This Section primarily highlights property rights under General Law. Property rights under customary law and Islamic law are covered in the section below on the role of traditions.
1. Ownership and Administration of Property Generally
Under Section 15 of the Constitution, “every person” is entitled to the enjoyment of property and protection from the deprivation of property without compensation. However, the Constitution does not directly address the right to purchase, own or possess property.Sierra Leoneans in the Western Area of the country, primarily the areas around Freetown, the nation’s capital, appear to be able to own private land through laws such as the State Lands Act, No. 19 of 1960 (related to grants of land from the state) and the Limitation Act, No. 51 of 1961 (related to adverse possession). The General Law, as it applies in the Western Area, does not contain any gender related differences in the right to own or administer property.1 Much of the land in the rest of the country, however, is communal land under the custodianship of local chiefs. The limitations related to women’s property rights under this chieftancy or communal land is discussed in further detail in the section below on the Role of Traditions.
Section 27 of the Constitution further protects women by prohibiting any law which is discriminatory either of itself or in its effect, and prohibits discriminatory treatment by virtue of any law or in the performance of the functions of any public authority (the “equality” provision). The Constitution, under Section 171(15) firmly establishes that the Constitution is the supreme law in Sierra Leone and thus any law found inconsistent with an of its provisions, including Section 27, will be declared to be void and of no effect to the extent of any inconsistency with the Constitution.
Nonetheless, the Constitution nullifies much of the power of the equality provision because it includes several exceptions for existing laws which are discriminatory in purpose or effect against women. For example, the equality provision does not apply to adoption, marriage, divorce, burial, devolution of property on death or other interests of personal law.2
In addition, the Constitution excepts customary law from the ambit of the equality provision.3 As discussed in more detail in the section on the Role of Traditions, customary law in many parts of the country prohibits or otherwise discourages women from owning or freely administering property. Women, due to this Constitutional exception, do not have the protection of the equality provision even though customary law is inconsistent with this provision of the Constitution. Customary law applies in 12 of Sierra Leone’s 14 districts,4 and thus the Constitutional exception enables the discriminatory treatment of women in much of the country.
2. Inheritance of Property
The 2007 Devolution of Estate Act allows a woman to inherit her husband’s estate upon his death.5 An estate means “all interest in land and chattels real and personal, choses in action and other property whatsoever of which the intestate was legally competent to dispose during his lifetime and in respect of which his interest has not been terminated by or on his death.”6 If there are no children, the whole estate devolves to the spouse. If there are children, the law specifies the percentage that each party should receive, unless superseded by a will. The surviving spouse receives 35%, the surviving child, 35%, 15% to a surviving parent, if any, and 15% in accordance with customary law or Muslim law, as applicable.7 As such, the law also provides protections for female children in addition to protections for widowed wives.
While this is a significant development in the law, the Act only applies if the husband owns the property outright, and not if the property is family or communal property held under customary law.8 As discussed more fully in the section below on traditional laws, because much of the land in the provinces of Sierra Leone is either communal or family holdings, customary law and its limitations on a woman’s power to inherit the land still severely restrict the ability of women to inherit property in the country, despite the 2007 Act.
The Non-Citizens (Interest-in-Land) Act, No. 30 of 1966 restricts the right of non-citizens from acquiring any interest in land other than a lease less than twenty one years without first obtaining a license from a Board consisting of Ministers responsible for Trade and Industry, Lands, Finance, Development and the Attorney-General.9 The law applies to land in the Western Area of the country. The Provinces Land Act, Cap. 122 of 1960, imposes similar restrictions in the Provinces for the acquisition of land by non-natives.[x] Non-natives, including women, have serious impediments to property ownership under the law.10
- 1. See, e.g., CEDAW, Sierra Leone: Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, Combined initial, second, third, fourth and fifth periodic reports of States parties, CEDAW/C/SLE/5, Dec. 14, 2006. (“There is no discrimination between women and men under the Civil law as there are no restrictions placed on individuals in concluding contracts and administering property. Women can also freely conclude contracts and administer property in their own name as individuals.”)
- 2. Section 27(4)(d).
- 3. Section 27(4)(e).
- 4. http://www.irinnews.org/report/95705/sierra-leone-fighting-for-women-s-right-to-land
- 5. Sierra Leone Devolution of Estates Act of 2007, Part II, Art. 3, cl. (2).
- 6. Id. at Part I, Art. 2.
- 7. Id. at Part II, Art. 3, cl. (8).
- 8. Sierra Leone Devolution of Estates Act of 2007, Part I, Art. 1, cl. 3.
- 9. See also, http://www.britishcouncil.org/land-and-pro-poor-change-in-sierra-leone.pdf at 1.
- 10. See "Land Tenure in Sierra Leone: The Law, Dualism and the Making of a Land Policy" By Ade Renner-Thomas at Ch. 5.