As discussed above, Article 27 (4)(c) of the Constitution bans discrimination on the basis of sex.1 However, neither Islamic law nor customary law is subject to this provision.2 Under customary law, women are not treated as equal to men in the ownership or devolution of property. While Islamic law appears to grant women more property rights than customary law, these rights are often difficult to achieve in practice. As such, Sierra Leone’s traditional sources of law fail to provide sufficient safeguards for women concerning the ownership and administration of property.
1. Women’s Property Rights under Customary Law
Customary law applies in twelve of Sierra Leone’s fourteen districts (also referred to herein as “provinces”).3 The Sierra Leonean Constitution defines customary law as “the rules of law which by custom are applicable to particular communities in Sierra Leone."4 Customary law is adjudicated within the formal and informal justice systems.5 The Local Courts, part of the formal system, have both civil and criminal jurisdiction in customary matters, including cases related to marriage, divorce, inheritance, and land.6 In practice, most matters are settled outside the formal system through either family members or Paramount/local Chiefs.7 Customary practices are largely unwritten and may differ between and within ethnic communities.8 However, there are some shared practices common in many parts of the country. These practices are highlighted in this Section.
Most of the land in Sierra Leone is chieftaincy or communal land where chiefs serve as custodians of the land.9 Much of this land has, however, been individualized as holdings in the name of families or individuals, although the majority is held by extended families.10 Families have rights of access, use, and transfer by lease.11 Chieftaincy land can be acquired by purchase (to Sierra Leone citizens only) and land that is individualized can also be transferred by inheritance.12 However, transfers of family holdings are subject to the approval of all family members and the Paramount Chief.13 The primary route to ownership of land is inheritance.14
Women face numerous challenges under the current structure. First, where land is controlled by family members or community chiefs the decision-making power is usually reserved to men such as in land allocation or resolving boundary disputes.15 As a result, women may not have an equal voice in critical decisions related to land administration. Moreover, under most customary traditions women (including children) are viewed as property and generally have no rights to own land.16 Women are thus treated as inferior to men under these practices. Before marriage, a woman is subordinate to her father or brother; after marriage, her husband; and, if widowed or divorced, she is “returned” to her family where she usually becomes subordinate to a male relative until she remarries.17 While in practice women do own property in certain provinces, her husband or a male relative would still be considered the lawful owners of the land under customary law.18Women may execute valid wills to protect their property rights, however, many women are unaware of this right.19
Women who are widowed are particularly vulnerable to abuse. Whereas the husband of a woman who dies intestate always inherits all of her property, in some parts of the country a woman is not entitled to inherit her husband’s property, including the house she may have lived in.20 Upon his death, the widow may also be required or encouraged to marry the deceased’s brother.21 In addition, while the deceased husband’s family may allow the wife to have some or all of his property, she is not legally entitled to it under customary law.22 In some traditions, a woman may receive a share of her husband’s estate but sons receive a larger share than the widowed wife or daughters.23
Further, while the 2007 Devolution of Estates Act (detailed above) guarantees women important rights in the event of her husband’s death, the Act is routinely ignored by paramount chiefs or relatives who stand to gain from the application of customary law.24 The process for pursuing judicial remedies may also be too costly or confusing, thus making them inaccessible for many women.25 Moreover, the law itself exempts family, chieftancy and community property from the application of the Act.26 Because much of the land in the provinces is either communal or family holdings, customary law and its restrictions related to a woman’s power to inherit the land is still likely to apply.27
Exceptions to the norm do exist. For example, the Limba tribe recognizes women’s rights to inherit land to some degree.28 In the southern and eastern regions of the country, such as among the Temne tribe, women’s rights also tend to be stronger. For example, in addition to inheriting land, some women report the ability to form cooperatives to gain and retain access to land for cultivation.29 However, research suggests that these cases remain exceptions to the general rule and serious restrictions remain concerning women’s ability to own and administer property under customary law.30
2. Women’s Property Rights under Islamic Law
While 60% of the country practices Islam and many Sierra Leoneans have adopted Islamic rituals, day-to-day activities are influenced more by customary law than by Shariah law.31 Even where attempts to codify Islamic law have been made, for example in the Mohammedan Marriage Act, such codification rarely gives courts the discretion to inquire into whether the formalities of a Muslim marriage or divorce were truly compliant with Islamic law.32
Nonetheless, Islamic law appears to grant women more property rights than customary law.33 Islamic law recognizes women’s right to own property, and it entitles women to a fair distribution of marital property if they can provide proof of their contribution.34 Islamic law also entitles women to execute wills.35
In practice, however, women’s property rights under Islamic law are nearly as limited as they are under customary law.36 For instance, because it is often difficult to prove the woman’s contribution, the fair distribution described above is basically non-existent.37 Similarly, although women are entitled to execute wills, few women are actually aware of this right.38 As a result, most women die intestate and their entire estate transfers to her husband.39While under Islamic law a widow receives a portion of her spouse’s estate, that portion is limited.40 A widowed woman with children is entitled to just one-fourth of her husband’s estate.41 If the widow has no children, she is granted one-eighth of the deceased’s estate.42
- 1. Sierra Leone Const., 1991, available at http://www.sierra-leone.org/Laws/constitution1991.pdf.
- 2. See generally Pamela O. Davies, Marriage, Divorce, and Inheritance Laws in Sierra Leone and their Discriminatory Effects on Women, Human Rights Brief 12, no. 3, p. 18 (2005), available at http://www.wcl.american.edu/hrbrief/12/3davies.pdf.
- 3. Amnesty Int’l, Sierra Leone: Women face Human Rights Abuses in the Informal Legal Sector, AI Index AFR 51/002/2006 (May 16, 2006), http://www.amnesty.org/en/library/info/AFR51/002/2006/en.
- 4. Id.
- 5. Commonwealth Secretariat, Women’s Land Rights Handbook: Sierra Leone, 19 (2012), available at http://secretariat.thecommonwealth.org/files/250955/FileName/WomensLandRightsHandbook-SierraLeone.pdf.
- 6. Id.
- 7. Id.
- 8. Id.
- 9. Id. at 57; USAID, Property Rights And Resource Governance: Sierra Leone, 6 (Aug. 2010), http://usaidlandtenure.net/sites/default/files/country-profiles/full-reports/USAID_Land_Tenure_Sierra_Leone_Profile.pdf.
- 10. According to a study led by the Italian non-profit, Cooperazione Internazionale (COOPI), three-quarters of land in the areas they surveyed was either family or communal property. IRIN, Sierra Leone: Fighting For Women’s Right To Land (June 22, 2012), http://www.irinnews.org/report/95705/sierra-leone-fighting-for-women-s-right-to-land; USAID, supra note 9 at 6.
- 11. USAID, supra note 9 at 6.
- 12. Id. at 6-7.
- 13. Id.
- 14. Id. at 8.
- 15. Commonwealth Secretariat, supra note 5 at 65.
- 16. Id.
- 17. Amnesty Intl., supra note 3 at 1, 12; Commonwealth Secretariat, supra note 5 at 65.
- 18. Davies, supra note 2 at 19(“…women commonly own property today…”). But see, USAID, supra note 9 at 8 (“few women own land in Sierra Leone”).
- 19. See generally Davies, supra note 2 at 18.
- 20. Id. at 10; See also, Amnesty Int’l, supra note 3 at 10.
- 21. Davies, supra note 2 at 10; Amnesty Int’l, supra note 3 at 10.
- 22. Amnesty Int’l, supra note 3 at 10.
- 23. Amnesty Int’l, supra note 3 at 10.
- 24. Davies, supra note 2 at 18; http://www.irinnews.org/report/95705/sierra-leone-fighting-for-women-s-right-to-land
- 25. Amnesty Int’l, supra note 3 at 12.
- 26. Sierra Leone Devolution of Estates Act of 2007, Part I, Art. 1, cl. 3; Commonwealth Secretariat, supra note 5 at 111.
- 27. Id.; http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204163#wrapper
- 28. USAID, supra note 9 at 10-11.
- 29. Id.
- 30. Commonwealth Secretariat, supra note 5 at 65.
- 31. H.M. Joko Smart, The Place of Islamic Law within the Framework of the Sierra Leone Legal System, 18 Afr. L. Stud. 87, 98 (1980); Robert Groelsema, Worldmark Encyclopedia of Religious Practices, Vol. 3 (2006).
- 32. Smart, supra note 31 at 98.
- 33. See generally Davies, supra note 2 at 18.
- 34. Id.
- 35. Id.
- 36. Id.
- 37. Id.
- 38. Id.
- 39. Id.
- 40. Id.
- 41. Id.
- 42. Id.