This report was prepared with funds provided by
Development Alternatives, Inc. with financing from the U.S.
Agency for International Development under Contract
Number FAO-Q-00-96-90006-00, NGO Small Grants
Program.
The Institute of Social Studies, The Hague, through the GTRP
at the UNAM, provided additional financial support for this
publication.
Text Copyright 2004 by the authors
Cover Design Copyright 2004 by Pollination Publishers
All rights reserved. Extracts from this publication may be reproduced with prior permission
of, and due acknowledgement to the author and donor.
Published by:
Pollination Publishers
18 Bismark Street
Windhoek, Namibia
University of Namibia
Gender Training and Research Programme (GTRP)
Private Bag 13301
Pioneerspark
Windhoek, Namibia
Edited by:
Gudrun Reimers
Grant J. Spence
ISBN: 99916-63-69-X
Women's Property and Inheritance Rights
in Namibia
Written by
Dr. Debie LeBeau, Eunice Iipinge and Michael Conteh
with legal analysis by
Dianne Hubbard and Evelyn Zimba
of the Legal Assistance Centre (LAC)
Edited by
Gudrun Reimers
Grant J. Spence
"Women face discrimination from cradle to coffin"
Sapana Pradhan Malla, Nepal
University of Namibia (UNAM)
Multi-Disciplinary Research and Consultancy Centre (MRCC)
Gender Training and Research Programme (GTRP) and
Department of Sociology
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
LIST OF ACRONYMS .............................................................................................................. iii
EXECUTIVE SUMMARY ........................................................................................................ iv
Background ..................................................................................................................... iv
Civil and Customary Law ................................................................................................ v
Traditional Relationships ............................................................................................... vii
Property Division in Divorce .......................................................................................... ix
Spousal Inheritance ......................................................................................................... ix
General Property Rights ................................................................................................... x
Inheritance Issues ............................................................................................................ xi
1.
INTRODUCTION ........................................................................................................... 1
Background to Women's Rights to Property in Namibia ................................................. 1
Gender Inequality in Namibia .......................................................................................... 2
Patriarchy in Namibia .......................................................................................... 2
Cultural Aspects of Gender Inequality ................................................................ 3
Gender Inequality and Women's Social Challenges ............................................ 6
Men's Opinions of Gender Equality..................................................................... 8
Aspects of Women's Property Rights ............................................................................ 11
Access to Land ................................................................................................... 11
Property Ownership ........................................................................................... 13
Money 15
Decision-making Power ..................................................................................... 16
2.
MARITAL PROPERTY AND INHERITANCE IN NAMIBIAN LAW...................... 17
Legal Background to Women's Property Rights ............................................................ 17
The Namibian Constitution ................................................................................ 17
Two Kinds of Marriage ...................................................................................... 18
Civil Marriage ................................................................................................................ 19
Property Arrangements for Civil Marriages ...................................................... 19
Default Positions and Continuing Apartheid Influence ..................................... 20
Property Division upon Civil Divorce ............................................................... 22
Customary Marriage ...................................................................................................... 22
Marriage and Property Arrangements ................................................................ 23
Divorce ............................................................................................................... 24
Inheritance...................................................................................................................... 24
Inheritance in Terms of a Will ........................................................................... 25
Intestate Inheritance ........................................................................................... 25
Administrative Procedures ................................................................................. 27
The Berendt Case ............................................................................................... 27
Children Born Outside of Marriage ................................................................... 28
Other Pending Law Reforms on Inheritance ..................................................... 28
3.
RESEARCH METHODOLOGY................................................................................... 29
Objective of the Study ................................................................................................... 29
Research Design............................................................................................................. 29
Rationale for Multi-Regional Approach ............................................................ 29
Figure 1. Map of Namibia .............................................................................................. 31
Key Informants .................................................................................................. 32
Community Members ........................................................................................ 32
Fieldwork Plan ................................................................................................... 32
i
Importance of the Study ................................................................................................. 33
4.
GENERAL PATTERNS FOR WOMEN'S PROPERTY RIGHTS .............................. 34
General Relationship Patterns ........................................................................................ 34
General Descent Patterns ................................................................................... 34
Children and Customs ........................................................................................ 35
Types of Marriages ............................................................................................ 36
Lobola as a Cultural Impediment to Women's Rights ....................................... 37
The Ending of a Marriage .................................................................................. 38
Property Division during Customary Divorce ................................................... 40
Property Division during Court Divorce............................................................ 42
Widows and Widowers ...................................................................................... 43
General Land Rights ...................................................................................................... 44
Land Control ...................................................................................................... 46
Land Use ............................................................................................................ 46
Land Ownership ................................................................................................. 46
Other Property Rights .................................................................................................... 47
Livestock Issues ................................................................................................. 47
Women's General Rights over Property......................................................................... 47
Use of Property .................................................................................................. 48
Ownership of Property ....................................................................................... 48
Disposition of Property ...................................................................................... 50
Children's Property Rights ............................................................................................. 50
Inheritance Issues ........................................................................................................... 51
General Inheritance ............................................................................................ 52
Written Wills...................................................................................................... 54
Oral Wills ........................................................................................................... 55
Changes in Inheritance ....................................................................................... 55
5.
RECOMMENDATIONS ............................................................................................... 57
Women's Greater Access to Property ............................................................................ 57
Law Reform Possibilities ............................................................................................... 57
Cultural Impediments to Women's Access to Property ................................................. 58
Greater Information Needs ............................................................................................ 59
REFERENCES .......................................................................................................................... 60
APPENDIX I: INTERVIEW QUESTIONS ............................................................................ 61
Key Informant Interviews .............................................................................................. 62
Focus Group A Community Members Discussions....................................................... 70
Focus Group B Community Members Discussions ....................................................... 77
APPENDIX II: CAPRIVI REGION SITE REPORT ............................................................... 81
APPENDIX III: KARAS REGION SITE REPORT ............................................................... 107
APPENDIX IV: KAVANGO REGION SITE REPORT ....................................................... 135
APPENDIX V: KHOMAS REGION SITE REPORT........................................................... 165
APPENDIX VI: OMAHEKE REGION SITE REPORT........................................................ 195
APPENDIX VII: OMUSATI REGION SITE REPORT ......................................................... 221
ii
LIST OF ACRONYMS
AIDS
CASS
CBD
CBOs
CEDAW
CRLP
CSO
DWA
FAO
FINNIDA
GAD
GRN
GTRP
HIV
HPI
ISS
LAC
LACC
LRDC
MBEC
MMCVAWC
MoHSS
MP
MRCC
MWACW
NDT
NEPRU
NGOs
NID
NISER
SARDC
SIDA
UNAM
UNDP
USAID
WID
Acquired Immune Deficiency Syndrome
Centre for Applied Social Studies
Central Business District
Community Based Organisation
Convention on the Elimination of all forms of Discrimination Against Women
Center for Reproductive Law and Policy (USA)
Central Statistics Office
Department of Women Affairs
Food and Agriculture Organization
Finnish International Development Agency
Gender And Development
Government of the Republic of Namibia
Gender Training and Research Programme
Human Immunodeficiency Virus
Human Poverty Index
Institute of Social Studies
Legal Assistance Centre
Legal Aid and Consultancy Center (Nepal)
Law Reform Development Commission
Ministry of Basic Education and Culture
Multi Media Campaign on Violence Against Women and Children
Ministry of Heath and Social Services
Member of Parliament
Multi-disciplinary Research and Consultancy Centre
Ministry of Women Affairs and Child Welfare
Namibia Development Trust
Namibian Economic and Policy Research Unit
Non-Governmental Organisations
Namibian Institute for Democracy
Namibia Institute for Social and Economic Research
Southern African Research and Documentation Centre
Swedish International Development Agency
University of Namibia
United Nations Development Programme
United States Agency for International Development
Women In Development
iii
EXECUTIVE SUMMARY
BACKGROUND
One of the challenges faced by women in contemporary Namibian society is women's
unequal access vis-à-vis men to property, which in turn limits women's ability to strive for
gender equality within both their personal and social spheres of life. The lack of ability to
manipulate property through the use, ownership and disposition of property limits women's
economic choices and causes women to be economically dependent on men.
There are many social structural factors that contribute to gender inequality in Namibia.
Many of these factors are related to Namibia's historical past that discriminated against
women at all levels of society. One of these factors is cultural customs that reinforced
apartheid's state sanctioned gender inequality. In Namibia there are eleven different ethnic
groups, all of which exhibit gender inequality in the form of patriarchy to a lesser or greater
extent. For many contemporary Namibian cultures, women are viewed at best as second-class
citizens and at worst as the property of men. Gender relations also differ somewhat by urban
and rural domicile. Although women in the urban areas have greater independence, for many
women in Namibian communities, there is rarely a time when a woman is not under the direct
or indirect rule of a man.
From early childhood girls are socialised to act emotionally, mentally and physically weaker
than boys, while boys are taught that they are superior to girls. Most girls in customary
societies, indeed in most social situations, are socialised to believe that the ultimate goal for
their lives should be to get married, have children and take care of their husbands and
families. These ingrained gendered stereotypes reinforce social and cultural norms of
patriarchy, leading some women to believe that men are in fact biologically superior to
women and thus men should have rights of control. This 'patriarchy of the female soul'
leads women to perpetuate the cycle of patriarchy by teaching such beliefs and behaviours to
their own daughters.
Previous research has found that both women and men identify how different cultural
customs in Namibia contribute to gender inequality, but such customs have remained in place
in terms of Namibia’s post-independence legal framework. Many people have used 'tradition',
'custom' and 'culture' to justify patriarchy. Often, culture is represented as a static ideology
that cannot be changed because 'it has always been this way', therefore - the argument goes patriarchy should not be changed because it is part of the prevailing culture. Some men, while
acknowledging that some customs discriminate against women, do not think that patriarchy
based on culture is wrong. Gender inequalities are found throughout Namibia. However, in
the urban and 'modern' areas male dominance is weaker than in the rural and 'traditional'
areas, due to urban women's greater access to social and economic resources.
As well as cultural impediments to women's greater access to property, men's resistance to
gender equality is also a challenge women face. Most men in Namibia are not happy about
the current trend in Namibia that is aimed at empowering women. Men are frequently
intimidated by the rising status of women and see this as a direct threat to their own social
position. Some men blame women for gender inequality because they say it is women's fault
for not standing up for their rights, while other men contend that only some women want
gender equality. Women who want gender equality are usually described as women who
cannot find husbands, foreigners or women who want equality to be able to steal men's
iv
property. There are important legal and social reforms taking place in Namibia that will
afford women the possibility of greater gender equality. However, a serious challenge women
face is men's negative attitudes toward contemporary gender equality movements. Many men,
having become used to being in their privileged positions, desire to maintain the status quo.
CIVIL AND CUSTOMARY LAW
As well as general gender inequality there is a lack of decision-making power both within the
homes and the larger community, but there are also various legal structural factors that
constrain women from unfettered use, ownership and control over material wealth such as
land, property and cash. Women are, in part, constrained by civil and customary laws which
discriminate against women and deprive them of the opportunity to access property in their
own rights. Currently in Namibia there is a confusing web of civil and customary laws that
govern women's property and inheritance rights. With the abolishment of apartheid and the
establishment of a constitutional government, women's rights have been enshrined in the
Namibian Constitution. However, since independence the government has been contending
with how to realise the gender equality promised in the Constitution. Namibia is in the
process of initiating legal reforms to address previous gender discrimination.
There are two kinds of marriage in Namibia: civil marriage and customary marriage. Civil
marriage takes place when a marriage officer, who could be a magistrate or a church leader,
marries a man and a woman. Civil marriages are registered, and the couple that marries in
this way will receive a marriage certificate. Customary marriage takes place when a man
and a woman are married according to the customs of their community, but without a
marriage officer.
There are two basic marital property regimes that apply to civil marriages – 'in community of
property' and 'out of community of property'. Marriage in community of property means
that all of the belongings and the debts of the husband and the wife are combined into a 'joint
estate'. Everything that belonged to the husband or the wife before the marriage took place
becomes part of the joint estate, along with any money earned or property acquired by either
of them during the marriage. A marriage out of community of property means that the
husband and the wife each have their separate belongings and debts. Everything that
belonged to the husband before the marriage remains his, and everything that belonged to the
wife before the marriage remains hers. They each keep their own earnings, and ownership of
property remains with the person who acquired it.
Because of the influence of Namibia's apartheid history, the default position on marital
property is different for some blacks in Namibia. The Native Administration Proclamation 15
of 1928, part of which is still in force in post-independence Namibia, makes a different rule
for all civil marriages between 'natives' north of the old 'Police Zone' which take place on or
after 1 August 1950. These marriages are automatically 'out of community of property',
unless a declaration establishing another property regime was made to the marriage officer
one month before the marriage took place. It has not been amended or repealed, although the
government is reportedly in the process of preparing a new Marriage Act which is expected
to apply a single set of legal rules to all persons in Namibia. The Native Administration
Proclamation is clearly a violation of the Namibian Constitution's prohibition on
discrimination on the basis of race. At present, the Native Administration Proclamation
remains in place, meaning that civil marriages solemnised north of the Police Zone have the
opposite effect of civil marriages by everyone else when it comes to marital property
v
regimes.
Grounds for divorce (with the exception of incurable insanity) under civil law are based on
the outdated principle of fault – the idea that one spouse must be guilty of committing some
type of wrong against the other spouse. Unlike the law of most countries today, Namibian
law does not allow a divorce to be granted simply because the couple's marriage has broken
down. The way that the couple's property will be divided upon divorce depends on the
marital property regime that applies to the marriage. If the couple was married in community
of property, the joint marital estate will be divided into two equal parts, and each person will
receive a one-half share. If the couple was married out of community of property, each
person will retain his or her own separate property. In practice, couples that are divorcing
almost always comes to an agreement on how their property will be divided without judicial
intervention. Spousal maintenance can only be imposed by the court in favour of the
'innocent party' in the divorce. However, in practice, maintenance is also usually resolved by
agreement between the spouses.
Customary marriage is regulated primarily by unwritten customary laws that differ from
community to community. Although the sex discrimination which is present in some aspects
of customary law is very likely unconstitutional, there have been no court challenges to
customary law on this ground since independence. The property arrangements which apply to
customary marriage are determined solely by customary law, without any legislative
interference. Women can be allotted land in some communities, but in practice communal
land is usually allocated to the husband. This has led to the problem of widows in some
communities being stripped of land and household goods by the husband's extended family
members after his death.
A number of grounds for divorce are recognised under Namibia's various customary systems.
The common law principles which guide maintenance, the distribution of the matrimonial
estate and custody of children of the marriage are of little account in customary law. Customs
regarding the division of property upon divorce vary greatly between communities, however,
in most cases the husband obtains the majority of the marital assets.
The manner in which property is distributed upon the death of a person in Namibia still
depends largely on that person's race and/or ethnicity. All of the property that belonged to a
person who dies - including cash, land and other assets - is called the 'estate'. Any debts
which the deceased owed must be paid out of the estate first, before any of the heirs get
anything. If there was a civil marriage, the kind of property arrangement which applied to the
marriage affects what is in the estate of the deceased. If the marriage was in community of
property, then one-half of all the household's property belongs to the wife and one-half to the
husband. The wife takes her half, and the other half is the husband's estate. This division of
property must take place before anyone can inherit anything. If the marriage was out of
community of property, then the husband and the wife kept their property separate all along.
The wife takes her property, and the husband's property becomes his estate.
If the deceased party left a will, then the estate which belongs to the deceased after any
division of joint property has been made will be distributed according to the provisions of the
will. A person who makes a will can leave property to anyone - a wife, a husband, a relative,
a friend, a stranger or even an organisation. However, race and gender-based restrictions on
the power to make wills are imposed by the Native Administration Proclamation 15 of 1928.
The patchwork of overlapping regulations issued in terms of this Proclamation have the result
vi
that a black person in Kavango, Eastern Caprivi or Owambo has full power to bequeath his or
her estate by will. But a black man in any other part of Namibia does not have full
testamentary freedom. Property in certain categories must be distributed according to
customary law.
If there is no will ('intestate succession'), then inheritance takes place in terms of statutes
which determine who will inherit the property of the person who died – but again, the rules
are dependent upon race. For all Namibians other than black Namibians, property will usually
go to the deceased's relatives by blood or by marriage, in an order of precedence determined
by the Intestate Succession Ordinance 12 of 1946.
The customary rules on intestate inheritance are different in different communities. The
kinship system of the community will affect inheritance – for example, inheritance will work
differently in matrilineal systems (where the children are part of the mother's family) than in
patrilineal systems (where the children are part of the father's family). The customary rules on
inheritance often discriminate against women, younger sons and children born outside of
marriage.
The 2003 case of Berendt v Stuurman has altered the some of the legal rules on inheritance
by invalidating the law that gives black estates second-class status. This case held that
several sections of the Native Administration Proclamation 15 of 1928 are unconstitutional
violations of the prohibition on racial discrimination in Article 10. These complicated
provisions treated the estates of deceased blacks as if they were “Europeans” in some
circumstances, while decreeing in other circumstances that they should be distributed
according to “native law and custom”. Parliament has been given a deadline of 30 June 2005
to replace these offensive sections with a new regime.
TRADITIONAL RELATIONSHIPS
There are various ways that people in Namibia trace how they are related to each other. As
previously stated, who a person is related to - forms of tracing descent - and the nature of the
relationship often determine who has rights to which categories of property when death or
divorce occur. In Namibia there is basically patrilineal descent (Nama and Damara
communities), matrilineal (Owambo and Kavango communities) and bifurcated descent
(Herero communities), while the Caprivi people were matrilineal but have patrilineal
influence, a situation referred to as 'cognatic' descent.
When discussing who has rights and responsibilities over children born inside of marriage,
most people agree that the children's parents have the primary responsibility to take care of
and financially support their own children. In Kavango, Owambo and Lozi, people say that
the mother's brother (children's uncle) is also responsible for these children, while in Herero
the father's extended family (primarily the father's brothers) should also help raise the
children. Orphan children in Namibia are usually considered the responsibility of the
extended family and are most often taken by relatives of the mother, especially the
grandmother (their mother's mother); although in Herero and Lozi it is said that the children
should go to the father's extended family. Most people say that the person or persons who
inherit(s) the majority of the parents' property should also inherit orphan children. However,
people in most communities note the ever increasing tendency of 'property grabbing' whereby
the deceased's family members take all of the property and leave the poverty stricken children
to be cared for by other relatives. In several matrilineal societies such as in Kavango and
vii
Owambo, the martilineage gets the children while the patrilineage gets the marital property. It
appears that in many cases orphan children are not receiving their share of inheritance, even
in societies where it is the custom that children inherit from their parents. Clearly the rights of
orphan children are being infringed upon and the AIDS pandemic will only worsen the
situation.
In most Namibian communities there are elaborate rituals and wedding ceremonies at which
both families officiate. These same relatives will be contacted if problems arise within the
marriage. Although both civil and customary marriages are recognised in all Namibian
communities, many especially rural people say that they still prefer customary marriages. In
most Namibian communities under study (with the exception of the Ovambalantu), as in
other African countries, lobola is paid, which in most cases is considered necessary for the
couple to be considered customarily married. The lobola is paid by the groom's family to the
bride's family. In addition, in Owambo (for those communities that pay lobola), Kavango,
Herero and Lozi if lobola was paid and the wife dies, the widower may be inherited by
another female relative of the deceased wife. Although the amount of lobola differs both
within and between the various communities that have the practice, it appears that lobola
prices have steadily increased. Lobola can be any number of things but most often tends to be
a mix of cattle and/or cash (Kavango, Herero, some Owambo and Lozi), small stock (Nama)
and exchange items such as blankets and food (Nama). Many people from these communities
feel that some families have made the paying of lobola a 'business' venture. Data from this
research indicates that the Nama (patrilineal) and the Kavango (matrilineal), pay lower lobola
than the Herero, some Owambo (both matrilineal) and Lozi ('cognatic') communities. The
payment of lobola is perceived to give the husband and the husband's extended family rights
of control over the wife and children. Due to the payment of lobola, which is sometimes seen
by the husband's family as having purchased the rights of control over a woman's domestic
production, fertility and offspring, the practice of wife and/or husband inheritance – upon the
death of a spouse - is prevalent in most Namibian communities (with the exception of the
Nama and to lesser extent the Kavango).
There are a variety of reasons why people in customary marriages can seek a customary
divorce, only the Nama do not have customary divorce. This research found that there are
many reasons given as cultural grounds for customary divorce emphasising the perceived
shortcomings of women, while there seem to be very few reasons for divorce based upon a
husband's inappropriate behaviour. People from most research sites say that wife battering
alone or the infidelity of the husband are not necessarily considered adequate terms for
divorce, whereas often a husband can choose to divorce his wife with no reason given. Given
that marriage is a joining of families and not individuals, divorce is also the concern of family
members from both the husband's and wife's sides of the family. If negotiations between
extended family members have failed, in Owambo and Herero the husband goes to the
traditional leader to ask for a divorce. A traditional court is held and the case is heard. The
traditional court will determine who, if anyone, is at fault for the marital problems and will
grant a divorce. Although it is said in Kavango, Owambo and Herero that a wife could also
ask for a divorce, this is said to be rare. However, in Lozi a woman may not, under any
circumstances ask for a divorce. Lozi customary divorce takes the form of the husband
sending his wife back to her natal extended family with a "letter of divorce" he has written to
his in-laws explaining his reasons for his choosing to divorce his wife.
viii
PROPERTY DIVISION IN DIVORCE
With most communities in Namibia during customary divorce, heard at a customary court,
the wife receives little or none of the marital property (with the possible exception of cooking
pans or other small household items), even if the husband is at fault for the divorce. In other
communities, such as Lozi, a wife may receive a small amount of communal property if she
can prove that her husband was at fault for the break-up of the marriage. In the Kavango, the
person found at fault for the divorce, whether the husband or the wife, has to pay a "divorce
fine". However, given the fact that customary courts are only held by men, in many
customary courts women may not be allowed to attend or may not be allowed to speak, and
frequently these men are related to the husband being accused of wrong-doing - it is
frequently the case that women do not get a fair hearing before a customary court. In Nama,
division of property is probably the most equitable because all divorce is done in civil court.
The Nama say that in the past the husband got all of the livestock but now livestock are
shared between the couple. In most Namibian communities it is not a requirement that lobola
be returned unless the wife is found to be at fault for the divorce and under certain
circumstances such as if she has not yet had a child by her husband. In most Namibian
communities, if lobola was paid, it is not returned. However, in Herero society, when lobola
has been paid but the couple divorce, the extended family of the person at fault for causing
the divorce has to pay the other extended family a "gift for getting divorced" which is not
considered paying back the lobola as much as it is a divorce fee.
Many people recognise that property division upon civil divorce depends upon whether the
couple is married in community of property or out of community of property. In the Khomas
Region and with the Nama there is a general consensus that civil law makes provision for
property to be shared equally and that civil law is more likely to protect women's rights to
property during a divorce. In the Kavango and Omusati, people say that under customary law
property is divided according to who owns the property, and as previously mentioned, the
husband is considered the owner of most marital property, but under civil law if the couple is
married in community of property then the property is divided equally. In all of the regions
the vast majority of those interviewed say that people with higher education and those that
are urbanised are less likely to following customary rules for the division of property upon
divorce. Several people specifically mention that educated and/or urban women are more
likely than uneducated or rural women to want to divorce in civil court because these women
feel they will get more of the marital assets than in a customary divorce. However, urban and
rural people are interlinked, with most urban and educated people having their roots in the
rural areas, but primarily accessing the legal system that gives them the greatest advantage
during a divorce.
SPOUSAL INHERITANCE
During the course of this research it is determined that the practices of widow inheritance
(levirate) and widower inheritance (sororate) are still common among the Owambo, Herero,
Lozi and to a lesser extent the Kavango. Under these customary laws when a man dies one of
his male relatives - usually the deceased husband's brother, nephew or uncle - will 'inherit' his
widow. The husband's extended family decides who will inherit the widow and sends the man
to take over the household of the deceased man. If the widow does not want to be inherited
she has to leave the household and all of its property and return to her natal extended family.
In most cases the widow is expected to have sexual relations with the man who inherits her,
unless she is elderly in which case the couple will simply live together. Also in Owambo,
ix
Herero, Lozi and to a lesser extent Kavango custom a widower is inherited by one of his
deceased wife's female relatives - usually the deceased wife's younger sister, cousin or niece.
Again, the widower is expected to have sexual relations with his new wife. Of interest is the
fact that widowers are said to have more latitude in deciding whether or not they want to be
inherited. In most of the communities under consideration, people say that the practice of
spousal inheritance has only changed slightly due to the advent of AIDS, however, people in
the Kavango report that the practice of widow inheritance has all but disappeared while the
practice of widower inheritance has been greatly reduced.
GENERAL PROPERTY RIGHTS
In Namibia almost three-fourths of the population live rural agrarian lifestyles (CSO 2001).
Therefore, the majority of people practice subsistence agriculture based on crop cultivation
and livestock production of cattle, goats, sheep, chickens and donkeys. These rural people
can only survive if they have access to land on which to grow crops and graze livestock.
However, as much of the previous discussion has shown, women's rights to access land are
limited and generally consist of women only having access to land through men that they are
in relationships with, be it their fathers or husbands. As noted under women's rights to land
during divorce, when these relationships end, women often lose their access to land, thereby
losing their ability to support themselves and their families.
In most communal areas in Namibia, traditional leaders such as headmen, chiefs, indunas and
kings, control land although communal land is owned by the government. With the possible
exception of the Nama, these people are always men. Land in the communal areas is
distributed by traditional leaders, who are men, to other men. The people who use land are
not necessarily the same as those who control land. Only with the Nama do most people feel
that both men and women use land, although men control land. In the Khomas Region people
say that due to private land ownership, the person who controls, uses and owns land are oneand-the-same. Otherwise, people in Kavango, Owambo, Herero and Lozi note that traditional
leaders and heads of households - identified as men - control land, while women are the
primary users of land. All communal land is owned by the government. Most people agree
that there is no such document as a permit to own communal land and therefore, communal
land cannot be used as collateral for procuring bank loans. However, people from the various
communities say that it is neither advisable nor desirable for non-owners to control land
because they sometimes do not have the best interest of the land at heart and therefore
overgraze it or in other ways destroy it. These people say that the nature of communal land
ownership causes poor land management because the people using the land do not own it and
therefore are not concerned with land degradation.
Several customary practices in Namibia discriminate against women whereby women are
denied access to property accumulated during marriage. This lack of access to property,
including lack of access to land, serves to reinforce women's subordination to men. Women
are maintained in a cycle of poverty due to the lack of control over property, which leads to a
lack of economic independence. Most people note that women are entitled to use most types
of property. However, it is also stated that married women must get permission to use
property from their husbands. Property that women are most often said to be able to use with
impunity includes their own personal items such as clothes and shoes, as well as household
and kitchen items such as cooking pots and dishes. In most communities under study,
unmarried women have more rights to use property than married women because married
x
women have to ask their husband's permission, while unmarried women often have their own
homes and can do what they please with their own property. Although it is pointed out that in
traditional societies unmarried women were not allowed to live alone, contemporary women
in most Namibian communities are better off if they do not marry because they have greater
freedom in the use of property. Once a woman marries, her husband takes over control of the
marital property, sometimes even her own separate property contribution. Women's rights to
own property in all Namibian communities under study are more significantly limited than
the property which they are allowed to use. Some key informants and community members
recognise widespread discrimination against women in regard to what property they are
customarily allowed to own, and some even express the feeling that in today's lifestyle
(referring to modernisation and the impact of global culture) women should have a greater
ability to own certain types of property, such as money, houses and cars. However, most
people hold the 'traditional' attitude that land, homesteads, livestock and large moveable
property such as cars and tractors should remain in the hands of men, and that men should, in
general, continue to dominate property ownership. As with property women can use,
unmarried women are said to be able to own more types of property than married women. As
with property use and ownership women are limited in types of property they can dispose of
and married women cannot dispose of any communal property without the consent of their
husbands.
There are significantly differing opinions within and between communities as to whether or
not children born outside of marriage should inherit from their father should he die. In the
Khomas Region people say that it is the mother’s responsibility to find out if her children
inherit any property, while other people disagree as to whether or not the children have a
right to any property. In general, Nama people say that children born out of wedlock have a
right to inherit from their father's estate. In Owambo and Herero, people say that children
born out of wedlock do not have a right to their father's estate - although in Herero the
father's family could 'purchase' the right for these children to become heirs by paying the
mother's extended family a cow; and in Kavango and Lozi these children can inherit from
their father if the children were already recognised as the father's.
INHERITANCE ISSUES
Under civil law a written will guides the division of property after death, while principles of
civil law are applied to intestate deaths. Under customary law the customs and norms of the
culture under consideration dictate rules of inheritance when divorce or death occur even
though oral wills are frequently utilised. In general the deceased husband's male relatives or
children inherit the marital assets. The rules of inheritance differ between matrilineal and
patrilineal communities. In matrilineal communities the deceased husband's family,
customarily his male relatives - typically his nephews but in contemporary society all of his
relatives - inherit all matrimonial property typically regardless of how or who brought the
property into the marriage. In patrilineal communities it is frequently the deceased husband's
children - usually his first born son - who inherit the matrimonial property. In this case the
widow is more likely to inherit small items or maintain control over property inherited by her
children if the children are still too young to manage the estate.
In most Namibian communities, custom precludes widows from inheriting substantial
property such as land, buildings and large movable property such as cars and tractors. It is
important to note that, in general, the most commonly identified custom that contravenes
women's rights is the practice of widows being evicted from their homes and all property
xi
confiscated by the deceased husband's relatives. In a few Namibian communities widows can
inherit small property (such as personal items, kitchen utensils, traditional items and small
livestock) from their deceased male or female relatives.
Khomas Region residents and the Nama favour the widow and any children the deceased man
leaves behind, while in Kavango, Herero, Owambo and Lozi, a deceased man's natal
extended family inherit most of the larger more economically valuable items. Customarily in
the Kavango, Owambo, Herero and Lozi societies women are not allowed to inherit from
their marital property (considered to belong to the husband regardless of how the property
came into the marriage) and they are not allowed to inherit economically valuable items such
as land, homesteads, buildings and cars. Items women have been allowed to own customarily
are usually small and of little economic value, such as small stock (goats and chickens),
household property (such as kitchenware, beds and cupboards) and personal items (such as
clothes), although in some communities, such as Owambo and Kavango, women can obtain
some cattle through inheritance, gifts or purchasing them.
Many people say that educated and urban people, especially women, are more likely to
handle inheritance differently than less educated or rural people. When people are more
highly educated, it is felt they become more critical of discrimination and more open minded
about issues of inheritance. Educated people also become more aware of their inheritance
rights and of legal instruments such as written wills, which do not exist in customary
inheritance systems.
In most customary communities, the majority of people make oral wills. An older man often
calls his most trusted male relative and explains to the relative how he would like his property
distributed after his death. It is said that few family members would dispute this oral
testimony because the person selected is known to the family members, there are usually
witnesses to the oral will and there are traditional sanctions (such as the deceased man's ghost
haunting the person who has lied) against the selected family member lying about what a
deceased person has said. However, some informants indicate that family arguments over the
division of inheritance are not uncommon.
Although modernisation and global culture have impacted discriminatory customary
practices, as well as Namibians' rights to property being enshrined in the Namibian
Constitution, these customary practices still exist in contemporary Namibia, especially in the
rural areas. In the Khomas Region an important change for women's rights to property
through inheritance is that some customary rules of inheritance are slowly fading out. In the
past, who inherited property was the decision of the elders in the deceased person's natal
extended family. In general, the elders are men and they favour men when it comes to the
distribution of property. In contrast, contemporary practices have started whereby it is the
owner of the property who decides through wills (written or oral) or legal documents how
their property is to be divided. The second change identified is that more people are
beginning to make use of written wills. Finally, widows and children are being given more
security and protection from looting of their property by greedy nuptial relations through the
use of written wills.
xii
1.
INTRODUCTION
There has been little systematic, in-depth research and publication relating to women's
property and inheritance rights in Namibia, although it is known that there are customary
beliefs and practices that discriminate against women. It is against this background that the
Gender Training and Research Programme (GTRP) and the Department of Sociology, in
collaboration with the Legal Assistance Centre (LAC), has undertaken research into the topic
with the specific purpose of producing a report to be used by government (such as
parliamentarians, judicial and executive personnel), Non-Governmental Organisations
(NGOs), donors and Community-Based Organisations (CBOs) in formulating their policies
and information campaigns aimed at improving women's greater access to property. The
research for this report was conducted in various regions of the country and examines
women's property and inheritance rights within the major ethnic groups in Namibia. This
report describes the social and legal background against which these data reflect the realities
of women's lives, as well as the major differences in property rights for women living within
the various ethnic groups under consideration.
BACKGROUND TO WOMEN'S RIGHTS TO PROPERTY IN NAMIBIA
Namibia has a long history of several forms of social and economic structurally inequalities,
including gender inequality. Many challenges women face in contemporary Namibian society
have been "influenced by the historical imbalance of power between women and men, social
structural factors such as poverty, unemployment and related social problems" (UNDP
2001:67). One of these challenges is women's unequal access vis-à-vis men to property,
which in turn limits women's ability to strive for gender equality within both their personal
and social spheres of life. The lack of ability to manipulate property through the use,
ownership and disposition of property limits women's economic choices and causes women
to be economically dependent on men, who have the ability to access economic assets in
times of need.
The issue of women's property and inheritance rights has been at the fore of many recent
discussions and advocacy programmes in Namibia. In some communities the customary
norms whereby male relatives take all property upon the death of a husband, as well as the
customary practice of husbands demanding all property from a failed marriage have begun to
be questioned. Currently there has been government intervention on behalf of widows who
find themselves evicted from the marital property, based on the argument that such practices
violate a women's constitutional right to own property and are discriminatory towards women
based on gender, a right also enshrined in Article 10 of the Namibian Constitution (Hubbard
1999:11). The Constitution also makes provisions for affirmative action for women (Becker
1998:268). In addition, there have been several court cases, which have challenged male
claims to the majority of marital assets. These trends indicate that in many communities in
Namibia, male patriarchy is being questioned and that there appears to be support within
many Namibian communities for changes in customary norms and practices.
There are major challenges and obstacles with regard to women's property and inheritance
rights. It is expected that certain segments of the population, who stand to benefit from such
discriminatory customary practices, may oppose the research findings and resulting
recommendations. However, it is hoped that education and information campaigns, which
may be one direct result of the research findings, will enable social leaders and community
1
members alike to better understand women's rights to property and to afford them a more
equitable distribution of material wealth.
GENDER INEQUALITY IN NAMIBIA1
The following sections examine gender inequality as a social-structural factor which
influences women's access to property. Aspects of gender inequality such as patriarchy - the
institutionalised dominance of men over women, which has had, and continues to have, a
significant impact on gender relations in Namibia - are examined below. If women's unequal
access to property is to be addressed, it is important to examine the backdrop of broader
gender inequalities that exist within Namibian society. Although there is no society in the
world that has absolute gender equality, Namibia being a society recently emerging from the
shackles of colonialism and apartheid, still exhibits a high degree of gender inequality, and
manifests several forms of patriarchy. Given the widespread gender inequality that exists in
Namibia, women's unequal access to the means of production and reproduction, in this case
property, is not surprising. However, these basic gender inequalities must be identified and
addressed if greater access to property is to be achieved for women.
Previous research findings indicate that most women and men in Namibia have a good
working knowledge of issues associated with gender equality, especially in relation to topics
such as women's rights to equality before the law and how gender inequalities may contribute
to gender-based exploitation (LeBeau 2002:1). Both women and men say their information
comes from mass media sources such as radio and newspapers, but their internalisation of the
concept of 'gender equality' are very different, and in general, men are far more patriarchal in
their views than women (ibid.).
Patriarchy in Namibia
Patriarchy is a dynamic system of male dominance over women that manifests itself in,
among other ways, male dominance over women's economic and social lives (Becker and
Hinz 1995:39-47; Iipinge and LeBeau 1997:47). Patriarchy depends upon differential access
to power and resources. Patriarchy has different implications for women in each community
in that women who enjoy certain legal rights in one aspect of life may lack legal capacity in
other aspects of life at the same time (LeBeau 2002:2). Therefore, power and control of
women differ radically from one community to the next. However, patriarchy manifests itself
as a social and ideological power of men over women. This power ranges from relative to
absolute, depending on the particular socio-cultural system (Becker and Hinz 1995:108).
Some researchers argue that in many Namibian precolonial communities women held
positions of authority and their social status was, in many respects, equal to that of men
(Becker 1993:67). Minimally, women in many Namibian precolonial communities had social
statuses derived from their position vis-à-vis men. In traditional African communities
individual women had de facto social power. Women exerted pressure on men both as
mothers and wives. In addition, in some cultures, such as the Nama and in the Kavango
women were traditional leaders and chiefs (LeBeau 2001:191). However, the social, political
and economic organisation of these cultures was and still is, that of male dominance (LeBeau
2002:2).
1
The following sections are derived from LeBeau 2002 and borrow liberally with the author’s full permission.
2
When Western missionaries and colonial administrations arrived in Namibia, as elsewhere in
Africa, they demanded to interact with men in positions of power and refused to negotiate
with women, even if women were leaders (LeBeau 2002:2). In many cases this subordination
to Western ideals of patriarchy undermined any social position which women might have
had. Many customary laws, whether or not they discriminated against women, were
manipulated by colonial authorities and used to advance colonial government policies
(LeBeau 2001:193). Changes in customary law frequently incorporated Western concepts of
patriarchy and discriminated against women (LeBeau 2002:2). For example, in pre-colonial
Herero culture the gender distinction between women and men was weak, however, in
contemporary Herero culture men are considered omuhona (lord or master) a term once
reserved for chiefs (Becker 1993:86-87). Although women in most pre-colonial Namibian
societies were subject to some form patriarchy, the imposition of Western colonialism further
disempowered them (ibid.:115). Webb (1997:49) states that the "disempowerment process for
women has been a long term historical process in the African context".
Indeed, research indicates that in some traditional societies women have, in the past, held
more powers of decision-making than they do in the same, but contemporary society. For
example, although women did not hold public positions of power, women in Cambodia were
in the past considered the head of the household and "the wife was a respected member of the
household who resolved family and social problems and had much influence over her
husband" (Combodian (sic) NGO Committee on CEDAW 2001:17). This power was
reinforced because land was inherited by daughters and matrilocal rules of domicile applied.
However, in contemporary Cambodian society girls are taught that as women they must obey
their husbands (ibid.).
Women under Western patriarchal colonialism held a lower legal and social status than under
any other socio-political environment which exists or has existed in Namibia (LeBeau
2001:193). During the colonial era, the prevailing laws (civil and customary laws) classified
women as minors. For example, women married under community of property had no legal
right to enter into legal contracts without their husband's consent; women were not allowed
access to education; not allowed to vote; and could not own land. In fact, in most European
societies (whether colonial or colonising), women were treated as second class citizens who
had the legal status of minor children under the control of their fathers and later under their
husbands (ibid.:194).
Given that contemporary Namibian social institutions are derived from the prevailing
Western socio-cultural ideology, Western underlying patriarchal ideology parallels and
reinforces culturally prescribed gender inequality (LeBeau 2002:3). Throughout the history of
colonialism, whether examining the colonial or colonising society, mechanisms of patriarchy
have been used to reinforce male dominance over women.
Cultural Aspects of Gender Inequality
There are many social structural factors that contribute to gender inequality in Namibia.
Many of these factors are related to Namibia's historical past that discriminated against
women on all levels of society (LeBeau 2002:3). One of these factors is cultural customs that
reinforced apartheid state sanctioned gender inequality. In Namibia there are eleven different
ethnic groups, all of which exhibit gender inequality in the form of patriarchy to a lesser or
greater extent (ibid.). For many contemporary Namibian cultures, women are viewed at best
as second-class citizens and at worst as the property of men, although certain groups such as
3
the San (Bushmen) have relative gender equality when compared to other groups (LeBeau
2001:190-191). Gender relations also differ somewhat by urban and rural domicile. Although
women in the urban areas have greater independence, for many women in Namibian
communities, there is rarely a time when she is not under the direct or indirect rule of a man
(ibid.:191). Women are subject to control by their husbands or male members of the extended
family or kinship group, as well as male members of the larger community. Within marriage
women are subordinate to men and have little or no decision-making power (Iipinge and
LeBeau 1997:52). This situation is no different than in South Africa where African women
married under customary law are considered to be 'minors' and therefore under the
guardianship of their husbands (CRLP 1997:103).
Patriarchy, strengthened by cultural beliefs, reduces women's control over their lives (LeBeau
2002:3). In Namibia, "it is the system of patriarchy, the rule of men, that is to be blamed for
women's oppression and not the individual man" (Namises in UNDP 2001:113). Although
there are cultural practices that are caring and uplifting, Namibia abounds with degrading and
unacceptable ways of men exercising control over their domestic partners (LeBeau 2002:3).
Customary values and norms, reinforced by Western patriarchy remain strong in most parts
of Namibia and reinforce gender biases, as well as contributing to gender-based violence.
From early childhood girls are socialised to act emotionally, mentally and physically weaker
than boys, while boys are taught that they are superior to girls. Through the course of a girl's
life she is socialised to believe that she is biologically inferior to boys. Most girls in
customary societies, indeed in most social situations, are socialised to believe that the
ultimate goal for their lives should be to get married, have children and take care of their
husbands and families. These ingrained gendered stereotypes reinforce social and cultural
norms of patriarchy, leading some women to believe that men are in fact biologically superior
to women and thus men should have rights of control. This 'patriarchy of the female soul'
leads women to perpetuate the cycle of patriarchy by teaching such beliefs and behaviours to
their own daughters.
The conceptualisations of 'man' and 'woman' as well as culturally defined social roles for the
ethnic groups under consideration will be examined in detail when discussing each of the
Namibian cultures represented in this report, however, there are some common gender
relation patterns among Namibia's main ethnic groups (LeBeau 2002:5-6). Women are
primarily stereotyped in relation to their domestic, reproductive and household productive
roles (Iipinge and LeBeau 1997:53). Women are typically responsible for maintaining the
household, caring for children and subsistence crop production. In general, women have little
or no decision-making powers, especially in relation to household finances (Iipinge et. al.
2000). Men are primarily stereotyped in terms of their decision-making capacity and their
role as heads of the household. In general men are considered to have overall power within
the household (Iipinge et. al. 2000:5).
LeBeau (2002:22) found that both women and men identify how different cultural customs in
Namibia contribute to gender inequality, but these customs have nevertheless remained in
place in terms of Namibia’s post-independence legal framework. Many people have used
'tradition', 'custom' and 'culture' to justify patriarchy (LeBeau 2002:188-189).2 Often, culture
2
In this text the term 'tradition' is used to denote beliefs and behaviours that predate colonial contact. The terms
'custom' or 'customary' are used to denote contemporary beliefs and behaviours that may have been altered with
colonial contact. The terms 'culture', 'community' and 'society' are used to denote a group of people who are
ethnically related and have more-or-less homogeneous beliefs and behaviours. This system of reference,
4
is represented as a static ideology that cannot be changed because 'it has always been this
way', therefore - the argument goes - patriarchy should not be changed because it is part of
the prevailing culture. Some men, while acknowledging that some customs discriminate
against women, do not think that patriarchy based on culture is wrong. In LeBeau's study
(2001:21) several men, but only one older woman, do not think there is any discrimination in
their culture, while other men indicate that culture protects women because men are
responsible for taking care of women and protecting them - the assumption being that men
will always treatment women kindly and fairly.
LeBeau (2002:22) found that Herero women and men know that their culture has
discriminatory practices, but many men do not think this should be changed. Thomas, a 44
year-old Herero man from Katutura states, "Traditional customs do not affect or discriminate
against women in any way. The traditional customs are clear, they stipulate that a man
should be the leader within the house and that the woman should fall under her husband".
LeBeau (ibid.) identifies Herero customs that discriminate against women including the
customary rule that women should not be seen on the street alone but should be home taking
care of the house and children; women's inability to own property; and polygamy whereby a
woman cannot marry two men but a man can marry two women. In LeBeau's study, Peter, a
39 year-old Herero man living in Katutura says that Herero customs previously discriminated
against women because women were not allowed to speak at public gatherings, but he claims
that in contemporary Herero culture women now have a right to speak out. However, Kako
(45 year-old Herero woman) disagrees that this Herero custom has changed and feels that "it
means women have no voice" (ibid.).
Similar to the Herero, Owambo women and men are also able to identify customs that
discriminate against women, but many men do not want these customs to change (LeBeau
2002:22). In LeBeau's study (ibid.), Tomas, a 43 year-old Owambo man from Katutura says,
"I do not know of any customs or traditions that affect how men and women live together.
There are traditional beliefs like the one that gives men more power in families, yes it
discriminates against women ... but it is good for the man to have power". Some men,
especially from the Owambo rural areas, do not think that their customs discriminate against
women, Kondjeni (46 year-old rural Owambo man) says, "The tradition is that women should
respect and obey their husbands, but there is nothing wrong with that. ... Our women are
used to their tradition and they appreciate it". Maria, a 39 year-old Owambo woman from
Katutura would not agree with Kondjeni that women appreciate discriminatory customary
practices. Maria says, "Traditionally a woman is always in one category as children. This
hurts a woman and must change" (ibid.).
Significant for this report is LeBeau's (2002:23) finding that the most commonly identified
custom that contravenes women's rights is the Owambo practice of widows being thrown out
of their homes and all property confiscated by the deceased husband's relatives. LeBeau
(ibid.:23) also found that Owambo custom discriminates against women because women are
not allowed to own any property; they are not allowed to make decisions; they cannot say 'no'
to their husband's sexual advances; and they are often treated like the property of men
because lobola was paid and therefore, some men believe that their wife is equivalent to
property for which he has paid.3 Few Owambo men think that these discriminatory practices
although not perfect, is an attempt to delineate terms in common usage that may influence the way people think
about contested sites of heritage and power.
3
Lobola is bridewealth or brideprice. It is an amount of money or goods that the man's family pays to the
woman's family before a marriage can take place. Most cultures in Namibia have the custom of paying lobola.
5
are unjust, but are viewed as part of their 'culture'. However LeBeau (ibid.) found that some
Owambo men, primarily from Windhoek, do feel that discrimination creates challenges for
Owambo women. Kaleinasho, a 36 year-old man from rural Owambo, acknowledges the
precarious predicaments in which gender inequality can place women when he states, "This is
not good ... Women become vulnerable to abuse either physically or emotionally" (ibid.).
Damara and Nama men express the belief that women are not discriminated against in their
cultures (LeBeau 2002:23). For example, Snes, a 24 year-old Damara man from Katutura
does not think Damara cultural practices discriminate against women, but that Owambo
customs do because women must serve men; women plant and plough the fields; and women
cook for men. However, LeBeau (ibid.) feels that Sarafina (33 year-old Nama woman) would
not agree with Snes. Sarafina says that in their culture men expect women to be subordinate
to them, even when these men are "not very progressive in their approach". Mankosi, a 73
year-old Damara woman, also does not agree with the men's view because women in Damara
culture have no right to talk to or disagree with their men. Mankosi feels that this is a
dilemma because women need to express their views the same as men (ibid.).
Gender Inequality and Women's Social Challenges
The preceding sections demonstrate the strength of gender stereotyped roles for women and
men, as well as culturally entrenched gender inequalities in contemporary Namibian society.
Indeed, social roles assigned to women and men contribute to gender inequality in Namibia.
Gender inequalities are found throughout Namibia, however, in the urban and 'modern' areas
male dominance is weaker than in the rural and 'traditional' areas, due to urban women's
greater access to social and economic resources (LeBeau 2002:23).
Although legal, social and economic norms are changing, women have yet to obtain social
equality to that of men. Current debates on addressing social challenges for women view
gender inequality as an obstacle to developmental efforts on the African continent (LeBeau
2002:6). Most development models focus on male-based capitalistic development projects
that portray women as passive recipients rather than contributors to development, thereby
reinforcing gender inequality (Kaundjua 2000:26). The Gender And Development (GAD)
paradigm requires a radical shift from current development models which tend to be gender
blind, towards a model of development aimed at empowering women with opportunities in
currently male-dominated economic, political and social structures (UNDP 2001:72). One of
the major goals of the GAD model requires improved standards of living for women, and
women's greater access to material wealth, employment and education (ibid.:73). The GAD
approach to development recognises gender inequality as stemming from economic and
social structural factors in society and contends that only when these structural inequalities
are addressed can women be empowered to face challenges such gender-based inequalities as
male dominance of material wealth and finances, as well as male control of social and
political power (LeBeau 2002:6). Andima (1993:2) reports that the primary reasons for the
failure of development projects are: the lack of women's right to land, credit and technology;
a lack of information; women's lack of time for projects because of home productive and
reproductive responsibilities; a lack of project management; and limited markets for project
production. Central to the problem of poorly planned development projects is the failure to
take into account the customary gender division of labour as it might impact such a project.
Legal reform is the first step towards dismantling a social structure that systematically
discriminates against women. Tapscott and Hubbard (1991:4) report that at independence
6
there were thirteen civil laws and statutes that favoured men over women. Many of these laws
have been changed, but not without considerable resistance by male lawmakers, and indeed
men within the wider Namibian society. Of importance to women's issues in Namibia are
several new Acts and Bills being put into place to protect women, such as the Married
Persons' Equality Act, Act 1 of 1996, which specifies equality of persons within civil
marriage and does away with the legal definition of man as head of the house. The Act also
provides women married in community of property equal access to bank loans and stipulates
that immovable property should be registered in both spouses' names (Iipinge and LeBeau
1997:39). These law reforms, as well as attempts to improve law enforcement and judicial
responses to violations of women's rights, have come a long way towards guaranteeing
women more equitable protection in Namibian civil society because discrimination against
women in the legal context leads to prejudices in other spheres of life and leaves women with
little recourse for addressing social inequalities (LeBeau 2002:6). However, significant law
reforms on customary family relations have not yet been forthcoming.
Research from various sources has implicated women's lower social status vis-à-vis men as a
significant contributing factor to some of the social challenges women face in contemporary
Namibian society. Due to women's lower socio-economic status, women's inadequate access
to resources and lack of decision-making power, women find themselves at risk of being
exploited by men (DWA 1995:40; LeBeau 2001). Many women, who are survivors of
domestic violence or are sexually exploited, find themselves financially trapped in
relationships of emotional and physical violence (Rose-Junius et. al. 1998:11). The Namibia
UNDP report (2001:87) on violence against women indicates that violence within the family
tends toward relationships with the greatest power differential and that this is most likely to
be the case in societies where notions of masculinity are equated with power and control.
Research indicates that socially constructed patriarchy is important in understanding women's
vulnerability to exploitation (UNDP 2001:72).
Poverty as a social structural factor also contributes to many of the challenges women face
because many Namibian women are dependent on men for economic support (LeBeau
2002:7). Women in Namibia are more likely than their male counterparts to live in poverty.
When looking at the Human Poverty Index (HPI) for Namibia by sex,4 women have higher
social indicators of poverty than men in all areas measured, such as survival rates, illiteracy,
standard of living and over 80% of income spent on food, as well as an overall HPI of 28.6
versus that for men of 23.8 (UNDP 2001:36). These figures of women having higher HPI
than men can be found in other developing countries (cf. Combodian (sic) NGO Committee
on CEDAW 2001:51; Malla-Nepal 2000:1). In urban areas, women's unequal access to
employment means that many women are forced to turn to the informal sector or to low
status, low paying labour such as domestic work to generate cash income. Both of these
spheres of income generating activities place women outside of legal protection and increase
their vulnerability to poverty due to the insecure nature of this type of employment (DAW
2000:15). Employment as farm workers, domestic workers, in the informal sector and parttime are – by their nature - not covered by most labour laws and people working in these
areas may find themselves excluded from certain protections under the labour laws, such as
job security, minimum wages, the right to unpaid and sick leave, maternity benefits or
medical aid benefits. Research in South Africa has found that impoverished women who
work in such jobs also face a barrage of challenges because of inadequate legal protection for
4
The HPI is an indicator of deprivation measured by the proportion of a population deprived of central elements
necessary for human development to take place (UNDP 2001:22).
7
people working in these areas (CRLP 1997:104).
Women are also more likely than men to live in the rural areas where there is less access to
social and infrastructural services; they are more likely to live in households without potable
water and hygienic sanitation; and they have less access to education and cash income than
their male counterparts (Iipinge and LeBeau 1997:54,68-69). Data indicate that 32.7% of
female-headed households in Namibia can be considered poor compared to 28.2% of maleheaded households (ibid.:68). Female-headed households also have less money to spend on
food, housing, education and health care than their male-headed counterparts (ibid.). In the
rural areas, female-headed households often face a critical labour shortage for subsistence
agricultural production (Andima 1993:2).
Gender inequality contributes to a variety of social challenges faced by women, including
unequal access to material wealth (such as land, property and cash income), gender-based
violence, a high incidence of poverty among women, and discriminatory customary practices.
As well as women having to manage these various challenges, the existence of such
challenges are also correlated to women's greater risk of exploitation (UNDP 2001:116-117).
Men's Opinions of Gender Equality
LeBeau (2002) conducted research in Namibia that examines people's opinions of the
relationship between the sexes and gender equality. LeBeau (ibid.:1) found that most women
and men have a good working knowledge of issues associated with gender equality,
especially in relation to topics such as women's social and economic status vis-à-vis men.
Although men tend to measure positive social change in terms of economic factors, women
tend to focus on social issues such as women's rights. Regardless of actual changes in
economic status, many women believe that their social status has improved since
independence (ibid.:2). However, men are more likely to view women's rights in a negative
manner, often concentrating on how 'women's rights' has 'caused' some contemporary social
problems or how they feel 'women's rights' has detracted from 'men's rights'. For example,
men express the feeling of a loss of social status due to women's advances in gender equality.
Locally generated definitions of 'women's rights' frequently focus on improvements within
areas traditionally gender stereotyped for women, rather than a Western generated concept of
'gender equality' in all spheres of life (ibid.:2).
To say the least, most men are not happy about the current trend in Namibia that is aimed at
empowering women (LeBeau 2002:24). In LeBeau's study, Wolfgang, a 30 year-old German
man from Windhoek, identifies men's resistance to gender equality as a challenge women
face. He states that, "Men in general do not like the idea of women's rights but that is the fact
that we have to live with". Men are frequently intimidated by the rising status of women and
see this as a direct threat to their own social position (ibid.:25). Men blame the women's
rights movement for causing problems in Namibian society. The most commonly mentioned
concern is that men and women are confused as to which rights are for women and which
ones are for men. Men in Namibia do not seem to understand the concept of 'women's rights'
and often believe that women's rights are the right to take care of the house and family, while
men's rights are to protect the family and run the household (ibid.). This view, which is
widespread in Namibia, seems to be at variance with the concept of women's rights as
represented by overall gender equality. In addition, many men think that a gain in women's
rights means a corresponding loss in men's rights. Some men assert that women's rights have
caused a problem because now "everyone wants to be in the leadership position", and some
8
men and women are now fighting each other for leadership (ibid.). In LeBeau's study, Joseph,
a 49 year-old Herero man, blames the women's rights movement for causing confusion
because, "there is no clear limit to rights and it causes confusions between men and women".
Some men express the idea that, "some rights interfere with traditional beliefs" and are
therefore, not acceptable, while other men blame women's rights for mistrust that exists
between women and men. Sam, a 43 year-old rural Owambo man, explains this position
when he says, "They do not trust each other well because of these equality laws. We have
people being beaten up because of these disagreements that are brought on by equality laws"
(ibid.).
Some men blame women for gender inequality because they say it is women's fault for not
standing up for their rights, while other men contend that only some women want gender
equality (ibid.). Women who want gender equality are usually described as women who
cannot find husbands, foreigners and women who want equality to be able to steal men's
property. John, a 39 year-old Owambo man living in the rural areas believes, "women use
these rights to abuse their husbands", while Kondjeni, also from rural Owambo, feel that
women's rights, "cause confusion and some women refuse to obey their husband's rules. ...
they [women's rights] change our traditional norms and values. Those things are European.
They shouldn't be practiced here in Namibia" (ibid.:26).
Peter (44 year-old Owambo man) from LeBeau's study, feels that women now see men as
their enemies and fail to consider men in their struggle for women's rights, thereby creating a
"vacuum" in men's social position, while Amuste thinks that women use women's rights to
undermine men. Several men, especially from the rural areas, feel that women misuse the
concept of women's rights to discriminate against men. Conversely, some women feel that
men are threatened by gender equality and thus "undermine women's attempts to achieve
equality ... some men are against the equality idea". Many men are adamantly opposed to
gender equality and use a variety of excuses in arguing for the maintenance of a patriarchal
system. In LeBeau's study, Tomas (43 years old) expresses the sentiments of many men when
he says:
This has been too much for us men! Everywhere you go they talk about
women's rights. I think it is being overemphasised now! Yes very much!
Women's rights cause problems between families. Because women are now
just fighting for their own rights, they no longer recognise us. I do not agree
with women being equal to men. I think men should remain as heads of
households. Again if we refer to the Bible story a man, Adam, was created first
by God and he was given the power to rule everything on earth! My wife
should not have equal rights to me. I remain the head of the household and
that's all! (ibid.).
Men also think that women should be satisfied with their rights, because they "get enough
rights through their men". These men do not think civil society should interfere with what
they consider a private matter between a husband and wife (ibid.). Men think that there
should not be gender equality because women have their own rights and men have their own
rights, therefore, it would not be fair for women to have both men's and women's rights.
Other men think that women have misunderstood the concept of women's rights and have
taken it to mean that women should be equal to men, whereas it really means that men should
not abuse women. However, Sophia, a 35 year-old Owambo woman from Katutura, shows
her clear understanding of women's rights when she explains, "It's not that we want to
9
overthrow the men but we first want to be equally treated, and we want the same status as
men and equal job opportunities so we fight for equal rights" (ibid.:27).
In LeBeau's study, several men, although saying they believe in women's rights, also indicate
that this should not apply to all women in every situation. One German Namibian expresses
the feelings of many men when he states, "Women's rights are fine, but just not for my wife".
Some men feel that women should have equal rights in the public sphere, such as when it
comes to employment, but they should be subordinate to their husbands in their private lives.
For example, John, a 57 year-old Herero man from Katutura explains:
Women's rights should be there to educate and improve the living conditions,
and men and women should be paid equally and have equal jobs and
opportunities in life. But in the house, we can never be equal. Women's rights
cause problems between men and women, because the women are now getting
out of control and they even add extra rights to their own rights (ibid.).
Also from LeBeau's study, Fany (35 years old) says he does not believe in women's rights
because "now a woman thinks she becomes like a man". Snes (24 years old) opposes gender
equality on the basis that there has to be a head of the house - who has always been and
therefore should always be a man. He also notes that, "women's rights is something that will
take time for men to get used to". Although he does not believe women and men should have
equal decision-making powers, Johannes, a 44 year-old Herero man living in Katutura, says
he thinks women and men should equally look after the house and children (ibid.).
There are a few men who agree with gender equality, although they feel that men are being
left behind. One reason given by these men for agreeing with the concept of gender equality
is the need for women to have a fair chance to "build up a better future for themselves".
Given that women's rights are not just for their own partners, but apply to other women in
their lives, some men want to see their female relatives have equal rights as well. Peter, a 39
year-old Herero man from Katutura, explains his position on women's rights:
When women's rights was created, we thought that it was bad but now we all
see it as a good thing. I think it is a good thing that women today have their
rights too because my mother used to be treated badly.
Gender inequality is one of the most significant social structural factors in contemporary
Namibian society that contributes to women's unequal access to material wealth in the form
of land, property and cash assets. As will be discussed in subsequent sections, there are
important legal and social reforms taking place that will afford women the possibility of
greater gender equality. However the preceding data indicate that a serious challenge women
face is men's negative attitudes towards contemporary gender equality movements. Many
men, having become used to being in their privileged positions, desire to maintain the status
quo. However, on a positive note, LeBeau (2002:27) found that there was no one who
participated in her study who had not heard of the women's rights movement and all men - as
well as women - have some knowledge about what gender equality entails.
10
ASPECTS OF WOMEN'S PROPERTY RIGHTS5
As well as general gender inequality there is a lack of decision-making power both within the
homes and the larger community, but there are also various social and legal structural factors
that constrain women from unfettered use, ownership and control over material wealth such
as land, property and cash. As will be discussed in detail in the latter sections, women are in
part constrained by civil and customary laws which discriminate against women and deprive
them of the opportunity to access property in their own rights. However, this situation is not
unique to Namibia and many other countries around the world also have such discriminatory
practices.
The following sections examine aspects of women's rights to material wealth such as land,
property and cash that have been brought to light by previous research. Although the issue of
women's rights to property primarily arises when there is a death or divorce, everyday aspects
of women's lives are impacted by their inability to manipulate material wealth. In addition,
women who do not have decision-making powers within their homes and their communities
are also less likely to have decision-making power in regard to the manipulation of material
wealth.
Access to Land
In Namibia, the majority of people live an agrarian, subsistence based lifestyle. Nearly 80%
of the Namibian population is involved in some form of agricultural production (FAO
Internet source). In the communal farming areas, which are the primary concern for this
report, 41% of the area is agricultural land, which accommodates about 64% of the Namibian
population, of which 90% are dependent on subsistence agriculture (ibid.). Data indicate that
51% of all women in Namibia work in agriculture, compared to only 43% of men (Iipinge
and LeBeau 1997:33). Women in the communal areas carry out the majority of the household
and subsistence agricultural work. Men are primarily responsible for the herding and
marketing of livestock, while women are responsible for food processing, collecting firewood
and water, and household maintenance. In the former Owamboland and the Okavango, 64%
of subsistence farming is done by women, where as 59% of agricultural work is done by
women in the Caprivi (ibid.:30).
Iipinge and LeBeau (1997:29) indicate that women's contribution to the Namibian economy
is undervalued because women do the majority of subsistence farming, but official economic
indicators do not place monetary values on their production, therefore the major output of
women's labour is not officially recognised. Iipinge and LeBeau (1997:29) go on to state that:
Due to the fact that policies and programmes continue to overlook the central
role of women in the economy, they reinforce inequality in women's access to
productive resources including land and labour; and support services such as
credit, agricultural extension and gender research. ... Women need access to
land and credit to equip themselves with resources which will allow them to
control their own means of production.
5
The following sections discuss aspects of women's rights to property for Namibia as well as other countries for
comparative purposes. Unless specifically stated, the reader can assume the discussion refers to Namibia.
11
Although it is clear that women are the primary users of environment, as well as land, women
do not have the ability to own or have usufruct rights to land without a man. Gengenbach
(1998:7-8) states that for Mozambique, as with most countries in Africa, although women are
the principal users and caretakers of land, customary law, discrimination against women and
methods of land administration negatively impact women's rights to land. Although all
communal land, in theory, belongs to the Namibian government, communal land is allocated
through the system of traditional authorities who are paid a fee for this function (Iipinge and
LeBeau 1997:30). Communal land rights are generally granted to a man who is perceived to
be the head of the household. Women's security to use land "is jeopardised by discriminatory
marriage customs and inheritance systems which favour men" (ibid.). In South Africa, as in
many other parts of Africa, women under customary law are restricted from land ownership
and usually can only gain access to land through the male head of the household who
allocates women within the household portions of the land that they can work to produce
crops for themselves and their families (CRLP 1997:104). In Cambodia, women are supposed
to be granted equal rights of ownership to land, but in practice women are restricted in
disposal of land and cannot sell even their own land - or any property for that matter - without
their husbands' signature, while men can sell land without their wives' signatures (Combodian
(sic) NGO Committee on CEDAW 2001:54).
In fact, when examining women's rights to land ownership for several African countries (such
as Ghana, Kenya, Nigeria, Tanzania and Zimbabwe) the trend of inhibiting women's access
to land ownership becomes disturbingly apparent (CRLP 1997:44, 67, 84, 124, 142). In most
of these countries, the civil laws in theory grant women equal rights to own and inherit land,
while customary norms and laws make it highly unlikely that this will happen in practice and
women are still constrained from owning and inheriting land. However, in some of these
countries such as Zimbabwe, civil law makes no attempt to address customary discrimination
against women with respect of land rights. Indeed, Zimbabwe's civil law entrenches these
customary laws by restricting women's rights to occupy and use communal land (ibid.:142).
However, it is encouraging to see that some countries in Africa, such as Ethiopia, have
amended their civil laws to provide for equal rights to land ownership and inheritance
whether or not a woman is operating within customary law (CRLP 1997:24). However, even
when women have the legal means through which to enforce land claims, many women lack
the education or means to undertake legal enforcement of land claims.
In Namibia many women, whose husbands have died, are told that they can no longer remain
on communal land or that they must reapply and pay the traditional authority for the right to
use the land. As in many parts of the world, especially in developing countries, women rarely
own the land that they farm (FAO Internet source).
Interestingly, Gengenbach (1998:9) argues that customary land tenure systems are, in fact,
more flexible and allow for women to have de facto access to land, even if they are not
attached to a male affine. This access to land comes through a woman's association with other
women in the community. In this system, women use and maintain land according to where
and with whom they are associated. However, most of this access is in fact, through the
women's relationships to the men. Women who utilise this land tenure system have the ability
to 'loan' or gift land to other women (ibid.:12). These data indicate that some women may
have the ability to overcome patriarchal control over land and thus gain economic and social
freedoms.
12
The ownership and ability to manipulate land, as well as other immovable property, is
important because for agrarian people it means the ability to be able to produce crops in an
effort to be self-sufficient. Land ownership also means the ability to use the land, or other
immovable property, to secure bank loans that can be used to improve the land or to start a
business. As with Namibia, women are also restricted from obtaining bank loans because of
their lack of ownership of immovable property. The LACC found that only 4.4% of Nepalese
women have land ownership (ibid.:2). Therefore, equality in inheritance is an important first
step in allowing women to access immovable property and thereby be eligible for bank loans
for business purposes.
Property Ownership
In the communal rural areas most women are still governed by customary laws, norms and
practices. Women's ability to access, use and own various types of property is limited in most
Namibian cultures. This section looks at women's rights over property - other than land - and
how these rights influence women's social and economic status.
As with Namibia, women in South Africa who live under customary law are considered
'minors' under their husband's control and therefore do not have the right to control
communal property, even if they brought such property into the marriage (CRLP 1997:104).
As with Namibia, these laws seem to violate the South African Constitution which also
provides that everyone is equal before the law and should not be discriminated against based
on gender and/or race (ibid.). Also, as with Namibia, the validity of such laws is being
challenged.
Several studies have found that constraints on women’s access to property are not a uniquely
Namibian problem. Many countries around the world, most notably in Africa and Asia, also
have situations similar to Namibia. For example, in Nepal, which is a Hindu patriarchal
country, women are both legally and socially discriminated against when it comes inheritance
and property rights (LACC 2002:1). The LACC (ibid.) found that there are four basic reasons
for women's lack of access to property: 1) laws that discriminate against women; 2) the
prejudicial application of property laws; 3) women's lack of awareness about their legal
rights; and 4) women's lack of confidence to take action when their rights have been violated.
As with many communities in Namibia, Nepalese women do not have rights of inheritance
from either their fathers or their husbands. Through the efforts of the Legal Aid and
Consultancy Center (LACC), Nepalese women are now beginning to be able to claim some
rights of inheritance from their fathers and/or husbands, although the system is still highly
discriminatory in favour of male relatives who tend to be in the first category of succession
and get a larger share of the estate (ibid.:1-2). In several African countries (such as Ghana,
Kenya, Nigeria, Tanzania and Zimbabwe) women are also disadvantaged under customary
law when it comes to their rights to property, especially within marriage (CRLP 1997:42-43,
67, 84, 123, 141). For example, in Kenya most fathers leave their property to their sons and
not to their wives or daughters and although against civil law, this practice has been upheld
through court trial test cases (ibid.:67). In Nigeria, all marital property is assumed to belong
to the husband or the male head of the household and women only have rights to property for
which they can provide documentation indicating their right of ownership or proof of their
financial contribution towards the purchase of the property (ibid.:84). However, in Ghana,
even though a marriage may be contracted under customary law the civil law supersedes and
dictates that women have equal rights to property, property belonging to a spouse upon
marriage remains that person’s property and property acquired during marriage is considered
13
joint property (CRLP 1997:23).
14
In Namibia, as in other countries in Africa, women as less access to property then men. On
the average female-headed households in Namibia tend to own fewer livestock than maleheaded households or possibly own no cattle at all (FAO Internet source). In addition, women
who live within male-headed households are typically not able to own livestock in their own
right. This limited access to livestock means that women have less of an ability to access the
benefits of livestock ownership such as the use of them for food, income from the sale of
meat, dung for fertiliser and draught power, as well as lowering the overall social and
economic status of women due to their lack of livestock ownership (ibid.).
Namibian women who divorce are frequently alienated from their property through both civil
and customary law. This situation is due to outdated beliefs such as that men are primarily
responsible for the accumulation of material wealth, as well as gender biases in both civil and
customary courts.
Money
Women in the communal areas of Namibia, especially those that are married, are in a difficult
position because customarily women in many Namibian cultures are not allowed to own
property and do not have control over family finances. Rural households are supported
primarily through subsistence farming such as with mahangu (pearl millet) and the raising of
livestock such as cattle, goats, sheep and chickens. Migrants' remittances, especially in rural
Owambo, are often the only source of cash income for many households. Most rural women
depend on their husbands to give them money or to send money to them from the urban areas.
Rural women have developed mechanisms for coping with poverty. Some rural households
receive money, food, clothing and other exchange items from their families in the urban
areas, while some rural women sell mahangu and handmade items to get cash. LeBeau
(2002:28) found that most rural men say that women today have their own money from jobs
in the government and selling kapana (cooked meat) or handmade baskets. Single women in
the rural areas have a far greater challenge because they typically do not have a source of
cash income and are more dependent on their familial and social networks, including
boyfriends, for money.
Women's continued dependence on men for money contributes to maintaining women's lower
social status vis-à-vis men and places women at risk of poverty, exploitation and genderbased violence (UNDP 2001; LeBeau 2001). Women's dependence on men for money gives
more power to men, which allows men to have multiple sexual partners, while their main
domestic partners cannot complain because they are dependent on the good will of the men
(LeBeau 2002:28). Ndapewa, a 32 year-old Owambo woman from LeBeau's study, explains
some of the challenges women face when they have to depend on men for financial support:
Most women do not have their own money. They depend on their husbands or
partners. For example, I depend on my boyfriend to give me money. A lot of
women have to wait for their husbands to give them money. ... Money
sometimes causes problems for women because a woman has to obey orders
that are given. She does not have money. For example, if she is told that her
husband has got a girlfriend, she has no right to ask him to use a condom or
to refuse sex (ibid.).
Women's dependence on men for money also creates challenges such as arguing and friction
in the relationship; the person with the money dominating the other person; a relationship
15
based on money and not love; "if the man has too many women the money won't be enough";
men who drink alcohol instead of giving money to their families; and when a man dies the
woman will be left destitute because none of the property is considered hers (ibid.:29).
Many urban women, recognising that they must support themselves and their children, have
begun small businesses and street-corner vending. The income derived from such ventures,
although small, affords many women a measure of economic freedom not otherwise available
to them (LeBeau 2002:30). However, most rural women do not have such economic
freedoms, neither do they have the ability at income generation that many of their urban
counterparts enjoy.
Decision-making Power
In most cultures in Namibia, men are considered the head of the household and have
decision-making rights over women within the household. Women in female-headed
households tend to have more rights of decision-making than in male-headed households
(FAO Internet source). In addition, unmarried women who are able to establish their own
households, especially in the urban areas, typically tend to have greater decision-making and
economic freedom than married women.
In addition to a lack of decision-making power within the household, Namibian women
typically have little or no decision-making power within their communities. Women are
typically not part of traditional authorities, who hear customary court cases and enforce
customary law. This inability to exert power over community decisions also influences
women's access to material wealth given that it is men who are making such decision.
However, Becker (1998:259) argues that women were not excluded from all aspects of
traditional authorities and customary courts in certain Namibian communities. The presences
of women in positions of authority is most notable in the Kavango Region where women
have been and still are traditional rulers (ibid.:260). There are also indications that women in
some traditional Owambo communities had de facto power through their relationships to
male affines (ibid.). However, an examination of contemporary socio-political circumstances
in these areas indicate that for the majority of the 'average' women, these female rulers are no
more likely to defy customary norms of property ownership than their male counterparts,
given that their power is derived from these same communities.
In several communities in Namibia, most notably the Owambo and Herero communities,
women have been excluded from attending or speaking in customary courts. However, there
are some indications that this is slowly changing and that women are now being admitted to
traditional authorities and customary courts, although there seems to be no general rule as to
when and how this might occur (Becker 1998:267). However, the attendance of women in
such customary decision-making structures should not be taken to imply that women are
given equal opportunities at community decision-making. In her research, Becker (ibid.:275)
found that most female community members complain that traditional authorities and
customary courts discriminate against women in favour of men because "chiefs and headmen
'are mostly men themselves'".
16
2.
MARITAL PROPERTY AND INHERITANCE IN NAMIBIAN
LAW6
LEGAL BACKGROUND TO WOMEN'S PROPERTY RIGHTS
As a backdrop to the current research, it is useful to understand the legal framework which
governs civil and customary marriage and inheritance.
Currently in Namibia there is a confusing web of civil and customary laws that govern
women's property and inheritance rights. Customary laws are those sets of unwritten laws
under which African societies conduct their marriages, divorces, inheritance, land tenure and
other such affairs. These sets of laws have developed within specific societies over time and
usually reflect the 'collective consciousness' of the society at that moment in time. The
customs and laws of a specific group determine women's legal status within that society,
however, most of these customs and laws strongly discriminate against women. A system of
customary laws applies to most women in Namibia's African societies.
Women in many African communities, as well as many policymakers, have begun to
question the constitutionality of customary laws claiming that they are racist because they
apply only to African communities, while civil law applies to everyone else. With the
abolition of apartheid and the establishment of a constitutional government, women's rights
have been enshrined in the Namibian Constitution. The Constitution states that customary
laws may only be practiced in Namibia if they do not infringe upon rights granted to an
individual in the Constitution. However, since independence the government has been
contending with how to realise the gender equality promised in the Constitution. Several
apartheid-era laws, which discriminated against women, remained on the books at
independence and have only recently come under review. Namibia has initiated a number of
legal reforms to address previous gender discrimination based on civil law, but reform in the
area of customary law has moved more slowly.
The Namibian Constitution
The Namibian Constitution gives special protection to families. Article 14(3) says, "The
family is the natural and fundamental group unit of society and is entitled to protection by
society and the State". The Constitution does not include a definition of family, because of
the great diversity of families in Namibia.
The Constitution also has specific provisions about marriage. All adult men and women have
the right to marry and to start new families. Article 14(1) guarantees men and women equal
rights as to marriage, during marriage and when a marriage is dissolved (such as by death or
divorce). No one can be forced to marry – marriage can take place only with the free and full
consent of both persons involved.
6
This chapter was written by Dianne Hubbard and Evelyn Zimba of the Legal Assistance Centre (LAC).
Portions of the text are drawn from previous work by Hubbard (2001, 2000 and 1999). The LAC and UNAM
worked together on two related research projects pertaining to marital property, both with grants from USAID.
These two projects were carried out in close consultation, to allow for cross-fertilisation. Therefore, an
expanded version of this chapter also appears in the research report of the LAC.
17
Two Kinds of Marriage
There are two kinds of marriage in Namibia: civil marriage and customary marriage. Civil
marriage takes place when a man and a woman are married by a marriage officer, which
could be a magistrate or a church leader. Civil marriages are registered, and the couple that
marries in this way will receive a marriage certificate.7 Customary marriage takes place
when a man and a woman are married according to the customs of their community, but
without a marriage officer. Customary marriages in most Namibian communities are
potentially polygamous, and about one out of every eight women (12.5%) stated that their
husbands currently had other wives in the course of a national survey carried out in 1992
(MoHSS 1993:48-49). Customary marriages are not registered. At the time of writing, a
system for regulating and registering customary marriages is under consideration, but the
draft law on this topic is still in its early stages.
Both civil marriage and customary marriage are recognised as 'marriages' for many purposes
in Namibia. For example, the ability to gain Namibian citizenship by marriage applies to both
types of marriage. Employees' compensation paid to surviving spouses when an employee is
killed in a work-related accident applies to spouses in both types of marriage. On the other
hand, some laws which discuss 'marriage' and 'spouses' cover only civil marriages. The term
'customary union' has been used in some laws and other official contexts to differentiate
unrecognised customary marriages from civil marriages. These differences in recognition of
civil and customary marriage are under review by the government.
The two forms of marriage are not always kept strictly separate. A couple may observe some
of the customs of their community, such as the exchange of gifts or bridewealth, and they
may follow some of the customary ceremonies. But they may also have a marriage ceremony
in a church or in a magistrate's court. Church weddings are popular in Namibia because of the
strong influence of Christianity. This will mean that some couples may follow both sets of
laws and rules in their marriage, depending on the situation at hand. Only about 30% of
Namibia's population is formally married under either system, meaning that cohabitation is
common.
Cohabitation refers to the situation where a man and a woman decide to live together as
husband and wife without getting married under civil or customary law. Census figures
indicate that about 12% to 15% of Namibia's population is involved in such informal
relationships. The law does not treat this kind of relationship as a marriage. Regardless of
how long a couple cohabitates, they acquire no legal duties in respect of each other or the
property accumulated in the joint household. The courts have on occasion applied legal
concepts meant for business partnerships to such relationships to prevent egregious cases of
unfairness, with mixed success - but there is no legal protection tailored for cohabitation and
most cohabiting couples are left without any legal remedies in respect of property.
The only exception to the general rule relates to children – Namibia law makes all parents
responsible for the maintenance of their children in proportion to their financial resources,
and there is no distinction between children born inside marriage and children born outside
marriage for this purpose. However, children born outside of marriage are still disadvantaged
when it comes to inheritance – in terms of the civil law, such children may not inherit from
their fathers or their fathers' families unless they are named in a will, even if paternity is
7
Gay and lesbian couples may not marry in terms of Namibian law.
18
proven or acknowledged. A draft law which would remedy this particular problem, the
Children's Status Bill, is expected to be introduced into Parliament by the Ministry of Women
Affairs and Child Welfare in 2004.
CIVIL MARRIAGE
Property Arrangements for Civil Marriages
In Namibia there are two basic marital property regimes that apply to marriage – 'in
community of property' or 'out of community of property'.
Marriage in community of property means that all the belongings and the debts of the
husband and the wife are combined into a 'joint estate'. Everything that belonged to the
husband or the wife before the marriage took place becomes part of the joint estate, along
with any money earned or property acquired by either of them during the marriage. The
assets in the joint estate can be used to pay loans or debts, no matter which spouse is
responsible for them. If the marriage comes to an end, the joint estate is divided equally
between husband and wife.
Before the Married Persons Equality Act was passed in 1996, a common law concept called
'marital power' gave the husband the right to control the joint estate. Even though half of
everything belonged to the wife, the husband had the authority to administer the estate on
behalf of the couple. The wife could not buy or sell most kinds of property without her
husband's permission. The Married Person's Equality Act 1 of 1996 changed this situation,
providing that a husband and wife married in community of property must theoretically agree
when they sell, give away or borrow against important joint assets - such as the house,
household furniture or livestock. They must also agree before taking out a loan which is
secured by joint property. Unfortunately, the enforcement mechanisms intended to back up
these rules are weak, meaning that a failure to comply will usually result in an appropriate
adjustment to the division of the joint estate only at the time when the marriage comes to an
end through divorce or death.
A marriage out of community of property means that the husband and the wife each have
their separate belongings and debts. Everything that belonged to the husband before the
marriage remains his, and everything that belonged to the wife before the marriage remains
hers. They each keep their own earnings, and ownership of property remains with the person
who acquired it. Husband and wife are each responsible for their own loans and debts. If the
marriage comes to an end, they will each retain their own separate belongings.
Before the advent of the Married Persons Equality Act, 'marital power' gave the husband the
right to control the wife's separate property during the marriage, as well as his own property.
Now, the Married Person's Equality Act provides that a husband and wife married out of
community of property will each control their own belongings. The Married Person's
Equality Act also makes it clear that both husbands and wives in marriages out of community
of property bear responsibility for making contributions to household necessities in
proportion to their resources.
19
Default Positions and Continuing Apartheid Influence
The default matrimonial property regime applicable under common law to most civil
marriages in Namibia is 'in community of property'. Spouses can, however, enter into an
antenuptial contract, to adjust the default position. An antenuptial contract is a special written
agreement which is concluded before the marriage and registered at the office of the Registrar
of Deeds. In general, in Namibia, a couple that wants to marry out of community of property,
must enter into a formal antenuptial contract if they want to change the default position. The
assistance of a lawyer is generally required for an antenuptial contract, and few couples
register such contracts in Namibia. They are popular primarily with urban residents in the
upper income brackets.
The antenuptial contract can be used to make the marriage 'out of community of property', or
it can be used to apply a system commonly referred to as the accrual system. The accrual
system focuses on the property that is added to the household during the marriage. Under the
accrual system, the property owned by the husband and the wife before the marriage remains
their separate property and property acquired during the marriage is administered as separate
property. But when the marriage comes to an end, husband and wife share equally in all of
the property and money that was added to the household during the marriage. This system is
considered to be one of the fairest approaches to property within marriage, but it is rarely
used in Namibia.
Because of the influence of Namibia's apartheid history, the default position on marital
property is different for some blacks in Namibia. The Native Administration Proclamation 15
of 1928, parts of which are still in force in post-independence Namibia, makes a different rule
for all civil marriages between 'natives' north of the old 'Police Zone' which take place on or
after 1 August 1950.8 These marriages are automatically 'out of community of property',
unless a declaration establishing another property regime was made to the marriage officer
within one month prior to the marriage took place. The theory behind the law seems to have
been the protection of multiple wives in cases where one or more customary marriages took
place before the civil marriage in question – the colonial authorities seem to have thought that
an 'out of community of property regime' would make it easier for these customary law wives
to retain a share of the husband's assets.
Section 17(6) of the Native Administration Proclamation, which is applicable only to the area
north of the Police Zone, states that:
A marriage between natives, contracted after the commencement of this
Proclamation, shall not produce the legal consequences of marriage in
community of property between the spouses: Provided that in the case of a
marriage contracted otherwise than during the subsistence of a customary
union between the husband and any woman other than the wife it shall be
competent for the intending spouses at any time within one month previous to
the celebration of such marriage to declare jointly before any magistrate or
marriage officer (who is hereby authorised to attest such declaration) that it is
their intention and desire that community of property and of profit and loss
shall result from their marriage, and thereupon such community shall result
8
See Proclamation 67 of 1954 (Application of Certain Provisions in Chapter IV of Proclamation 15 of 1928 to
the Area Outside the Police Zone). The Police Zone is defined in the First Schedule to the Prohibited Areas
Proclamation 26 of 1928.
20
from their marriage.
The Native Administration Proclamation is clearly a violation of the Namibian Constitution's
prohibition on discrimination on the basis of race. But in terms of Article 144(1) of the
Constitution, all laws in force at the date of independence remain in place until repealed or
amended by an Act of Parliament or declared unconstitutional by a competent court. 9 (Parts
of the Proclamation relating to inheritance were declared unconstitutional by the High Court
in 2003, but the provisions relating to marital property regimes were not addressed in this
case.) The government is in the process of preparing a new Marriage Act which is expected
to apply a single set of legal rules to all civil marriages in Namibia. But, at present, the Native
Administration Proclamation is still operational in practice, and it continues to discriminate
on the basis of both race and place. The law is clearly in conflict with Article 10 of the
Namibian Constitution that provides that all people are equal and prohibits discrimination on
the grounds of sex, race, colour, ethnic origin, religion, creed or social and economic status.
A recent case in Namibia, the Mofuka case, indicated that couples affected by the marital
property rules in the Native Administration Proclamation may conclude an express or implied
ante-nuptial agreement between themselves which will regulate the property consequences of
the marriage between the two of them. Such an unregistered antenuptial agreement does not
have any force against third parties, although it would determine the relative property rights
of the spouse when the marriage comes to and end through death or divorce. Such an
agreement can by made orally instead of in writing, and it could be an agreement made by
implication in the course of agreeing to a marriage officer's explanation of the property
consequences of the marriage. The Mofuka case made it clear that this informal type of
antenuptial agreement could be binding between parties to a marriage which is governed by
the Native Administration Proclamation, even where they did not make the required
declaration in front of a magistrate.10 This ruling may provide some relief to couples who
would otherwise be severely disadvantaged by the application of the Native Administration
Proclamation, although couples who did not consider the property consequences of their
marriage prior to the conclusion of the marriage ceremony will not be affected.
9
See the case of Myburgh v. Commercial Bank of Namibia, Unreported, Sup Ct Case No. SA 2/2000 (8
December 2000), for an interpretation of this article. In this case, the court per Strydom CJ, quoted Mohamed J
in the case of Government of the Republic of Namibia v Cultura 2000 (1993 NR 328): "Article 140(1) deals with
laws which were in force immediately before the date of independence and which had therefore been enacted by
or under the authority of the previous South African Administration exercising power within Namibia. Such
laws are open to challenge on the grounds that they are unconstitutional in terms of the new Constitution. Until
such a challenge is successfully made or until they are repealed by an Act of Parliament, they remain in force"
(our emphasis).
This statement was confirmed by the court in Myburgh as the correct interpretation of Article 140(1) of the
Constitution. The court however made a distinction between statute law and the common law, ruling that the
Constitution sets up 'different schemes' for statute law and common law which are in conflict with its provisions.
According to the court, statute law in force at independence remains in force until amended, repealed or
declared unconstitutional, while common law in conflict with the Constitution is rendered automatically invalid
(to the extent it conflicts with the Constitution) by Article 66(1).
10
Mofuka v Mofuka, unreported judgements, High Court 14 December 2001 and Supreme Court, 20 November
2003.
21
Property Division upon Civil Divorce
Census statistics indicate that about one out of every 15 civil marriages in Namibia end in
divorce. This is one of the lowest divorce rates in the world.
Divorces of civil marriages can be granted only by the High Court in Windhoek. Magistrate's
courts do not have jurisdiction over divorce cases. There are a total of four grounds for
divorce: 1) adultery; 2) malicious desertion; 3) imprisonment for at least five years of a
spouse who has been declared a habitual criminal; or 4) incurable insanity of a spouse which
has lasted for at least seven years.
Malicious desertion is the most common grounds for divorce. It can mean actual physical
desertion, the continual refusal to engage in sexual relations with the other spouse, or a
situation where one spouse makes married life unbearable for the other, such as a marriage
involving domestic violence. Adultery is invoked more rarely, perhaps because this ground
for divorce requires that the third party be named. The other two grounds are never invoked
in practice.
These grounds (with the exception of incurable insanity) are based on the outdated principle
of fault – the idea that one spouse must be guilty of committing some type of wrong against
the other spouse. Unlike the law of most countries today, Namibian law does not allow a
divorce to be granted simply because the couple's marriage has broken down.
The way that the couple's property will be divided upon divorce depends on the marital
property regime that applies to the marriage. If the couple was married in community of
property, the joint marital estate will be divided into two equal parts, and each person will
receive one-half share. If the couple was married out of community of property, each person
will retain his or her own separate property. In practice, couples that are divorcing almost
always come to an agreement on how their property will be divided without judicial
intervention.
The divorce will often include an order for maintenance of minor children of the marriage,
and the economically weaker spouse – almost always the woman – may also request
maintenance. However, unlike child maintenance, spousal maintenance can only be imposed
by the court in favour of the 'innocent party' to the divorce. However, in practice,
maintenance is also usually resolved by agreement between the spouses.
At the time of writing, Namibia's Law Reform and Development Commission is in the
process of considering reforms to Namibia's outdated divorce law.
CUSTOMARY MARRIAGE
Customary marriage is regulated primarily by unwritten customary laws which differ from
community to community. Although the sex discrimination which is present in some aspects
of customary law is very likely unconstitutional, there have been no court challenges to
customary law on this ground since independence.
22
Marriage and Property Arrangements
As noted above, customary marriages in most Namibian communities can, in theory, be
polygamous, although formal polygamous unions are slowly being replaced by informal
'second house' relationships which have no protection under civil or customary law.
The property arrangements which apply to customary marriage are determined solely by
customary law, without any legislative interference. However, since the government is
making plans for giving official recognition to customary marriages, it is possible that a
consistent rule on marital property in such marriages will be applied by the same statute.
Women can be allotted land in some communities, but in practice communal land is usually
allocated to the husband. This has led to problems for widows in some communities, who
may be stripped of land and household goods by the husband's extended family members
after his death. The land issue is being addressed by the Communal Land Reform Act 5 of
2002, which only recently came into force. In terms of this Act, communal land must be reallocated to a surviving spouse upon the death of spouse in whose name the land was held,
and the right to remain on the land is not affected by re-marriage. If there is no surviving
spouse, or if the surviving spouse does not wish to remain on the land, then it goes to, "such
child of the deceased person as the Chief or Traditional Authority determines to be entitled to
the allocation of the right in accordance with customary law". This approach does not address
the problem that girls, younger sons and children born outside of marriage are often denied
inheritance rights under customary law, which tends to favour eldest sons. The law also fails
to address the issue of ‘property-grabbing’ where moveable property such as livestock or
household goods are involved. But the law reform should give women much greater security
in respect of tenure on communal land.
Although both parents have some parental authority (particularly in matrilineal communities),
the father will often have decisive decision-making power on important matters. Technically,
the Married Persons Equality Act has already given husbands and wives in customary
marriages equal powers of guardianship over their children. But ambiguous drafting in the
relevant sections of this Act has created some confusion,11 and it is not clear if the Act is
having a practical impact on parental authority in customary marriages as yet.
11
Section 14 of the Married Person's Equality Act says that, "the father and the mother shall have equal
guardianship" of a minor child of a marriage. It also says that, "with respect to rights, powers and duties", this
equal guardianship will be equal to the guardianship which every guardian had under the common law before
the Married Person's Equality Act came into force.
Section 16 of the Act says that some parts of the Act do NOT apply to customary marriage. The section on joint
guardianship is not listed here, which seems to mean that it is supposed to apply to customary marriages.
What makes this somewhat uncertain is that the 'common law' on guardianship means the guardianship rights,
powers and duties which fathers in civil marriages had in the past. These are not exactly the same powers, rights
and duties which fathers or mothers or other relatives have had in the past in customary marriages. So applying
the provision on equal guardianship to customary marriages may introduce a new approach to guardianship in
some communities, instead of just making the rights of fathers and mothers equal.
There are not yet any court cases interpreting this section of the Married Person's Equality Act to give further
guidance on how the rules on equal guardianship will work in customary marriages.
23
Divorce
A number of grounds for divorce are recognised under Namibia's various customary systems.
These include adultery by the wife, taking a second wife without the consent of the first,
barrenness, and various forms of unacceptable behaviour such as drunkenness, witchcraft or
neglect of the children (cf. Okupa 1997:5.11; Bennett 1996:111). Customary law expert
Bennett (ibid.) prefers to call them 'reasons' for divorce rather than 'grounds' for divorce due
to the fact that the termination of the marriage can be freely negotiated by the spouses and
their families without reference to any court. The common law principles which guide
maintenance, distribution of the matrimonial estate and custody of children of the marriage
are of little account in customary law (Bennett 1996:244).
The fact that several of these grounds for divorce apply only to wives (adultery by the wife,
barrenness and witchcraft) - and at least one of them only to the husband (the taking of an
additional wife without the consent of the first) – probably violates Article 10(2) of the
Constitution forbidding sex discrimination, as well as Article 14(1) which guarantees men
and women equal rights as to marriage, during marriage and at its dissolution. Another sexbased inequality arises the fact that some communities may require the return of lobola or
bridewealth before a divorce can take place.
Customs regarding property division upon divorce vary greatly between communities.
Traditionally, the concept of lobola and the obligations of kin networks ensured that women
and children were adequately taken care of following a divorce. However, in many
communities these mechanisms are no longer adequate or no longer functional. The
maintenance procedures under the Maintenance Act apply to both civil and customary
marriages, but women in some communities feel that it is culturally and socially
inappropriate to make use of these mechanisms.
The extended families of the two spouses play a large role in mediation and attempting to
resolve marital disputes, along with community elders and other members of the community
in some cases. Divorce is usually accomplished by an informal procedure which takes place
without any intervention from traditional leaders, who are more likely to become involved if
there are issues which cannot be resolved between the couple and their families. Here again,
law reforms pertaining to the recognition of customary marriage may institute a more formal
procedure for divorce which extends some of the protections afforded to civil marriages into
the customary arena. It has been suggested that the Namibian Constitution could be
interpreted to require that the courts hear divorce cases involving customary marriages.
Article 12(1)(a) of the Constitution gives every person the right "to a fair and public hearing
by an independent, impartial and competent Court or Tribunal established by law" in order to
determine "civil rights and obligations". Since divorce actions clearly involve civil rights and
obligations, it may be that the Constitution obliges the general law courts to provide a "fair
and public hearing" (Bennett 1996:111).
INHERITANCE
The manner in which property is distributed upon the death of a person in Namibia still
depends largely on that person's race. Here, the division between civil marriage and
customary marriage is blurred, with the determining factor being race. The rules of
succession which apply depend on a complex interplay of race and (for a black person) on the
part of Namibia where the person resides, on whether that person is or was a party to a civil
24
or customary marriage, and on what marital property regime applied to the civil marriage.
The topic is best understood by starting with the most general rules. All of the property which
belonged to a person who dies - including cash, land and other assets - is called the 'estate'.
Any debts which the deceased owed must be paid out of the estate first, before any of the
heirs get anything.
If there was a civil marriage, the kind of property arrangement which applied to the marriage
affects what is in the estate of the deceased. Suppose it is the husband who has died. The part
of the household's property which belongs to the wife is NOT part of the husband's estate:

If the marriage was in community of property, then one-half of all the household's
property belongs to the wife and one-half to the husband. The wife takes her half, and
the other half is the husband's estate. This division of property must take place before
anyone can inherit anything.

If the marriage was out of community of property, then the husband and the wife
kept their property separate all along. The wife takes her property, and the husband's
property becomes his estate.

If the marriage was under the accrual system, then only the additions to the
household's property during the marriage are shared. The wife takes whatever she
owned before the marriage and one-half of everything that was added to the
household during the marriage. The rest of the property is the husband's estate.
Inheritance in Terms of a Will
If the deceased party left a will, then the estate which belongs to the deceased after any
division of joint property has been made will be distributed according to the provisions of the
will. A person who makes a will can leave property to anyone - a wife, a husband, a relative,
a friend, a stranger or even an organisation. A spouse has no duty to leave any part of his or
her estate to the surviving spouse or to the children of the marriage. Husbands and wives
have equal rights to make wills.
However, race and gender-based restrictions on the power to make wills are imposed by the
Native Administration Proclamation 15 of 1928. The patchwork of overlapping regulations
issued in terms of that proclamation have the result that a black person in Kavango, Eastern
Caprivi or Owambo has full power to bequeath his or her estate by will. But a black man in
any other part of Namibia does not have full testamentary freedom. He does not have the
legal power to leave by will: 1) movable property allotted to or accruing under customary law
to any woman with whom he lived in a customary union; or 2) any movable property
accruing under customary law to a particular 'house'. Property that falls into these two
categories must be distributed according to customary law.
Intestate Inheritance
If there is no will ('intestate succession'), then inheritance takes place in terms of statutes
which determine who will inherit the property of the person who died – but again, the rules
are dependent upon race.
25
For all Namibians other than black Namibians, property will usually go to the deceased's
relatives by blood or by marriage, in an order of precedence determined by the Intestate
Succession Ordinance 12 of 1946. In most cases, the estate is shared between the surviving
spouse and the children of the deceased in proportions set forth by the statute. In other cases,
the basic rules are as follows:

If there are no children, the surviving spouse will share the estate with other close
relatives (such as parents, brothers or sisters); if there are no other close relatives, the
spouse inherits everything.

If there are children but no surviving spouse, the children inherit everything.

If a child has already died, that child's share will be given to that child's children who are the grandchildren of the deceased.

If there is no spouse and no children, the estate will go to the deceased's parents,
brothers and sisters, or closest blood relatives.

If there are no relatives at all, the property will go to the state.
Any part of the deceased's estate which is inherited by minor children is held in trust by the
state and given out for the children's needs as necessary.
However, as in the case of marital property, the Native Administration Proclamation 15 of
1928 makes some special rules concerning wills for black men in certain parts of Namibia,
because they might have wives under both customary law and civil law. Regulations on
succession were promulgated in terms of this proclamation, but made applicable only to the
area north of the Police Zone as from 1 August 1950.12 These regulations made the type of
marriage and the marital property regime the criteria for determining the rules of intestate
succession which would apply to 'blacks'. If a black person outside of the old Police Zone
dies leaving no valid will, his or her property is to be distributed as follows:

If the deceased, at the time of his death was: 1) a partner in a civil marriage in
community of property or under ante-nuptial contract; or 2) a widower, widow or
divorcee of a civil marriage in community of property or under ante-nuptial contract
and was not survived by a partner to a customary union entered into subsequent to the
dissolution of such marriage, then the property shall devolve as if he or she had been a
'European' (in other words, as if he or she were white).

If the deceased does not fall into one of these categories, the property will be
distributed according to "native law and custom". So, in other words, if the deceased
was at any stage married in a civil marriage in the default position of out of
community of property which applies to civil marriages between blacks in the north,
then the marital property is probably going to be distributed "according to native law
and custom".
Inside the area covered by the old Police Zone, the estates of all black persons, regardless of
the circumstances of any marriage they may have entered, are distributed according to "native
12
Government Notice 70 of 1954.
26
law and custom". Section 18(3) of the Native Administration Proclamation 15 of 1928 states
that, "any dispute or question which may arise out of the administration and distribution of
any estate in accordance with native law shall be determined by the native commissioner",
who has been replaced by magistrates. The law applicable to such disputes is the customary
law of the area in which the marriage was concluded.
The customary law rules on intestate inheritance are different in different communities. The
kinship system of the community will affect inheritance – for example, inheritance will work
differently in matrilineal systems (where the children are part of the mother's family) than in
patrilineal systems (where the children are part of the father's family). The customary law
rules on inheritance often discriminate against women, younger sons and children born
outside of marriage. A further problem is that magistrate's courts may have difficulty
accurately determining the relevant customary law rules, since they are not recorded in
writing.
Administrative Procedures
It is not only the rules regarding inheritance which depend on race, the administrative
procedures relating to deceased estates also depend largely on the racial classification of the
deceased. The Administration of Estates Act 66 of 1965 is applicable to whites and coloured
persons, meaning that their estates are administered by the Master of the High Court. 13 If the
deceased was classified as a 'Baster' then the estate would be administered by a magistrate
under the Administration of Estates (Rehoboth Gebiet) Proclamation 36 of 1947. Black
estates are administered by magistrates in terms of the Native Administration Proclamation 5
of 1928. This is one of the few remaining areas of law where Namibia's apartheid heritage is
still operational.
The Berendt Case
Namibia’s 1996 country report under the Convention on the Elimination of all Forms of
Racial Discrimination conceded the problems in the country’s system of inheritance: "The
system applicable to whites and coloureds is clear and easy to understand. There are detailed
provisions regulating the succession and administration of these estates. The estates are
administered under the supervision of a specialist office, that of the Master of the High
Court. The law regulating the estates of blacks who die without leaving a will (the vast
majority of cases) is a mass of confusion. There is no proper system of administration, nor is
the administration properly supervised. It is difficult to ascertain who the heirs are and this
uncertainty is exploited by unscrupulous persons who enrich themselves at the expense of the
deceased’s immediate family, particularly women and children".
The 2003 case of Berendt v Stuurman has changed this situation by invalidating the law that
gives black estates second-class status. This case held that several sections of the Native
Administration Proclamation 15 of 1928 dealing with inheritance are unconstitutional
violations of the prohibition on racial discrimination in Article 10. Parliament has been given
a deadline of 30 June 2005 to replace these offensive sections with a new regime.
The Berendt case also struck down the legal provisions which apply different administrative
13
'Coloured' is a classification used by the apartheid regime in Namibia and South Africa to describe people of
mixed race (between white and black).
27
procedures to 'black estates'. Parliament must remedy this problem by June 2005 as well. In
the meantime, as an interim measure, heirs of black estates can choose the magistrate or the
Master as an administrator, as they prefer.
The Berendt case takes the same line as the recent Moseneke case in South Africa, where the
court said: "It is an affront to all of us that people are still treated as ‘blacks’ rather than as
ordinary persons seeking to wind up a deceased estate, and it is in conflict with the
establishment of a non-racial society where rights and duties are no longer determined by
origin or skin colour." By giving law reform on aspects of inheritance a binding deadline, the
Berendt case has helped to speed up the removal of some of the last legal vestiges of
apartheid in Namibia.
Children Born Outside of Marriage
Children born outside of marriage suffer discrimination under both civil and customary law
in respect of inheritance. Under the current civil law, these children can inherit from their
fathers only in terms of a written will – even if paternity is formally acknowledged on the
birth certificate. They are also generally disinherited under customary law systems of
inheritance. A Children's Status Act which would address this problem is being prepared by
the Ministry of Women Affairs and Child Welfare, and will probably be tabled in Parliament
in 2004.
Other Pending Law Reforms on Inheritance
General law reform on the issue of inheritance is under discussion in government circles, but
at the time of writing no government proposals have yet been made public for discussion.
28
3.
RESEARCH METHODOLOGY
The following sections discuss the objects of this study as well as the research methods used
to reach those objectives. The primary research methodology utilised for this project was the
collection and analysis of qualitative data in the form of focus group interviews with
community members and key informant interviews with community leaders. These data are
then subjected to content analysis and the results are triangulated to give a description of
women's property and inheritance rights within the various cultural communities under
examination.
OBJECTIVE OF THE STUDY
The specific goals and objects were that research be conducted in various culturally unique
communities in Namibia with the express purpose of generating data as to the current
property and inheritance practices of these communities, as well as determining cultural
attitudes concerning acceptable changes in practices that discriminate against women's rights
to own or inherit property. It is envisioned that this research would result in publications and
various other information disseminated which would be used to inform policymakers,
advocacy programmes and the general public through education and information campaigns
concerning the current status of women in relation to current property and inheritance rights
and to make recommendations for the reform of the current laws which still allow for the
discrimination against women in relation to property and inheritance rights.
RESEARCH DESIGN
The primary research activities included: 1) a review of existing literature on women's
property and inheritance rights; 2) a review of existing laws pertaining to women's property
and inheritance rights in Namibia; 3) interviews with male and female community members
as well as key informant interviews; and report preparations and dissemination of the
findings.14
Sampling was done using purposeful, opportunity sampling whereby key informants were
selected based on their knowledge and understanding of the communities under
consideration, while community members were selected to fit the demographic attributes of
the focus group. Research teams consisted of two persons (2) for each region – a supervisor
who was a senior researcher and an interviewer - who spoke the primary language of the
people living in that region.
Rationale for Multi-Regional Approach
The research methodology made use of a multi-regional approach based on the fact that
Namibia is a country with approximately 11 different ethnic groups that exhibit variations in
cultural attributes such as various descent patterns that may impact manifestations in property
and inheritance systems. Therefore, five (5) regions were selected because they exhibit high
degrees of cultural homogeneity within the region, while representing variations of descent
14
For all of the site reports, 'key informants' refers to the community leaders described in this section,
'community members' refers to participants in focus group discussions, and 'people' refers to both key
informants and/or community members.
29
patterns (such as patrilineal, matrilineal, and bifurcated descent) and ethnic groups across
regions. The need for various ethnic groups with their varying descent patterns arose because
these groups have differing customary rules of inheritance and property ownership. In
addition, data collection was also stratified by urban versus rural domicile due to the possible
influence of modernisation upon customary norms and practices. The research was conducted
in six regions (accounting for 49.2% of the Namibian population) and was categorised as
follows:
Caprivi Region: The Caprivi Region has 4.4% of the total Namibian population, with a sex
ratio of 96 males for every 100 females (CSO 2003:5,19). The people of the Caprivi Region
are primarily Lozi speaking (the lingua franca of the region) and have matrilineal descent
groups, but with strong patrilineal influences (Malan 1995:61). The two areas selected were
Katima Mulilo as the largest town in the region and one nearby rural village.
Karas Region: The Karas Region has 3.8% of the total Namibian population, with a sex ratio
of 114 males for every 100 females (CSO 2003:8,19). The people of the Karas Region are
primarily Nama speaking and have patrilineal social organisation (Malan 1995:120). The two
areas selected were Keetmanshoop, the largest town in the region and one rural communal
area.
Kavango Region: The Kavango Region has 11.1% of the total Namibian population, with a
sex ratio of 91 males for every 100 females (CSO 2003:9,19). The people of the Kavango
Region consist of five separate political and cultural groups although they are commonly
referred to as Rukavango speaking and have matrilineal social organisation (Malan 1995:37).
The two areas selected were Rundu, the largest town in the region and one rural communal
area.
Khomas Region: The Khomas Region has 13.7% of the total Namibian population with a
sex ratio of 102 males for every 100 females (CSO 2003:10,19). This region was selected for
inclusion into this study because it is a mixed-ethnic area and primarily represents the
attitudes of urban dwellers in the Greater Windhoek Area.
Omaheke Region: The Omaheke Region is 3.7% of the total Namibian population with a sex
ratio of 98 males for every 100 females (CSO 2003:13,19). Speakers of this region who were
targeted for this research are primarily Otjiherero speaking people who have a bifurcated
descent pattern (Malan 1995:71). The two areas selected for this study were Gobabis which is
the largest town in the region and one rural communal farming settlement.
Omusati Region: The Omusati Region contains 12.5% of the total Namibian population with
a sex ratio of 81 males for every 100 females (CSO 2003:14,19). Speakers in this region are
primarily Oshiwambo who have a matrilineal descent pattern (Malan 1995:18). The two areas
selected for inclusion were Outapi, the largest town in the region and Omufitugueelo, which
is a rural village.
30
FIGURE 1. MAP OF NAMIBIA
Source: Iipinge and LeBeau (1997, SARDC)
31
Key Informants
Key informants were people selected for interview based on their standing within the
communities, which gives them specialised knowledge about the community’s attitudes and
practices relating to women's property and inheritance rights, as well as to determine actual
customary practices of the various ethnic groups based on the knowledge of community
leaders. Ten (10) semi-structured key informant interviews were conducted in each of the six
regions for a total of sixty (60) key informant interviews. Key informants were selected from
the following categories: community, church or business leaders, traditional leaders (such as
headmen, chiefs, senior headmen or traditional authorities), regional councillors, school
leaders (such as principals and teachers), church leaders, elderly people with customary
knowledge, women community leaders (such as from women's groups and business women),
and (when possible) woman in different marriage types (in community of property, out of
community of property, customary, or cohabitation).
Community Members
Focus group discussions were utilised to collect qualitative data with community members at
the grassroots level to determine the average person's attitudes and practices as they relate to
women's inheritance and property rights, as well as to identify areas of acceptance for the
modification of harmful practices as they relate to women. Each group consisted of between
four to six people stratified by gender (men and women were separated), age group (25-40
year olds and over 40 years old), and urban/rural domicile. Groups were further stratified to
only answer 50% of the questions developed to reduce informant fatigue. As a consequence,
eight (8) focus group discussions per region were conducted, totalling forty-eight (48) focus
group discussions.
Fieldwork Plan
Prior to the commencement of the research, a steering committee was formed with the
various stakeholders due to Namibia's multi-sectorial approach to gender issues. These
stakeholders came from the Gender Training and Research Programme (UNAM),
Department of Sociology (UNAM), Legal Assistance Centre (LAC), United States Agency
for International Development (USAID), Ministry of Women Affairs and Child Welfare
(MWACW), Urban Trust Namibia, Namibia Development Trust (NDT), Law Reform
Development Commission (LRDC), and the Multimedia Campaign on Violence Against
Women and Children (MMC/VAWC).
The work plan was slightly modified because the data collected were significantly more than
had been anticipated due to the interests of these various stakeholders as well as the addition
of the Kavango Region to accommodate the LAC's data needs. Therefore, fewer interviews
(108 total) were conducted than the originally proposed 250 interviews. The length of the
interviews was such that focus groups were each only asked 50% of the questions to reduce
informant fatigue. Otherwise, the work plan was completed in timely fashion and all of the
data are now stored both in electronic medium and in folder form.
Over 1 500 pages of transcript data on community attitudes and practices that have never
before been so thoroughly documented have been generated through the data collection
process. These transcript data will form the basis of an information source for stakeholders
working in the field of gender in Namibia. Already these data have been shared with the
32
LAC. Currently, data are being compiled into a comprehensive research report that is to be
distributed to all stakeholders in the field.
Given the fact that this data collection project has been well documented and has used
standardly accepted research methodologies, it is felt that data of this nature could be
collected as a longitudinal study of how community attitudes and practices relating to
women's property and inheritance rights have changed over time. Thus, this study has every
possibility of being replicated.
IMPORTANCE OF THE STUDY
Data from this project will help policymakers and advocacy programmes to reach their
current goal of gender equality in Namibia. Organisations such as the Legal Assistance
Centre (LAC) and the Multimedia Campaign on Violence Against Women and Children
(which views economic deprivation as a form of violence) will also need such research in
order to further their goals of education, information and assistance to women at all levels of
society.
This research will build on the current trend to address all aspects of post-apartheid life,
which discriminate against women. Through informing existing structures as to the Namibian
specific issues of property and inheritance rights, this information will help these
organisations to reform laws and advocacy programmes to better help women who are
discriminated against through civil and customary laws.
This research is innovative in that it provides the first comprehensive analysis of Namibian
women's property and inheritance rights under various cultural and marital regimes. The over
1 500 pages of transcript interviews can be re-analysed by various stakeholders to inform
their specific data needs, while the comprehensive report will provide a synopsis of the
research findings.
In the same vein, the research contributes towards the enforcing of CEDAW in that it
identifies current areas of discrimination against women in relation to property and
inheritance rights and enables policymakers and advocacy programmes to target such
discriminatory behaviours. Specifically, a Namibian CEDAW report states that women
should have the right to control property and should be considered equal to men in regard to
property rights (DWA 1995:151). The DWA also states that although Parliament passed a
resolution in 1992 indicating that traditional leaders should allow widows to stay on their
land, discriminatory inheritance practices continue and many cases have been reported to be
accompanied by violence (DWA 1995:145). Therefore, this research will help speed up the
implementation of Namibia's Gender Policy and Plan of Action, which are based on CEDAW
principles.
33
4.
GENERAL PATTERNS FOR WOMEN'S PROPERTY RIGHTS
The following sections give a description of the overall findings from this research with
supporting literature on the situation in other countries. The topics more-or-less follow the
order of those for the site reports.15
GENERAL RELATIONSHIP PATTERNS
Most communities in Namibia have someone who is considered the head of their clan or
extended family. Only the Nama and the Kavango say that this person can be a man or a
woman, in all other cases the clan head is a man. The confusion over whether or not Nama
and Kavango clan heads can be a woman or a man may stem from the fact that customarily
the Nama and Kavango people unlike some communities in Namibia had, and still have,
women traditional leaders. The Khomas Region data indicate that customarily men are the
head of their clans, but that due to colonialism and globalisation, women have also been
known to take up such positions. The clan head's primary responsibilities are to see to the
social and economic well-being of the clan and to officiate at family functions such as
funerals and weddings. Important, for this study is the fact that in Kavango, Owambo, Herero
and to a lesser extent Lozi society, the clan head also participates in the distribution of
property during divorce and inheritance.
General Descent Patterns
There are various ways that people in Namibia trace how they are related to each other. For
this study, who a person is related to - forms of tracing descent - and the nature of the
relationship often determine who has rights to which categories of property when death or
divorce occur. In Namibia there is basically patrilineal descent (Nama and Damara
communities),16 matrilineal (Owambo and Kavango communities) and bifurcated descent
(Herero communities), while the Caprivi people were matrilineal but have patrilineal
influence, a situation referred to as 'cognatic' descent (Hubbard 2000:9). These descent
patterns are important because customary marriages take place between two kin groups rather
than between two people (ibid.). These different descent patterns influence customary
methods of inheritance.
When asked who they think are their relatives, people in most regions give answers that
reflect the descent patterns identified above, with the exception of the Nama and Khomas
Region people. The Nama see children related to both sides of the family with the mother's
side being more important. The emphasis on the mother's family may be due to many single
mothers in some communities. One reason given for being related to both sides of the family
is that although the mother has raised a person, that person carries his or her father's name. In
the Khomas Region people see children as being related to both sides of their family. Urban
people seem to trace descent in a more Western fashion than in the rural areas.
15
See Appendix I for the exact questions asked of key informants and community members and see Appendices
II through VII for specific site reports upon which the following sections are based.
16
In this section the words 'community' and 'society' refer to various ethnic groups in Namibia.
34
Children and Customs
When discussing who has rights and responsibilities over children born inside of marriage,
most people agree that the children's parents have the primary responsibility to take care of
and financially support their own children. In Kavango, Owambo and Lozi, people say that
the mother's brother (children's uncle) is also responsible for these children, while in Herero
the father's extended family (primarily the father's brothers) should also help raise the
children. If the mother dies, in Owambo and Nama communities the mother's extended
family should help care for the children, whereas in the Kavango, Lozi and Herero the man
and his extended family should care for the children. If the father of the children dies, then
generally the mother and her relatives care for the children, in Kavango and Owambo the
mother's brothers should help, in Nama the mother's mother should help and in Lozi the
deceased father's relatives should help the mother. However, in most regions people say that
the maternal grandmother (mother's mother) often ends up caring for the children if the
mother is unable to care for their daily needs.
In the case where the parents are not married, in most communities the mother of the children
is seen as having more rights and responsibilities than the father and his family. In bifurcated
and patrilineal descent communities such as the Herero and Nama the mother may retain
control over her children. However, in Herero society the father's family may pay a cow to
obtain rights of control over children. In matrilineal societies such as Owambo and Kavango,
because the children are considered related to their mother's family, the mother also
maintains control over her children. Although the mother is still said to have control over her
children in n Lozi society, as the children become older, they should live with their father and
his natal relatives.17 As can be expected, people in the Khomas Region are more likely to say
that the father should pay maintenance for the children while they are living with their
mothers.
In general, Nama attitudes regarding children vary only slightly from attitudes in the other
areas. The Nama are more likely to say that men should 'take care of' - meaning financially
support - their children. Matrilineal communities, such as the Kavango, Owambo and Herero
see the mother's side of the family as important, whereas patrilineal communities such as the
Nama recognise the father's side. In Kavango, Owambo and Herero communities, and to a
less extent the Lozi, children are the responsibility of the mother's brothers. At divorce the
husband has the right to retain the children in the Lozi communities. Although descent is
traced in different manners, most people say that whether or not children's parents are
married does not change to whom children are related. For those people who do feel marital
status influences children's status, the issues are whether or not the father and/or his family
have a relationship with the children and if the father's extended family knows of the
children's existence.
Orphan children in Namibia are usually considered the responsibility of the extended family
and are most often taken by relatives of the mother, especially the grandmother; although in
Herero and Lozi it is said that the children should go to the father's extended family. If the
orphans are very young, most people feel that a young couple with children of their own
should take babies. However, if the orphans are under age and have older brothers and sisters,
then the older siblings can take care of the younger siblings. In the Kavango the effect of
17
Throughout the text and the site reports the term 'natal' refers to a family into which the person was born,
while the term 'nuptial' refers to a family into which the person married.
35
AIDS can been seen in that community members discuss the existence of children-led
households, which they feel should be cared for by others in the community. Some people
say that before the parents died they may have stipulated who they wanted to take the
children and how they wanted the children's property to be handled. Many Nama feel
strongly that it is the responsibility of the government to care for orphan children as long as
they are under age. Regardless of these diverse opinions on the care and financial
maintenance of orphan children, it is generally agreed that the extended families of orphan
children care for them.
Most people say that the person or persons who inherit(s) the majority of the parents' property
should also inherit orphan children. However, people in most communities note the ever
increasing tendency of 'property grabbing' whereby the deceased's family members take all of
the property and leave the poverty stricken children to be cared for by other relatives. In
several matrilineal societies such as in Kavango and Owambo, the martilineage gets the
children while the patrilineages get the marital property. Some Nama and Owambo people
also mention that extended family members take the children and property 'in trust' for the
children, but then waste all of the property before the children are old enough to claim their
inheritance. It appears that in many cases orphan children are not receiving their share of
inheritance, even in societies where it is the custom that children inherit from their parents.
Clearly the rights of orphan children are being infringed upon and the AIDS pandemic will
only worsen the situation.18
In some communities, such as the Khomas Region and Nama, people say that extended
family members are less likely to adopt children orphaned by AIDS than by some other
disease. Some Herero people say that the children's grandmother should take them because
the grandmother will love them and will be less likely to discriminate against children
orphaned by AIDS. In the Kavango, Owambo and Lozi communities, people feel that how
children come to be orphans does not influence their adoption. These data show that orphan
children, as well as not getting their inheritance, are also discriminated against by family
members due to the fact that their parents died of AIDS.
Types of Marriages
As previously stated, marriage is contracted between two kin groups rather than between two
individuals (Hubbard 2000:9; Okupa 1999:3.10). In most Namibian communities there are
elaborate rituals and wedding ceremonies at which both families officiate. These same
relatives will be contacted if problems arise within the marriage. Although both civil and
customary marriages are recognised in all Namibian communities, many especially rural
people say that they still prefer customary marriages. As with Okupa's findings (1999:3.13),
data from this research indicates that many people in Namibian communities have a 'double'
marriage; usually getting married in a religious or civil ceremony as well as having a
customary marriage. Most Namibian communities have customs where animals are
slaughtered, rituals and ceremonies are performed and gifts are exchanged between the
extended families of the bride and groom. Most people feel that there must be some type of
ceremony for a couple to be considered married, otherwise community members may feel
that the couple is not married but only cohabitating.
18
In the text and site reports the term 'AIDS orphans' (also refered to as children orphaned by AIDS) refers to
children whose parents died from AIDS and does not reflect the child's HIV status.
36
Lobola as a Cultural Impediment to Women's Rights
In most Namibian communities under study (with the exception of the Ovambalantu), as in
other African countries (cf. CRLP 1997:42, 66, 83, 103, 141), lobola is paid, which in most
cases is considered necessary for the couple to be considered customarily married. The lobola
is paid by the groom's family to the bride's family. In Namibian communities where lobola is
customarily paid, there may be specific situations where lobola is forgone, usually described
as when the groom's family is too poor to pay lobola. However, people from these
communities view not paying lobola as a shame on the groom's family and some people go
so far as to say that if lobola was not paid, then the couple is not really married. In the
Kavango, the giving of lobola is a relatively new phenomenon because in traditional
Kavango societies, the groom is expected to move to his in-laws' homestead and work for his
in-laws for a specified period of time. Indeed, many people say that it is preferred that the
groom work for the bride's family.
In Owambo (for those communities that pay lobola), Herero, Lozi and to a lesser extent the
Kavango, if lobola was paid and the wife dies, the widower is inherited by another female
relative of the deceased wife. In this case lobola is not paid for the new wife because the
widower's extended family has already paid for the right to have a wife for the widower from
the deceased's extended family.
Although the amount of lobola differs both within and between the various communities that
have the practice, it appears that lobola prices have steadily increased. Lobola can be any
number of things but most often tends to be a mix of cattle and/or cash (Herero, some
Owambo and Lozi), small stock (Nama) and small exchange items such as blankets and food
(Nama). However, in the Kavango the amount of lobola is significantly less than in some
other Namibian societies where the practice exists. The usual amount for lobola can be a hoe,
some mahangu, a head of cattle or an ox. The most often mentioned lobola is a head of cattle.
Many people from the other communities feel that some families have made the paying of
lobola a 'business' venture. Data from this research indicate that the Nama, who are
patrilineal, pay lower lobola than the Herero, some Owambo (both matrilineal) and Lozi
('cognatic') communities. The amount of lobola within various communities depends a great
deal on the bride's personalistic attributes such as if she has been raised to be a dutiful wife, if
she comes from a good family, and more recently, her level of education.
Within the research population, the payment of lobola is perceived to give the husband and
the husband's extended family rights of control over the wife. Due to the payment of lobola,
which is sometimes seen by the husband's family as having purchased the rights of control
over a woman's domestic production, fertility and offspring, the practice of wife and/or
husband inheritance – upon the death of a spouse - is prevalent in most Namibian
communities (with the exception of the Nama). This means that people also feel that lobola
may give the husband's extended family rights of control over other female relatives from the
wife's extended family.
Rights of control over children are also linked to the payment of lobola, as well as descent
patterns (Okupa 1999:3.26). In matrilineal societies the payment of lobola only secures the
husband's rights of control over the children in certain circumstances, but the responsibility of
financial support and reprimand of children is done by the mother's brother (avuncular rule).
Therefore, fathers of children in matrilineal communities do not pay maintenance as this is
considered the responsibility of the mother's uncles (ibid.:5.11). However, as Hubbard
37
(2000:12) points out, this system fails to function due to the influence of Westernisation
whereby many uncles indicate that they prefer to take care of their own children. In
matrilineal communities the children are supposed to stay with the mother (Hubbard
2000:11), although a vengeful husband could take children away from their mothers if they
so desire. In patrilineal communities the payment of lobola secures the father's rights of
control and care over all aspects of the children's upbringing (Okupa 1999:3.26). In the Nama
communities interviewed for this research people feel that the wife has a right to keep the
children should death or divorce occur. In Lozi the payment of lobola also means that the
father has a right to keep the children after the death of his wife or in cases of divorce.
Parental rights secured by the payment of lobola may include the right of the father's family
to custody of children in the event of divorce or the mother's death. However, data from this
research also indicate that the age of the children is a factor because it would not be wise for
a husband to take a breastfeeding child. Therefore, babies would stay with their mothers until
they are weaned. Rights to children based on lineage reckoning is similar in other countries in
Africa (cf. CRLP 1997:44, 67, 123). In some countries, such as South Africa, if lobola was
paid at the commencement of the marriage the father and his family are considered to have
full paternal rights over his children, including custody upon dissolution of the marriage;
although the mother may be entitled to a one time payment (isondlo) for having raised the
child (ibid.:104). In Zimbabwe the father remains the legal guardian of his children, even if
they live with their mother and the father may not be required to pay maintenance if the wife
was found to have committed adultery (ibid.:142).
The Ending of a Marriage
There are a variety of reasons why people in customary marriages can seek customary
divorce. Research data indicate that all of the Namibian communities surveyed have
customary divorce, only the Nama say that they do not have customary divorce. Hubbard
(2000:9) found that customary grounds for divorce include adultery (usually only that
committed by the wife but not by the husband), barrenness (of the wife), and a variety of
unacceptable behaviours such as neglect of children, the use of witchcraft (such as 'making
one's spouse stupid') and drunkenness.19 This research supports Hubbard in that it found that
there are many reasons given as cultural grounds for customary divorce emphasising on the
perceived shortcomings of women, while there seem to be very few reasons for divorce based
upon a husband's inappropriate behaviour. However, in the Kavango, unlike several other
Namibian cultures, there seems to be as many circumstances where the husband can be
blamed for the divorce, as where the wife can.
These research data found that specific grounds for a customary divorce in Owambo include
if the wife is having an affair, if the wife gets pregnant from another man, if the wife cannot
have children, if the wife sells something of the husband's without permission, if the husband
does not want the wife or wants to marry another woman, if the wife does not cook for the
husband or if the wife is 'lazy'. Many of these same grounds for divorce also apply to the
Herero and the Lozi.
People from most research sites say that wife battering alone or the infidelity of the husband
are not necessarily considered adequate terms for divorce, whereas often a husband can
19
This study by Hubbard (2000) is not based on primary research, but is a summary of recent research on the
topic.
38
choose to divorce his wife with no reason given. Khomas Region residents, however, are
more likely to identify wife battering as a justifiable reason for a woman divorcing her
husband. In addition, in Kavango societies, wife battering is grounds for divorce and if the
husband is found guilty of beating his wife, he has to pay the divorce fine. It appears that the
serious abuse of the wife is not tolerated in Kavango societies. In many Namibian
communities (with the exception of the Kavango) a woman cannot request a divorce from her
husband on the grounds that he committed adultery and often even a husband will not ask for
a divorce but will require the man who has committed adultery with his wife to pay a fine
(Okupa 1999:5.11). The fine is usually between three and seven head of cattle.
In many other African countries women under customary law also may not be able to request
a divorce from her husband and in most cases a husband's adultery is not considered grounds
for divorce (CRLP 1997:42-43). For example, in Ghana, if a wife commits adultery her
husband may divorce her and request the lobola back, as well as his costs for the divorce.
However the wife may not request a divorce from her husband on the grounds of adultery. In
Ghana customary terms for divorce also include a wife's barrenness, desertion or the practice
of witchcraft. A wife can also ask for a customary divorce on the grounds of neglect, cruelty
or impotence (ibid.:42-43). In Kenya some customary terms for divorce include refusal of
sexual intercourse (especially by the wife), witchcraft, habitual theft, dissertation, incest and
excessive physical cruelty. Among the Luo in Kenya a husband can customarily divorce his
wife for adultery with any man while a wife can only divorce her husband if the adultery was
committed with another married woman. However, among the Kikuyu, a woman cannot
under any circumstances divorce her husband for adultery (ibid.:66-67). In Nigeria customary
divorce may be granted on the grounds of adultery, cruelty, dissertation, impotence, sterility
and barrenness (ibid.:83). However, in South Africa adultery or the failure of either spouse to
perform his or her marital duties (such as a husband's failure to support his family or 'gross
cruelty' or a wife's refusal of sexual intercourse) may be grounds for a customary divorce
(ibid.:104).
Given that marriage is a joining of families and not individuals, divorce is also the concern of
family members from both the husband's and wife's sides of the family (Okupa 1999:5.8).
Usually when a marriage is under threat, the woman approaches her female relatives or if she
perceives her husband to be causing the problems she may approach her female in-laws.
However, men are more likely to go to their male relatives for advice. If the problem persists,
a meeting is called with representatives from both families. These representatives are
typically people who stood up for the couple at the marriage and are therefore considered
responsible for assisting the couple with marital problems. As Okupa (ibid.) found, there is
usually a great deal of counselling and mediation in an attempt to save a marriage, especially
where issues of lobola and the custody of children are at stake. Similarly, in Ghana
customary marriage is defined as "a contract between, a man and a woman ... [and] an
alliance between the two family groups based on a common interest in the marriage and its
continuance" (CRLP 1997:42).
These research data show that if negotiations between extended family members have failed
to save a faltering marriage, in Kavango, Owambo and Herero the husband goes to the
traditional leader to ask for a divorce. A traditional court is held and the case is heard. The
traditional court will determine who, if anyone, is at fault for the marital problems and will
grant a divorce. Although it is said in that the Kavango, Owambo and Herero a wife can also
ask for a divorce, this is said to be rare in these communities. However, in Lozi a woman may
not, under any circumstances, ask for a divorce. Lozi customary divorce takes the form of the
39
husband sending his wife back to her natal extended family with a "letter of divorce" he has
written to his in-laws explaining his reasons for his choosing to divorce his wife. Some Lozi
say that a woman or her family can ask the husband for a customary divorce, but that he still
writes the letter of divorce. If the husband refuses to write the letter, the wife's natal family
can then take the husband to customary court. Other people say that the wife can go to her
parents or a customary court to ask for a divorce, but again this is rare. In the Kavango, a
wife's parents or even her in-laws can request a divorce if the husband continually beats his
wife, whereas in most communities it would not be appropriate for a woman's parents, or her
in-laws for that matter, to interfere in what is traditionally considered a private issue between
the couple.
The status of children during a customary divorce is also examined. In Herero and Lozi
societies children from a customary marriage belong to the husband and the children are
supposed to stay with the husband and the women of his extended family, however, as
previously stated, young babies can stay with their mothers until they are weaned. In
Owambo and Kavango, who the children stay with after a divorce is much more fluid and
depends on the age and sex of the child. In general, young children and girls stay with their
mothers while older boys stay with their fathers. The Nama say that in general children stay
with their mothers after a divorce; whereas, Khomas Region residents identify Westernised
concepts for children's rights in that who the children stay should be decided based on the
best interest of the children.
Property Division during Customary Divorce
With most communities in Namibia in customary divorce, heard at a customary court, the
wife receives little or none of the marital property (with the possible exception of cooking
pans or other small household items), even if the husband is at fault for the divorce. In other
communities, such as Lozi, a wife may receive a small amount of communal property if she
can prove that her husband was at fault for the break-up of the marriage. In the Kavango
whoever is at fault for the divorce, be it the husband or the wife, that person has to pay a
divorce fee of at least one head of cattle. In addition, if the couple has been married for a long
time, the husband must also give the wife a head or two of cattle (called 'fire cattle') for the
cooking and other work she has done for him. However, given the fact that customary courts
are only held by men, in many customary courts women may not be allowed to attend or may
not be allowed to speak. In addition, frequently these men are related to the husband being
accused of wrong-doing; therefore, it is frequently the case that women do not get a fair
hearing before a customary court.
In most of these communities people say that livestock acquired during a marriage belong to
the husband. However, the wife is usually given any property, including cattle, that she
brought with her into the nuptial household. A few Namibian communities, such as in the
Kavango, there is what is termed "fire cattle". "Fire cattle" is one or two cows (usually only
one) given to the divorced wife in payment for her work done for the husband. This practice
is deceiving because a woman could be married for 20 or 30 years and will receive none of
the marital property, but will return to her parents' home with only one cow to show for her
years of domestic work and childrearing.
When specifically asked about who gets which types of property during a customary divorce,
for the Kavango, Herero, Owambo and Lozi the land and homestead go to the husband
because men are said to be the owners of land and houses. In most communities, large
40
movable property such as cars and tractors are also taken by men because it is believed that
women should not use such property. Some people say that if a wife can prove that she
bought the large moveable property she will get it, while many people say that whether or not
the wife bought the property, her husband still owns it and it will go to him during a
customary divorce. It should be noted that while the new Communal Land Reform Act gives
women the right to remain on communal land in the event that their husbands die, the law
does not address the relative rights of the spouses in the event of divorce.
Household property such as kitchen utensils goes to the wife during Owambo and Herero
customary divorce, while in Lozi, and to a lesser extent the Kavango, such items are said to
belong to the household and are kept by the husband. Each person receives his or her own
personal and traditional property during customary divorce, although in Owambo traditional
property given to the wife by the husband is left at the homestead. In the Khomas Region
many people discuss a more equitable distribution of property under customary divorce.
In Nama, division of property is probably the most equitable because all divorce is done in
civil court. The Nama say that in the past the husband got all of the livestock but now
livestock are shared between the couple. In Lozi, Owambo and Kavango the husband,
sometimes with the help of his relatives, divides up the marital property, which means that
the wife is at the mercy of her estranged husband's goodwill. In Herero the head of the
extended families from both sides decide together on the division of property, with the help
of community leaders or headmen if there is a dispute. However, many people say that people
in the extended families know each piece of property and who it belongs to so they would not
let one person keep property that does not belong to him or her. Of course, in the Kavango,
Herero, Owambo and Lozi communities most property is considered to belong to the husband
regardless of how it came into the marriage, therefore, relatives would not argue with the
husband for keeping most of the property.
When asked to whom a person (usually the woman) can go if she or he is not happy with the
division of property, in most communities the person would first go to the elders of the
extended families and possibly to the traditional leaders or customary courts. Only people
from the Khomas Region feel that in cases of disputes, people should go to civil court.
Women's lack of rights to property during divorce under customary law in other African and
Asian countries is similar to that which is found in most Namibian communities. For
example, in Ghana, the husband has rights to all ante-nuptial and marital property "to pay for
the husband's marriage expenses" while the wife is only entitled to "send-off money" and not
to alimony (CRLP 1997:43). In South Africa, because all marital property rights are vested
with the husband, the wife has little access to any form of marital property, even that which
she has brought into the marriage (ibid.:104). In Tanzania, civil law indicates that a husband
and wife should have equal rights to marital property, however, the law also says that this
should be done in accordance with the customs of the culture under consideration; indicating
that civil law allows for discrimination of women's property rights based on customary law
(ibid.:123). In Zimbabwe, marital property in a customary marriage is also distributed
according customary practices. Most property acquired during the marriage is given the
husband, and the wife gets property that has been given to her upon the marriage of her
daughter or which she has earned through her own work. Women are not allowed to own
property in their own right, but this property is considered in her 'holding' for her extended
family (ibid.:142). In Nepal, women do not obtain marital property upon divorce, but only
limited alimony (Malla 2000:22). In Nepal, a woman may obtain some of the marital property
41
if she does not divorce. For example, a wife who is abused or abandoned (only for wives who
have been married for 15 years and are older than 35 years old) can take some of the marital
property to live separately from her husband (called 'partition') but she does not have 'full and
total' rights to use such property as she sees fit (ibid.:20-22). Although the husband can take a
second wife without divorcing the first wife who is living separately, if she is 'unfaithful' to
him - meaning if she has sexual intercourse with another man any time during the rest of her
natural life - the husband can demand all of the property be returned to him (ibid.:22).
Hubbard (2000:13) states that in most Namibian communities it is not a requirement that
lobola be returned unless the wife is found to be at fault for the divorce and under certain
circumstances such as if she has not yet had a child by her husband. This research supports
Hubbard's findings that in most Namibian communities, if lobola was paid, it is not returned.
However, in Herero society, when lobola has been paid but the couple divorce, the extended
family of the person at fault for causing the divorce has to pay the other extended family a
"gift for getting divorced" which is not considered paying back the lobola as much as it is a
divorce fee. Of course, customarily a divorce has been considered the woman's fault and
therefore it has typically been her extended family's responsibility to pay the divorce fee. The
most common amount for the 'divorce fee' mentioned by almost all people is six cattle. As
previously mentioned, in the Kavango, whoever is at fault for causing the divorce also has to
pay a divorce fee, which is generally said to only be one or two head of cattle. In Lozi, when
lobola has been paid but the couple divorce, the lobola is supposed to be paid back if the
woman is seen to have caused the divorce. Examples of when this payment is required
include if the woman had an affair or if the woman leaves the relationship. If the husband is
seen as causing the divorce, lobola is not returned.
This situation is similar to that found in several African countries whereby the question of
whether or not lobola is returned depends on who is at fault for the divorce. However, in
Nigeria a portion of lobola or dowry (depending on the marriage type) must be returned at the
customary dissolution of a marriage (CRLP 1997:83). In Zimbabwe a portion of the lobola
may be required to be returned, depending on the grounds of the divorce and to whom blame
is attributed (ibid.:142).
Property Division during Court Divorce
Many people recognise that property division upon civil divorce depends upon whether the
couple is married in community of property or out community of property. In the Khomas
Region and with the Nama there is a general consensus that civil law makes provision for
property to be shared equally and that civil law is more likely to protect women's rights to
property during a divorce. In Owambo people say that under Owambo customary law
property is divided according to who owns the property, and as previously mentioned, the
husband is considered the owner of most marital property, but under civil law if the couple is
married in community of property then the property is divided equally. In Herero, people
point out that in civil court women are more likely to get custody of the children and are more
likely to get more of the marital property than in a Herero customary divorce. However, in
both Lozi and Kavango people feel that civil law unfairly advantages women because they
get property that rightfully belongs to the husband.
In all of the regions the vast majority of those interviewed say that people with higher
education and those that are urbanised are less likely to following customary rules for the
division of property upon divorce. Several people specifically mention that educated and/or
42
urban women are more likely than uneducated or rural women to want to divorce in civil
court because these women feel they will get more of the marital assets than in a customary
divorce. However, other people feel that just because people are educated or move to an
urban area does not necessarily mean that they forget their culture. Some people explain that
in Herero even educated, urban men still prefer to marry under Herero custom because they
know that Herero property rights will favour them. In Lozi some people say that urbanisation
is not as important as education because rural educated women are demanding civil divorce
because it favours women's access to property. Therefore, it can be determined that urban and
rural people are interlinked, with most urban and educated people having their roots in the
rural areas, but primarily accessing the legal system that gives them the greatest advantage
during a divorce.
Widows and Widowers
During the course of this research it is determined that the practices of widow inheritance
(levirate) and widower inheritance (sororate) are still common among the Owambo, Herero
and Lozi. Under these customary laws when a man dies one of his male relatives - usually the
deceased husband's brother, nephew or uncle - will 'inherit' his widow. The husband's
extended family decides who will inherit the widow and sends the man to take over the
household of the deceased man. If the widow does not want to be inherited she has to leave
the household and all of its property and return to her natal extended family. In most cases the
widow is expected to have sexual relations with the man who inherits her, unless she is
elderly in which case the couple will simply live together. Widow inheritance is more-or-less
the same in all three societies, however, in Herero the widow - in consultation with the
families - is allowed to select whom she would like to inherit her and if she has an adult son
he can take over as head of the household and the widow will not be inherited. In Lozi the
widow is also supposed to undergo ritual cleansing whereby she is required to have sexual
intercourse with another man before she is married to her deceased husband's relative. In
traditional Kavango societies, when a man died his widow was inherited by his nephew or
uncle. However, in contemporary Kavango societies, the practice of widow inheritances has
all but died out. In contemporary Kavango societies, the widow stays with her deceased
husband's family for one year after the man's death to mourn his passing, then the family will
decide if she is to stay with them (without being inherited) or if she is to be returned to her
parents.
Also in Owambo, Herero and Lozi custom, a widower is inherited by one of his deceased
wife's female relatives - usually the deceased wife's younger sister, cousin or niece. Again,
the widower is expected to have sexual relations with his new wife. Of interest is the fact that
widowers are said to have more latitude in deciding whether or not they want to be inherited.
In Herero, if the widower's family would like him to be inherited they bring a cow to the
deceased wife's family as a gift for the new wife, otherwise, no additional exchanges - such
as additional lobola - take place. Traditionally in the Kavango societies a widower is
inherited by one of her younger sisters. Although the practice of widower inheritance has also
been greatly reduced, a widower is more likely to be inherited than a widow. If the deceased
wife's family likes the widower, they will look for another wife for him from within their
family.
Although Okupa (1999:9.10) reports that the practice of spousal inheritance is supposed to
protect minor children and young widows, people from this research indicate that most often
a widow is inherited because the deceased man's family wants to keep all marital property
43
within the family. This is evident in Lozi and Owambo where a widow who refuses to be
inherited is sent back to her natal extended family, usually with little or no marital property.
However, in the case of widower inheritance, the widower can choose to look for a new wife
outside of his deceased wife's extended family with no economic implications, and his female
relatives help him care for the children.
It is encouraging that in the Kavango Region, unlike other regions where the practice of
widow and widower inheritance still exists, the practice of inheriting a surviving spouse has
all but disappeared, primarily due to the AIDS pandemic, but also due to greater awareness of
gender issues. The only other group that reports a change in this practice due to AIDS is the
Lozi who say that the practice of spousal inheritance has declined due to the AIDS pandemic.
Some people feel that AIDS is not the only reason that the practice of widow inheritance is
changing, but that the disease in combination with other social changes - such as
advancements in women's rights and Christianity - are affecting the practice. Of notable
concern is the fact that several people in Herero and Owambo indicate that spousal
inheritance has only slightly been altered due to the AIDS pandemic. One of the changes
most often noted is that widowers are becoming more likely to refuse to be inherited, while
widow inheritance remains relatively unchanged. This is especially disconcerting in light of
the fact that most women are inherited by older men while most men are inherited by younger
women. This means that younger women are at risk of being exposed to HIV if the wife has
died of AIDS and the inherited husband is HIV positive. Given that 25% of the sexually
active Namibian population are HIV positive, it can be assumed that many younger people,
especially women, are inheriting HIV positive partners.
Khomas Region residents are more likely than their rural counterparts to recognise the HIV
infection risks associated with partner inheritance and state that many contemporary people
resist partner inheritance, especially if it is thought that the deceased spouse died of AIDS.
However, given that one mechanism used by a diseased husband's male relatives to gain
access to marital property is to move the inheriting male relative into the deceased's
communal home, there is a significant link between a desire for property and partner
inheritance, and therefore it is unlikely that this practice will be changed without significant
health information campaigns.
Similarly, in Nigeria widows may not inherit property in their own right and can only gain
access to the communal property through the practice of levirate whereby she is taken as her
husband's brother's wife and the brother maintains control over the property (CRLP 1997:84).
Widow inheritance is also practiced in Kenya (ibid.:66). However, in Ghana widows under
customary law are not permitted to remarry under any circumstances (ibid.:42); and in
Nigeria widows are required to undergo harsh rites and seclusion, while no such rites are
required for widowers (ibid.:83).
GENERAL LAND RIGHTS
In Namibia almost three-fourths of the population live rural agrarian lifestyles (CSO 2001).
Therefore, the majority of people practice subsistence agriculture based on crop cultivation
and livestock production of cattle, goats, sheep, chickens and donkeys. These rural people
can only survive if they have access to land on which to grow crops and graze livestock.
However, as much of the previous discussion has shown, women's rights to access land are
limited and generally consist of women only having access to land through men that they are
44
in relationships with, be it their fathers or husbands. As noted under women's rights to land
during divorce, when these relationships end, women often lose their access to land, thereby
losing their ability to support themselves and their families.
45
Land Control
In most communal areas in Namibia, traditional leaders such as headmen, chiefs, indunas and
kings, control land although communal land is owned by the government. With the possible
exception of the Nama, these people are always men. Land in the communal areas is
distributed by traditional leaders, who are men, to other men. The common pattern of land
distribution is that someone, usually a man, wants land in a particular area and approaches the
traditional leader of that area who assigns him a parcel of land for which the leader is paid. It
is commonly noted that land is not always distributed fairly in that traditional leaders often
have larger pieces of land, as well as people who have the ability to pay more for the land.
After the man has been given the land, he is the one who controls its utilisation. In Lozi often
land is more-or-less distributed to extended families who distribute it to men as they marry
and bring their wives to live in the patrilocal village.
The traditional leader is said by most people to be the one who benefits from the control of
communal land because he is paid when he distributes the land. However, other people say
that the person who gets the land also benefits from controlling the fields for crop production
and livestock grazing.
Most people say that the way land is controlled has changed because people from other
Namibian communities can move into areas and pay more than local community members for
land; people also do not properly manage land in the communal areas causing degradation;
and now people use communal land for businesses.
Land Use
The people who use land are not necessarily the same as those who control land. Only with
the Nama do most people feel that both men and women use land, although men control land.
While in the Khomas Region people say that due to private land ownership, the person who
controls, uses and owns land are one-and-the-same. Otherwise, people in Kavango, Owambo,
Herero and Lozi note that traditional leaders and heads of households - identified as men control land, while women are the primary users of land. Particularly in Owambo and Lozi
societies women are primarily responsible for tilling and planting the fields and gardens
while men are responsible for livestock management. The most common benefit for using
land is crop production and livestock grazing, although starting businesses and selling crops
are also an important benefit from using land.
Land Ownership
All communal land is owned by the government. Most people agree that there is no such
thing as a permit to own communal land and therefore, communal land cannot be used as
collateral for procuring bank loans. Most land is said to be controlled by traditional leaders
who allocate the land and by the people who utilise it. As has been discussed under land
control, these people are said to be primarily men.
However, people from the various communities say that it is not advisable nor desirable for
non-owners to control land because they sometimes do not have the best interest of the land
at heart and overgraze it or in other ways destroy it. These people say that the nature of
communal land ownership causes poor land management because the people using the land
do not own it and therefore are not concerned with land degradation.
46
OTHER PROPERTY RIGHTS
When discussing whether or not there is any property which is owned by the clan, rather than
owned by individuals, some people identify land, cattle, open fields and even wild animals as
clan property; while some people argue that there is no such thing as clan property. As can be
seen from individual site reports for the communal areas, only the Herero have clan property
in the traditional sense of the word. In Herero culture there are sacred cattle (ozongombe
zamuaha) that are not owned by individuals but belong to the clan and are used for
ceremonial purposes. In addition, the holy fire is also considered the property of the clan and
is inherited by the new head of the clan when the previous head dies. However, in Owambo
some traditional items such as traditional necklaces and some cooking pots that a husband
gives his wife upon marriage are considered clan property. In Lozi some people feel that land
can be considered a clan asset because people do not own it individually and it is passed
down within the same extended family. In Kavango societies many people feel that when a
man dies, everything he owns becomes the property of the clan to be distributed among its
members. However, only the Herero have clan property, being cattle, in the traditional sense
of the word.
Livestock Issues
The most commonly identified way of increasing livestock herd size is through good
livestock management whereby animals are not sold but are bred and produce young. Other
ways that households come to have livestock include lobola payments, by purchasing
livestock, theft, gifts from family members or by inheritance. Another means of acquiring
livestock is by safeguarding property for someone. One form of drought coping, especially
among the Owambo and Kavango, is for people to distribute their livestock into relatives'
herds so that if disease or drought strikes one herd or area, some animals will survive.
Therefore, if a man's father or uncle gives him livestock to look after, the man will be 'paid'
with a calf from the livestock he tends. In contemporary society, the most common way
people acquire more livestock is by purchasing them. In this way, some 'rich' people live in
the urban areas but maintain huge herds of cattle in the rural areas on communal land.
Where one gets livestock from contributes to their importance. Livestock bought with money
are less important than livestock that have been inherited. However, only the Herero have
sacred cattle. Also, large stock such as cattle are more valuable than small stock such as goats
and sheep. Only among the Nama are sheep and goats said to be more important than cattle.
In most communities the owner of the livestock manages them on a daily basis, although
many people say that the head of the clan makes major decisions over livestock management.
As will be discussed in detail below, in all communities studied, married women have the
ability to use livestock in limited ways such as for milking or ploughing the fields, but in
particular married women have to get their husband's permission for using livestock in any
other way such as selling or slaughtering animals.
WOMEN'S GENERAL RIGHTS OVER PROPERTY
Several customary practices in Namibia discriminate against women whereby women are
denied access to property accumulated during marriage. This lack of access to property,
including lack of access to land, serves to reinforce women's subordination to men. Women
are maintained in a cycle of poverty due to the lack of control over property, which leads to a
47
lack of economic independence. The following sections describe how women can and cannot
use, own and dispose of property for the Namibian communities under discussion.
Use of Property
Most people note that women are entitled to use most types of property. However, it is also
stated that married women must get permission to use property from their husbands. Khomas
Region residents are the most liberal in their views and say that women's use of property
depends largely upon the specific family set-up and traditional framework in which they find
themselves. Khomas Region residents make a distinction between customary conservative
families where women are given limitations when it comes to property usage and modern
(Westernised) families where women are entitled to use any property type. Property that
women are most often said to be able to use with impunity includes their own personal items
such as clothes and shoes; as well as household and kitchen items such as cooking pots and
dishes.
In several Namibian cultures women are prohibited from using hunting weapons (such as
knives and spears), ploughs and cars. Specifically, in Owambo women are not allowed to use
mahangu from their husband's grain baskets, ploughs and cars; in Herero women are not
supposed to use sacred cattle, the holy fire and men's traditional items; in Nama, elderly
people say that in the past women could not use livestock; in Lozi women are not allowed to
use cars and weapons such as guns and axes; and in Kavango societies women are not
allowed to use guns, pangas, knives, spears, hammers and blacksmith's equipment as well as
they are not supposed to do carvings.
In most communities it is said that women can use any property that they own, but that
women usually do not own very much property. However, in Owambo and Lozi some people
say that married women may not even use property that belongs to them without their
husband's permission and that often property which women have brought into a marriage
automatically belongs to their husbands.
In most communities under study, unmarried women have more rights to use property than
married women because married women have to ask their husband's permission, while
unmarried women often have their own homes and can do what they please with their own
property. Although it is pointed out that in traditional societies unmarried women were not
allowed to live alone, contemporary women in most Namibian communities are better off if
they do not marry because they have greater freedom in the use of property. Once a woman
marries, her husband takes over control of the marital property, sometimes even her own
separate property contribution.
Ownership of Property
Some key informants and community members recognise widespread discrimination against
women in regards to what property they are customarily allowed to own, and some even
express the feeling that in today's lifestyle (referring to modernisation and the impact of
global culture) women should have a greater ability to own certain types of property, such as
money, housing and cars. However, most people hold the 'traditional' attitude that land,
houses or homesteads, livestock and large moveable property such as cars and tractors should
remain in the hands of men, and that men should, in general, continue to dominate property
ownership.
48
Women's rights to own property in all Namibia communities under study are more
significantly limited than the property that they are allowed to use. In general, property
women can own is limited to household items, personal and traditional items, as well as a few
livestock such as cows and small stock. However, some Nama say that women own the
house, but they do not keep it if death or divorce occurs. The opinion that the house belongs
to the wife may come for the pre-colonial Nama tradition of women building and owning the
family's traditional hut. In Kavango, Owambo and Lozi society women typically own
cooking pots, baskets and chickens. Kavango, Owambo and Lozi women can own some
livestock, but generally must leave them at their father's homestead when they marry. Women
in these societies are supposed to move to their husband's homestead empty-handed.
In most communities it is said that women cannot specifically own land, houses and livestock
(especially cattle). There are also several types of items women cannot own that fall into the
category of 'traditional' items such as spears, guns and axes. Specifically, in Nama women are
not supposed to own cattle and guns; in Owambo women cannot own land, traditional
homesteads and traditional items such as necklaces; in Herero women cannot own guns,
cattle, bulls, oxen, sacred cattle, and the holy fire; and in Lozi women cannot own land,
houses, spears and guns. Under Kavango custom, women cannot own hammers, spears,
bows, arrows, pangas, guns and blacksmith's tools.
When asked why women cannot own certain types of property and who decides what women
can and cannot own, people in most communities simply say that it is in their 'tradition' that
women cannot own these types of property, but that usually the husband - or men in general decide what married women can own. Given that there are many different ethnic groups in
Namibia, this explanation demonstrates that there are different unwritten customary laws for
the different ethnic groups, and therefore there is no one system of property regime, thus
women may be exploited based solely upon their sex and the culture within which they were
born.
Another reason cited for why women do not own property is that they are only temporary
members of their natal families because when they marry they change their surnames and
thereby become members of their nuptial families. Thus it would be unwise for a woman's
biological family to materially invest in her because she would then carry that material
investment to her new family. Conversely, in some Namibian cultures, such as the Kavango,
Owambo and Lozi, women cannot inherit marital property because it is believed that after a
husband's death women should return to their natal families and therefore, they are not
permanent members of the husband's family. This belief means that when a man dies the
marital property, regardless of how it was acquired, is inherited by the husband's family and
the wife returns to her natal family empty-handed.
In the Khomas Region, the reasons why women cannot own property are shrouded in doubt
in that some community members say outright that they do not understand why women
cannot own certain types of property, while the vast majority of community members simply
have no answer as to why women cannot own property. It came out clearly from the
discussions that these are not written laws but rather customarily accepted set of rules to
which people customarily feel bound to adhere to.
49
As with property women can use, unmarried women are said to be able to own more types of
property than married women. Although many people say that if a married woman is working
and buys property, that she may own it, far more people say that this property either belongs
to her husband or is under his management. People in Lozi point out that because lobola has
been paid, any property a married woman brings into the relationship rightfully belongs to
her husband. In Herero, people distinguish between smaller household items such as furniture
and televisions that a married woman can buy and own, versus larger valuable items such as
shops and cattle, that belong to a married woman's husband even if she has bought them with
the money she has earned. However, in the Kavango, either the woman alone, or along with
her family are said to own any property that a working woman has purchased. As with so
many other issues on women's rights to property, Khomas Region residents are more Western
in their opinion that what women buy, they own. However, if the marriage is in community
of property, then what a woman buys is seen as being owned by the couple jointly; while if
the marriage is out of community of property then property purchased by a woman is seen as
belonging exclusively to her.
Disposition of Property
In several communities people say that women can dispose of any property that they own.
These data indicate that women would seem to have some control over the disposition of
property that is seen as belonging to them. The problem, of course, is that especially for
married women, property is seen as belonging to their husbands, which in turn limits
women's ability to dispose of it. Therefore, as with property use and ownership women are
limited in types of property they can dispose of and married women cannot dispose of any
communal property without the consent of their husbands.
Most people say that women can give away or sell some small household items, their own
money and personal property if they choose. Specifically, Nama women should never dispose
of anything they have been given as gifts or inherited from their parents or their husbands;
while Owambo and Kavango women cannot dispose of their husband's property as well as
land, houses, cars and livestock (especially cattle); Herero women cannot dispose of cattle,
sacred cattle and bulls; and Lozi women cannot dispose of land.
CHILDREN'S PROPERTY RIGHTS
In an effort to determine what children's rights to property are in the different Namibian
communities and how such rights affect women, key informants and community members
were given the following scenario and were then asked a series of questions pertaining to this
scenario:
Dorothy and Thomas have children, but they are not married. Thomas is
married to Rosilin who he also has children with.
There are significantly differing opinions within and between communities as to whether or
not Thomas's children born outside of marriage should inherit from him should he die. In the
Khomas Region people say that it is Dorothy's responsibility to find out if her children inherit
any of Thomas's property, while other people disagree as to whether or not the children have
a right to any property. In general, Kavango and Nama people say that children born out of
wedlock have a right to inherit from their father's estate; in Owambo and Herero people say
that children born out of wedlock do not have a right to their father's estate - although in
50
Herero the father's family could 'purchase' the right for Dorothy's children to become heirs by
paying her extended family a cow; and in Lozi these children can inherit from their father if
the children were already recognised as Thomas's.
When asked if Thomas dies who financially cares for Dorothy's children, again there is
disagreement between the various communities. Most often people feel that Dorothy will
have to support the children. People in the Khomas Region say that Dorothy's natal extended
family will help her; the Nama say that Dorothy's and Thomas's parents should help support
the children; in Owambo and Kavango Dorothy's brother should financially help; in Herero if
Thomas's family has 'purchased' rights over the children they could 'inherit' the children by
asking for the children to live with them; and in Lozi Thomas's extended family should help
financially care for the children.
However, when asked if Thomas has a right to any of Dorothy's property if she dies, all
people in the various communities agree that Thomas, having not formally married Dorothy,
has no right to anything Dorothy owned.
When asking about children's rights to inheritance, girls usually inherit from their mothers,
while boys usually inherit from their fathers. As can be expected, because women own less
valuable property, girls inherit less than boys in all cases. Regardless of whether inheritance
comes from the father or the mother, property such as land, houses, cars, cattle and guns are
considered masculine and are said to be primarily inherited by males. It is important to note
that the above mentioned property is, in general, the most economically valuable. The
inability of girls and women to inherit such property indicates that women are being restricted
from access to property that could afford them greater social and economic independence
from men, thereby maintaining women's lower social and economic position vis-à-vis men.
INHERITANCE ISSUES
Under civil law a written will guides the division of property after death, while principles of
civil law are applied to intestate deaths. Under customary law the customs and norms of the
culture under consideration dictate rules of inheritance when divorce or death occur. In
general the deceased husband's male relatives or children inherit the marital assets. The rules
of inheritance differ between matrilineal and patrilineal communities. In matrilineal
communities the deceased husband's family, customarily his male relatives - typically his
nephews but in contemporary society all of his relatives - inherit all matrimonial property
regardless of how or who brought the property into the marriage (Okupa 1999:9.3). In
patrilineal communities it is frequently the deceased husband's children - usually his first
born son - who inherit the matrimonial property (ibid.). In this case the widow is more likely
to inherit small items or maintain control over property inherited by her children if the
children are still too young to manage the estate.
These patterns of property inheritance under Namibian customary law differ little from those
of other African and Asian countries. For example, in Ghana their constitution explicitly
provides that both spouses should have equal rights to inherit marital property, however,
customary practices see the widow as not being part of the husband's family and therefore the
husband's extended family inherits the marital property. In fact, a Ghanaian court has upheld
the ruling that any property acquired through the joint efforts of a husband and wife or
through the efforts of their children is not joint property but belongs solely to the husband.
Although law reform has attempted to address such discriminatory practices, many widows
51
are left to the mercy of the court when interpreting the law - if such cases should make it to
court (CRLP 1997:44). In Kenya property is primarily inherited by the deceased man's sons
and although civil law implies equality of the sexes during inheritance, when cases of
inheritance have come before the court, male children's inheritance rights have been upheld,
to the detriment of the widow and female children (ibid.:67). In Nigeria a daughter is not
necessarily prohibited from inheriting from her father, but widows usually do not inherit from
their husbands (ibid.:84). In Tanzania, inheritance is decided according to the deceased's
"mode of life" and "intentions of the deceased" to determine which system of law applies to
inheritance. However, if the deceased's "mode of life" had been traditional, then customary
laws apply to inheritance and widows whose spouses die intestate will not receive a share of
the matrimonial property but the property will go to the deceased's children (ibid.:124).
Zimbabwe's laws of inheritance are similar to those of Tanzania where the state is attempting
to decide whether civil or customary law applies. When a woman dies, the property she
'holds' will be distributed among her female relatives, unless it is property accumulated
through her own work, which then goes to her eldest son. When a man dies, his widow does
not inherit, but all marital property goes to the eldest son, although a daughter may inherit
from her father's estate (ibid.:142). In Nepal, a widow regardless of how long she has lived
away from her deceased husband, who has received marital property due to 'partition' as
described above, will have to return this property to her in-laws if she has sexual relationship
with any man for the rest of her natural life (Malla 2000:22). A widow who is not provided
the basic necessities of life by her deceased husband's family may get some of his property,
but it must be returned if she remarries (because it is considered that she has committed
adultery even though the husband is dead). In addition, daughters usually do not inherit from
their fathers, but if they do, they are last in line for inheritance (ibid.:21-23).
General Inheritance
When given a list of categories of items people can inherit, in most Namibian communities,
custom precludes widows from inheriting substantial property such as land, buildings and
large movable property such as cars and tractors. It is important to note that, in general, the
most commonly identified custom that contravenes women's rights is the practice of widows
being evicted from their homes and all property confiscated by the deceased husband's
relatives. In a few Namibian communities widows can inherit small property (such as
personal items, kitchen utensils, traditional items and small livestock) from her deceased
male or female relatives. Khomas Region residents are more likely than their rural
counterparts to feel that a deceased man's widow and children should inherit the marital
property. These data would seem to indicate a shift towards more Western styles of
inheritance that favour women's rights to property. In the case where children may inherit
their deceased father's property, female children inherit less than male children and there is
also a gendered division of property whereby male children inherit cattle, immovable
property and the deceased's personal items; while female children usually inherit small items
such as goats, chickens and household items.
When specifically asked about who inherits land if a man dies, Khomas Region residents are
more likely to say the deceased's widow should inherit the land they live on and the chief
should inherit it in the event that the deceased is not married; in Nama society the widow and
possibly his children inherit his land; under Owambo and Kavango customary rules of
inheritance, men from the deceased's extended family such as nephews or brothers inherit the
land and may also 'inherit' his widow; in Herero one of the deceased's younger brothers or
nephews inherits his land as well as his widow - otherwise, a deceased man's eldest son
52
inherits his land; and in Lozi the widow remains on the property with the children and is
inherited by one of the deceased husband's male relatives. In future, the new Communal Land
Reform Act will give widows (and widowers) in all communities the right to retain the
communal land allotted to the deceased if they wish, but it remains to be seen whether or not
the force of custom may work to prevent women from taking advantage of this right in some
areas.
When specifically asked about homesteads, buildings and other immovable property, Khomas
Region residents say the deceased man's natal extended family should inherit this property; in
Nama societies it is the widow and possibly children; in the Owambo and the Kavango
whoever inherits the land will inherit the homestead; in Herero custom the man who inherits
the land also inherits this property; and in Lozi communities the man who inherits the land
also gets the buildings.
When specifically asked about large movable property such as cars and tractors, Khomas
Region residents feel that either the deceased's widow or his natal extended family should
inherit this property; the Nama say that these are inherited by the deceased's widow and
possibly sons, but usually the widow makes such a decision; in Owambo and Kavango either
a man's relatives such as his nephews or brothers from his extended family, or one of his sons
inherit such property; in Herero the man who inherits the deceased's land and immovable
property inherits the large movable property; and in Lozi the man who gets the land and
buildings also gets the large movable property.
Khomas Region residents say that money should go to the widow for the maintenance of his
children; in Nama society the widow and children inherit any money he left behind; in
Owambo custom a deceased man's relatives such as his nephews or brothers, or his children
will inherit any money; in the Kavango and Herero communities the widow and possibly
children inherit the money; and in Lozi custom money is divided among his children and
possibly the deceased man's other relatives.
In the Khomas Region most people identify the widow as inheriting his livestock; in Nama
custom the widow and children inherit his livestock or the widow divides it among the
children; in Owambo and Kavango the deceased man's relatives divide his cattle, goats, sheep
and donkeys among themselves, although his older children may be given a head of cattle and
his younger children may be given some goats; in Herero a deceased man's entire extended
family inherits his livestock, usually by way of having a family meeting at which the property
is divided; and in Lozi societies the deceased man's brothers and possibly his adult sons
inherit most of the livestock.
When specifically asked about household property such as furniture, Khomas Region
residents say this property should go to the widow and any children left behind; in Nama
custom the deceased man's widow and possibly his children inherit household items; in
Owambo custom the deceased man's relatives take all household property and the widow is
given a grain basket; in Herero custom the widow inherits his household items. In the
Kavango the deceased husband's relatives decide who gets the household property. The wife
may be given this property or may just as like get none of it; and in Lozi communities
household property is divided among the children and possibly the deceased man's other
relatives.
A deceased man's personal property should be given to family members in greatest need
53
according to Khomas Region people; in Nama society personal items are inherited by the
deceased man's sons and younger brothers; in the Kavango and Owambo the deceased man's
personal property is inherited by his relatives, although his children may be given some of his
clothes; in Herero custom personal items are inherited by a deceased man's sons and younger
brothers; and in Lozi communities personal property is divided among the children and
possibly the deceased man's other relatives.
Finally, when discussing traditional property such as spears and bows, Khomas Region
people say the widow, son or natal extended family should get such property; in Nama the
deceased man's male relatives, especially younger brothers, nephews and older sons, inherit
his traditional items; in Owambo the deceased man's relatives inherit his traditional items; in
Herero and Kavango the deceased man's younger brothers, nephews and older sons inherit his
traditional items; and in Lozi traditional items are divided among the children and possibly
the deceased man's other relatives.
As can be determined from the above listing of who should inherit from a man when he dies,
it is clear that Khomas Region residents and the Nama favour the widow and any children he
leaves behind, while in the Kavango, Herero, Owambo and Lozi, a deceased man's natal
extended family inherit most of the larger more economically valuable items. Customarily in
the Kavango, Owambo, Herero and Lozi societies women are not allowed to inherit marital
property (considered to belong to the husband regardless of how the property came into the
marriage) and they are not allowed to inherit economically valuable items such as land,
homesteads, buildings and cars. Items women have been allowed to own customarily are
usually small and of little economic value, such as small stock (goats and chickens),
household property (such as kitchenware, beds and cupboards) and personal items (such as
clothes).
Many people say that educated and urban people, especially women, are more likely to
handle inheritance differently than less educated or rural people. When people are more
highly educated, it is felt they become more critical of discrimination and more open minded
about issues of inheritance. Educated people also become more aware of their inheritance
rights and of legal instruments such as written wills, which do not exist in customary
inheritance systems. Although not a truism, the more educated a person, the more likely they
are to go against custom. Higher education does not mean an immediate discarding of
customary norms and many highly educated people in Namibia are strong traditionalists.
Some people say that urban people follow customary inheritance rules for women, while
other people say that urban women act differently than their rural counterparts in that they
can decide about property, they are enlightened about wills, and they are more likely than
their rural counterparts to insist upon their right to inherit property.
Written Wills
Most people know about the fact that a person can have a written will, although most people
also say that oral wills are more common than written wills. Most people feel that the owner
of the property needs the assistance of a lawyer, the bank, a police officer, the courts, a
traditional leader (referred to as a headman or chief) or someone in their family to write out a
will. Currently in Namibia anyone over sixteen years of age can make out a written will and
simply have it witnessed (signed) by two people who are not his or her heirs (Becker and
Solomon 1997:109-110). Given that most people feel that the process of making a written
will is more difficult than it is in reality, it would seem that most people are unaware of how
54
to go about making out a written will. Nama people are more likely than people in other rural
areas to understand about and use written wills.
When asked what happens if a written will goes against customs, there are a variety of
responses both within and between communities. Although some people say that people
would still follow a written will even if it went against customary rules of inheritance, other
people say that the family would ignore the written will and follow customs, the written will
would be destroyed, or that family members would try to have the written will declared
invalid. Many people say that although a written will supersedes an oral will, if the written
will goes against customary inheritance practices "there would be a fight" within the families
involved.
Oral Wills
In most customary communities, the majority of people make oral wills. An older man often
calls his most trusted male relative and explains to the relative how he would like his property
distributed after his death (Okupa 1999:9.10). It is said that few family members would
dispute this oral testimony because the person selected is known to the family members, there
are usually witnesses to the oral will and there are traditional sanctions (such as the deceased
man's ghost haunting the person who has lied) against the selected family member lying
about what a deceased person has said. However, some informants indicate that family
arguments over the division of inheritance are not uncommon. It is said that oral wills never
go against custom because the person to whom the oral will is given would not accept the
testimony or would call a meeting of the extended family members to discuss the person's
attempt to go against custom.
Changes in Inheritance
Although modernisation and global culture have impacted discriminatory customary
practices, as well as Namibians' rights to property enshrined in the Namibian Constitution,
these customary practices still exist in contemporary Namibia, especially in the rural areas.
Although rural informants indicate that property inheritance by the deceased husband's male
relatives 'might' be unfair to the widow, many of these same people also did not think the
system should be changed. However, Khomas Region residents are more likely than rural
dwellers to say that customary systems of inheritance are not fair and a widow should inherit
some marital property.
In the Khomas Region an important change for women's rights to property through
inheritance is that some customary rules of inheritance are slowly fading out. In the past,
whoever inherited property was the decision of the elders in the deceased person's natal
extended family. In general, the elders are men and they favour men when it comes to the
distribution of property. In contrast, contemporary practices have started whereby it is the
owner of the property who decides through wills (written or oral) or legal documents how
their property is to be divided. The second change identified is that more people are
beginning to make use of written wills. Finally, widows and children are being given more
security and protection from looting of their property by greedy nuptial relations through the
use of written wills. Therefore, widows and their children are beginning to be more likely to
inherit marital property.
55
In Nama communities, people feel that changes in methods of inheritance have had a
negative impact on women and children because of the greed of the deceased person's
relatives. Almost all people interviewed discuss 'property grabbing' and describe arguments
over property as the order of the day; whereas in the past there was little property to be
inherited and elders divided it so that there were no such arguments.
Most Owambo and Kavango people note the growing propensity for widows and their
children to inherit rather than only the deceased husband's natal relatives. However, other
people say that even in contemporary Owambo society many relatives still take all of the
property from the widow.
The majority of Herero (and some Kavango) people feel that changes in methods of
inheritance are positive because distribution is now more equitable. In general people say that
contemporary Herero inheritance is that the widow and children get the household and its
property and only the livestock are distributed to the deceased man's extended family.
In Lozi communities, the most commonly mentioned change in inheritance is that in
contemporary Lozi society the children of the deceased, especially his oldest male sons, are
now inheriting much of the property and the practice of widow and widower inheritance is
disappearing due to AIDS and because women have become more aware of their rights.
Other Lozi people mention that women are beginning to inherit property.
Indeed, the three changes in inheritance most often mentioned are 1) the growing use of
written wills; 2) the inheritance by widows and their children; and 3) the propensity for
property grabbing.
56
5.
RECOMMENDATIONS
The following recommendations are the result of analysis of the data, it is anticipated that
various other stakeholders will develop their own recommendations based on their unique
approach towards obtaining a more equitable distribution of property, thereby enhancing
gender equality in Namibia.
WOMEN'S GREATER ACCESS TO PROPERTY

How do you tell people they have to give a woman (who is considered not related to
them) a piece of their ancestral land? Given the fact that people make distinctions
between 'modern' forms of property (such as cars and houses in town) and 'traditional'
forms of property (such as homesteads and cattle), property distribution should first of
all focus on women's rights to 'modern' property. Traditional property seems to
contain an element of emotional attachment and changes in the distribution of
traditional property will be met with strong resistance in the rural communities.
Therefore, social attitudinal change focusing on women's access to modern property
will be less emotive and more likely to gain acceptance within the local communities.

Any reforms in property regimes should also encourage greater accumulation of
property women can customarily own (such as goats and some cattle) as well as
women's greater rights of control over the property which they do own. Of concern is
the issue that if civil law is changed for the division of joint property equally, this
would preclude extended family members from inheriting all joint assets, although
they could, theoretically inherit the deceased's spouse's portion of the joint assets.
There is also scope for adapting the accrual concept of sharing the gain from the
marriage.
LAW REFORM POSSIBILITIES

Law reform should progress towards a more equitable distribution of property during
divorce or upon death. These laws should specifically protect vulnerable groups such
as rural women and orphan children.

The accrual principle, which requires the sharing of wealth accumulated during a
marriage but keeps property brought into the marriage at the beginning separate,
might be usefully incorporated into customary law to ameliorate the inferior position
of women with respect to property whilst still respecting the traditional significance of
different forms of property.

In line with the situation in most other African countries, Namibia should adopt a 'no
fault' terms of divorce in civil marriage to make the break-up and distribution of
property less contentious.

The Constitutional principle of equality needs to be applied to customary law on
inheritance. Customary inheritance rules need to be reformed so, for example, simply
being born a woman in a Herero community does not mean fewer rights to property
than being born a woman in a Nama community, or than being born a man. Law
reform should insist that boy and girl children be treated equally with respect to
57
intestate inheritance under customary law. The principle of primogeniture (inheritance
by the oldest male child) was once the norm in Western civil law settings around the
world, but over the years this principle has been discarded in favour of equality
between the sexes. A similar evolution is needed in the African customary law
context.

Law reforms on inheritance, which could remove sex discrimination, need to be
officially formulated and then widely discussed and debated, so that changes in this
highly personal and traditional area can be acceptable and workable in practice. Much
groundwork will be needed before rights given in theory can be asserted in practice in
this area.

The inheritance position of children born to unmarried parents is tenuous at best. Law
reform should focus on ensuring that all children have equal rights to inherit their
parents' property. The Children’s Status Bill which will be introduced in Parliament in
2004 is expected to outlaw all discrimination against children on the basis of the
marital status of their parents in both civil and customary law, but whether there will
be public opposition to this proposal remains to be seen.

The concept of the best interests of the child should be applied in all settings, both
civil and customary, so that children’s property and interests are protected upon the
death or divorce of their parents. Namibia’s new Maintenance Act, No. 9 of 2003, has
already superseded aspects of both civil and customary law in favour of the principle
that both parents share primary responsibility for ensuring that the child’s basic needs
are met regardless of any other circumstances. The goal of adequately protecting and
providing for children should similarly take precedence over civil and customary
principles in other contexts, particularly with respect to providing and enforcing laws
and procedures to prevent ‘property-grabbing’ that can leave orphans without
resources.
CULTURAL IMPEDIMENTS TO WOMEN'S ACCESS TO PROPERTY

In the rural areas, women's lack of access to communal land in their own right is a
significant cultural impediment to greater gender equality because women are
dependent on men to access their main means of production. As Andima (1993:12-13)
suggests, communal usufruct rights to household land should be held jointly by both
the husband and wife. Single women should be able to obtain usufruct rights to
communal land. Traditional leaders who control communal land should be
encouraged to distribute communal land to women as well as men.

The practice of widow inheritance is degrading to women and makes them vulnerable
to physical abuse at the hands of the inheriting husband, exposes both men and
women to the risk of HIV infection, and no longer serves the purpose of protecting
young widows and children. A similar problem can be seen in widower inheritance
whereby the new spouse, often times younger than the widower, is exposed to
violence and HIV infection. Spousal inheritance should be discouraged through
information campaigns and possibly addressed through legislative reform.

Although lobola, in and of itself, is not a cultural impediment to women's rights to
property, contemporary interpretations of what rights having paid lobola grant to the
58
husband and his family imply that some people feel that paying lobola gives the
husband absolute rights over his wife and her economic production. The customary
practice of paying lobola should be reviewed and addressed through information
campaigns and legislative reform.
GREATER INFORMATION NEEDS

Given that this is the first substantial research in Namibia that identifies issues
relating to women's property and inheritance rights within the selected cultural groups
for specific descent pattern, it is recommended that more research needs to be done
specifically focusing on property regimes in other Namibian communities.

Although a small amount of data in this study were collected regarding children's
inheritance rights, there should be an in-depth study of children's property and
inheritance rights, especially focusing on children orphaned by AIDS.

Information dissemination programmes need to be designed specifically in relation to
women's rights to property and inheritance, the consequences of paying lobola, the
problems of partner inheritance in an age of high HIV infection rates, the illegal
nature of disowning widows and the importance of drawing up a will.

Information campaigns should specifically target men in an effort to educate them as
to the social and economic consequences of women not having the ability to inherit
property and how this could impact the life's circumstances of their wife and children
upon their death.

Although information campaigns on will writing are in place, these efforts need to be
expanded and intensified. As in South Africa, there could be 'make-a-will Day'
whereby radio announces public venues and people are encouraged to attend will
writing courses whereby they are taught how to draft a written will. There also needs
to be information campaigns to encourage people to enforce written wills.
59
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