The Family: Further Issues

Lecture 6

Awedoba: July 2016

Coverage

• The African Family: a mechanism for addressing inequalities & imbalances;

• The African Family & Foreign Exchange in-flows;

• Family Ideology and Business management;

• The African Family and Property Devolution

• Law of intestate succession, etc.

Question for Tutorial Discussion

How do knowledge of and insight into African family dynamics help in understanding the necessity for laws of intestate succession, such as PNDC L111?

Economic Inequalities & Imbalances Within the family, and the community, there are

inequalities: there are the ‘haves’ and ‘have-nots’.

Within the country too: polarities between rural and urban.

Globally too, we see inequalities in wealth: Global North vrs. the South.

The well-off are usually unwilling to share; a motive is needed for rich to share with poor. Taxation has never been popular; charity does not work either.

However, there is a way - The African family.

Family: a mechanism for addressing inequalities & imbalances

Directly or indirectly, via the African family resources may flow from wealthier settings to deprived settings:

[Urban Rural; Western world Africa].

The family compels the well-to-do to share with the less well off. In any case, it is the basis for making claims on the well off.

Dealing with Imbalances

Within the family the well-to-do support the poor in various ways – directly and indirectly.

• Moral obligation; & past/future reciprocities;

• Desire to earn prestige & influence within the family;

• Rich family members who don’t share do not enjoy the goodwill of their kith and kin;

• Fear of witchcraft and sorcery also may compel the wealthy to be generous.

Dealing with Rural-Urban Imbalances

There are stark inequalities between rural & urban in incomes and in wealth distribution. The urban centres attract the best of the rural areas leaving the rural areas deprived. These imbalances are compensated for by transfers from urban to rural.

• Money & remittances received in the rural areas from relatives working in the cities;

• Capital investments: businesses & buildings;

• Support for ritual and social activities.

Family and Foreign Exchange Flows

Dilip Ratha (Migration & Remittances, WB) predicted that

.... remittance flows to the continent [Sub-Saharan Africa will] possibly reach.. about US$24 billion by 2012:

http://news.myjoyonline.com/business/201011/5564

1.asp; Nov. 9, 2010

The total private money transfers to Ghana for Jan-May 2011 was $4.2 billion.

In absolute dollars, Nigeria is by far the top remittance recipient in Africa

Overseas Incomes

Africans working & earning incomes outside Africa remit their families in Africa; they support institutions and they build mansions that they can return to. These remittances help to balance budgets. [Footballers – Asamoah-Djan, Drogba, etc]

It is reported that

The fact that remittances are so large, come in foreign currency, and go directly to households, means that these transfers have a significant impact on poverty reduction, funding for housing and education, basic essential needs, and even business investments.

African Family & Business ventures Business grows in a conducive environment. The family being so important in Africa we may ask if it can and does play a role in the establishment of businesses -private and public, small and large.

• Though not all, many businesses in Africa, even today, are run as family businesses or started as such.

• The African family however remains a double-edged sword. It can be an asset as well as hindrance.

Family: Potential Business Asset The Africa family can promote business.

Family norms: trust, accountability, goodwill, reciprocity, etc., can be exploited to establish and grow successful businesses.

The family can facilitate pooling capital to establish businesses, and manage them. The trust that relatives have in each other is a business asset.

Family assets can serve as collateral for bank loans.

History provides many examples of business ventures whose success was due to family and family ideology.

Nepotism & Business management Strong Family Loyalty: It may be good for certain

types of private business but it can also undermine modern business as a whole.

Family loyalty => nepotism => corruption.

• Where family interest clashes with official & national demands, office and country are losers.

- Embezzlement & misallocations can result.

- Family/ethnic mates are privileged in decision-making & allocation of public resources;

Clash of Family & Bureaucratic Norms Modern businesses prioritize experience, performance, skill, etc. Salaries, promotions, position/seniority etc. are based on these factors. These are based on merit/Achievement.

The African family prioritises age, sex, relationship, marriage status, family status, etc. in leadership and decision making. These are ascribed.

These modes two can clash. Kinship requirements can undermine Bureaucratic norms in work place:

- Inordinate respect for age can undermine work place discipline; traditional statuses can also affect exercise of authority in work place. So can gender differences.

- Some people will not take instruction from a female boss.

Case of Ephemeral Businesses As kinship norms are ambivalent about successors

some successful businesses do not outlive their originators because of family bickering about who should succeed.

A son/daughter, because of natural bonds, may know more about the father’s business than a nephew or uncle, yet entrepreneur’s children may be sidestepped in choice of heir to the deceased entrepreneur. Result: successors who mismanage and kill ventures.

In some cases family appoints an heir who is a relative.

Land is vested in families. Thus land tenure can pose serious problems for businesses in cities

Family African & Concepts of Property

Traditionally the family was implicated in property ownership and use. Though this is changing the family, however defined, has not relinquished its claims.

Property is anything tangible or intangible owned or can be possessed. This includes:

• Material objects: livestock, landed property, tools, utensils, cash, clothes etc.;

• Persons - spouses, children, relatives etc.; may be seen and treated as property. This calls to mind child-trafficking.

Non-Material Objects as Property Property may be non-material items:

- Songs, dances, ritual capacities i.e. divinatory expertise, therapeutic skills or some idea that you have invented or coined;

- An office, status or roles i.e. chieftaincy, priestship, or even a good name, etc.

• There were both collective family rights and individual rights to property. Even personal property can become family property.

Family: Transmission of resources Inheritance & succession: Norms and Laws

How property is managed has implications for conflicts and peace within the family.

Societies have rules prescribing how property, whether joint or private property, should be accessed, used or distributed.

Today, there are concerns that individual rights – children’s rights, women’s rights, etc., are infringed by the traditional inheritance & succession rules. This has called for laws.

Property Ownerships Joint Property: Collectively owned; may be vested in

chiefs, the ancestors etc., and administered by the head of family or clan.

Bona fide group members may have access to such property, but they may not alienate it without authority. Example – land.

Self acquired property: personal property - is available to individual to use as he/she chooses; the individual may dispose of such property as he/she sees fit;

• Such property may become joint property. When death occurs the lineage collectively, or family, may lay claim to such self-acquired property; it may then prescribe an heir – a next of kin, a person who should take possession. Invariably, the inheritor is a member of the lineage.

Gender & Exclusions: Women The widow in a patrilineal society is a non-inheritor;

she depends on her children to provide for her. If she has no sons, then she could suffer deprivation, especially in old age.

Daughters are not regular inheritors because allowing them to inherit the deceased father’s property could seem like alienation of lineage property, as husbands are often outsiders.

Same goes for sisters: they may or may not inherit even women’s property in patrilineal societies.

Denial of women’s Inheritance rights Other African Examples (BBC)

Simba Mhare (Harare, Zimbabwe): This happens in Zimbabwe - for many women the death of their husbands means the beginning of abject poverty.

Mabior Ayuen (South Sudan): In my tribe, the Dinka …, any property left by parents who die gets inherited by the older son. If .. no son … but only daughters, the sons of the daughters' uncle (their

father's brother) will inherit the property.. Women don't own properties in Dinka Bor culture.

Role of Courts: Case of Botswana women

The Botswana High Court in 2012 overturned a customary law which prevented women from inheriting the family home. The judge ruled that the law contravened the constitution, …. Edith Mmusi and her sisters have fought a five-year legal battle after their nephew said he was the rightful owner of their house.

http://www.bbc.co.uk/news/world-africa-19924723 12 October 2012;

Matrilineal Inheritance The next of kin (for the purpose of inheritance)

among matrilineal Akans:

1. The brothers /sisters of the deceased;

2. The sister’s children – nephews/nieces;

3. Some other member of the lineage.

Traditionally the lineage could select a suitable heir to inherit the property of the deceased: both assets and liabilities.

This is now changing, but these norms can still be found.

Exclusions in Matrilineal Systems

Children do not automatically inherit their deceased father’s property. They are not seen as members of the father’s lineage.

Widows/widowers do not automatically inherit the deceased spouse’s property.

The father cannot inherit the children’s property since he is from a different lineage; one that differs from that of the children.

As individual rights seem to be undermined laws become necessary to address injustices.

Nuclear Family vrs. Lineage

In Lineal societies where exogamy obtains, the members of the conjugal family do not all belong to one lineage. Thus conflict cannot be ruled out between conjugal family & lineage.

Conflict and contestations can centre on several factors e.g.:

- Loyalty & commitment [Father vrs Wife+Children];

- Property Rights: Entitlement to property belonging to a deceased parent or spouse (joint and individual property).

CONJUGAL FAMILY &THE MATRILINEAGE

HUSBAND /

FATHER WIFE /

MOTHER

CHILDREN

Wife’s Mother

Wife’s Mother’s

siblings, wife’s

siblings, wife’

sisters’ children

etc.

Husband’s Mother

Husband’s

Mother’s siblings,

Husband’s

siblings,

husband’s

sisters’ children

etc.

Own Matrilineage

People Wife’s Lineage

People Conjugal Family Family of Procreation

The Matrilineal Man’s Loyalty

EGO

Male

Own Matrilineage

Mother, siblings, uncles,

cousins

Wife and

Children

Father’s

People

The Family in Patrilineal Society

WIFE /

MOTHER

HUSBAND

/ FATHER

CHILDREN

Husband’s father

Husband’s father’s

father

Husband’s father’s

sibs, husband’s

siblings, husband’s

brother’s children

etc.

Husband’s mother

Wife’s father

Wife’s father’s

father, wife’s

father’s brothers,

wife’s brothers,

wife’s brothers’

children, etc.

Wife’s mother

Wife’s Patrilineage

People Husband’s

Lineage people Conjugal Family

INTESTATE SUCCESSION LAW, 1985: PNDCL 111

The law comes to the rescue of the nuclear family so that widows’ and orphans’ property rights are not denied.

PNDCL 111 law stipulates ff: a) ‘. . . where the estate [of the deceased] includes only one

house, the surviving spouse or child or both of them ... shall be entitled to that house …’

b) ‘. . . where the estate includes more than one house, the surviving spouse or child or both of them, . . . shall determine which house of those houses shall devolve to such spouse or child . . ’

PNDCL 111 (cont.)

The law stipulates that the residue of estate of the intestate should be shared out as follows:

• 3/16 of the estate should go to the surviving spouse. [i.e.

his/her share is less than a quarter]. <¼ • The surviving children take 9/16 of the estate. [i.e. more

than half of the estate]. > 8/16

• Surviving parents take one–eighth of the deceased’s estate.

• The remaining one-eighth of the estate should be distributed in accordance with the customs of the people.

PNDCL 111 (cont.)

The law also prescribes following:

• if there is no surviving parent, then 4/16 [¼] of the estate should be distributed in accordance with customary law.

• If the deceased is not survived by a spouse ¾ (12/16) of his or her estate should go to children.

• However, in the absence of a widow or widower and orphans, then the surviving parents’ share

increases to ¾ (12/16).

Distribution of Estate: Prescribed by PNDCL 111 (Based on Woodman 1965)

Section of the Law

Category of Kin or Affine Entitled

Spouse Children Surviving Parent

Customary Law

State

5 3/16 9/16 ⅛ ⅛

6 ½ None ¼ ¼

7 None ¾ ⅛ ⅛

8 None None ¾ ¼

11/10 None None None All

11 None None None If Not Applicable

All

NOTE PNDCL 111 applies where a person dies intestate, i.e.

without a will. It applies to all Ghanaians regardless of whether it is matri- or patri-lineal society.

• The law makes it possible for a large bulk of the father’s estate to go to the surviving children and the widow.

• Husbands (widowers) can claim significant portions of their deceased wives’ and children’s estates.

The surviving parent who would otherwise have had to be cared for by his/her children gets a share of the deceased child’s estate.

Assessment

• Is PNDCL 111 a good law or a bad law?

• People [widows and orphans] who have felt cheated by the husband/father’s lineage have taken the matter to court and won their cases.

• However, it takes a courageous widow to go to court.