The recent pronouncements by the Constitution Court which effectively annulled several provisions of the Succession Act as being unconstitutional have caused mixed reactions among the public.
Again much of what has been stated is a misrepresentation or misinterpretation of the Constitutional Court’s decision. The Law and Advocacy for Women challenged some sections of the Succession Act.
One of the sections of the Act which were challenged for being unconstitutional was Section 27 which provided for only male intestacy. Intestacy under the law simply refers to a situation where a person dies without having written a will. This has several legal implications and that’s why it’s very important for any person of mature age to make a will whenever they acquire property.
And because the offensive section 27 only provided for male intestacy it obviously unjustifiably left out women and this had the unfair legal effect that women were presumed not to have property to bequeath. The section had its roots in the mediaeval times where women were treated as men’s chattel with no rights under the English Common law which we inherited.
The same section only allowed for 15% of the deceased husband’s estate to be given to his widow upon death while a widower enjoyed 100% of his deceased wife’s estate. The section ignored the women’s contribution to their husband’s estate. And people should know the distiction here. Matrinonial property under the law is treated differently is personal property.
This is irrespective of the fact that women in many of our traditional marriages/settings are basically treated as labourers in the home. They till the land, look after the children and even buy much of the matrimonial property while the men are out socializing. And people should know the distiction here. Matrimonial property excludes personal property.
\u003c/p\>\n\n\u003cp\>\u003cfont face\u003d\"Times New Roman\"\> Rule 8 (a) of the Second Schedule Succession Act which provided that a widow’s right of occupancy in a residential holding terminated upon re-marriage while that of a man terminated upon death also came into issue before the constitutional court together with Section 43 of the Succession Act which provided that guardians are only appointed by the father. The mother’s parental rights were undermined . \u003c/font\>\u003c/p\>\n\u003cbr\>\n\n\u003cp\>\u003cfont face\u003d\"Times New Roman\"\>The question which had to be determined by the Constitutional Court was why a guardian should be appointed when the mother of a child is still alive. And further still, why a mother couldn’t be appointed a guardian. \u003c/font\>\u003c/p\>\n\n\u003cp\>\u003cfont face\u003d\"Times New Roman\"\> \u003c/font\>\n\n\u003cbr\>\u003cfont face\u003d\"Times New Roman\"\>The above sections together with Section 2 (n) (i) and Section S. 44 of the Succession Act which gave preferential treatment to male lineage over the female lineage in choosing legal and statutory guardians were all declared constitutional and therefore null and void. \u003c/font\>\u003c/p\>\n\n\u003cp\>\u003cfont face\u003d\"Times New Roman\"\> \u003c/font\>\n\n\u003cbr\>\u003cfont face\u003d\"Times New Roman\"\>Similarly Section 14 of the Succession Act which awarded automatic acquisition of domicile upon marriage to a woman and not to man and Section 15 which terminated a woman’s acquired domicile upon legal separation was also declared unconstitutional. \u003c/font\>\u003c/p\>\n\n\u003cp\>\u003cfont face\u003d\"Times New Roman\"\>Domicile under the law simply means the place of aboard of the parties in marriage. The effect of this is that before the decision of the court, women unlike men acquired automatic domicile of their spouse upon marriage. This meant that when say an Indian lady married a Ugandan man, she automatically had to be subjected to the legal regime obtaining in Uganda but the same was no possible for a man. So if effect the law was discriminatory against women since they had no choice of domicile upon marriage which the court found unconstitutional.
Rule 8 (a) of the Second Schedule Succession Act which provided that a widow’s right of occupancy in a residential holding terminated upon re-marriage while that of a man terminated upon death also came into issue before the constitutional court together with Section 43 of the Succession Act which provided that guardians are only appointed by the father. The mother’s parental rights were undermined .
The question which had to be determined by the Constitutional Court was why a guardian should be appointed when the mother of a child is still alive. And further still, why a mother couldn’t be appointed a guardian.
The above sections together with Section 2 (n) (i) and Section S. 44 of the Succession Act which gave preferential treatment to male lineage over the female lineage in choosing legal and statutory guardians were all declared constitutional and therefore null and void.
Similarly Section 14 of the Succession Act which awarded automatic acquisition of domicile upon marriage to a woman and not to man and Section 15 which terminated a woman’s acquired domicile upon legal separation was also declared unconstitutional.
Domicile under the law simply means the place of aboard of the parties in marriage. The effect of this is that before the decision of the court, women unlike men acquired automatic domicile of their spouse upon marriage. This meant that when say an Indian lady married a Ugandan man, she automatically had to be subjected to the legal regime obtaining in Uganda but the same was no possible for a man. So if effect the law was discriminatory against women since they had no choice of domicile upon marriage which the court found unconstitutional.

But the most misinterpreted part of the Constitution Court judgment is that to do with male lineage over that of female in choosing legal and statutory guardians mostly in cases of intestacy (where a person dies without a will). Many people believe that the court’s decision in effect abolished male heir(s) which is normally practiced in some traditions like in Buganda.

This is not true. You can still have a heir under any given traditional practice(s) and a guardian with legal or statutory powers at the same time.\
And this is where section 44 was problematic. It only provided for the male lineage when appointing the legal and statutory guardians .The constitutional Court found the section to be repugnant since it did not accord equal treatment to the female lineage in choosing such representation.
It’s now incumbent upon the Attorney General the legal representative of government to move parliament to repeal or amend the sections which have been found repugnant so that they give efficacy to the provisions of the constitution which call for fairness and equality for all before the law. The same sections rendered married women second class citizens in that their domicile was transient and dependant on that of their husband’s whereas that of married men remained permanent.
But the most misinterpreted part of the Constitution Court judgment is that to do with male lineage over that of female in choosing legal and statutory guardians mostly in cases of intestacy (where a person dies without a will). Many people believe that the court’s decision in effect abolished male heir(s) which is normally practiced in some traditions like in Buganda.
This is not true. You can still have a heir under any given traditional practice(s) and a guardian with legal or statutory powers at the same time.
And this is where section 44 was problematic. It only provided for the male lineage when appointing the legal and statutory guardians .The constitutional Court found the section to be repugnant since it did not accord equal treatment to the female lineage in choosing such representation.
It’s now incumbent upon the Attorney General the legal representative of government to move parliament to repeal or amend the sections which have been found repugnant so that they give efficacy to the provisions of the constitution which call for fairness and equality for all before the law.
In this column next week:Parliament and President Museveni should consider the public trust doctrine when deciding the fate of Mabira forest.
The writer is a Journalist and Advocate msserwanga@gmail.com 0772 43 46 77