An issue of inheritance
We have just come out of the commemoration of the Day of the African Child and it got me thinking about the children of the 50’s and those of the 21st Century.
Most kids today are a world apart from challenges that may have included producing fire by rubbing two sticks together and having to run to school barefooted. Challenges that might now be laughed at, back then went a long way towards creating a strong and resilient generation.
Traditionally the Customary Court was never a place for a child to appear, but in modern day Botswana the African child is a frequent feature as an accused, defendant, or complainant. What I find quite fascinating is the level of confidence and assertiveness that some young people display as they aggressively defend what they perceive as their rights.
Allow me to take you to the Customary Court scenario where three young people appeared one winter morning to lodge a complaint against their paternal aunt, Rakgadi. These young men who were aged 18, 19 and 20 introduced themselves as brothers from one father but different mothers.
The spokesperson for the group was Kenanao, the oldest of the three. He stated that their father Tanki had died some weeks back and to their great frustration the sister of the father had approached the SHAA Department to have their father’s plot transferred to her.
Not only were they being disinherited, but also their father’s funeral programme stated that he had no children at the time of his death -this despite the fact that they were well known to the father’s relatives in general.
In order to emphasis that they were known to the father’s family, Kenanao gave graphic details of the ancestral ceremonies they had attended at the father’s village and in full view of the entire family. He even told the kgotla that his late father had always had his children around him and told them to treat each other as brothers even though he had never married their mothers.
The kgotla arranged for a trial to take place so that Rakgadi could show cause as to why she may not surrender the property to Tanki’s children.
The trial began with Kenanao relating his side of the story to Rakgadi and other relatives amidst much shaking of heads and murmurings that their culture had gone to the dogs when even children of dinyatsi (unwed mothers) felt they had rights. When Kenanao had finished justifying before the kgotla how he and the brothers could not fold their hands while their father’s property was being grabbed, an irate Rakgadi shot to her feet to cross examine as the following drama developed.
RAKGADI: Do you have the same family name with us?
KENANAO: No I use my mother’s surname.
RAKGADI: Who told you that you are my brother’s child?
KENANAO: It was Tanki, my father.
RAKGADI: The three of you have lost your mothers. How do you prove to the court that you are my brother’s children?
KENANAO: Ijoo… the last woman that our father stayed with is ready to testify, and the woman who sells Chibuku across the road knows, as you do too Rakgadi. The three of us have been to your home for the ancestral ceremony (dilo tsa badimo).
Rakgadi’s side of the story was quite interesting. She did not elaborate on whether she knew Kenanao and his brothers, but she placed a lot of emphasis on the fact that according to Setswana culture children of unwed mothers cannot lay claim to any inheritance.
She further told the court that she was the last of the siblings from Tanki’s family and therefore the only candidate for inheritance from her brother. Her evidence was punctuated by the statement that ….O batho ngwao ya rona e sule (Oh people our culture is gone!)
It was Kenanao’s turn to cross-examine Rakgadi
KENANAO: Do you remember that some school holidays I went to your masimo?
RAKGADI: Yes – go raya eng gone moo? (Yes – but what significance is that?)
KENANAO: Do you remember before Papa died……..
RAKGADI: (interrupting) Don’t call my brother papa he never married any of your mothers. You have no manners.
KENANAO: Do you know that the last days we looked after papa alone and you only came the day he died?
RAKGADI: You were not asked to do so.
WHAT WOULD YOU DO IF YOU WERE THE JUDGE?
When the cross-examinations ended I had to consider what Kenanao’s evidence told concerning their father’s intention.
The father was a single man who collected and gathered his children. They called him Papa and looked after him until death.
Rakgadi is right too about the traditional practice of not allowing children of unwed mothers to inherit, but the truth is that men used not to openly relate to and acknowledge children of women they did not marry.
In judgement upon calling for the SHAA file, it transpired that Tanki had recorded the names of his children as next of kin. This vital piece of information assisted the kgotla in leaning towards Kenanao and his brothers.
One lesson that comes out clearly is that we can no longer afford to leave issues of inheritance to chance. Much as the writing of wills is considered foreign and somewhat sinister, let us just try to get used to the idea. It could save a lot of hassle in the future.
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