emaSwati! Believe that customary law is inferior to Roman Dutch Law? In my view, this is the implied assumption in their actions, they may not have come out to say it, but it is implicit.

This goes to show how gendered our institutions are, we have two men, bringing their own gendered thinking into shaping the laws and estate execution in this country. This decision will now be law in the country, it will guide the execution of estates now and into the future. It is against this background that one agitates for gender aware policy and legal drafting frameworks in the country. In the absence of written laws, procedures and policies, we will always be at the mercy of human beings who are gendered and institutions which take the gender of the humans that lead them to make just and fair decisions for us all, evidently these institutions are failing. What this clarification will achieve is further disenfranchisement of women and dispossession of hard-earned assets accumulated during the marriage. In the long-term, more women will be pushed into to poverty, as it were poverty already wears the face of a woman, soon it will be the face of a woman married under customary laws.

Transfer of wealth and economic opportunity
Inheritance is one of the main ways through which assets are transferred from one generation to the next. Relegating women to child status will further amplify economic inequalities between men and women who are already pervasive in society. Further, this will enable male figures to dispossess women off of their assets. Essentially, allocating a child’s share in the estate is tantamount to assigning the status of a child to a full-grown woman. Access to productive resources for women married under customary law will always be mediated by a male figure, even the autonomy of women will always be mediated by a male being.

Essentially, what this clarification does is to cement the beliefs that women’s access to economic opportunities will always be mediated by a male figure. Furthermore, this ‘clarification’ will dispossess women their hard-earned wealth and contributions to society. I will ask these two questions, what if the roles were reversed? What if the asserts being shared were a result of the woman’s dedication? Just because women may not participate in paid work, it is also true, that most men would not have halve their possessions without the support on unpaid care work done by women. What happens in the event the women were active contributors to the estate? Would the same apply in the event one of the women die first leaving the husband and two other wives behind. Who gets to inherit? Or the ‘clarification’ assumes that women married under customary law are not economic beings?

Dispossession

I call on the Government of Eswatini and all stakeholders to address this deficient ‘‘clarification’. It is unjust and will dispossess women of their hard-earned economic gains. We need gender-aware policies.

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