INTRODUCTION
The Constitutional Court in the case of Law Advocacy for Women in Uganda v Attorney General Constitutional Petition Nos. 13 of 2005 & 05 of 2006 declared various provisions of the Succession Act, Cap 162 inconsistent and in contravention with Article 21(1), (2), (3), 31, and 33(6) of the Constitution. These provisions included Sections 2(n) (i) & (ii), 14, 15, 26, 27, 29, 43, and 44 of the Succession Act, Cap 162 and rules 1, 7, 8, and 9 of the Second Schedule of the same Act and hence were held null and void.
The nullification of these provisions was based generally of grounds of discrimination on the basis of sex and the provisions in the amendment were targeted at solving the lacuna that existed with the existence of the various nullified provisions of the Succession Act.
THE DEVELOPMENTS
- Distribution of Property. This has been the most prominent part of the amendment. Where a person’s dies intestate (without a will) according to Section 27 where the intestate is survived by a spouse, lineal descendant, a dependent relative and a customary heir, the surviving spouse is entitled to 20% of the estate, the dependent relatives are entitled to receive 4%, 75% to the lineal descendants and only 1% to the customary heir. Where the intestate leaves no surviving spouse or dependent relatives then the other percentage will be allocated to the lineal descendants to make a percentage 99% against 1% of the customary heir. The amendment has a strict emphasis in regard to the percentage the customary heir is entitled to, it can’t be more than 1% unless the customary heir is also a lineal descendant which wasn’t the case in the act before. Further, Section 30 provides that if the surviving spouse was separated from the intestate as a member of the household at the time of the death then he or she is not entitled to any interest of the estate.
- Language submissive to gender equality. The Act had various provisions refer to male terms which deemed discriminatory and resolved by the amendment. For example the use of the word spouse instead of married woman, man to person and adds other words such as “or mother” where there is father among others. This is under Section 2.
- Residential Holding. The residential holding of a deceased person shall devolve equally to the surviving spouse and lineal descendants who were normally resident and any person who evicts or attempts to evict them commits an offence and is liable to a penalty. The descendants shall be deemed to hold the property as joint tenants. According to Sect 26, upon the death of a surviving spouse then the residential holding shall devolve upon the lineal descendants i.e. children. Once such residential holding is evolved to them, they shall be deemed to hold it under a tenancy in common.
- Guardianship: The amendment provides for various forms of guardianship including testamentary rights under Section 43 where it’s the parent that appoints the guardian for his or her child, statutory guardianship under Section 44 and customary guardianship under Section 44A where the appointment is made by the family members of the minor.
- Preference on administering the estate of the deceased. According to Section 201A a surviving spouse shall have preference over any other person. This however can be disregarded by the Administrator General on justifiable grounds provided in the amendment.
- Maintenance. According to section 37, a testator may make a reasonable provision for the maintenance of his or her spouse, lineal descendants and where it’s not the case, court may make such order under Section 38.
There are more developments in the amendment but this is where the writer had his interest.
Find here a copy of the amendment:
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Joel Peter Namugera
THE LEGAL NOTCH 