Inter Press Service - August 11, 2005
Catherine Sasman

The child was speaking at a recent conference in the capital, Windhoek, on women's property rights within the context of Namibian inheritance laws.

A woman from the northern Caprivi region told a similar tale about how, after her husband died, his family came and "took away everything". According to the women, the deceased had left a will in which his property was to be transferred to her - but the in-laws claimed that it was not customary to consult wills.

When she approached the police about the matter, the family threatened her with witchcraft. The women ended up withdrawing her case.

Said another woman from the northern Ohangwena region who was also left destitute, "If I could only warn women not to get married, I would do so - especially after what happened to me."

With AIDS claiming an ever-increasing number of lives in Namibia, it seems certain that a great many women and children are finding themselves dispossessed. According to the United Nations Joint Programme on HIV/AIDS, the country has a prevalence rate of 21.3 percent.

"A bleak picture is emerging on the human rights score for AIDS widows and orphans in Namibia," United Nations Food and Agriculture Organisation representative Moiketzi Mokati said during the Windhoek meeting.

Cases have even been recorded where the in-laws of widows have burnt down residences in a bid to expel the women and their children.

"The system is failing women and children. Property and land grabbing is like rape: women and children suffer in silence," says Doris Roos, head of a child protection unit that the United Nations Children's Fund operates in Namibia. She believes that scavenging relatives often use culture and traditional beliefs as an excuse for exploiting widows and orphans.

To a large extent, customary law exists on a par with common law in Namibia.

Intricate kinship systems are used to determine inheritance under customary law, says Mercedes Ovis, who researches this law. While there are significant differences between the systems, most tend to limit or cancel the inheritance rights of widows and orphans.

"The question arises (whether) it is customary law in operation when it comes to the impoverishment of women and children due to the HIV/AIDS scourge in communal areas, or mere opportunism, or a bit of both," says Delme Cupido, coordinator of the AIDS Unit at the Windhoek-based Legal Assistance Centre.

Widows may even be considered part of the estate. In these instances it is common practice for the widow to be taken into the household of a brother-in-law after undergoing a "death cleansing", which involves sex with the brother-in-law.

Customary law is not permitted to infringe on the constitution, which guarantees equality for all Namibians. The constitution also provides for the advancement of equal opportunities for women, which would seem to put it in opposition to inheritance traditions that disadvantage women.

Justice Minister and Attorney General Pendukeni Iivula-Ithana claims that ongoing legal reforms are underway to prevent discriminatory inheritance practices. These include the introduction of a Succession Bill that seeks to guarantee surviving spouses a specific portion of the property of partners who die intestate - and to ensure that surviving spouses have lifetime rights over household goods and land used by the extended family.

"We need to arrive at a legal and social reality in which women and men are treated equally in the broader sense of human rights and gender rights, but also in the narrow sense of women's access to land and property rights," Ivula-Iitana has said.

"We need to extend this equality to children, especially as between the girl and the boy child. We need to protect the growing number of our orphans."

The Married Persons Equality Act of 1996 and the Communal Land Reform Act of 2002, which allows widows to remain on common household plots, also provide a basis for improving the situation of women.

However, the legislation is being poorly enforced. Women and children continue to be evicted from common plots, despite the fact that this land may provide their only livelihood.

For Ovis, the remedy lies somewhere between customary law and common law.

"One approach is perhaps to maintain the dual system in terms of law reform, and not to completely discard customary law, thus creating mere paper laws that are not operationalised," she says.

Roos also notes that many traditional leaders have expressed ignorance of the ongoing reports of property grabbing. And, "Traditional leaders have indicated that they will follow up on these cases. Whether they will in fact do this is another matter," she adds.

Delme Cupido appears even less hopeful than Roos.

"Traditional leaders are enforcing a very patriarchal system when it comes to inheritance," he notes.

"They see the needs of women and children as subservient."

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