"Succession Amendment Act 2022: A Game-Changer for Addressing Inheritance Disputes in Uganda"

"We all agree in principle that the current law is archaic and must be overhauled” Ms Monica Amoding, the Kumi District woman MP, who is also a former UWOPA chairperson[1].

The Black Law’s Dictionary[2]defines , Succession is the acquisition of rights or property by inheritance under the laws of descent and distribution. Similarly, the law of succession is generally concerned with the transfer or devolution of property of a deceased person upon death[3]. Law of Succession refers to the law that applies to a succession[4]. There are different kinds of succession and that is intestate succession where an intestate die without effectively disposing of his/her property by Will. Secondly. testate succession where a testate dispose his or property by Will before death[5]and finally partial intestacy where a person’s property passes under a will and partly intestacy[6]. The law of succession is largely governed by the Succession Act Cap 162 in Uganda. This essay seeks to examine, to a large extent, the impact the Succession Amendment Act 2022 will have in addressing succession challenges in Uganda.

In April 2021, the Parliament of Uganda passed a ammendment for Act entitled, “The Succession Amendment Act, 2021[7].The two ammendments were tabled by pairliament one a private member’s ammendment by Rossete Kajungu , Mutambi , MP Mbarara in 2018 and another on Behalf of the government by the Attorney General in 2021. The Committee ultimately proccesed both ammendments merging them into one and adopting the reform proposals This follows the Constitutional Court ruling in the case of Law & Advocacy for women in Uganda v Attorney General8 where the Court nullified a couple of sections from the Succession Act on grounds of discrimination of sexes especially against women. The major aim of the ammendment was to correct succession challenges in Uganda. In the words of one of the members, “It is a landmark piece of legislation that is aimed at bringing harmony in homes because there will be equality”[8]. Unfortunately, on August 17th 2021, the President returned to Parliament the Succession Amendment ammendment requesting its reconsideration[9]However on 10th April 2022, the President Assented to the ammendment that was reconsidred before pairliament

Before colonisation, inheritance was largely governed by customary law, then in 1906, the Succession Ordinance 1906 was adopted from the English law[10]. The Ordinance was largely filled with loopholes and discriminated against illegitimate children and relatives. This law did not exhaustively provide for testate succession thereby leaving Africans to continue using the customary way of succession alongside the statutory law thereby sowing the seeds of pluralism that surrounds the law of succession till today[11].

Due to these challenges posed by the Succession Ordinance 1906, the Succession Ordinance 1906 was passed and it provided for succession of estates of Ugandans dying intestate and restricted the rights of the illegitimate children and adopted children, the widows share was reduced from the 30 percent in the ordinance to 15 percent and also favoured the fathers in appointing a guardian of the minors over the mother[12]. Therefore, it was largely discriminatory on the basis of sex. The current Succession Act Cap 162 is a replica of the Succession Decree[13].

The Succesion ammendment act 2022 has addressed the orderly and smooth succesion of estates of deceased persons through the following insertion ,repeal of various provisions as laid here in bellow

Gender-neutral language. Previously, Uganda being a predominantly patriarchal state, the language of the Prinipal Act was mostly biased towards the male gender.however, now it is more gender-inclusive and friendly as it substitutes words for example: “a married woman or man” for spouse[14]; “man” to “person”—and inserts immediately after the word “his” the word “or her”, “father” the word “or mother”, “son[15]” the words “or daughter” “heir” “or heiress[16]” etc. This smoothens the succesion of the estate of the desceased as it creates equality in the distribution and it isnt discriminatory

The Succesion Act 2022 protects the intrests of all children as beneficiaries of the estate of the desceased ; initially from the Succesion Decree of 1972 that provided for the succesion of estates of ugandan’s dying intestate and restricted the illegitimate & adopted children. S.1 (a )[17]repeals the word legitimate and illegitimate under S.2 a[18]therefore making all children beneficiaries of the estate of the desceased regardless of being born out of marriage or being adopted. The same has been reaffirmed by the landmark East African Court of Appeal case Kajubi v. Kabali[19]were it was stated that both legitimate & Illegitimate children are entitled to bennefit from the estate of the desceased. Additionally, the new Act under Section 1 ( l)[20] will also harmonise the definition of child / minor to conform to the Constitution by replacing the age of the minority of twenty-one years with eighteen years per the Constitution[21].This smoothens the succesion of the estate of the desceased as it creates equality in the distribution

The Ammendement solves the problem of mismanagement of properties by executors or caretakers. Under the new Succession Amendment Act, caretakers have one obligation and that is to manage the assets until the children are of age[22]. These caretakers are installed by the family members or relatives and shall not have the right to own the properties. It makes it an offence for a customary heir, executor or caretaker who mismanages properties of the deceased by evicting the benneficiaries A person who evicts or attempts to evict a surviving spouse, lineal descendant or dependent relative who is entitled to occupy the residential holding or any other residential holding commits an offence and is liable to a fine not exceeding one hundred and sixty eight currency points, which is equivalent to 3.36 million Shillings or imprisonment not exceeding seven years or both[23][24].This is covered under Section 21 subsection 7[25]that is a new insertation to Section 36 of the principal Act.the same is re affirmed in Caroline Mbaijona & 2others v. James Mbaijona[26], were court revocked letters of admisnistration as a punishment for mismanagment of the desceaseds estate This smoothens the succesion of the estate of the desceased as the benneficiaries intrest is protected.

The Succession Amendment Act 2022 revises the percentage of the distribution of the estate of an intestate left to the surviving spouse, lineal descendants, dependant relatives. and customary hier

Notable are the new insertions in regard to distribution of property under Seection 14 of the that is a replacement of Section 27 of the Principal Act, Upon the death of a male intestate , the spouse will acquire 20 % of the estate , the Dependant relative will acquire 4% of the estate lineal descendant will acquire 75% in addition 20% of the estate shall be held in trust for maintainnce , education & welfare of a lineal descendant undertaking studies & isnt married , a minor child The Amendment act amended section 2728 and the spouse who dies will forfeit 50 percent of his or her wealth to the surviving partner according to a new law[27]. This is from the previous 15 percent that was initially introduced by the Succession Amendment Decree, 1972 and was later adopted by the Succession Act Cap 162 under section 27. It also provides that lineal descendants will share 41 percent from the previous 75 percent and the dependants will share the remainder 9 percent[28]. “But when you make a will, the law says you cannot dispose of all your property without giving your wife and all the children.” Mr. Jacob ObothOboth said[29]. Thereby solving the consistent succession challenges among families.

Further still, where there are no lineal descendants, the President proposed that the widow or widower should receive 50 percent of the estate and the dependant relatives to receive 49 percent and the customary heir 1 percent of the estate32 this is eflected in Section 14 c of the . In the case of Uganda v Jemima Kyanda[30], court held that a woman in Uganda is capable in law to hold and own her own property. Therefore, it is not necessary to side-line a widow from her deceased husband’s property. This solves the inequality challenge that existed before since it only provided for the male intestate and also accords a fair and reasonable share for everyone.This smoothens the succesion of the estate of the desceased as it creates equality and fairness in the distribution of the desceseds estate.

Wills: In as far as attestation of wills is concerned, the Amendment has made it a requirement for each witness to write his or her name and address on every page of the will in the presence of the testator. According to the Section 53(2) (a) of the Principle Act, a will that was written wholly by the testator with his or her own hand did not require signatures or attesting however, the Amendment Act provides that witnesses to a will are now required to write their names and addresses on each and every page of the will, in the presence of the testator (the person making the will).This is in line with the case of Administrator General v. Norah Nakayinga for a will to be valid it must be attested to and signed by the desceased . Furthermore Section 31 (b) of the Amendment Act provides validity of the rest of the will where a person attesting the will does not write his name or address of a page of the will as required, the will shall be valid except that page of the will which does not bear the name or address of the testator. This addresses the issue of undue influence, fraud, forgery of wills as well as duplicating wills as witnesses are required to sign on every page.This smoothens the succesion of the estate of the desceased as it is a way of making sure that the will is valid and not vitiated by impeding factors.

The succession act was discriminatory to spouses that had undergone separation. Subject to Section 30(1) of the Principle Act that dealt with intestate distribution, provided that the wife or husband of an intestate would not take any interest of the intestate if the at the death of the intestate, the had separated as the member of the same household with only an exception of a spouse absent on an approved course of study in an educational institution. However, pursuant to the Amendment Act, despite Subsection (1) of the Principle Act, the court may, for a good reason decide that subsection (1) doesn’t apply to a surviving spouse on an application files within six months of the intestate’s death by or on behalf of the surviving spouse. The Amendment Act provides that where the intestate was, at the time of his/ her death, the one who had separated from the surviving spouse, a member of the same house hold, then the surviving spouse would be entitled to their portion. The Amendment recognizes the surviving spouse and provides affirmative action for their rights.

The succession Act was ambiguous in terms of property to be disposed off by a married woman, however, Section 21 of the Amendment Act is to the effect that anyone making a will is now required by law to provide for their spouses, lineal descendants and dependent relatives.

Pursuant to Section 21 of the Amendment Act, a spouse may during the subsistence of a marriage hold property in his or her name and may by will, dispose of such property. This enables a spouse either the husband or wife to hold property in his or her name respectively, something that was not provided for by the Succession Act since in Section 36(2) it majorly provided that for the female gender. Therefore one can argue that the Amendment Act promotes gender equality in one way or another.

The Amendment Act also added other factors that make a will void for instance undue influence, duress, mistake of fact, or abuse of position of trust or vulnerability rather than just fraud, coercion and importunity as stipulated under Section 47 of the Principle Act. This widens the scope under which wills can be considered to be void thereby promoting consistency in the process of drafting wills. In an attempt to save wills that are inexistence at the commencement of the amendment Act from the strict application of the amendments, it provides that a will made before the coming into force of the amendment shall not be affected by the provisions of the amendment as per Section 341(5) of the Amendment Act.In Wingrove v. Wingrove[31], it was stated that undue influence is sufficient to invalidate a will. Sam Lwanga v. Sam Galiwango, highlights that grant of Letters of administration in refference to a will will be denied if there is fraud

Guardianship: In Re Alicia Mirembe Angliss a minor, a gurdian was defined as a person having parental responsibility for a child Either parent of a minor may, by will, appoint a guardian for the minor.The ammendment also introduces various types of guardianship which include, testamentary, customary and statutory guardianship whose provisions align the Succession Act with the Children’s Act, Cap 59 and give priority to the latter Act in cases of conflict regarding issues of guardianship. A customary guardian who shall be appointed by family members of a minor in given circumstances must be confirmed or rejected by court through an application to Court. Qualification of guardianship. Persons who qualify as guardians have been listed and statutory guardianship has been restricted to citizens of Uganda. Custody by a guardian. This is not automatic as a guardian shall apply to court to exercise powers of custody and disposing property of minors.Removal of a guardian. The ammendment has given these powers to only the High Court and not any court of jurisdiction in Uganda. One of the challenges in the succession law is that of discriminatory provisions of the law and they are found in the sections of the Principal Act as will be listed under the provisions for Domicile and Guardianship. This was shown in the case of Law and Advocacy for Women in Uganda v A.G[32]The principal Act[33]provides that the domicile of a woman follows that of the man she is married to unless they are separated by a court of competent jurisdiction, Succession to immovable property located in Uganda and Kenya is regulated by the national laws whatever the location or domicile of the owner at the time of death; in both countries, succession to moveable property is regulated by the law of the country of the domicile of the owner at the time of death. The provision that a wife takes up the domicile of the husband is discriminatory and falls short of the constitutional provisions of equality of partners at marriage, during marriage and after divorce. Meanwhile, the amendment[34]gives a spouse a choice to either acquire the domicile of the other spouse or not. The principal Act[35]provides that a father may appoint a guardian for his child through a will; there was no provision for a mother to do the same; and in appointing a testamentary guardian only. The Amendment provides that a parent may appoint a guardian for a child through a will; the discriminatory provisions were changed in the Amendment Act to be gender-neutral and inclusive.

Another challenge is misuse/abuse of power by the appointed guardians most especially in handling the child. The Amendment Act[36]reduced the number of family members that may be appointed a statutory guardian; only a citizen of Uganda can be a statutory Guardian the Act and included a customary guardian to be appointed in accordance with the custom of the people in certain circumstances40. The Amendment Act provides for the power of a guardian which he needs to apply to court to exercise and also provides punishment for a guardian that misappropriates a minor’s property, not to forget that where a guardian does not do his work very well or is irresponsible the court can remove the guardian. This is in view of protecting minors that have guardians with selfish interests. It also provides for the termination of guardianship where the guardian is dead, the minor is dead or attains the age of 18. The Amendment Act provides that in case of conflict with the Children Act, the Children Act will always take precedence; this is because in any issue or case concerning a child the welfare of that child is the first in priority of the court and it must be achieved

Domicile: In Whicker v. Hume , Domicile was defined as the habbitationplacd with the intention of remaining there forever until the intention is so changed by some circuirmstances The introduces domicile of choice where a person may upon marriage, acquire the domicile of his or her wife and upon dissolution of marriage, a spouse may acquire any other domicile. In addition, the ammendment repeals the provision that provides a woman’s domicile follows her husband

The new succession act gives a clear illustration of a lineal descendant, Section 1(j) of the succession amendment act (2022) by inserting imediately after paragraph (m) of the principal a t defines a lineal descendant as a person who is descended in a direct line from the deceased and includes a child, grandchild,and any person relating to the deceased in a direct descending line up to six degrees downwards.

S(20) of the principal act was also amended and the amendment defines lineal consaguinity as that which subsists between two persons, one of whom is descended in a direct line from the other. This has helped to remove the confusion in the earlier definition of lineal descendant as before .

The new amendment act protects wives as beneficiaries of the deceased estate. By repealing section 27 of the Principal Act , the amendment provides that the spouse has a share of 20% of the deceased's estate unlike before where they were to receive only 15%, where the deceased is survived by a customary heir, lineal descendant, spouse and dependant relative. This helps to protect women's rights to inherit and own property under Article 26 of the Constitution which provides for everyone's right to hold property and as was stressed out Best Kemigisha V Mable Komuntale where she was being denied to inherit the husband's property. This also challenges all customary laws that do not allow women to inherit their husband's property. Futhermore in Christine Male v. Namanda & Anor. It was stated a validly married wife to the desceased should be given first priority in distribution of the estate of desceased

Maintenance: The Act provides that a testator must provide adequately for the maintenance to spouses, children, lineal descendants and dependents who can apply to court for maintenance if they are not properly cater for or left out in the will under Section 22[37]of the ammendment which replaces Section 37 of the principle Act.In Byabazire v. Bwongo ,Maintenance was be defined to mean the obligation to provide for another person for example a minor in this case it was stated that a girlfriend wasn’t entitled to maintainance.

Discretion of Court in the grant of probate or letters of administration: The Act grants court discretion to determine whether a person who is otherwise qualified to be granted probate (right to administer the will) is fit and proper and may defer the appointment to a later date or refuse to grant probate where an applicant is not suitable. This is under Section 39[38]of the ammendment wherein Section 190 of the Principal Act is Amended.

Administration of an estate: the Act introduces a provision for surviving spouses to have preference over any other person in the administration of the estate of the deceased. This is under Section 42 wherein there is an insertion of Section 201A immediately after Section 201 of the Principal Act.

Timeline of administration and execution of an estate: An administrator or executor shall administer the estate for a period not exceeding 2 years unless extended for a further period of 2 years by court. This is seen under Section 54 wherein Section 258 of the Principal Act is amended.

Intermeddling: Intermeddling can be defined to mean interference in something that is not ones concern The Act broadens the section that provides for intermeddling and makes it an offence. It adds that intermeddling constitutes acts done even before the grant of letters of administration or probate and the penalties for intermeddling are also set ot in the Act. This is under Section 57 wherein Section 268 of the Principal Act is Replaced.

Consent: The Act introduces a requirement for the consent of spouses and lineal descendants prior to disposal of estate property by administrators.under Section 58 wherein Section 270 is replaced in the Principal Act.

However, the Amendment has not entirely been able to address the lacuna that existed in the Succession Act and this will be my next area of discussion;

The ammendment also faces a loophole has failed to address the concern of those who profess the Islamic religion. The distribution scheme which is provided for under section 27 of the Act does not address the religious requirements for Muslim during distribution of people. Article 29[39]guarantee’s a person’s freedom to practice any religion and manifest such practice which shall include the right to belong and practice in practices of any religious body or organization. The fact that the ammendment doesn’t respond to the distribution of property in regards to the Muslim is a contravention of Article 29 hence a loophole that it has failed to address. It also apposite to note that the Muslims in Uganda follow provisions of sharia law and hadith stipulated in the Korean in determining succession matters.In an interveiw with New Vision Shiek Mayanja noted the issue in regards the Succesion ammendment act 2022 and stated the problem lies with how the act regards all children equal as in islam it is the contrary.

“An illegitimate child can only bennefit if the desceased allocated the share to him when still alive”per Shiek Mayanja[40]

In conclusion, to a great extent the Succesion ammendment act 2022 is progressive in its attempt to create gender equality and equality between all persons irrespective of social status and ability/disability.as a form of resolving challenges in regards the succesion of the estate of the desceased however It is agreeable that it has its short comings such as faliure to have the islamic norms of succesion included in the act

BIBLOGRAPHY

TABLE OF STATUTES

1. The 1995 Constitution of Uganda as Ammended

2. The Succession Ordinance 1906

3. The Succession Ordinance 1906

4. The Succesion Act CAP 162

5. The Succesion Act CAP 162 as Ammended in 2022

TABLE OF CASES

1. Law & Advocacy for women in Uganda v Attorney General Constitutional Petitions No. 13/2005 and 05/2006

2.Kajubi v. Kabali (1944) EACA 14

3.Caroline Mbaijona & 2others v. James Mbaijona (Civil Appeal 3 of 2004) [2005] UGSC 2 (21 February 2005)

4.Uganda v Jemima Kyanda [1977] HCB 111

5.Wingrove v. Wingrove (1885) 11 P. D 81

6.Christine Male v. Namanda & Anor (1982) HCB 140

7.Whicker v. Hume (1858) HL

8.Re Alicia Mirembe Angliss a minor (Miscellaneous Application 49 of 2003) [2004] UGHCFD 1 (22 March 2004);

9.Sam Lwanga v. Sam Galiwango SCCA No. 48 of 1995

10.Byabazire v. Bwongo (Civil Suit 629 of 1992) [1993] UGHC 22 (22 February 1993)

DICTIONARY

1. Bryan A Garner, Black laws Dictionary 4th Edition, Pg 4490

TEXT BOOKS

1.Parry and Clark, The Law of Succession, 11th Edition (2002), Sweet and Maxwell.

.2. Andrew Lwobi, Essential Succession (2nd Editio, CAVENDISH PUBLISHING LIMITED 2001). .3.H F Morris: The law of succession in Uganda, 1971 London Press.

Refferences

1.https://www.monitor.co.ug/uganda/news/national/mps-call-for-amendment-of-proposed-successionlaw-1840760

3.‘Inside the New Succession Law’ (PARLIAMENT OF UGANDA, 31 March 2021)

<https://www.parliament.go.ug/news/5053/inside-new-succession-law> accessed 22 September 2021.

4. Misairi Thembo Kahungu, ‘How Families Will Share Wealth When Spouse Dies’ Daily Monitor (Kampala, 2 April 2021) <https://www.monitor.co.ug/uganda/news/national/how-families-will-sharewealth-when-spouse-dies-3345582?view=htmlamp> accessed 22 September 2021.

5. URN, ‘Museveni Declines to Assent to Sexual Offences, Succession ammendments’ The Observer (17 August 2021) <https://observer.ug/news/headlines/70897-museveni-declines-to-assent-to-sexualoffences-ammendment-and-succession-ammendment> accessed 22 September 2021.

6. ‘THE SUCCESSION (AMENDMENT) ammendment, 2018: A RAY OF HOPE FOR INCREASED TENURE SECURITY AND ECONOMIC EMPOWERMENT FOR WOMEN’

<www.landnet.ug>.

7. CENTRE FOR PUBLIC INTEREST LAW, ‘THE SUCCESSION(AMENDMENT) ammendment,

2018, IS BEING CONSIDERED BY PARLIAMENT ONCE AGAIN.’

<https://cepiluganda.org/2974/the-succession-amendment-ammendment-2018-is-being-consideredby-parliament-once-again/> accessed 22 September 2021.

8. ‘Inside the New Succession Law’ (n 5).

9. https://realmuloodi.co.ug/the-milestones-in-the-newly-signed-succession-law-2022/

10. https://www.abmadvocates.com/succession-law-in-uganda/

11. https://www.newvision.co.ug/category/love/muslim-leaders-ask-museveni-to-reject-success-107765

[1] https://www.monitor.co.ug/uganda/news/national/mps-call-for-amendment-of-proposed-succession-law-1840760 [2] Bryan A Garner, Black laws Dictionary 4th Edition, Pp4490 [3]Parry and Clark, The Law of Succession, 11th Edition (2002), Sweet and Maxwell. [4] ibid. [5] Andrew Lwobi, Essential Succession (2nd Edition, CAVENDISH PUBLISHING LIMITED 2001). [6] H.F Morris: The law of succession in Uganda, 1971 London Press. [7] ‘Inside the New Succession Law’ (PARLIAMENT OF UGANDA, 31 March 2021) <https://www.parliament.go.ug/news/5053/insidenew-succession-law> accessed 22 September 2021. 8 Constitutional petitions Nos. 13/05/06 [8] Misairi Thembo Kahungu, ‘How Families Will Share Wealth When Spouse Dies’ Daily Monitor (Kampala, 2 April 2021) <https://www.monitor.co.ug/uganda/news/national/how-families-will-share-wealth-when-spouse-dies-3345582?view=htmlamp> accessed 22 September 2021. [9] URN, ‘Museveni Declines to Assent to Sexual Offences, Succession ammendments’ The Observer (17 August 2021) <https://observer.ug/news/headlines/70897-museveni-declines-to-assent-to-sexual-offences-ammendment-and-succession-ammendment> accessed 22 September 2021. [10] ‘THE SUCCESSION (AMENDMENT) ammendment, 2018: A RAY OF HOPE FOR INCREASED TENURE SECURITY AND ECONOMIC EMPOWERMENT FOR WOMEN’ <www.landnet.ug>. [11] ibid. [12] ibid. [13] ibid. [14] S.1 p of the Succesion act 2022 [15] S. 1 o of the Succesion act 2022 [16] S.1 ( c) ( e) of the Succesion act 2022 [17] The Succesion Act 2022 [18] The Succesion Act CAP 162 [19] Kajubi v. Kabali 1944 EACA at page 14 [20] Succesion Act 2022 [21] CENTRE FOR PUBLIC INTEREST LAW, ‘THE SUCCESSION(AMENDMENT) ammendment, 2018, IS BEING CONSIDERED BY PARLIAMENT ONCE AGAIN.’ <https://cepiluganda.org/2974/the-succession-amendment-ammendment-2018-is-being-considered-byparliament-once-again/> accessed 22 September 2021. [22] ‘Inside the New Succession Law’ (n 5). [23] https://realmuloodi.co.ug/the-milestones-in-the-newly-signed-succession-law-2022/ [24] ibid. [25] Succesion Act 2022 [26] Caroline Mbaijona & 2others v. James Mbaijona SCCA NO. 3 of 2004 28 THE SUCCESSION ACT CHAPTER 162. [27] Kahungu (n 7). [28] ‘Inside the New Succession Law’ (n 5). [29] Kahungu (n 7). 32 URN (n 8). [30] [1977] HCB 111. [31] Wingrove v. Wingrove ( 1885 ) 11 PD 81 [32] Law and Advocacy for Women in Uganda v Attorney General, Constitutional Petitions No. 13/2005 and 05/2006 [33] Section 14 and 15 of the Succession Act Cap 162 [34] Section 6 of the Succession (Amendment) Act 2022 [35] Section 43 of the Succession Act Cap 162 [36] Section 25 of the Amendment Act in replacement of Section 44 of the principal Act 40 Section 44A of the Succession Act [37]Succesion Ammendment Act 2022 [38] Succesion Ammendment Act 2022 [39]Article 29(1)(c) of the Constitution of the Republic of Uganda 1995 As Amended. [40]https://www.newvision.co.ug/category/love/muslim-leaders-ask-museveni-to-reject-success-1077