Law arises from human values measured against lived experience. In the beginning, all values were similar in their basic respect: the organization of reproduction, and the production necessary to support it. Recent activities in the court system in Uganda — and in Kenya — show how far we have deviated from that. There have been a few notable changes on the question of divorce, or more accurately, on the matter of how property should be shared out between a divorcing couple.
The first change, in 2012, saw a new court position which was that such property should be split on a 50-50 basis. The second was a clarification to the effect that what you came with into the marriage is what you left with once it was dissolved, and what was acquired during the course of the marriage was what was to be split equally.
This seemed fair enough. However, some things acquired in the course of the marriage may not have been jointly acquired. For example, a married person may become heir to one of their own relatives. Sometimes such inheritances are culturally bound, whereby the heir/heiress is technically a custodian.
A third new position is that an equal split is not automatic. Instead, whatever has been jointly acquired in the course of the marriage must be measured because one’s entitlement to a share goes only as far as the extent to which they contributed to its acquisition. How this is to be quantified is where the whole mystery began.
Dissatisfaction has ensued, all of it rooted in the story of how feminism became law, and is now increasingly trapped there.
The first step was to secure the principle of gender equality before the law. The second was to broaden the concept of the family standing. For example, technically the matrimonial dwelling is recognized as the family home, as opposed to it being (traditionally) the home of the head of the home (deemed to be the man) in which the spouse and the children also lived. One practical effect of this has been that the new laws have curtailed the ability for the person whose name is on the title to simply sell it off from under their family’s feet, or bequeath it to other persons having left behind a widow.
This, I repeat, was when the assumed head, assumed formal title deed-holder, and assumed potential culprit was the man in the house.
The third step was the effective acceptance that there could and would be ways, some non-monetary and even intangible, in which a person could contribute to the development of family or matrimonial prosperity.
Some commentators have now held fast to the “intangible contributions” concept and say that much as these exist, they cannot really be measured. So the safe thing would be to maintain the 50-50 split.
Others miss the point entirely by going down the road of how property is valued. But it is important because it brings out the underlying issue with this legal practice and its client base: it is really a problem for the petty bourgeois social group and their (in real terms) petty-property holdings. But along with this, the thinking behind these complaints is misplaced; it is a product of a cut-and-paste culture on both sides of the debate, which is itself a product of the importing of the basis of law, and then the importation of the evolution of that law, building confusion upon confusion upon initial confusion. Each development does not cure the preceding problem, but only exposes more of the fault in the overall thinking process. And so, one generational idea of feminism is now in conflict with another, and the judicial system has become the site of that contradiction, exposing the gap in the initial thinking.
The sociological origins of much of this are to be found in the multiple betrayals (or at least the tales of them) that became standard fare in the gender debate between the late 1950s and the 1970s.
The typical tale was of the young African couples studying abroad in the first steps of their journey to cement their belonging to the emerging post-colonial middle class. Some went abroad as couples, others met and struck up relationships having arrived there independently. Upon return, it was quite common for the male spouse to invoke both (then) Western and (presumed) African notions of marriage and try to relegate his wife to the role of a suburban housewife: tending the home and managing the children. This involved weaponizing a superior earning power as well as back-up from the then official legal and cultural thinking. Often, this also involved the male spouse exercising his “right” to overtly or covertly acquire a second wife and family, while still insisting that his first spouse remain financially dependent on him, overriding the fact that they were both now educated to basically the same level, and that the emerging countries needed as many educated Africans as possible in the workforce.
The result was a permanently in-built sense of imbalance and resentment in many a relationship that continued all the way to its dissolution through the death of the male spouse. Divorce is simply a variation on this theme; all that is happening now is that a lot more marriages are ending before the demise of the (male) spouse. This is because there are fewer causes of premature death among the property-owning classes, and also there is a lot less of the social stigma attached to divorce that in the past forced many a wife to “tough it out” to the bitter end.
A first wave of post-independence feminism basically therefore wanted the widow (now divorcee) to take everything. These are the ones bringing up the “intangible contributions” idea. The two are one idea, but with the marriage dying first, not the man. Had he died, then the standard social argument that arose was that the widow was now entitled to the entirety of the man’s estate, partly because she would naturally be entitled to part of it anyway, and partly because of the need for restitution against the earlier sacrifice and mistreatment.
The result was a permanently in-built sense of imbalance and resentment in many a relationship that continued all the way to its dissolution through the death of the male spouse.
It was essentially a moralistic argument, a kind of gynocentric revenge for growing up witnessing their mother’s pain and frustration at being a housewife, while the husband (their father) got to leave for yet another (presumably) fulfilling day outside the home. It was as though they had made a vow that they would never allow themselves to be trapped in that situation, and also that they would rescue their mothers from it.
But this thinking has now been overtaken by other developments. Not least due to donor-fed affirmative action, there is now a rising demographic of women in the petty bourgeois class living and earning “like men” in the manner of the 1950s-1970s small patriarch. They are thus increasingly capable of acquiring petty property of their own. Suddenly, the “intangible contribution” and 50/50 split idea is not so attractive anymore because (again given the assertion of equal treatment before the law) this could now go either way.
This means that, following the proverbial Law of Unintended Consequences, it can no longer be assumed that the net loss will be on the side of the male spouse. And this, in my view, is where this legal conundrum is now coming from; there is suddenly a need to be very precise about what is split, and how what is to be split is to be measured.
Under the “original” thinking, the settled approach was for the widow of the deceased — with the support of trusted lieutenants among some of her children — to corral control of the deceased’s estate under the Estate Administration laws and then keep this situation locked in place for good.
As said, this was a safe assumption because the tendency was for the male spouse, often older, to die first. So, following on from the grim tales from the 1950s — where the wife/fiancée/girlfriend basically tended the student apartment, cooking, cleaning and ironing for this man as he worked on acquiring his uber-degree only for her to be thrown over for someone he took an interest in on their return from abroad — the challenge was how to get around any obstacles to achieve full control-in-practice.
It was essentially a moralistic argument, a kind of gynocentric revenge for growing up witnessing their mother’s pain and frustration at being a housewife.
But beyond the drama, all this ignores the reality of the economics of the situation. It again goes back to the point of law being an expression of human values. We are witnessing what was initially conceptualized as a feminist issue morphing one into one of class. It is yet another area of law that is ideologically dominated by the petty bourgeois class in their own interest.
The problem is rooted in the transposing of one legal outlook on another place, bringing with it an overemphasis on the rights of the individual, an obsession with petty property, and a loss of social memory for the working of an agricultural economy. To this is added the universalisation of Western European thinking, where one way of doing a thing is taken to be the standard, if not the only way of doing it. So, European/English versions of the law are taken to be the law as a whole.
In fact, this 50-50 fixation, and the derivative argument it has spawned, is rooted in an British court case (Campbell vs Campbell 1969) cited by the Ugandan judge, in which a couple argued over the amount left over from the sale of their former matrimonial home, after expenses were deducted.
But when a house is sold so that its former owners can feel it was equally split, it nevertheless remains a house. Selling a farm, and selling it whole may be an entirely different matter. Splitting a farm (as was done in another case) becomes a real reality, but with different practicalities. In terms of species suitability, water supply, road access and the like, no two areas of farmland are the same, it is no longer the same farm.
Policy and law should distinguish between petty property (the 50×100 “mansion”, the vanity “farm” project, etc.) and actual production property (factories, actual working farms including smallholdings, etc.)
In Vietnam, for example, land is defined by its use, and permission to switch from agricultural to other use is not easily obtained. There are even by-laws about what kinds of dwellings are permitted on land set aside for agriculture. This is an example of law following existing social values; Vietnam is a country with a long history of peasant agriculture.
Most “liberatory” legislation in use here arose from the progressive agitations originating in the Western industrial workplace and even divorce focuses a little on workplace earnings. Yet even today, the average person’s home may also be their workplace. Therefore, to split up and sell off the home is to dissolve the workplace.
We are witnessing what was initially conceptualized as a feminist issue morphing one into one of class.
The petty bourgeois are the exception: like industrialized Westerners, they leave home to go to work. The problem now arises because they want to take their minority existence and experience and universalize it. They are basically using the state and European law to solve their own inter-class problems, dumping the consequences on the rest of society.
The law needs to become more discrete. We need laws and rulings that reflect our realities, not somebody else’s historical ones. A key one is the importance and centrality of being productive in an environment where there are no state benefits to apply for. So the proper management, sharing and disposal of the resources used in production is critical.
We cannot simply propose the chopping up of productive farm homesteads because former Mr and Mrs Chapman did so to their little house in some British town we shall never visit, way back in 1969. I will repeat what I said to the 2017 Commission of Inquiry into Land headed by Justice Bamugemereire:
“In a word, land means stability. Clans [known broadly as the extended family system here] form the actual bedrock of Ugandan society. They have been the basis upon which economic activity — primarily agriculture — is organized and sustained, and also where the country’s human resource base is created.”
The state of Uganda, and its various economies down the years, has long enjoyed a parasitic relationship with these clans. It seizes their land, consumes their children, and taxes their produce without really giving anything back.
A classic example can be found in the standard government advert for recruitment into the armed forces. Generally, they want persons of 18 years and above, able-bodied and in good health, able to speak English, with at least an “O” level education, and of good moral character.
If one were to examine which of those qualities are present in our youth as a direct result of government planning and action, you may find that none of them are.
They are basically using the state and European law to solve their own inter-class problems, dumping the consequences on the rest of society.
In fact, the government has no business in assuming that such people even exist, having done little or nothing to help create them, given the state of our public health and education services, as well as the poor moral example set by very many of our public officials.
Hundreds of thousands of Ugandan adults — and some children — are caught up in the task of raising children who are not their own. Virtually everyone here will know someone doing this, if they are not also doing it themselves. Yet the government takes credit for the existence of these “citizens”, and even seeks to make use of them.
The last forty years have brought this extended family system to near breaking point. People are not even offered something as basic as a tax credit for each child that is not theirs, but which child they house, pay fees, transport and meet medical bills for.
In this context it should be clear, therefore, that it then becomes very reckless — and I use the word very deliberately — to begin tinkering with the workings of the one thing the extended family system still has, that it is struggling to hold on to, and upon which so many other things depend: land.
In conclusion, we can be sure that the petty bourgeois class will continue to fight over petty property, using the law or not (being essentially a thuggish social formation), no matter what the law says.
The government has no business in assuming that such people even exist, having done little or nothing to help create them, given the state of our public health and education services.
The real concern should be the risk of adding to the mounting disorganization of the extended family system, creating more production decline, and more social dislocation, as these legal principles are applied beyond the confines of middle-class dramas.
The problem is not this or that tweak to the law; it is the thinking and the assumptions behind the concepts of property, of justice, which are compounded with the law. And also, therefore, the overall jurisprudence tradition under which we operate, which is a reflection of those concepts.
The bottom line is that there can be no meaningful “liberation” for either women or men within capitalism, and based on capitalist-founded concepts of property relations.
However, if the middle-class want to continue with their post-death and post-marriage petty property wrangles, we should leave them to it. What we should oppose and resist, is their sense of entitlement in which they seek to universalise their interests and value system by having it enshrined in law. Because the effect is to impose their confusion on the rest (and actually on the more productive areas) of society.
