The issue of inheritance for
women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
Researchers
Ligue Burundaise des Droits de l’Homme (ITEKA)
Executive Summary
The issue of inheritance is the only major aspect of Burundian law
which is still not governed by legislation. In spite of the fact that Burundi
has already signed and ratified the majority of international instruments
which establish equality between the sexes and even Burundi’s
constitution includes these instruments, Burundian custom excludes
daughters from inheritance.
A lobby, upheld by different activists in favour of human rights and
gender equality, has gone on throughout the different political regimes
which followed from the day after independence in Burundi. In particular
it has involved organizations in civil society in Burundi which are
working towards the promotion and protection of human rights as well
as women’s associations, members of parliament and international
NGOs.
ITEKA
This study has been
undertaken by ITEKA
in partnership with
FRIDE, supported
by the Ministry of
Foreign Affairs of the
Netherlands.
Later, a legislative procedure in this field was set in motion and this
resulted in the preparation of a draft bill relative to this matter. However,
problems relating to the scarcity of land and to over-population have
blinded the leaders who have ended up believing that a law on
inheritance, marriage regimes and liberalities would be a problem rather
than a solution.
There are, therefore, considerable challenges which prevent this
process leading to legislation on inheritance, marriage regimes and
liberalities directed at filling this legal vacuum of which women are the
principal victims.
These challenges are both structural and circumstantial. Looking at
the circumstantial challenges, a clear lack of political resolve can be
observed. At a structural level, the challenges consist of a reduction of
land resulting from a rapidly expanding population as well as the fear
that the arrival of change would affect the established social and marital
orders.
March 2011
All these challenges, however difficult they may be, are not insuperable. Opportunities exist and they must
be seized. It is civil society, in particular, which is mobilized and it is supported by Burundi’s international
partners as well as the openness to change of some members of the Republic’s institutions involved in the
legislative procedure. Therefore, the context is favourable for a lobby to be re-launched so that this legislative
procedure can be culminated.
0. Introduction
This study on the issue of inheritance for daughters in Burundi has been carried out in order to have a better
understanding of the inheritance procedure in Burundi.
- Who actually inherits in Burundi?
- What do they inherit?
- Are practices identical whether they take place in the city or the country, north or south, east or west or in the centre of the country?
- Is there any need for a law or is everything successfully settled through custom?
- If not, what is being done?
- Who are the people concerned and who are their partners?
The question of inheritance is the only important subject in Burundian legislation which is still not governed
by law.1
In such cases, customary practices are applied. And yet, custom in Burundi considers a girl as someone who
is meant to live somewhere else, for the rundi saying goes: « umukobwa akura iyo agiye » which means that
girls grow up where they are going to get married.
Customary practices in Burundi exclude girls from inheritance as, according to the patrilinear system, «
they do not perpetuate the family line ». Therefore, boys inherit in Burundi as shown by the studies we have
carried out.
Although it is true that inheritance is understood to be the whole of the estate left by the deceased, that is to
say received family property and personal property itself, land is of paramount importance when we speak
about inheritance or property to be inherited. This study is going to accord greater weight to this important
fact about inheritance.
Concerning the methodology, this work is the result of the consolidation of various sets of information from
different sources. It has had the advantage of contributions from work already carried out on the same issue.
A collection of data was also organized with specialists. Within this framework, focus groups were organized
in five provinces in Burundi, which were in Bujumbura Mairie, in Bururi (Rumonge), in Cankuzo, in Kayanza
and in Muramvya.
Interviews were organized with different specialists involved in this issue. These were government officials,
people with responsibilities in civil society, people running international NGOs and Burundi’s bilateral or
multilateral partners resident in Bujumbura. (See the methodology guide to annex 2).
RCN Justice &Démocratie, Etude sur les Pratiques foncières au Burundi, Essai d’harmonisation : Enquêtes menées dans 10 provinces du Burundi en février, mars 2004 p 55, (Study on the land practices in Burundi, Attempt at harmonisation) Study carried out in 10 provinces in Burundi
in february, March 2004 p 55)
1
The issue of inheritance
for women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
1. Inheritance in Burundi
1.1 The concept « inheritance »
Larousse defines inheritance as being a legal transmission of goods and obligations from a deceased person
to living people.2
The word inheritance not only implies the wealth left by the deceased « ibisigi » but also the heirs « abasirwa
», who are the people appointed to inherit.
In Burundi, wealth is made up of possessory rights, that is to say property which the deceased received from
his paternal family, which is basically made up of land « itongo » and cattle « inka », and of personal property
itself which means property acquired by any other means apart from family inheritance.
Wealth also includes debts and different taxes which are levied on the inheritance.3
It is important to emphasize the anthropological value of land in Burundi. The identity of the Burundians is
closely tied to the land. The land where their ancestors were born, the land where these same ancestors
have to been laid to rest. Each person in Burundi is linked to the land in some way: the small plot where he
left his umbilical cord. This concept often crops up when the Burundis talk of « Aha niho nataye uruzogi »
which means, « this is the place where I left my umbilical cord »
Land in Burundi also belongs to the clan; it is the property of the father’s clan. Burundi is a patrilinear society:
a system of family ties which defines filiation and hereditary transmission through the paternal line.
1.2 Those entitled to inherit in Burundi
Custom accepts two categories of heirs; legitimate or valid heirs and irregular or non-legitimate heirs.
The legitimate or regular heirs are those who are linked to the deceased through family ties (blood ties). Here
they are classed by order and in first place there are the legitimate children and their male descendants, the
deceased’s father, the deceased’s brothers and their male descendants, the deceased’s paternal uncles and
their male descendants, a daughter, a sister, a paternal aunt, a cousin, a paternal niece and all other relatives
on the paternal side of the deceased’s family.
The irregular heirs are : the deceased’s daughter, the illegitimate or adopted children, the deceased’s aunts
and sisters on the paternal side of the family, legitimate children for whom the parental authority is assured
by the mother’s family, the nkurinkobwa, the State.4
It is true that according to custom in Burundi daughters never inherit from their father, but the mentality is
changing.
In fact, judges are setting legal precedent by giving priority to the application of the Constitution,
international conventions and agreements which Burundi has signed but this varies from one region
to another depending on the leanings of the judges.
Petit Larousse illustré de 2000 (Illustrated Larousse 2000).
Programme Gutwara Neza, Module 4, Droit de succession et régimes matrimoniaux, Février 2009 (Gutwara Neza Programme, Module 4, Law
on inheritance and matrimonial regimes, February 2009)
4
Programme Gutwara Neza, Module 4, Droit de succession et régimes matrimoniaux, Février 2009 (Gutwara Neza Programme, Module 4, Law
on Inheritance and matrimonial regimes, February 2009)
2
3
March 2011
At this time it has been seen that the members of the nuclear family have priority over everyone else and
this greatly benefits daughters. As the Legal and Jurisprudence Journal has made clear, « In the absence of
sons, the courts have given priority to daughters over uncles, nephews, male cousins and on occasions they
have even decided on an equal division between brothers and sisters. »5
2. The general issue of access to land in Burundi
2.1 The background situation
2.1.1 The scarcity of land
Burundi is a small country in central Africa with a surface area of 27,834 km2. It has a population of 8,074,000
inhabitants of which over 90% live mainly from agriculture.
According to a report from the African Bank of Development in 2008, the rate of growth is 3 .7%.
According to projections for population growth the number of inhabitants could reach ten million in less than
ten years.6
So, therefore, Burundi is facing a series of problems which are closely linked: the scarcity of land,
overpopulation, violence in the rural environment linked to border conflicts which are evident at this
time from the massacres taking place all over the country.
As a matter of fact, this population growth has continued to increase the fragmentation of land. In certain
provinces such as Kayanza, setting the borders of the plots is becoming more and more difficult. «We cannot
manage to divide the plots horizontally between brothers, we are about to divide the plots, which are already
broken up, vertically, the participants in the focus groups told us.
In Ngozi province for example, it is common to find families/households with three brothers who take turns
to farm the small strip of family land. The members who are waiting for their turn look for work with other
people, the women in the fields, the men as servants, so at to find something to feed themselves and their
children.7
It is becoming urgent for Burundi to study without delay the issues related to population and land management,
and the question of inheritance will come up within this framework (according to a participant in the focus
group in Muramvya).
The question of inheritance is closely linked to that of population because a large family will find it difficult to
divide the family property between all its children (A participant in a focus group in Rumonge).
2.1.2 Failure to respect the principal tool for land management in Burundi
Some people wonder if there is a land management policy in Burundi in view of the numerous political and
legal problems which overwhelmingly affect this field.
The principal tool is the Land ownership Statutes which are dated 1 September 1986 but not many people
are aware of these apart from people in the legal world and some users.
Revue de Droit et de Jurisprudence, Femme et succession. Les tribunaux burundais face au droit coutumier, Numéro I, mai 2002 cité par RCN,
Justice &Démocratie, opcit p.56 (Law and Jurisprudence Journal, Women and inheritance. The Burundian courts faced with customary law, Number 1 May 2002 cited by RCN, Justice&Democracy, opcit p56)
6
http://www.imf.org : Burundi : Cadre Stratégique de croissance et de lutte contre la pauvreté. Second rapport de mise en œuvre (Burundi: Strategic Plan on growth and the struggle against poverty. Second report on implementation)
7
http://binub.turretdev.com//,causerie débat du 26.7.2007 (debate on 26.7.2007)
5
The issue of inheritance
for women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
The Land Ownership Statutes differentiate between state owned land and non-state owned land the socalled « appropriated land ». The former belong to the State, to the communities, to state-owned companies
and to companies under public law, the latter to individuals or legal entities (section 8).
It classifies the state-owned land in five categories and for each of these it decides on the authority authorized
to assign or grant the land in question:
-The Governor of the province has the power to allocate the lands from the 1st category, that is to say the
rural lands with a surface area under or equal to four hectares.
- The Minister for Land Management and the Environment has the power over the land in the second category,
that is to say rural land with a surface area of between four and fifty hectares.
- The Minister whose responsibilities cover town-planning has power over the lands in the third category
which include urban plots with a surface area of less than 10 hectares.
- Rural plots with a surface area of over fifty hectares (4th category) and urban land with a surface area of
over 10 hectares (5th category) can only be assigned or granted by a presidential decree which is adopted
on a proposal from the competent minister and following a draft contract whose terms cannot be amended at
the time of signing (sections 253 and 254).
An application is made to the competent authority by the intermediary from the community Administrator
(sections 255).
Therefore, it is clear that there are several participants in this procedure and coordination is required.
All the regimes have competed in the allocation of state-owned lands to the highest authorities or to wealthy
individuals to the detriment of people in need. This is making an already precarious situation worse as these
allocations are made in total secrecy and the State of Burundi risks finding itself without state-owned land as
the land which once belonged to the State belongs to individuals from now on.
2.1.3 Population pressure
Population pressure is an additional problem to that of land management. In fact, in Burundi, a child is
always seen as a source of wealth. This means that nowadays there is considerable population pressure on
resources and in particular on the resource of « land ».
This accentuates everyone’s selfishness and so boys will not hear of their sisters having the possibility
to inherit in their families. Even among people who have progressed in relation to inheritance for women,
the idea of the number of people who are going to share a plot of land puts a brake on their willingness to
understand. If there is no population policy with birth control, Burundi will see social conflicts and massacres
due to overpopulation.
2.2 The specific problems for women
2.2.1 Problems of a general nature
a) Problems of poverty
Land is the prime source of wealth in Burundi. It is still the principal means of production for all Burundians
above all in the rural environment. Over 90% of the Burundian population lives off farming the land. It is
important to bear in mind that the legal way of obtaining land is through inheritance. However, in Burundi
daughters do not inherit. This question is still governed by custom and resists all attempts at legislation. This
implies that women cannot emerge economically insomuch as they have no means of production.
March 2011
Economically, women are the poorest. Women living in the country have absolutely no possibility of obtaining
property. In their parent’s home the land belongs to the clan. Burundi has a patrilineal system, daughters do
not inherit in their families. In her husband’s home she is the custodian of her children’s property. As land
has been split up, some people look to other resources such as livestock breeding or a small business, but
they must still find the capital and this is something which women cannot do. Banks do not give credit unless
they have some guarantee of repayment in some form or other (mortgage, collateral security….). However,
women are usually impoverished and cannot provide these guarantees so limiting their access to bank credit
and mortgaged assets.
b) Violence against women
Women suffer violence of all sorts. Most of this violence is due to the fact that women are poor. They resign
themselves to this because of their poverty.
In fact, in certain environments women are considered to be like domestic animals « ibitungwa » that their
husband must take charge of (focus group Muramvya). This is why a woman, subjected to physical abuse
from her husband, in most cases prefers to put up with this violence because she has nowhere else to go.
She cannot go to her parents’ home because her brothers would not accept her. She has no land, she could
never have any, she would have nothing to eat and it is a case of complete resignation.
2.2.2 Cases linked to the matrimonial situation
a) families who have only had daughters
It has been mentioned above that under customary law in Burundi daughters do not inherit. According to the
categories and order of inheritance, daughters are not considered to be legitimate children. In other words,
family ties with their father are not recognized for them. They take 5th place in the category of legitimate heirs
and 2nd position in the category of irregular heirs8.
Therefore, families who have only brought daughters into the world leave their assets to male relatives.
But the legislation has progressed. Already in 1960, the Mwami court decided to give daughters the right to
inherit from their fathers in the absence of a son without having to turn to uncles on the paternal side.9
The decision RC 99/88 made on 19/5/1988 by the court in Bugendana confirmed this:
N. pressed charges against her cousin R. stating that he wanted to drive her from the paternal property
arguing that daughters cannot inherit from their paternal uncle. R considered that he should inherit the land
occupied by his cousin through his condition of a man. N.’s father and R.’s father were brothers and had
divided the land left by their father between them.
The Court dismissed R’s arguments and found in favour of N. The Decision recognised N’s full rights over
the strip of land left by her father.10
b) daughters who have never married
For unmarried daughters who stayed in their parents’ home, custom recognized their right to a small
plot of land which they farmed to ensure their subsistence. They were strictly banned from having
children. If this happened to them their sons would have no claims to that land. Either the son was
recognized by his father or he received a part of his grandfather’s property. Even though legislation has
progressed this perception has remained.
Association pour la Promotion de la Fille Burundaise(APFB): La problématique de la succession de la fille burundaise, août 2002, p. 70 (Association for the Promotion of Burundian girls (APFB) : The issue of inheritance for Burundian daughters, August 2002, p 70)
9
Ibidem
10
Programme Gutwara Neza, Module 4, Droit de succession et régimes matrimoniaux, Février 2009, p.16 (Gutwara Neza Programme, Module 4,
Law on Inheritance and matrimonial regimes, February 2009, p.16)
8
The issue of inheritance
for women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
c) divorced women who return to their families
Married women who return to live in their parents’ home were given similar consideration as that accorded to
unmarried women but custom is much harsher on the former. Their sisters-in-law gave them a difficult time
but they were guaranteed a small plot of land for their subsistence. As legislation has progressed they can
inherit the usufruct for the family property whether it is passed down through the family or purchased or has
been donated but the part to which they are entitled is generally less than that of other male heirs.
d) Widows
The situation for widows differed depending on whether or not they had children and was completely
dependent on the good will of their family-in-law. When they did not have children they were generally driven
out or it was suggested that they married one of their deceased husband’s brothers.
In their family of origin they received a strip of land from their father’s property to ensure their survival and that
of their children if they were looking after any. Nowadays, if they were legally married, their husband’s
property passes to them with full rights. This does not prevent them being mistreated in spite of decisions
from courts.
3. The need for legislation on inheritance, marriage
regimes and liberalities.
Burundian women are not assured of their rights in matters of inheritance owing to the lack of a legal framework
which regulates this aspect of their lives. While land is still the principal means of production common to
Burundians, particularly in the rural environment, the issue of land inheritance should be analyzed with the
objective of fair rules as much for daughters as for sons.
The progression of legislation is irreversible but it is not exactly the same everywhere and therefore
there is a need for harmonization.
3.1Inheritances: A legal vacuum discriminating against Burundian
women
After the pain caused by the death of a close relative, families set about the difficult task of settling who
inherits the estate.
The rules on the way of settling inheritances are immobile, inefficient, ill-adapted and above all discriminatory
because basically they arise from custom.
In a country where the majority of the people are illiterate and where custom is interpreted differently
from region to region, the policy should be consistent with the Constitution and should accept the
principle of equality for women which the Constitution of the Republic of Burundi recognizes. The
courts should be provided with efficient legal tools.
3.2 Matrimonial regimes: knowing how to choose
The matrimonial regime is a statute which governs the assets of the spouses in their relationship with each
other and with third parties. This statute governs the type of assets and liabilities pertaining to the spouses
during the marriage and at its break-up.11
11
Avant Projet de loi sur les successions, les régimes matrimoniaux et les libéralités (Draft bill on inheritances, matrimonial regimes and liberalities)
March 2011
Therefore, it is made up of a set of legal or contractual rules which govern the pecuniary rights between the
spouses.
The most commonly adopted regimes are:
-
division of property in which case, on whatever date and by whatever means the personal
property or real estate was acquired, each spouse manages their property and has it at their
disposal. Under this regime the property belongs to whichever one has a document proofing
ownership, irrespectively of the origins of its financing
-
joint ownership, in which case the personal property or real estate even that acquired before
the marriage is the joint property of both,12
-
community of after-acquired property. This regime is based on the existence of three kinds
of assets: the husband’s own assets: the wife’s own assets and the assets owned by the two
spouses,13
In Burundi the regime of joint ownership is applied. When a man and woman are joined in matrimony,
neither of them any longer has his/her own property. They do not choose this. It is precisely this situation
which alienates women, the fact that she does not have her own assets. She works all her life but the fruits
of her labour do not belong to her. It is true that some people now understand that things must change
especially women and men who have studied and who know that women earn as much as men and
therefore the fruits of their work should be theirs to dispose of (Focus group Bujumbura Mairie).
Schooling one of the effective tools for Burundian women to be independent as it provides them with their
own resources. The influence men and women who have studied, have in rural areas should precisely
be based on a law because these environments remain conservative. For this reason a law becomes an
incontrovertible instrument when any change is to be tackled.
So as not to continue being detrimental to women, a law on matrimonial regimes is required and this should
come into general use so that the spouses can freely choose the regime under which they wish to live.
3.3 Liberalities
A liberality is an act through which a person gives to someone else or undertakes to give to someone a
benefit without any compensation.14
A “liberality” is a legal act inter vivos or in the dispositions of a will by which a person transfers a right or
property depending on his/her assets in favour of another person or the legatee. The liberality can be agreed
as fee simple, bare ownership or under usufruct.15
It is not surprising to find that on a daughter’s death a mother ends up in extreme poverty whereas when she
was living she obtained everything for her. The law would settle all these problems (Focus group Bujumbura
Mairie).
http://www.dictionnaire –juridique.com/
Avant Projet de loi sur les successions, les régimes matrimoniaux et les libéralités, p 81 (Draft bill on inheritances, matrimonial regimes and
liberalities, p 81)
14
Projet de loi sur la succession, libéralités et régimes matrimonaux, article 148 (Draft bill on inheritances, matrimonial regimes and liberalities,
section 148)
15
http://www.dictionnaire –juridique.com/
12
13
The issue of inheritance
for women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
3.4 Points of view on the need for the law from people encountered
3.4.1 The population: under a pressing need
The majority of the people encountered, expressed a strong desire for a law which would sort things out
and above all provide Burundian women with justice in matters related to inheritance, liberalities and
matrimonial regimes. « Burundian daughters should inherit with the same rights as their brothers because at
conception the parents do not know if a boy or a girl will be born, which is a reason why children should not
be discriminated against. » (This idea recurred in all the provinces). Burundians should develop awareness
and take steps, find out about the moves others have already made ….
A radical change is required, at the time of the engagement the fiancés should choose the place they are
going to set up home, at the girl’s place or the boy’s. And their children should choose the clan they want,
their father’s clan or their mother’s clan. The matrimonial regime must be changed (Focus Group Muramvya).
Other people are still hesitant: they feel that the law is necessary but they are frightened of any change.
They put the fear of change before the social order: « If women were to inherit, this would risk causing
social unrest. In fact there would be a constant battle between the families-in-law, the clans would be at
loggerheads: « Imiryango yokwinjiranamwo »(The participants in all the focus groups insisted on this idea of
social unrest and the fact that the clans could be at loggerheads)
Nuances were also stated in the case of married women: « There is the possibility of women having two
properties, that of their husband and the one they inherit from their parents» or even, married women should
not have a share equal to that of their brothers, they should have a third (1/3) (This idea of a 1/3 clearly shows
that the principle of equality between men and women has still not been accepted).
3.4.2 Judges: more progressive than legislators
All the magistrates who took part in the focus groups think that it is necessary to pass the law because they
are very progressive.
Some of the remarks made by the magistrates in the focus group: « If someone comes to the court with this
question about inheritance we ask them how many people there are in the family and we divide it up into the
same number of shares as there are children ».
« We give priority to the equality and fairness agreed in the Constitution ».
« It looks as if the government is afraid, as if once the law was passed, there would be a blitz throughout
the country to share the lands between brothers and sisters. This is not the case, legislation would help
those who have need of it. It is exactly the same for all other legislation, when it is passed it is not enforced
everywhere at the same time. Legislation steps in when the situation requires, it helps those who have need
of it »
« It seems that the government said that it was necessary to ask the people for their opinion, that would
be a real first in the history of Burundi. Why doesn’t it ask the people about other legislation?».
If this is what the judges state and things are moving in this direction in practice, the legislators should think
about standardizing things because in the end the rulings will depend on the leanings of the judges and
not on law. A legal tool is more than necessary.
March 2011
10
3.4.3 The people’s representatives: why shrink back?
The Bill had been analyzed and passed in the transition Parliament, all that remained was for the assent of
the President of the Republic to be given after being debated by the Government. The Parliament also has
the constitutional prerogative to refer to the government for whatever question it considers to be important.
Former members of parliament have stated that: « The draft bill shouldn’t worry anyone because it has been
prepared on the basis of equality of rights and fairness, conditions sin qua non to culminate in a genuine Rule
of Law. » (Proposal from a former member of parliament).
« The principle of continuity of institutions should prevail here also because the transition Parliament had
passed this legislation. It is in the Government’s hands. » (Point of view of a former member of parliament).
« It can be seen that, politically, the country is still not ready and this is shown by the fact that the Maputo
protocol has still not been ratified, no doubt because article 21 deals with the right of inheritance » (Interview
with a former parliamentarian).
The ball is in the court of the representatives of the people. The legal texts and moreover basic law gives
them the prerogative to refer to the government if there is the need. They should also inform the general
public.
3.4.4 The point of view of civil society: impatient
Organizations in civil society in Burundi have shown a commitment to the preparation of the draft bill up until it
is passed by the parliament. They are now asking for the follow-up to this important issue which is a question
of human rights.
Some representatives from associations in civil society regret the lack of political will:
« There is no political will: the Bill has been introduced at a parliamentary level but it is blocked
somewhere in the Government ».
« Perhaps the Executive should influence the legislation, if not the members of parliament, who are the
people’s representatives, should present this question to the government. »
The representatives from associations in civil society think that the content of the draft Bill has not been
analysed in depth because it is a very rich, well-researched document which deals with fundamental
questions concerning who property should be left to, the regime under which people would like to live etc…..
it is complementary to the statutes on people and the family.
4. Deadlock for the draft bill
4.1 The current situation
The draft bill was been introduced by the Association of Women Lawyers with the collaboration of the Ministry
of Human and Gender Rights and female members of parliament. They have made all the bodies involved
aware of this issue.
At a parliamentary level, women members of parliament worked hard on this draft bill and they gained the
support of some of their male colleagues. The draft bill was moved by the transition parliament and sent to
the Government through the Secretary General of the Government. The Cabinet of Ministers analysed it and
has made two recommendations: the first recommendation concerned the translation into the national
language and the second concerned a grassroots consultation.
The issue of inheritance
for women in Burundi
Gertrude Kazoviyo
Pékagie Gahungu
11
The Ministry responsible for gender issues had a translation made into Kirundi, assisted by one of its habitual
partner, UNIFEM. The Minister then called together Burundi’s partners from the United Nations system:
UNICEF, UNIFEM, UNFPA, UNDP, OHCDH; and others such as the DFID, the GTZ, the Belgian Ambassador
etc... The Minister wanted their commitment to supporting this grassroots consultation on the draft bill. These
partners would rather a law relative to this was passed and brought into effect in order to conform with
the treaties ratified by Burundi. In the meantime they promised financial support for the popularization of
the law with a view to its enforcement. Furthermore, the partners did not understand why there should
be a grassroots consultation for this legislation when this procedure had not been followed for other
bills. (Interviews we had with the people responsible for gender in the Ministry, United Nations agencies and
the European Union).
4.2 The content
The draft bill on inheritance, matrimonial regimes and liberalities consists of four principal titles.
The first title deals with inheritance in 148 sections (from section 1 to section 147).
It rests upon two basic principles: the principle of non-discrimination and the principle of freedom of
entitlement to inherit. As far as the first principle is concerned « the draft bill sets out the principle of
equality between all the children irrespective of primogeniture (the rights of the eldest) or of filiation
(legitimate children, children born out-of-wedlock or adopted children) or of sex ».16
As for the second principle, the draft bill opens a possibility for the heirs to either accept or refuse the
inheritance.17
Title II deals with liberalities, from section 149 to section 272. This part deals in detail with donations, the will
and testament as well as the portion of the property available and abatements.
Title III deals with matrimonial regimes from section 273 to section 354. All the details on the most usual kinds
of matrimonial regimes are provided. This part enhances what is contained in the statutes on people and the
family in the chapter on matrimonial regimes.
Title IV contains the final provisions, from section 355 to section 357.
4.3 The principal challenges related to enacting this draft bill
The draft bill on inheritance, matrimonial regimes and liberalities is a good draft affecting everyone but its
ratification is taking considerable time.
4.3.1 The scarcity of land
Land is becoming increasingly scarce. This situation is made worse by rapid population growth. Certain
measures have been taken without fully considering their implications for population growth. Discriminating
against daughters is not the way to solve this problem.
The need for a clear, efficacious policy on the subject of land management is pressing, it is still necessary to
feed the people in Burundi.
Programme Gutwaraneza, module4 : Droit des successions et régimes matrimoniaux, p 25 (Gutwaraneza programme, module 4: Inheritance
and matrimonial regimes Law, p 25)
17
Idem
16
March 2011
12
4.3.2 Men who are in the decision-making procedure and who resist change
The question of inheritance, matrimonial regimes and liberalities should not be tackled as a right reserved for
daughters/women. It should be tackled as a problem for society in general.
Nowadays, there are international texts and agreements which advocate equality for men and women, and
these take precedence over local laws. Men and women who participate in decision-making and who are
already involved in the cause of equality should continue to spread awareness among other people.
4.3.3 The weight of culture which discriminates against women
The consideration which Burundian society bestows on boys should change because nowadays with
schooling girls can carry out all the work that boys do. The times of separate education have changed and
for this reason all the practices which discriminated against women/daughters should be brought to an end
insofar as they do not cease to show their abilities.
4.3.4 Women who do not subscribe to change
Women who do not subscribe to change do so through resignation or ignorance.
In fact, if the content of the draft bill was brought to the notice of the general public there would be many
women who would have a better understanding of the way to organize their households for example.
The awareness campaign should continue (even while waiting for the law to be passed) as it is uneducated
women who do not subscribe to the law when it is precisely these women who have need of it.
4.4 The opportunities
In spite of the fact that challenges remain, it is important to emphasize that there are opportunities which
should be seized to enable this issue to progress towards the passing of a law which all human rights
defenders wish for. It is a question of national and international legal instruments to compel people to promote
equality between men and women. It is also a question of support from partners and a commitment from civil
society.
4.4.1 National and international legal instruments
At an international level
The Universal Declaration of Human Rights of 10 December 1948, already prohibited at that time, any
discrimination and in particular that based on sex.
« Everyone is entitled to all the rights and freedoms set forth in this Declaration, with¬out distinction of any
kind, such as race, colour, sex, language, religion, political opinion … » (art. 2, UDHR).
The preamble to article 2 of the UDHR has been taken up in its integrity in the International Covenant on
Economic, Social and Cultural Rights.
Article 3 in this covenant requires States to ensure equal rights for men and women in regard to all economic,
social and cultural rights which are listed.
Other partners in these instruments have drawn up recommendation so as to ensure equality for everyone.
Therefore, the Habitat For Humanity International for example has made the following recommendation:
The issue of inheritance
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« While acknowledging the diversity of legalisation, Governments and local authorities should, at all levels,
put a stop to obstacles which may stand in the way of equal access to land and they should ensure that equal
access to land for men and women is protected by legislation. »
CEDEF (External Advisors of the Family) of 1979 is the most important instrument for the protection of
women’s rights insomuch as it is the most complete and specific for women. Through this agreement, the
signatory States undertake to do their utmost to eliminate all kinds of discrimination based on sex and to
create favourable conditions for equality between men and women.
The committee of the CEDEF had recommended that the Government of Burundi should « adopt a statute
which ensures, by law and de facto, equality for women regarding inheritance, matrimonial regimes and
liberalities and that it should ensure it is enforced in particular in Rural zones» (Recommendation 14).
At a local level
In the Arusha peace and reconciliation agreement, the Burundian negotiators had stated that exclusion
based on sex was a reality.
The basic law which arose from this agreement states the principles of the equality of all people and the
guarantees of basic liberties. The International Agreements ratified formed an integral part of this law through
article 19.
In article 23 of the Constitution, the legislators were clear:
« All Burundians are equal in merit and dignity. All citizens enjoy the same rights and have the same right to
protection from the law. No Burundian will be excluded from the social, economic or political life of the nation
because of their language, religion, sex or ethnic origins».
Therefore it emerges that, in spite of the existence of these instruments, the legal vacuum on matters of
inheritance, matrimonial regimes and liberalities has to be noted in the register of human rights violations in
Burundi.
4.4.2 The commitment of Civil Society
The Women’s law association which started up the draft bill is continuing with the awareness campaigns
among men and women in certain provinces. The Association of Women Members of Parliament and other
associations such as the Iteka league, CAFOB, APFB, Dushirehamwe continue to rally men and women and
to lobby for the draft bill to be analysed once again.
In Rwanda for example, a more densely populated country than Burundi and where land also has the same
importance as in Burundi, a law on inheritance was passed in 2003. Burundi could take inspiration from their
experience. However, it has been commented that the activists in this lobby are working in a fragmented way
and therefore it is essential to change the method of lobbying.
4.4.3 Support from the partners
It is not easy to define the part that falls to the partners in the development of the issue of inheritance, in so
far as there is none among them that is focusing on the question. However, several partners are taking part
in the lobbying although they do not necessarily dedicate programmes to this question.
So, for example, United Nations agencies (BINUB, UNIFEM, HCR, PNUD) take part directly through their
elements of « gender » or indirectly through their support for national organizations which are lobbying.
March 2011
14
The European Union is taking part through its « Gutwara neza » programme and it finances other organizations
both international and national.
Other partners take part in this field either through bilateral cooperation, such as the German technical
cooperation « GTZ » and Belgian Cooperation or through support for local organizations and international
NGOs.
Even among those partners which are not working directly on the problem of inheritance, there are some which
finance programmes such as local justice where they strengthen the capacities of judges on international
rules or jurisprudence, the reinforcement of the criminal justice system so as to lead them, as it were, to put
into practice the jurisprudence etc…. It is necessary, in a way, to develop mind-sets. Here we can cite the «
Gutwara Neza » programme from the European Union and RCN, Justice & Democracy, Care international,
etc.
5. Conclusion and recommendations
5.1 Conclusion
There is a legal vacuum in Burundi on the issue of inheritance. This vacuum leads to injustices above
all in regards to women since this matter in Burundi is governed by custom and this gives this right to
men. Nevertheless, the Constitution of the Republic of Burundi as well as the CEDEF which Burundi ratified
underscores the equality of everyone (men and women) in rights and obligations.
Lobbying has been carried out for years, but this has not meant that a law on this subject has been passed.
Several challenges are blocking the development of the lobby, but even so it is possible to observe opportunities
which can be taken up in order for there to be a successful outcome. These include the determination of
organizations in civil society with the support of Burundi’s partners. Notwithstanding, there is still no common
ground which brings together all the participants in this matter in order to unite their efforts. Even though it
is true that civil society is trying to band together to progress, the need for the elected representatives to
become involved is still noticeable. These are the people who could easily end the deadlock on this question
and the Constitution allows them to do so. Further specific support also needs to be provided for this matter,
in particular through campaigns to spread awareness to all Burundians.
5.2 Recommendations
• For the Burundian Government
To speed up the legislative procedure for the codification of inheritance, matrimonial regimes and liberalities
in order to avoid discrimination in the application of customs, social norms in this issue; in accordance with
article 2 of the CEDEF which stipulates in point f) that all fitting measures should be taken, including legislative
regulations to amend or repeal all laws, regulations, customs or practices which constitute discrimination
against women.
1. To send the draft bill on inheritance, matrimonial regimes and liberalities to Parliament to be debated and passed.
• For Civil Society
2. To increase awareness campaigns aimed at women in the country who still resist this process through ignorance;
3. To increase lobbying aimed at the decision makers;
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4. To promote awareness on the equality between children and above all the need for daughters to inherit among the population from the bases to the top;
5. To carry out awareness campaigns in order to gain the involvement of girls/women in the struggle for their rights so that this difficulty concerning inheritance can be resolved;
6. To make elected representative aware of the consequences of this legal vacuum on inheritance, matrimonial regimes and liberalities;
7. To set up a coalition with all the participants in this matter with a view to combining efforts to make the lobbying more methodical ;
• For the judges
8. To apply jurisprudence based on the application of the Constitution, International Conventions and agreements regarding equality between sexes which have been ratified by Burundi;
• For international bodies
9. To lobby for the legal instruments ratified by Burundi concerning equality between sexes to be respected.
10. To lobby decision makers in their capacity of donors so that the law on inheritance, matrimonial regimes and liberalities is re-launched.
11. To set up a framework for financial backers taking part in the introduction of the law on inheritance, matrimonial regimes and liberalities to work together so that efforts are not too widely spread.
6. Bibliographic References
1.
République du Burundi, Cadre stratégique de croissance et de lutte contre la pauvreté-CSLP,
Bujumbura, septembre 2006. (Republic of Burundi, Strategic Plan on growth and the struggle against
poverty, Bujumbura, September 2006)
2.
Loi n°1/010 du 18 mars 2005 portant promulgation de la Constitution de la République du Burundi (Act
no1/010 of 18 March 2005 enacting the Constitution of the Republic of Burundi)
3.
Association pour la Promotion de la Fille Burundaise (APFB): La Problématique de la succession de la
fille burundaise, août 2002 (Association of the Promotion of Burundian girls: The issue of inheritance
for daughters in Burundi August 2002)
4.
Programme Gutwara Neza, Module 4, Droit de succession et régimes matrimoniaux, Février 2009
(Gutwara Neza Programme, Module 4, Law on inheritance and matrimonial regimes, February 2009)
5.
RCN Justice &Démocratie, Etude sur les Pratiques foncières au Burundi, Essai d’harmonisation:
Enquêtes menées dans dix provinces du Burundi, février-mars 2004 (RCN Justice&Democracy:
Studies carried out in ten provinces in Burundi, February-March 2004)
6.
RCN Justice & Démocratie, La justice de proximité au Burundi. Réalités et perspectives. Bujumbura,
décembre 2006 (RCN Justice & Democracy, Local Justice in Burundi. Bujumbura, December 2006)
7.
RCN Justice & Démocratie, Burundi : La Justice en Milieu rural. Bujumbura, Décembre 2009 (RCN
Justice & Democracy, Burundi: Justice in the Rural environment. Bujumbura December 2009)
8.
Ministère de la Solidarité Nationale, des Droits de la Personne Humaine et du Genre, Etude sur
l’identification des pratiques légales et socioculturelles préjudiciables aux femmes, juillet 2007 (Ministry
of National Solidarity, Human and Gender rights, Study of the identification of legal practices and social/
cultural prejudices against women, July 2007)
March 2011
16
9.
J.P. Chrétien et M. Mukuri, Burundi, la fracture identitaire.
Logiques de violence et certitudes « ethniques », (Burundi, the identity divide. Rational of violence and
« ethnic » certainties), Paris, Karthala, 2002.
10.
CAFOB : Campagne « Arashoboye » Plaidoyer pour la Parité homme /femme dans les organes
dirigeants du Burundi, janvier 2010 (« Arashoboye » Campaign Lobby for the Parity of men/women in
the governing bodies in Burundi, January 2010)
11.
www.imf.org
12.
www.binub.terretdev.com
13.
www.dictionnaire-juridique.com
Annexes
Annexe I : Methodology Guide
I.1 Information Collection Techniques
► Discussions in focus group in the rural environment and in the capital.
► Interviews in the capital with experts
I.2 Specialists to be interviewed
► Decision makers and members of state institutions
• Minister for human and gender rights
• Minister for national solidarity and reintegration
• Minister for the environment, land management and town-planning
• Advisor to the presidency responsible for gender issues
• President of the gender committee in the National Assembly
• Two women deputies
• The national committee for Land and other Property (CNTB)
► Organisations in Civil Society
• National Council of the Bashingantahe
• Women’s Associations: Dushirehamwe, cafob, SPPDF, ADDF (Association for the defence of daughters’
rights), APFB(Associations for the promotion of Burundian girls)
► The Donors and international missions
• Gender division within the BINUB, UNIFEM, European Union
► Non-governmental organisations
• Care international Burundi
• Acord Burundi
• RCN/Justice et Démocratie
• Gutwara Neza
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I.3 Questionnaires
1.3.1 The Focus groups in Kayanza, in Muramvya, in Bujumbura Mairie, in
Rumonge and in Cankuzo
► Questionnaire for the representatives from civil society
1.
2.
3.
4.
5.
6.
7.
Have you already heard about the issue of inheritance?
Who inherits in your household?
Do girls and boys inherit in the same way
Who prevents daughters from inheriting as much as their brothers?
Should girls inherit with the same rights as their brothers?
What are the consequences of this discrimination?
Do you know about any conflicts related to inheritance? How did they take place? How were they settled?
8. Who are the people or bodies involved in settling this kind of conflict?
9. Who are the people or bodies who reject the idea of inheritance for daughters? Who are the people or bodies who are in favour of this inheritance?
10. What should be done in order to avoid discrimination against daughters in this field?
11. Are there any women who are not in favour of inheritance in their households? What are the reasons for
this?
12. What are the reasons which argue in favour of inheritance for daughters?
1.3.2 The interviews with decision-makers and members of state institutions
► Interviews with members of the governments and of the National Assembly
1.
2.
3.
4.
5.
6.
7.
Are girls and boys treated on an equal footing regarding equality in questions of inheritance?
What is the current situation concerning this issue of inheritance for daughters in Burundi?
What are the institutions you represent doing at this time to change this situation?
What are women doing to bring about a change in this situation?
Which other bodies are involved in bringing a change to this situation?
Do you see any other bodies?
What actions should be taken?
► Interview with Representatives from the OSC
1. Are girls and boys treated on an equal footing regarding equality in questions of inheritance?
2. What is the current situation concerning this issue of inheritance for daughters in Burundi?
3. What should state institutions do to change this situation?
4. What are the opportunities in favour of change in this situation?
5. Are there any challenges? What are they?
6. What are the institutions you represent doing at this time to change this situation?
7. What are women doing to make this situation change?
8. Which other bodies are involved in bringing a change to this situation?
9. Do you see any other bodies?
10. What other actions should be taken?
► Interviews with the donors and international missions
1.
2.
3.
4.
Do you participate in the field of inheritance for daughters in Burundi?
What support do you give to women who are working on this issue?
Who are your partners for this issue?
Has your support had any effect on women themselves in this field?
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18
5.
6.
7.
8.
9.
What are the principal challenges regarding inheritance for daughters in Burundi?
Do you think that the Government is in fact involved in the progress of this issue? How?
What programmes and policies could you introduce in this direction?
Do you think that women are in position to influence change in the field of inheritance?
What opportunities are there for change in favour of inheritance for daughters to take place in Burundi?
Annexe II : List of experts
II.1 The Interviews
Nº
SURNAME & FIRST NAME
ORGANISATION/ POST
GENDER
1
BARANCIRA Sylvestre
RCN, Justice &Démocratie
Male
2
BIHA Edouard
Executive Director of the Ligue Iteka
Male
3
DIOUF Awa
PNUD
Female
4
Dr Petra WAGNER
Director GTZ
Female
5
KANDANGA Marie Josée
UNIFEM
Female
6
KANYANGE Perpétue
SPPDF
Female
7
MABOBORI Catherine
Former member of parliament
Female
8
PELLERIN Marc
BINUB
Male
9
MBAYE Faye
BINUB
Male
10
NDAYISHIMIYE Willy
Association of women lawyers
Male
11
NDAYIZIGA Basilice
Executive Secretary for CAFOB
Female
12
NGENDANGANYA Casimir
President of the PALIPE-AGAKIZA party: the
Male
former PMPA
13
OPC1 Sekaganda Bernard
Commissioner PJP
Male
14
OPC2 Ferdinand HABONIMANA
Leader of PSR
Male
15
NTIRANYIBAGIRA Scholastique
Director General of Human Rights
Female
16
SEZIRAHIGA Albert
Director of operation of the CNDRR
Male
17
SIGIGI Marguerite
Abashingantahe
Female
18
TOYI Marie Thérèse
Former member of parliament
Female
19
YABIMPAYE Cyriaque
Demobilised
Male
II.2 The participants in the focus groups
II.1.1 Focus group from Muramvya
Nº
SURNAME AND FIRST NAME
GENDER
1
NITEREKA Anicet
Male
2
NIBIGIRA Télesphore
Male
3
KABANYURA Domitille
Female
4
BARAGAHORANA Méthode
Male
5
NTAKIRUTIMANA Diomède
Male
6
IRAMBONA Philibert
Male
7
MANIRAKIZA Hélène
Female
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8
NZEYIMANA Déo
Male
9
TANGISHAKA Béatrice
Female
10
NTAKABURIMVO Marie Louise
Female
11
NIMUBONA Sylvestre
Male
12
KANYANGE Suzanne
Female
13
NAHIMANA Marthe
Female
14
NIBOGORA Christine
Female
15
NDAYIZEYE Josélyne
Female
16
NIYONZIMA Gloriose
Female
17
HAKIZIMANA Herménégilde
Male
18
CISHAHAYO Gérard
Male
II.1.2 Focus group Bujumbura Mairie
Nº
SURNAME AND FIRST NAME
GENDER
1
MANIRAKIZA Anatole
Male
2
RUBERINTWARI Emile
Male
3
HABONIMANA Léopold
Male
4
NDIKUMANA Gilbert
Male
5
NKESHIMANA Chantal
Female
6
NTAKARUTIMANA Cécile
Female
7
DUSENGE Nadine
Female
8
NININAHAZWE Sandrine
Female
9
MISIGARO Philippe
Male
10
SABURONKE Gilbert
Male
11
KABURA Sévérienne
Female
12
BIZIMANA Modeste
Female
13
NDAYEGAMIYE Chanelle
Female
14
MUKEZIMANA Jeanine
Female
15
BUNYAKAMWE Jésus-Marie
Male
16
HABARUGIRA Marie Goreth
Female
17
HABONIMANA Evelyne
Female
18
NZEYIMANA Mignonne
Female
19
NIKOKEZA Olive
Female
20
NDUWAMARIYA Estella
Female
21
NDUWIMANA Suavis
Female
22
NDACASABA Marie Louise
Female
23
BANGIRINAMA Mélanie
Female
24
NAHISHUBIJE Marie Chantal
Female
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II.1.3 Focus group Kayanza
Nº
SURNAME AND FIRST NAME
GENDER
1
BAHAMINYAKAMWE Antoine
Male
2
NSHIMIRIMANA Léoncie
Female
3
RUMAMANGANYA Apollinaire
Male
4
NKURUNZIZA Dieudonné
Male
5
KIMANA Séraphine
Female
6
MPAWENIMANA Fabiola
Female
7
NIYIBIZI Denise
Female
8
BARIJANE Julien
Male
9
NDEREYIMANA Jean Bosco
Male
10
Saïdi
Male
11
NSHIMIRIMANA Willy
Male
12
NYAMIBARA Nestor
Male
13
SAHINKUYE Gordien
Male
14
KARENZO Rosalie
Female
15
MUKESHIMANA Rebecca
Female
16
MINANI Melchior
Male
17
NIBONA Grégoire
Male
18
TWAGIRAYEZU Evariste
Male
19
NYABENDA Languide
Female
20
NDEREYIMANA Floride
Female
21
UWIZEYE Placide
Female
22
SINABAJIJE Bernardine
Male
23
NAYISI Charles
Male
24
KUBWIMANA Clément
Male
II.1.4 Focus group Cankuzo
Nº
SURNAME AND FIRST NAME
GENDER
1
NTIRANYIBAGIRA Siméon
Male
2
NKUNDWANABAKE Emmanuel
Male
3
BIMENYIMANA Albert
Male
4
KAVYINABUHIYE Aloys
Male
5
NDEMERA Yollande
Female
6
AHISHAKIYE Renée
Female
7
RUSAKE Restute
Female
8
SINIGEZE Anne
Female
9
NIBONA Jacqueline
Female
10
NZEYIMANA Thérèse
Female
11
CEGETERA Jeanne
Female
12
BARICAKO Bonfils
Male
13
KAZIRI Claver
Male
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14
BAGIRAKANDI Thérèse
Female
15
NDAYIZEYE Claire
Female
16
MAKARI Christian
Male
17
MUDENDE Raymond
Male
18
HABONIMANA Mamert
Male
19
BARIKWAKANDI Ferdinand
Male
20
NKURIKIYE Sabine
Female
21
BARARUSAMVYA Thérèse
Female
22
MUCARI Rose
Female
II.1.5 Focus group Rumonge
Nº
SURNAME AND FIRST NAME
GENDER
1
NINIHAZWE Lydia
Female
2
MANIRAFASHA Concilie
Female
3
NDAYITWAYEKO Didace
Male
4
NDIHOKUBWAYO Antoine
Male
5
NINTUNZE Bénigne
Female
6
NIYONGABO Nestor
Male
7
NIVYABANDI Pascal
Male
8
NZORUBONANYA Félix
Male
9
NIYONGABO Félix
Male
10
NIYONGERE Domitien
Male
11
NDAYISHIMIYE Pierre
Male
12
BUREGEYA Jean
Male
13
NIBARUTA Gaspard
Male
14
HABONIMANA Adèle
Female
15
NIKOYAGIZE Dyna
Female
16
NIBAFASHA Capitoline
Female
17
NDAYISHAMEZE Marcelline
Female
18
SINDAYIHEBURA Emma
Male
19
CISHAHAYO Emmanuelle
Female
20
RWAMIGABO Aloïs
Male
21
NDAYISABA Léopold
Male
22
KABONDO Gaspard
Male
23
TURAYIHAYE Agnès
Female
24
NKUNDIKIJE Térence
Male
March 2011