By IPS Correspondents
MZUZU, Malawi, Dec 29 2010 (IPS)

Seated on a wooden bench at her Katoto township house in Mzuzu, Grace Mkandawire’s face reflects the traumatic experiences she has endured since her husband’s death in 1998. She looks lost and confused and as she narrates her story there is fear, hatred and resignation that Malawi’s Marital Property Law of (1882) disenfranchises poor women like her.

While Malawi’s Constitution states that women are entitled to “a fair disposition of property that is held jointly with a husband” when a marriage ends, the current law considers property to be held “jointly” only if they had made direct financial contributions to said property.

Mkandawire has painful memories of her family’s heydays. “My husband had 19 cars, a construction company, houses and over MK40 million (US$ 3 million) in various banks but I only inherited my three children,” Mkandawire told IPS.

Her sister-in-law took all the property, including various houses, leaving her with virtually nothing. “I had to start from scratch to buy even household utensils and furniture,” she added. One of Mkandawire’s children was diagnosed with depression and had made numerous suicide attempts because he could not come to terms with their situation. He eventually died of ulcer complications.

Mkandawire also suffered from bouts of depression but managed to pull through with counselling and medication.

“We acquired all the property together with my husband. In fact, when he finished college and was unemployed it was me who supported him from my meagre teachers’ salary. His relatives never helped him,” said Mkandawire, who has been teaching for 30 years now.

But the government is also fighting back, saying WLSA has failed to produce any identifiable women who have been affected by said law.

Senior Legal Advocate Thabo Chakaka Nyirenda, who is representing the Attorney General, is dismissive of the “hypothetical and imaginary” issues raised by WLSA.

According to WLSA-Malawi, many women in Malawi continue to be short- changed upon dissolution of marriage or death of a husband because they have never had a fair disposition of property. They add that there is a strong international trend regarding the equal division of a married couple’s joint estate.

In numerous jurisdictions, including Austria, Canada, Croatia, Denmark, France, Germany, Greece, Italy, the Netherlands, New Zealand, Norway, Spain, Sweden and the United States, a marital-property approach reflecting an equalisation of marital assets upon marriage dissolution has been implemented in recognition of women’s non-economic and indirect contributions to marital property, according to WLSA – Malawi.

“We are looking at the woman holistically. Not only after the death her husband but her plight in marriage and after divorce,” explained WLSA National Coordinator Seodi White.

WLSA-Malawi is requesting the Constitutional Court to declare section 17 of the Married Women Property Act invalid, or as an alternative, to declare that section 17 be interpreted in a manner that recognises women’s contributions to marital property and guarantees that women receive half of the marital assets upon the end of a marriage.

“This is because in Malawi property is rarely registered in women’s names. Therefore they cannot prove a direct, economic contribution to its acquisition and maintenance,” said White.

“I don’t think the new law will work. Our culture here is the major obstacle here. The fact that lobola (dowry) was paid gives the man’s family power to do what they want,” Mkandawire noted.

According to a research paper by Duncan McPherson titled: “Property Grabbing and Africa’s Orphaned Generation: A Legal Analysis of the Implications of the HIV/AIDS Pandemic for Inheritance by Orphaned Children in Uganda, Kenya, Zambia and Malawi”, property grabbing appears to be merely a symptom of a much deeper crisis confronting Africa – that of chronic poverty.

“In affected countries, therefore, many (including women) see the dispossession of widows and orphans as a fact of life, not a problem to be overcome. Widows and orphans are expected to cope—the former by returning to their parents—the latter by accepting whatever guardianship is arranged for them, no matter how oppressive—not to complain,” McPherson notes. The issue here borders on culture versus the Constitution, Church and Society of the Livingstonia Synod. Paralegal Officer Chagara Phiri agrees with both McPherson and Mkandawire.

Phiri, whose office handles about 400 cases of property grabbing a year says “on property grabbing cases we first look at whether the marriage was officially recognised either through tradition or by other legal means.

“If the woman was not working it means she was only contributing (? – not working but only contributing?) ,therefore she is not entitled to half of the property,” he said.

But WLSA wants the courts to recognise household and care-giving work that is performed during the marriage as an economic activity that contributes to the acquisition of the family’s property.

However, in an interview with local media, Chief Mtwalo of Mzimba District blamed human rights activists for portraying some of the Ngoni cultural practices as domestic violence and property grabbing.

Mtwalo said it was mere speculation and exaggeration that widows in the district have had even their farm land grabbed.

But Love Ngulube, a widow who lives at Embangweni in the district, does not agree with the Chief.

“Since my husband did not pay a dowry I went back home to the village after his death. I started farming but village elders told me to stop, saying that I had no right to the land because I was a woman” Ngulube explained.

But the Chief is adamant and further challenges these claims:”Otherwise, how many pieces of land shall a woman have if she maintains the right to her first husband’s land while married to another man from the first husband’s clan?” he queried.

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