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The Intestate Succession Law Does not Work in Some Parts of Ghana

By Fati Abigail Abdulai
Special Report A woman demonstrates the treatment that widow's in rural communities face.
NOV 16, 2015 LISTEN
A woman demonstrates the treatment that widow's in rural communities face.

“Rahanda got married three years ago to a formal sector worker, who passed on two months after their third wedding anniversary. Atanga, a nephew and customary successor of the deceased seized all the property from the widow and her son David, who is barely two years old. They were also sacked from their matrimonial home. Atanga says Rahanda is not the wife of the deceased because the final customary marriage rites were not performed. Based on this, he wants to safeguard the property for David. When attempts to solve the case amicably between the parties failed, Rahanda was advised to seek justice at the courts. But all she kept saying was “I don’t want to mar David’s future relationship with his family. After all, he is the only child of my late husband”. (WOM 2014)

Rahanda’s story resonates with many women in Northern Ghana, especially among women who have customary marriages. This article will attempt to examine the provisions of the Intestate Succession Law, 1985 (PNDCL 111) that could support Rahanda obtain redress at the courts, if she wanted to. Secondly, it will to find out why she and other women do not want their cases to end up in court, and lastly propose solutions for the challenges. Had Rahanda adhered to the advice of pursuing her case in court, the Intestate Succession Law, 1985 (PNDCL 111) would be paramount to her claiming her spousal property rights.

The law promotes spousal inheritance of property when a person dies without making a will. It recognizes the spouse(s) of the deceased, their biological or adopted children, surviving parents and the customary family, prioritizing spouses and children. It applies to self-acquired property after 1985 which has been bought, inherited or would have been inherited, gifts or awards. It allows a spouse, child, parent and customary family to apply for ‘Letters of Administration’ to distribute the property of one who died without a will.

Rahanda would have had to apply for Letters of Administration to get the property shared among her, David, the surviving parents of the deceased and Atanga, who in this case represents the customary law. A greater percentage of the property would have been allocated to her and David, including the matrimonial home she was ejected from. However, Rahanda chose not to pursue the case as many women do, particularly in the rural setting of Northern Ghana.

Even though there is a statutory law that seeks to ensure that widows/widowers and their children are not disenfranchised when it comes to inheriting property of their deceased spouses and parents, many women do not take this route. Again, there are traditional succession plans, depending on the ethnic group, that are contrary to the statutory law. These traditional succession plans instill fear in women. They are afraid of physical and emotional abuse, and being neglected by in-laws means that many do not challenge the traditional practice.

One example of such traditional succession plans is wife inheritance commonly practiced in the Upper East Region of Ghana. In most instances, the woman is seen as property to be inherited by a man. A brother of the deceased man has a right to inherit the widow and all property of the deceased man. In some traditions, the widow has a number of options – she may choose a family member of her deceased husband to re-marry, remarry another person outside the deceased man’s family or not marry but stay in her late husband’s house.

Each choice made by the widow has consequences. These include (a) remarrying from the dead man’s family, which most likely leads to the widow bringing forth many children with no support from the man because traditionally the children born belong to the deceased man and are therefore not the responsibility of the biological father; (b) re-marrying outside the family of the deceased. In the Talensi and Nabdam districts of the Upper East Region, this means the widow cannot carry her children to her new husband’s house and her dowry will have to be paid back to the deceased man’s family; and (c) the choice of not re-marrying but staying in the deceased man’s family house to take care of the children also leads to neglect and denial of farm land to cultivate. While the choice is dependent on each specific case, it is evident that many women face a number of challenges when their husband’s pass away.

There are other challenging factors that deter women from seeking redress in court. These are high legal fees, delays with court action, ignorance of human rights and lack of knowledge on PNDCL 111. Additionally, the unwritten customary rule is that a woman should not be washing the family’s dirty linen in public. If she takes them to court to claim her property rights, she would be seen to be doing exactly that. A widow desires to keep a conflict-free relationship with their in-laws because if she has female children, they cannot marry without the consent of their patrilineal uncles and extended family. And if they are male, they can be denied their share of the family property. Most women would often consider all these implications, and refuse to seek justice in courts as seen in Rahanda’ case. So one would ask, what do we do then?

Some school of thought would say that sensitisation should be carried out whileothers would say we need more legal aid lawyers, with others arguing that we need a shorter court process. These measures may deliver some good results if pursued properly. However, customary families need to rethink through their succession plans and make them friendlier to women. Women like Rahanda will have to be bolder to seek redress in courts amidst all the challenges so that customary families will be deterred from adhering to their succession plans that disinherit widows and children. It is important to note that the Intestate Succession Law is the law of the nation and it’s superior to all other customary laws. We are all obliged to abide by it.

By Fati Abigail Abdulai,
Women and Orphans Movement (WOM)
Upper East Region, Ghana

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