WUNRN
"Malawi
property is rarely registered in women’s names. Therefore they cannot prove a
direct, economic contribution to its acquisition and maintenance,"
MALAWI - WOMEN CLAIM CURRENT MARITAL
PROPERTY LAW
DISCRIMINATES AGAINST WOMEN &
CONSTITUTION RIGHTS
By Collins Mtika
MZUZU, Malawi, Dec 29, 2010 (IPS) - Seated on a wooden
bench at her Katoto township house in Mzuzu, Grace Mkandawire’s face reflects
the traumatic experiences she has endured since her husband’s death in 1998.
She looks lost and confused and as she narrates her story there is fear, hatred
and resignation that Malawi’s Marital Property Law of (1882) disenfranchises
poor women like her.
While Malawi’s Constitution states that women are entitled
to "a fair disposition of property that is held jointly with a
husband" when a marriage ends, the current law considers property to be
held "jointly" only if they had made direct financial contributions
to said property.
Mkandawire has painful memories of her family’s heydays.
"My husband had 19 cars, a construction company, houses and over MK40
million (US$ 3 million) in various banks but I only inherited my three
children," Mkandawire told IPS.
Her sister-in-law took all the property, including various
houses, leaving her with virtually nothing. "I had to start from scratch
to buy even household utensils and furniture," she added. One of
Mkandawire’s children was diagnosed with depression and had made numerous
suicide attempts because he could not come to terms with their situation. He
eventually died of ulcer complications.
Mkandawire also suffered from bouts of depression but
managed to pull through with counselling and medication.
"We acquired all the property together with my husband.
In fact, when he finished college and was unemployed it was me who supported
him from my meagre teachers’ salary. His relatives never helped him," said
Mkandawire, who has been teaching for 30 years now.
However. things seem to be improving for married women in
Malawi. The Women and Law in Southern Africa Research Trust (WLSA – Malawi) has
taken the government to the Constitutional Court where they are challenging the
current Marital Property Law, arguing that it discriminates against women.
But the government is also fighting back, saying WLSA has
failed to produce any identifiable women who have been affected by said law.
Senior Legal Advocate Thabo Chakaka Nyirenda, who is
representing the Attorney General, is dismissive of the "hypothetical and
imaginary" issues raised by WLSA.
According to WLSA-Malawi, many women in Malawi continue to
be short- changed upon dissolution of marriage or death of a husband because
they have never had a fair disposition of property. They add that there is a
strong international trend regarding the equal division of a married couple’s
joint estate.
In numerous jurisdictions, including Austria, Canada,
Croatia, Denmark, France, Germany, Greece, Italy, the Netherlands, New Zealand,
Norway, Spain, Sweden and the United States, a marital-property approach
reflecting an equalisation of marital assets upon marriage dissolution has been
implemented in recognition of women’s non-economic and indirect contributions
to marital property, according to WLSA – Malawi.
"We are looking at the woman holistically. Not only
after the death her husband but her plight in marriage and after divorce,"
explained WLSA National Coordinator Seodi White.
WLSA-Malawi is requesting the Constitutional Court to
declare section 17 of the Married Women Property Act invalid, or as an
alternative, to declare that section 17 be interpreted in a manner that
recognises women’s contributions to marital property and guarantees that women
receive half of the marital assets upon the end of a marriage.
"This is because in Malawi property is rarely
registered in women’s names. Therefore they cannot prove a direct, economic
contribution to its acquisition and maintenance," said White.
"I don’t think the new law will work. Our culture here
is the major obstacle here. The fact that lobola (dowry) was paid gives the
man’s family power to do what they want," Mkandawire noted.
According to a research paper by Duncan McPherson titled:
"Property Grabbing and Africa’s Orphaned Generation: A Legal Analysis of
the Implications of the HIV/AIDS Pandemic for Inheritance by Orphaned Children
in Uganda, Kenya, Zambia and Malawi", property grabbing appears to be
merely a symptom of a much deeper crisis confronting Africa - that of chronic
poverty.
"In affected countries, therefore, many (including
women) see the dispossession of widows and orphans as a fact of life, not a
problem to be overcome. Widows and orphans are expected to cope—the former by
returning to their parents—the latter by accepting whatever guardianship is
arranged for them, no matter how oppressive—not to complain," McPherson
notes. The issue here borders on culture versus the Constitution, Church and
Society of the Livingstonia Synod. Paralegal Officer Chagara Phiri agrees with
both McPherson and Mkandawire.
Phiri, whose office handles about 400 cases of property
grabbing a year says "on property grabbing cases we first look at whether
the marriage was officially recognised either through tradition or by other
legal means.
"If the woman was not working it means she was only
contributing (? – not working but only contributing?) ,therefore she is not
entitled to half of the property," he said.
But WLSA wants the courts to recognise household and
care-giving work that is performed during the marriage as an economic activity
that contributes to the acquisition of the family’s property.
However, in an interview with local media, Chief Mtwalo of
Mzimba District blamed human rights activists for portraying some of the Ngoni
cultural practices as domestic violence and property grabbing.
Mtwalo said it was mere speculation and exaggeration that
widows in the district have had even their farm land grabbed.
But Love Ngulube, a widow who lives at Embangweni in the
district, does not agree with the Chief.
"Since my husband did not pay a dowry I went back home
to the village after his death. I started farming but village elders told me to
stop, saying that I had no right to the land because I was a woman"
Ngulube explained.
But the Chief is adamant and further challenges these
claims:"Otherwise, how many pieces of land shall a woman have if she
maintains the right to her first husband’s land while married to another man
from the first husband’s clan?" he queried.