International Law, African Courts, Patriarchal Inheritance Systems and Women's Rights

Authors

John Mukum Mbaku, false

Abstract

In virtually all countries in Africa, there exist various cultural, social, political, and legal factors that contribute to women's inability to have access to land, as well as negatively impact their inheritance rights. One of the most important reasons why so many women in Africa do not have access to land or official land titles is that they live in communities which have customary laws and traditional practices that deny them the right to inheritance. In several African countries, customary laws deny the girl child the right to inherit her deceased father's estate and the widow the right to inherit her deceased husband's landed properties. This is so even though a woman's right to own and inherit property is recognized in several international and regional legal instruments and the laws of many countries in Africa. However, customary laws and traditional practices continue to threaten the inheritance rights of many women and girls throughout the continent. Without direct action by legislatures to remedy the violation of women's and girls' human rights, progressive judges are using their power to interpret their countries' constitutions to declare discriminatory provisions of customary laws unconstitutional. The judgement of the Court of Appeal of Botswana in the case, Ramantele v. Mmusi, continues the progressive human rights jurisprudence that it developed in Attorney General v. Unity Dow. Ramentele v. Mmusi provides several lessons for African countries on how to protect women's and girls' human rights in general, and their inheritance rights in particular, from infringement by customary laws and traditional practices.

Recommended Citation

John Mukum Mbaku, International Law, African Courts, Patriarchal Inheritance Systems and Women's Rights, 51 DENV. J. INT'l L. & POL'y 59 (2022).