Saturday, February 4, 2023

District Tribunal Denies Widow Inheritance Rights

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By Yankuba Jallow

The district tribunal of Nianija District has denied an octogenarian widow called Salamata, the right to inheritance by declaring that women cannot inherit.

This happened when the Tribunal, presided over by Chief York, shared a compound between two brothers – Malick Sallah and Gibbi Sallah, on 10th December 2022. The President of the Tribunal, who is also the chief of the district and who goes by the popular name ‘Oustass, said the widow cannot inherit her own father, adding that she does even own the house she is occupying.

Salamata stays in the compound at the mercy of her brother Gibbi Sallah, and as a farmer, she does not have a place to launder or cook, in her own father’s compound.

Salamata has now been rendered homeless by the judgment of the the tribunal because her father’s compound has been divided between her two brothers.

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But Salamata who is dissatisfied with the judgment of the Chief, wants to appeal this case, and made a request for a copy of the judgment, only for the Chief to tell her that it is not yet typed.

“I will not give you a copy of the judgment. You are not entitled to a copy of judgment. The old woman should pay her fine of D1,000) and that’s all,” Chief York said. The Chief in his ruling said he fined her for dumping at a place which he already allocated to Malick Sallah, after earlier fining her two thousand, five hundred dalasi (D2,500) which he later reduced at his own discretion, to one thousand dalasi (D1,000).

“This fine was supposed to be paid immediately after I passed my judgment, but I did not want to arrest you hence the reason why I let you go. You have to pay the fine,” the Chief said.

Chief York told the old woman in her face: “You must pay the fine. You can go to the High Court or Supreme Court.”

The Chief said the judgment will be typed and he will sign it after which he will take it to the Governor of the Region for endorsement.

“I will only serve Malick and Gibbi. You can take from them and get a photocopy. You won’t be provided with a copy,” Chief said.

Kumba Harry Cham – a tribunal member – indicated that she was not present at the time of the trial and judgment, but endorsed the judgment. The Chief claimed that there was already judgment passed since last year and the compound was divided between Gibbi and Malick. But the Chief has not explained why a judgment passed since last year was not yet typed and why Salamata was not a party to the case?

Chief York ordered at the time of sharing the compound between Gibbi and Malick, that he does not want any woman to go with them or to witness what they were doing.

“You, Salamata and all other women should not follow me. If you come there I will fine you,” he said.

Salamata and her children waited at the residence of the Chief, which serves as the tribunal while the Chief and his delegation went to share the compound between the brothers. The Chief’s order was written with a pen which he signed and stamped at the tribunal that anyone who follows them to the compound, will be fined. The Chief repeatedly said that anyone who goes to the compound without his authority will be fined. The Chief took a U-turn and sent someone to call Salamata to come to the compound. Salamata, knowing the order, declined and said she will not go. The Chief’s messenger insisted that she answer to the Chief’s call. Salamata then followed him to the compound only to be told that the property had been divided between Gibbi and Malick.

Women’s Right to Inheritance:

Under the Gambian Constitution, Section 7, customary law is recognized but it is subjected to repugnancy test. The repugnancy test includes the test of fairness, just and equitable. Customary law cannot be applied in The Gambia when it does not pass the repugnancy test. There is not a single law in the Gambia that makes provision that a woman cannot own shares. Shariah, which is Islamic Law as it regard marriage, divorce and inheritance, is also recognized as part of the laws of the Gambia. Both the Shariah and the Gambian laws recognize women’s right to inheritance.

Section 28 of the Gambian Constitution is about women’s right. It provides that “Women shall be accorded full and equal dignity of the person with men.” The same section of the Constitution provides further that “Women shall have the right to equal treatment with men, including equal opportunities in political, economic and social activities.”

Women’s right is placed under the category of fundamental human rights which courts, including District Tribunals are under obliged to respect and uphold. District tribunals are courts created by Act of the National Assembly.

The Gambian law and all other laws governing land or estate distribution, whether conventional or Islam, allow women to own land. The Chief decided on his own to deny Salamata shares in her father’s property.

The Trial

One Malick Sallah sued her half-sister Salamata Sallah, both natives of Buduk in Nianija District. The reason for the case was Malick accused Salamata of dumping refuse behind his house. The matter was not about inheritance or sharing of property. It was solely for the court to look into the matter of dumping rubbish at a place supposedly behind Malick’s house.

“You do not own any shares here,” the Chief told Salamata, adding “Go to the bush and dump – do not dump here because you do not own anything here.”

The Chief asked Salamata not to allow her goat to enter the place given to Malick. Chief York said any day Salamata’s goat enters Malick’s yard, he will take step against her and order her to pay a fine.

Jurisdiction of District Tribunals

Section 120 subsection (1) paragraph 3 of the 1997 Constitution of the Gambia gave basis for the establishing district tribunal tribunals. District tribunals form part of the judicature (courts) of the Gambia. The District Tribunal Act is the legislation that provides the jurisdiction/powers of district tribunals. The Constitution provides that judicial powers are vested in the courts and shall be exercised by them according to the respective jurisdiction conferred on them by law.

Human Rights Lawyer

Lawyer Fatima Jawo, a human rights lawyer said women’s right to inheritance is sacrosanct in law, including Islamic law – Shariah. She pointed out that this can be found in the Quran.

“The biological daughters and sons of the deceased are the rightful heirs,” she said.

She added that the widow is entitled to inherit her father.

“There is no law which prohibits a woman from inheriting her father. In fact, this is a right,” she said.

Women rights activists frowned at such court judgments. They questioned the base for the tribunal’s reasoning.

Salamata Sues Malick

Salamata sued Malick Sallah, who the Chief declared as the owner of half of the compound. It is the claim of Salamata that Malick frequently insults her and her lineage. She claimed that Malick is not giving her peace in that compound. The matter is ongoing and Foroyaa is closely monitoring the case. Witnesses have testified in the case including Salamata.

Since the case is still on we cannot reveal our findings until the trial ends based on the principle of “Subjudice” which forbids commentary over an ongoing matter in court.

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