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Chronic poverty research centre, working paper no. 159, May, Elizabeth Cooper (2010)

Property inheritance systems are known to influence intergenerational transmission of poverty (IGT poverty), however, review of existing academic literature and policy initiatives on questions concerning the relationship between inheritance and the IGT poverty in different Sub-Saharan African societies shows that there are gaps in knowledge as well as policy initiatives regarding the link between inheritance practices and their relationship to IGT poverty.

Recent thinking on poverty highlight the fact that poverty is a dynamic condition such that various events/factors can make individuals and/or households fall in or out of poverty. Among the various factors that influence poverty dynamics, transfers of material assets including cash are considered one of the significant ones. In particular, many analyses highlight the importance of “different individuals’ access to physical assets for their socio-economic wellbeing and security from economic shocks”. Inheritance is one of the means for the transfers of physical assets and in many Sub-Saharan African societies; it is one of most common means of transferring physical property from one generation to another.

Elizabeth Cooper reviews the existing academic and policy literature on issues concerning inheritance and the intergenerational transmission of poverty in different Sub-Saharan African societies. The majority of current research in this area, the author points out, focuses on the correlation link between women’s property rights and their poverty and vulnerability. Since land is recognised as a “primary source of wealth, social status and power”, several studies on inheritance and poverty processes, in particular women’s poverty in Africa, focus on the significance of allocations of and access to land as well as land rights. Studies on poverty and land rights in Africa, point to the fact that women and children are often excluded from opportunities of wealth accumulation through inheritance. The author also points out that widows, orphaned children and families affected by HIV/AIDS are particularly vulnerable of being dispossessed “through rules and practices of inheritance”.

Given that inheritance is considered to be the most common means for women to access and/or get ownership of land, a large number of studies therefore delve into inheritance systems and practices prevalent in different African countries to explore the implications these have on economic status of people. These studies, the author suggests, bring in several new insights. One, research shows that the inheritance practices of patrinileal or matrinileal descent principles are often manipulated to suit the livelihood strategies and transferal preferences of property owners. Thus, in some matrinileal cultures, there has been rise in transfer of property as gifts to own children thereby reducing the amount that would be automatically transferred to sister’s children on death of the original owner. Two, in some societies, parents often transfer more property to daughters with the aim of increasing the daughter’s prospects of a better marriage or increasing start-up capital available to the newly married daughter.

Three, in many agrarian societies in Africa, marriage marks an important occasion for transfer of property from one generation to the next. In addition, for women, customary law with regard to marriage and the fact that women have access to property mainly through their male relatives, means that women who are divorced, orphaned, unmarried or separated face have little access to property. Even in countries in which the constitution prohibits gender-based discrimination of issues related to inheritance, studies reveal that in the case of women “customary law continues to control the dispossession of property”.

Overall, the author also points out that although these studies bring in new insights regarding how inheritance systems are manipulated or work out in practice, most draw conjectural link of the impact that inheritance systems have on people’s (including women’s) experiences of poverty.

This gap in existing research notwithstanding, policies to reform of inheritance laws and practices, especially to bring in greater equality between men and women, have been gaining increasing attention of policy makers and various non-governmental organisations.

The author identifies three general areas with regard to what has been advocated and successfully tried out in different African countries. These comprise legal reforms, institutional implementation and socio-economic empowerment of women. Various analyses show that all these three areas need to be addressed simultaneously for addressing the issue of women’s property and inheritance rights.

Amendment of constitutional provisions to bring in gender equality in inheritance rights is considered to be one of the essential reforms needed to protect women’s inheritance rights. However, legal reforms that afford temporary rights to widows, like succession laws in Zambia and Namibia, limit women’s options to benefit from these laws. To deal with these problems, analysts recommend that laws that allow co-registration of property, registration of marriages can protect women’s inheritance better. Research on the uptake of joint land titles by married couples in Uganda show that although joint titling is on the rise, they continue to be very small.

At the same time, it is widely recognized that legal reforms alone are not enough and customary laws need to be reformed to ensure that inheritance is practiced fairly. Past experience on efforts at engaging with customary laws and influencing these, show that dialogue “with elders and other enforcers of customs is critical to raising awareness and finding ways to harmonize customary norms with equitable inheritance rights”. Education, capacity building etc., of those who mediate customary law as well as of the “public who appeal to customary law for governance of inheritance” are equally important.

In light of these experiences, the author concludes with four points that policy makers might take into consideration for improving inheritance. These are: “upholding the rights of those most vulnerable to alienation from heritable property and consequent poverty, most notably women and children”; sustaining the necessary focus and resource levels over a period of several years given that new initiatives for legislative reform take a long time to fructify; finding local level  entry points for effectively changing rules and further empirical research that focus on ‘social relations analysis’ rather than focus only on the on the legal domain.