By Mumo Mutisya
The law of Succession Act, Cap 160 (hereinafter “the Act”) provides for three categories of dependants: (a) the wife or wives, or former wife or wives, and the children of the deceased, whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
In such circumstances where a wife is the deceased, the surviving spouse is only “eligible” to inherit his wife’s earthly possessions only if he can prove that prior to her death, the wife was maintaining him. He is treated as a stranger who is not entitled to share in property of the family of which he is a member.
Irreconcilably for Category (a) dependants, i.e. a wife or wives, or former wife or wives is/are a dependant (s) by all means, whether or not maintained by the deceased prior to his death.
Why does the law afford the wife preferential treatment over the husband? Perhaps apportion blame to patriarchy?
Blacks’ Law Dictionary defines maintenance as, “Sustenance; support; assistance; aid. The furnishing by one person to another, for his or her support, or the means of living, or food, clothing, shelter etc., particularly where the legal relation of the parties is such that one is bound to support the other, a between a father and child, or husband and wife. The supplying of necessities of life…”
African tradition, customs and practice
In customary law generally, it is a man’s responsibility to maintain the wife. The converse was never heard off. It was a sign of weakness, and a disgrace. The Nigerian case of Caulcrick vs. Harding upheld this position by holding that the plaintiff in the suit had no such right as entitlement to a share of property by virtue of his deceased wife’s right. The deceased landowner left property for his three daughters, one of whom was the plaintiff’s deceased wife. The plaintiff’s husband claimed a third share of the property by virtue of it having been his deceased wife’s right.
The Constitution, Marriage Act, 2014, and Matrimonial Property Act, 2013, in context
In the wake of the 2010 Constitution, the obligation of a husband to maintain his wife and vice versa arises out of the status of marriage. It is an entitlement to either party in marriage and forms part of personal law. The Marriage Act provides that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at its dissolution. This forms the point of departure from customary law.
All property acquired by a husband or wife during the subsistence of their marriage is classified as matrimonial. Where matrimonial property is acquired during marriage and is in the name of one spouse, it shall be a rebuttable presumption that the property is held in trust for the other spouse; and if it is registered in the names of the spouses jointly, the rebuttable presumption is that their beneficial interests in the matrimonial property are equal. Upon death of either spouse, therefore, the doctrine of joint tenancy comes into play immediately.
The requirement, therefore, that a husband must prove maintenance immediately prior to the death of his wife is not cast in stone. Section 29 (a) affords the wife or wives preferential treatment over their husband (s) in intestacy. To this end, Section 29 (c) falls under the repugnancy doctrine test as it cultivates discrimination outright, a vice that had been strongly condemned and loathed upon in the Constitution.
In express terms, the constitution provides that any law, including customary law, which is inconsistent with it is void to the extent of the inconsistency, and any act or omission in contravention to it is invalid. To the extent therefore that S.29 (c) promotes inequality and discriminatory, on grounds of marital status. It is against the national values and principles cultivated in Article 10 (2) of the Constitution.
Gender discrimination is currently receiving the attention of the global community. The position of women in law and society has attracted public sympathy and interest. This has become an impediment to men in the society. We have glorified the woman position at the expense of the man.
Protection of the right to property as envisaged in the Constitution is such that a State through parliament cannot cause to enact a provision in law that would arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description, or limit in any way and/or restrict the enjoyment of any right under this Article (40) on the basis of any of the grounds specified or contemplated in Article 27(4).
To put a husband in proof of whether or not he was being maintained by the wife prior to the time of her demise amounts to an attempt to arbitrarily deprive him of property he is otherwise entitled to. Since the law on succession touches on every individual (dependants) in the society and the community at large, it warrants close attention. The law must be in tandem with the society and also the changing times.
It must be reformed to address loopholes, inadequacies, and the harsh consequences immediately upon their discovery. A society is socially engineered in an effective way only if the law is fair, just, and humane. The operation of the rule of law respects the aspirations of all and consequently maximises the happiness of all. In the spirit of utilitarianism, the greatest happiness is engineered for the greatest number. Any law that pursues this end is an instrument of social engineering.
The available remedy is having the High Court declare Section 29 (c) of the Law of Succession Act unconstitutional and invalid for unjustifiably violating Article 27 (4) of the Constitution.
Odunga J, in Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi, Chairman, Samuel Njuguna, Secretary, Joseph Kimiri, Treasurer) & 8 others vs. Cabinet Secretary For Transport & Infrastructure & 5 Others, holds that where it is apparent to the Court that the Bill of Rights has been or is threatened with contravention, “to avoid to enforce the Bill of Rights would amount to this Court shirking from its constitutional duty of granting relief to deserving persons”.
Karl Klare, in his article, Legal Culture and Transformative Constitutionalism, states,
“At the most superficial level, South Africans have chosen to compromise the supremacy of Parliament, and correspondingly to increase the power of judges, each to an as-yet unknowable extent… By transformative constitutionalism, I mean a long-term project of constitutional enactment, interpretation, and enforcement committed…to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent political processes grounded in law.”
Closer home, Mumbi Ngugi J, in L.N.W vs. Attorney General & 3 Others, notes,
“What I read from these provisions (of the Constitution and particularly Article 27 and 28) is a desire to transform society, to recognise the inherent dignity and worth of all persons; to protect those who have hitherto been marginalised and to ensure that they enjoy the human rights guaranteed to all on the same basis as others.”
Before the 2010 Constitution, the burden of proving the contrary lay upon the person who alleged otherwise. However, this presumption is qualified by the Constitution in respect to legislation that was enacted prior to its promulgation. A five-judge bench, in Coalition for Reforms and Democracy & Others vs. Republic of Kenya & 10 Others at Paragraph 96, qualified this position thus:
“However, we bear in mind that the Constitution itself qualifies this presumption with respect to statutes which limit or are intended to limit fundamental rights and freedoms. Under the provisions of Article 24…. there can be no presumption of constitutionality with respect to legislation that limits fundamental rights: it must meet the criteria set in the said Article…”
In the current constitutional dispensation, particularly Section 7(1) of the Sixth Schedule, legislation enacted prior to the promulgation of the Constitution must be read with the adaptations and exceptions necessary to bring it into conformity with the Constitution. In determining the constitutionality of a statute, the Court, in considering whether a matter in which the constitutionality of legislation is impugned is guided by a number of standards.
These are that:
The Court takes into thought the purpose and effect of the legislation. The Canadian Supreme Court decision, in R vs. Big M Drug Mart Ltd, set this principle in the following terms:
“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realised through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.”
Article 259 of the Constitution provides for its construction in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributes to good governance. Further, under Article 159 (2) (e), the court, in exercising its judicial authority, is obliged to protect and promote the purpose and principles of the Constitution.
The supremacy of the Constitution as enunciated in Article 2.
The National Values and Principles as set out in Article 10 (2), and in particular (2) (b), which include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
The case of Ndyanabo vs. Attorney General of Tanzania, which is to the effect that there is a general presumption that every Act of Parliament is constitutional.
Conclusion
The upshot of the foregoing leads to the inevitable conclusion that Section 29 (c) of the Law of Succession Act is manifestly discriminatory and warrants immediate review. The same cannot even be justified on the basis of affirmative action.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
