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Strategic litigation

Constitutional and legal protections that obligate informal sector mechanisms to protect fundamental rights are important because they provide an avenue whereby women and girls can litigate the practices of the informal sector in the formal courts. Strategic litigation is discussed in detail elsewhere in this module. The following cases provide examples of litigation that has led to changes in informal justice practices. The cases below deal with property and inheritance rights. Inheritance upon the death of a male family member often is a trigger for violence in the form of maltreatment of widows or other kinds of violence to force women to vacate property. Loss of property also leaves women vulnerable to violence because they cannot access their own means of support without property and other inheritance.

The Bhe judgment consolidated three related cases in which women or girls had been denied the right to inherit from male relatives under customary law, which had been codified through legislation in South Africa. Under the rule of primogeniture as well as section 23 of the Black Administration Act, the house of a deceased male became the property of the eldest male relative. The Constitutional Court declared the African customary law rule of primogeniture unconstitutional and struck down the entire legislative framework regulating intestate deceased estates of black South Africans. According to the Court, section 23 of the Act was anachronistic since it ossified ‘official' customary law and grossly violated the rights of black African persons relative to white persons. With regard to the customary law rule of male primogeniture, the Court held that it discriminates unfairly against women and illegitimate children on the grounds of race, gender, and birth. The Court notes that the customary law rule was in contravention of the South African Constitution as well as CEDAW. The result of the order was that all deceased estates are governed, until further legislation, by the Intestate Succession Act 81 of 1987, whereby widows and children can benefit regardless of their gender or legitimacy. The Court also made orders for the division of deceased estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse.

In 2006, two sisters living in the tribal regions of Pakistan challenged the decision of a tribal jirga to settle a case by using the longstanding traditional practice of swara. Swara is a practice of forced marriage of young girls as compensation for settling blood feuds among some communities in Pakistan. The Pakistan High Court declared the decision of the tribal jirga to impose swara illegal and a violation of human rights.

In Nigeria, the Nrachi custom enabled women to inherit the property of their father, but only in the event that they performed Nrachi which required that they never married and that they raised male heirs for their father. The Nigerian Court of Appeal, Enugu Division held that the Nrachi custom, which is designed to oppress women and compromises the basic tenets of family life, was inequitable and judicially unenforceable. The court held that a female child is generally entitled to inherit her deceased father’s estate and does not need to perform any customary ceremony such as Nrachi to exercise that right.

     •   Rono v. Rono (Kenya 2005)

In Kenya, a man died without a will, leaving two wives.  The first wife’s household included three sons and two daughters.  The second wife’s household included four daughters.  The High Court awarded a greater percentage of the estate to the household that included sons on the ground that the daughters would eventually marry and receive assets from their new families, a decision based on tradition.  Drawing guidance from the nondiscrimination provisions of the international human rights treaties that Kenya had ratified, the Court of Appeal overturned the High Court’s decision, finding that the unequal inheritance distribution violated the Constitution’s prohibition against discrimination on the basis of sex.