MEMORANDUM
On the
Ugandan draft Succession Amendment Bills, 2018 & 2019
By
MUSLIM CENTRE FOR JUSTICE AND LAW
KAMPALA
June 11, 2020
- Introduction
This memorandum provides an analysis of Uganda’s Draft Succession Amendment Bills, 2018 and 2019[draft amendments] particularly on provisions that that affect access to justice of Muslims in succession matters. The draft Amendments are an effort to bring certain provisions of the current succession Act cap 162 in conformity with 1995 the constitution of Uganda and internationally accepted human rights standards as well as addressing gender imbalances contained therein.
Muslim Centre for Justice and Law[1] welcomes the effort to amend the succession Act cap 162. MCJL particularly welcomes the legislative intent, indicated in the draft amendments’1 preambles that seek to amend the Succession Act, Cap. 162 to bring it into conformity with the Constitution of the Republic of Uganda and internationally accepted human rights standards and provide for gender equality in accordance with articles 21 and 33 of the Constitution to repeal sections that were declared unconstitutional by the Constitutional Court; to protect the interests of women and children in relation to the estate of the deceased among others.
At the same time, we are concerned that the draft laws as presently constituted fails to point out other constitutional provisions which the current succession Act Cap 162 doesn’t conform with particularly article 29 (c) on the freedom of worship and article 129(2) (d) on the establishment of Qadhi with mandate to handle among others issues related to inheritance by Muslims. The bill is [2]also silent on internationally recognized principles of Cultural relativism and cultural pluralism.
Section II of this memorandum outlines international standards on freedom of worship and cultural diversity. Section III contains our principal analysis [3]as well as recommendations and suggestions for improvement.
- International and constitutional obligations.
The Universal Declaration of Human Rights [UDHR]2 is generally considered to be the flagship of international human rights. Article 19 of the UDHR, guarantees not only the right to freedom of worship but to manifest his or her religion or belief in teaching, practice, worship and observance.
The UN Declaration of cultural diversity[4]recognizes the principle of cultural diversity and cultural pluralism under articles 1and 2respectively. Article 2 states
“In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace. Thus defined, cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life.”
Constitutional guarantees
The fundamental importance of the right to worship is formally recognized under article 29(1) (c) of our constitution. It states
“Every person has a right to ……freedom to practice any religion and practice which shall include the right to belong to and participate in the practices of any religious body or organization in a manner consistent with this constitution.”
The right of Muslims to inherit in a manner prescribed by their faith is an act of worship and duly protected under international instruments and under our constitution. Since marriage, divorce and inheritance are deemed in Islam as acts +of worship, the framers of our constitution understood this uniqueness and provided for establishment of Qadhi courts under article 129(2) (d) as a forum through which Muslims could adjudicate matters concerning marriage, divorce and inheritance in a manner prescribed by their faith. Accordingly the legislative intent should include amendment of the current law to bring it in conformity with the above constitutional provisions.
- Access to Justice Challenges Presented by the current Succession Legal Regime.
According several research projects conducted by MCJL including a position paper on Islam and Inheritance: A case Study of the Muslim Traditions versus the Ugandan Legal Regime[5], majority of Muslims still distribute Estates of deceased persons according to Islamic law. There is full department of distribution of deceased’s Estates at Uganda Muslim Supreme Council, Kibuli and all the other major mosques. Even in cases of intestacy, the beneficiaries have always consented to their properties being distributed according to Sharia. It has been stated by various scholars that in the event property is not distributed according to Islamic principles, the deceased is punished.
Upon distribution, the distribution list given by the Sharia department cannot assist the beneficiary obtain legal interest in the property. As a result women and children can transfer their land due to absence of letters of administration. The Courts of law have upheld the constitutionality of Sharia courts in a number of decisions[6]. Despite the recognition by courts of law and the wide spread practice, parliament has been slow in legislating the Will of the Muslim population.
- Analysis of the Draft Amendments.
IV.1 Defects in the existing law
Clause 2 of the draft amendment 2018 highlights defects in the existing law that it impedes the rights of children and women and right to inherit from the property of the deceased relative. The existing law also contain provisions that impede the right of Muslims to inherit in accordance with principles enshrined in the religion. As explained above, inheritance in Islam is an act of worship and it should not be difficult to categorize this practice as part of religious freedom. The framers of the constitution understood this unique perspective and that’s why a distinct forum was established in the name of Qadhi courts under article 129(2)(d) to handle such matters guided by principles of faith.
IV.2 Clause 3 of the draft amendment 2018 as well as the objectives of the draft amendment 2019 provide for areas that require to be addressed under these amendments. Both amendments seek to bring about gender equality, protect rights of children whether legitimate or not to benefit from the estate of the deceased relative, revise percentages of distribution of estate. The 2019 amendment bill seeks to restrict the principle of testamentary freedom by requiring the testator to provide for the spouse, lineal descendant and dependent relatives.
It can be seen from the above, that none of the two draft amendment bills even make an attempt to address the concerns of Muslims when it comes to inheritance.
Section 1 of the current succession Act provides that “except as provided by this Act or by any other law for the time being in force, this provisions in this Act shall constitute the law of Uganda applicable to all cases of intestate or testamentary succession.” The Current Succession Act does not have specific provisions for Muslim succession .the proposed amendment bills too, are silent on this position. The earlier repealed Succession law, the Succession Act Cap 139 which was amended had a special provision for Muslims under Section 50 (2) which stated:
Nothing in this section shall effect the validity of any will made by a Mohammedan or an African according to the provisions of Mohammedan law or customary law, as the case may be.
The foregoing section implied that Muslims were free to make their wills according to the teachings of their religion. This exemption given to Muslims was later revoked in the current Act, Cap 162. The possibility is that Muslims may apply for exemption from the provisions of the Succession Act under section 334 (1) which provides that:
The Minister shall have power from time to time, by statutory order either retrospectively from passing of this Act, or prospectively, to exempt from the operation of the whole or any part of this Act, any class or classes of persons, in Uganda or any part or parts of any such class or classes to whom he or she may consider it impossible or inexpedient to apply the provisions of this Act, or of the part of the Act mentioned in this order.
It should be noted that so far, no Statutory Order has been issued by the Minister to exempt the Muslims from the application of the Act despite. In our view this particular section should also have been considered for amendment since it appears to be redundant. It does not make sense to allow one person to decide for a whole group of people. For example Muslims in Uganda constitute 14% of the entire population in Uganda. This percentage makes a sizeable minority group whose interests cannot be left to be decided by one particular individual but by their elected members of parliament.
Apart from ignoring provisions that are repugnant to Muslim succession in the current law, the proposed amendments themselves contain provisions that buttress this repugnancy. Clause 13 of amendment Bill 2018 gives the spouse upon intestacy 50% and 80% respectively contrary to Islamic law that gives fractions of ¼ and 1/8 respectively. The amendment bill of 2019 under clause 7 inserts a provision that reserves 20 % to be held in trust for the education, maintenance and welfare of minors and other categories. The yardstick upon which these percentages are created is hard conceive. The wisdom behind the fractions in Islamic inheritance is clearly stated in Qur’an chapter 4:11 “…….You do not know whether your parents or your children, are nearest to you in benefit. These fixed shares are ordained by Allah, and Allah is All knower, all wise.”
It appears from the above verse that the laws concerning Muslim inheritance are Allah’s laws and commandments ordained by him and nobody has a right to change them. Accordingly, a Muslim is required by his creator to abide by his laws wholeheartedly even if the logic behind these laws it not ordinarily clear to him or her since he or she trusts the wisdom of his or her creator whose ordainments are based on perfect knowledge and wisdom.
It ought to observed that while sharia courts have not gained formal recognition in Uganda, these courts are operating informally, in a baseline survey report conducted by the Muslim centre for justice and law in 2011 in the districts of Kampala and Butambala, it revealed that a great percentage of Muslims both men and women believe in these courts and have over time deliberated on matters affecting them including inheritance whether testate or intestate. The position is different when these matters are taken to formal courts.
In the case of Abasi Magunda & Anor vs Sulaiman Senoga & Ors[7] the petitioners in this case petitioned court for a declaration that a will left by a Muslim testator was invalid because the testator was a Muslim who should not have made a will but relied on Sharia Islamic law for succession. Justice Okello held that the law of succession in Uganda had been codified largely under the Succession Act as amended. Therefore there was no such thing as customary or religious law of succession. She added that the deceased had opted out of Sharia law when he chose to make a will. .
The continued disregard of Muslim personal law on succession by the legislative arm of government, does not only leave Muslims in the dilemma of having to find a choice between the law of the land and divine law since both have serious consequences, but may also tend to generate consensus among Muslims as a generally ignored class of persons. This may result into disruption of social order that could easily be avoided by excluding and providing Muslims with a separate legislation that governs their personal law.
When commenting on the problems of intestate estates of Muslims, Hon. Justice Moses Mukiibi recommended for unblocking the Islamic religious practices relating to succession and inheritance as requiring exemption of intestate estates of Muslims from the operation of the provisions of the Succession Act relating to interstate succession. His Lordship was of the view that the Magistrates’ Courts and the High Court should always formally co-opt at least two proven knowledgeable Sheikhs to sit as assessors when those courts have to try cases relating to Succession to estates of Muslims.[8] This option of getting sharia experts can solve some of the problems of understanding the nature of Islamic inheritance. Attempts have been made by Muslim Centre for Justice and Law since 2012 but the Minister of Justice and Constitution Affairs has always communicated that the Muslim Personal Law Bill is soon being tabled[9].
The Uganda Law Reform Commission in its report also recommended that the amendment to the Succession Act should provide a provisions that stipulate the special position of Islam as an exception within the overall legal and administrative framework on Succession. The report also recommended that “an option should be created for parties under Islam who may wish to opt out of Sharia practice.[10] If this proposal is implemented, Muslims’ eights over inheritance will be protected.
- Recommendations
- The proposed amendments should have a provision that exempts the position of Islam from the overall legal and administrative frame work on succession.
- The legal commit of parliament on legal affairs should consider retabling the administration of Muslim personal law bill as a matter of urgency since the proposed amendments in the succession Act directly affects this bill. Alternatively a new private members bill should be considered.
- Muslims who no do not wish to be governed under the Islamic Succession law should be excluded.
- In the alternative, the proposed amendments in both draft amendment bills should be reconsidered to capture the interests of Muslims on succession in order to bring them in conformity with article 29 (1) ( C) and 129 (2) (d) of the constitution.
- Conclusion
Inheritance has a strong bearing on marriage and divorce. Muslims have a separate law regulating marriage and divorce.[11] The Constitution recognizes the unique nature of Muslim personal law and in Article 129 (2) (d) provides for Qadhis courts to handle Muslim affairs in inheritance. Muslims are already practicing their law of Succession as an act of Worship. Combining persons who chose to be governed by their laws in the same Succession law will not only be legislating against the spirit of the constitution but will go against the Will of the people especially the Muslim population. We therefore pray that Muslims who choose to be governed by sharia be exempted from operation of the Succession Act or the Act should be tailored in a manner that allows Muslims to practice their religion with a legal back up.
[1] MCJL is a local fait-based NGO officially registered in 2012 that has been advocating for access to justice and Human Rights promotion particularly in Muslim Communities. MJL has conducted a number of research projects on issues of inheritance in Muslim communities over time further interacted with key beneficiaries.
[2] UN general Assembly Resolution 217A(III) ,10 December 194
[4] Adopted by the General conference of the United Nations on education scientific and cultural organization at the 31st session on 2nd November 2001.
[5] Ths Consultancy Project was conducted by Dr. Sheikh Walusimbi Abdul Hafiz in 2017. A copy is herewith enclosed.
[6] High Court M.A no. 06 of 2014 (decided in 2019) arising from a Sharia court at Iganga; Kinawa Jamira versus Asuman Bakali upheld the legality of distribution of the estate of the Intestate Muslims Estate. Further Pronouncements by courts can be found in the Research Study of Islam and Human Rights in Uganda accessible on www.mcjl.ug
[7] 1995) IV KALR 172
[8] Quoted by Sewaya Haruna in Hand book of Muslim Justice providers page 27
[9] A communication from the Minister of Justice and Constitutional Affairs is herewith enclosed.
[10] ULRC Report at 59.
[11] The Marriage and Divorce of Muhammedans Act governs Muslim marriages and the divorce Act does not apply to Muslim divorces.
