Uganda

Normas consuetudinárias, crenças religiosas e práticas sociais que influem no direito à terra diferenciada por gênero

Customary laws regarding land, family life and inheritance are extremely important because over 75 percent of Ugandan land is held under customary tenure systems.
Colonial laws distorted the customary tenure systems that guaranteed women a certain level of tenure security. More power was given to individual heads of households, who became the titled landowners, thus altering the communitarian tenure arrangements and reinforcing the patriarchal systems. Women lost many of their secondary rights to land (3).
Land tenure is often regulated according to the marriage regimes in place in Uganda. Most marriages are customary and therefore not legally registered. Moreover, many marriages are polygamous, which further reduces women’s rights to land inheritance (3).
A woman’s secondary right to use her husband’s land may be revoked for several reasons. The most common grounds for revoking women’s land rights are when the husband abandons his wife or chases her away from his land. This often occurs when a husband remarries and places his new wife on his land. An abandoned wife cannot remarry without losing her rights to her first husband’s land.
In most groups, a woman who separates from her husband loses her rights automatically. In other situations, land grabbing and conflicts over inheritance diminish women’s access to land. As a result, some parents are stipulating that their daughters receive land in their will, or actually transferring the land while still alive so that it may be witnessed (3).
The unregistered marriages leave women with few rights to land and when customary divorces do occur, the woman is rarely entitled to anything.
Under many customary marriage regimes, a husband may divorce his wife for not having a male child. If a woman divorces a man and returns to her birth family, she relinquishes all rights to land. Moreover, widows are denied all rights to inherit land under customary regimes. A government study of men’s wills showed that only 10 percent of men left their land to their wives in a trust for their children, while 90 percent of the wills directed the land to be given to the children directly and stipulated that the wife would be taken care of by the children (3).
When a woman’s parents die while she is already married, in most groups she is not considered at all for inheritance. Specifically, in the Banyankore and Baganda groups, a woman’s right to inherit land is only viewed in terms of her responsibility to take care of her children. Without children, women have no independent right to own land. In other communities, such as the Bushenyi, sons automatically inherit their father’s land (3).
Despite the mostly patriarchal structure of Uganda, several ethnic groups practise matrilineal land inheritance. These include the Acholi, Kigezi, Lango and Alur. Women in Buganda have also enjoyed more land rights than women in other parts of the country. Under the mailo scheme, women began to inherit more land and some even bought land. In the 1990s, a study showed that 39 percent of female-headed households had inherited land (although smaller plots than men) and that 30 percent of female-headed households had bought land (3).
Dowry and bride price practices are used for customary marriages. A dowry, also known as a trousseau, is the money, goods, or estate that a woman brings to her husband in marriage. Bride price, also known as bride wealth, is an amount of money or property or wealth paid to the parents of a woman for the right to marry their daughter. These practices contribute to reinforcing the view that women are property and thus cannot inherit property themselves (11).

Autoridades tradicionais e instituições consuetudinárias

Since 1995, traditional leaders have been reinstituted in Uganda’s Constitution: “Subject to the provisions of this Constitution, the institution of traditional leader or cultural leader may exist in any area of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies” (10).
A “traditional leader or cultural leader” is a king or similar leader, by whatever name called, who derives allegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people led by that traditional or cultural leader (10).
In Chapter 16, the Constitution states that “the allegiance and privileges accorded to a traditional leader or a cultural leader by virtue of that office shall not be regarded as a discriminatory practice prohibited under Article 21 of this Constitution; but any custom, practice, usage or tradition relating to a traditional leader or cultural leader which detracts from the rights of any person as guaranteed by this Constitution, shall be taken to be prohibited under that Article (10).
Traditional leaders may determine or mediate in disputes over customary tenure. One or both parties to a land dispute may invite the traditional authorities to hear their matter. The Land Tribunal may also advise the parties to use such mediation or may refer the parties to an independent mediator, appointed by the Tribunal, but agreed to by the two parties.
The tribunals accept evidence that would not ordinarily be admissible in the normal courts of law (11).
The Local Council Court (LCC) is a system created to complement the formal courts with more informal courts; they are designated in every village, parish and subcounty to function as courts. Among other issues, these courts deal with customary law disputes relating to customary marriages, such as the marital status of women and the identification of customary heirs. They might also be called upon to decide on family property upon divorce (11).

Práticas de fato na herança

Because land tenure is often regulated according to the marriage regimes in place, customary marriages, which are often polygamous and not legally registered, do not guarantee women’s rights to land for inheritance (3).
According to customary laws, even when there is a daughter who would be a lineal descendant, sons almost always inherit the father’s land. Next in line are the deceased person’s brothers, uncles and other extended male family members (11).
A customary heir is “the person recognized by the rites and customs of the tribe or community of a deceased person as being the customary heir of that person”. In case a deceased person dies without leaving a will, a customary heir receives 1 percent of the deceased person’s estate. When there is no customary heir, the legal heir receives this same percentage (11).
When a woman’s parents die while she is already married, in most groups, she is not considered at all for inheritance. Specifically, in the Banyankore and Baganda groups, a woman’s right to inherit land is only viewed in terms of her responsibility to take care of her children. Without children, women have no independent right to own land. In other communities, such as the Bushenyi, sons automatically inherit their father’s land (3).
Widows are denied all rights to inherit land under customary regimes. A government study of men’s wills showed that only 10 percent of men left their land to their wives in a trust for their children, while 90 percent of the wills directed the land to be given to the children directly and stipulated that the wife would be taken care of by the children (3). A widow is only ensured of her continued occupation of the residential property she used to occupy with her husband, but does not have the right to control this property in any way. Also, as soon as a widow remarries, her occupancy rights to this property expire (11).
According to the patriarchal system of inheritance in place in most of the 56 indigenous communities, the male kin of the deceased will take care of the survived wife and children. De facto, this rarely happens and often the wife and children are dispossessed of the family’s assets and forced to move back to the widow’s parents’ home, where she becomes dependent on her male relatives (11).
Several ethnic groups practise matrilineal land inheritance. These include the Acholi, Kigezi, Lango and Alur (3).
Under the mailo scheme, women began to inherit more land and some even bought land. In the 1990s, a study showed that 39 percent of female-headed households had inherited land (although smaller plots than men) and that 30 percent of female-headed households had bought land (3).
The Muslim minority in the country refer to the 1964 Marriage and Divorce of Mohammedans Act, which states that the Sharia Law, which is the Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet, shall govern all marriages and divorces between Muslims. According to the Quran, a Muslim male takes double the share of the female, according to Sura 4 Verse 11 of the Quran. When a man dies leaving a wife and children, the wife receives one-eighth of the net estate. When there are no children, the wife receives one-fourth. In polygamous marriages, the co-wives have to share the one-eighth or the one-fourth (11).

Discrepâncias e vazios entre direito escrito e leis consuetudinárias

Article 21(2) of the 1995 Constitution prohibits discrimination on the grounds of sex. However, application of Islamic and customary laws to the extent that daughters inherit fewer shares or nothing at all constitutes a violation of the equality and non-discriminatory principles expressed in the Constitution.
Also, the rights of widows are not equal to the rights of widowers: widows are only ensured their continued occupation of the residential property they used to occupy with their husbands and do not have the right to control this property in any way. Also, as soon as a widow remarries, her occupancy rights to this property expire (11).
Although constitutional provisions protect gender equality, the particular land tribunal applies the constitutional principles in dispute situations. It has been reported that the Local Council Courts routinely make gender-biased decisions, especially in marital property inheritance cases (3).
There are also discrepancies among statutory norms. Although Article 21(2) of the Constitution prohibits discrimination on the grounds of sex, Section 3(1) of the Succession Act, by including the definition of legal heir, violates the Constitution and discriminates against women. A legal heir is defined as the living relative nearest in degree to a deceased person who has left no will, with the qualifying provision that a male will be given preference over a female (11).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography