What is it about inheritance that fascinates us? This is no idle question but one of critical importance, as the Supreme Court has ruled the Government must develop a non-discriminatory inheritance law by June 30, 2005.

In addition, some much publicised cases of 'widow dispossession', when widows were stripped of their houses and more by irate relatives, have done much to focus concern on inheritance practices.

Traditional Authorities and lawyers will tell you that the most bitter and often most intractable disputes they have to deal with concern inheritance.

Yet why, indeed, should people inherit? Why should anyone get something they didn't work for? Why should some benefit from the jackpot of birth? Apart from the drama of inheritance disputes at the interpersonal level, however, inheritance has a major impact on the societal level.

Economists and historians, whether radical or conservative, agree that inheritance practices are a major factor in promoting inequality in society Most historians agree that the form of the household played an important role in facilitating industrialisation and capitalism and there is a long debate on the importance of inheritance and how this might have determined household composition, marriage decision-making and sex roles.

An influential contribution to this debate is that of Jack Goody, who argues that the plough made land the chief form of wealth and that this led to distinctive inheritance practices.

Where fixed property became the chief form of livelihood, monogamy, rather than polygamy, came to predominate due to the need to limit heirs and to discourage divorce.

Women now began to receive their own share of their natal family's property through dowry or inheritance although control of property remained in men's hands.

Goody shows how the evolution of domestic groups shaped the transmission of property and how this in turn fashioned the household.

He argues that the role of the Roman Catholic Church was crucial because, by banning marriage within specified degrees of kinship and prohibiting adoption, polygamy, remarriage, divorce and concubinage, it was made possible for property to fall into women's hands and thus into those of priests.

This has resulted in the Church's becoming the largest multinational corporation in the world.

This brief excursus into medieval history suggests that anyone considering changes in inheritance laws should be well aware of the possible spread effects of tinkering even haphazardly.

Of course the protection of private property is also one of the leading justifications for colonial expansion, as we know only too well in Namibia.

However, in industrialisation such development, rather than leading to shared wealth, more frequently fed greedy accumulation.

This is why one of the first laws Lenin promulgated when the Soviet Union was created, was the abolition of inheritance.

It is not only radical utopians, however, who feel inheritance is unjust, but also conservatives have argued that inheritance stifles the entrepreneurial capacity of capitalism.

This is why in social democracies there were heavy 'death taxes' which one had to pay on the deceased's estate.

In South Africa there is a death tax of 20% on all estates over a R1 million.

Namibia has no death tax.

The Concise Oxford Dictionary defines 'inherit' as "receive (property, rank, title) by legal descent or succession".

Inheritance concerns the transfer of rights to use property typically in the first instance, between people who are related in a certain way to each other, i.e through certain kinship ties.

Two things need elaboration: What is inherited and who the beneficiary is.

One needs to get away from the narrow Western view of (private) property that has been aggressively and globally disseminated and ends up treating property as if it were a material object.

Property is a series of social relations that governs the conduct of people with respect to the use and disposition of things.

Property relations can only exist between people.

One cannot sue or punish a thing.

Inheritance then is more than simply the gifting of material wealth.

It entails the legal transfer not only of property (itself a complex issue), but also of rights between people concerning things, roles and ideas.

This is why some African scholars have argued that in inheritance one should focus on access rather than property per se, on seeing property in terms of the distribution of social entitlements.

Such a broader framework allows one to consider both legal and extra-legal mechanisms and structures, as well as the use of resources like knowledge, social networks, coercion, trickery and social identity, and thus provides a fuller picture of how and what is at stake.

The importance of such a stance was made clear recently when some traditional leaders were interviewed about inheritance.

Houses in urban areas, they said, were inherited by individuals and could be disposed of as the heir saw fit since it would be registered in the heir's name.

The pinch-hitting interpreter, a young man from Windhoek, respectfully disagreed with the Headman.

He had recently inherited his mother's house and had to allow all his siblings and other close relatives access and use of the house, and if he got married he would have to move out.

Securing such rights was not a 'single event', but entailed a long period of negotiation.

A key characteristic in African inheritance systems is the negotiability of rules and relationships and these rules and relationships concern rights over persons.

Kopytoff & Miers (1977:11 & 9) note that.

"Africa stands out… in the legal precision, the multiplicity of detail and variation, and the degree of cultural explicitness in the holding of such rights".

This precision, they suggest, is that "these rights can be manipulated to increase the number of people in one's kin group, to gather dependents and supporters, and to build wealth and power".

These rights and restrictions creep in everywhere.

Even that dearly held belief that anyone can graze their livestock anywhere on communal land is a bit of a myth.

Closer examination reveals that even here there are limitations.

There is differential access.

One must first secure the right to do so from the Traditional Authorities, thus the rights are more accurately termed limited property regimes or perhaps, even better, communal corporations.

This general right of access is a form of communal inheritance that one inherits from one or both parents.

Rights to use or possess objects have, of course, to be guaranteed or at least the continued use of these rights have to be predictable and this is where law and the State comes in.

By tolerating pluralism, the State is often unable to ensure constancy in rules and hierarchies and, if the state's hegemony is challenged, insecurity increases.

"Seemingly trivial actions by individuals can undermine state policy and the legitimacy of state institutions by simply not respecting the policy and taking their justice-business elsewhere" (Juul & Lund 2002: 14).

But just because property is insecure in the absence of law does not mean that it is a mere legal contrivance.

On the contrary, there are numerous cases in Namibia where community norms have respected rights to access and property by various insiders.

In determining who inherits it is obvious that kinship is important.

Kinship is based on the acknowledgement of genealogical ties derived from bearing children.

How people are related to the progenitor, usually deceased, enables them and the wider community to identify their interest in the estate, stake a legitimate claim to portions of it and to have their rights to such claims recognised.

Kinship as an organising principle in Namibia has infinitely stronger power than class.

What class does in advanced capitalist societies - shaping where one will reside, the nature of one's education, who one's friends will be and who you will marry - is determined to a large extent in most other societies like Namibia by kinship.

It is the primary determinant of inheritance and much more; many of one's rights and duties, where one will live, political solidarity and even educational opportunities are determined by it.

Descent, the way one is considered to be related to a common ancestor, can be reckoned in two ways: either cognatically - that is relatives of both the mother and father's lines are considered - or unilineally - that is through either the father's or mother's line.

This does not mean that people are ignorant of other lines of descent, simply that they place minimal import on them.

More rare, but found in Namibia among Herero-speakers, are systems of double descent whereby some rights and duties, usually religious and political, are inherited patrilineally and other rights, largely economic, matrilineally.

Namibia is striking for the variety and complexity of its descent systems.

Cognatic systems are found among Whites, Caprivians and some San, while patrilineal descent is found among Khoekhoegowab- and Tswana-speakers.

Matrilineal descent systems are found in Owambo and the Kavango.

Even within these systems, however, there is much variation and complexity.

Matrilineal kinship does not mean that there is a matriarchy.

It simply means that people, generally males, inherit through their mothers.

Anthropologists have been fascinated by kinship because despite the thousands of languages and cultures there are only eight different systems of naming relatives.

Understanding this logic, they believed, might unlock our understanding of how the human mind works.

The most complex system only has twenty different terms.

Most have far fewer.

Terms like 'father' or 'sister' are used for more than one's own immediate biological father or sibling and carry with them expectations of how one should behave towards those so labelled.

These terms are also implicitly political.

To label someone Tate is not just to address him with respect, but to expect a certain type of behaviour in return.

To call a distant relative Brother also implies a certain form of behaviour and certainly if one is female, suggests that sex and marriage would be taboo.

In some places the term for cross-cousin, that is one's mother's brother's child or father's sister's child is the same term as spouse.

This is indeed a preferential marriage and is openly touted as a way to ensure that property remains within the family.

In many societies, the favoured relative as far as inheritance is concerned is often the nephew, especially the brother's son.

The term nephew is derived from the Latin nepos which is the same root for the word nepotism.

Indeed most nepotism and corruption in Africa and Namibia is justified and rationalised in terms of kinship obligations.

Favourable or preferential treatment of nephews suggests that inheritance does not have to wait until the decease of the putative benefactor.

In Herero, for example, the uncle apparently refers to his nephew as omurie uandje (he who eats me) i.e.

my heir.

It is not only politicians and civil servants who 'eat' (that is enrich themselves because of their position) but relatives as well.

Indeed in many African languages, the term for 'inherit' means the same as 'eat'.

This is by no means exceptional.

In English law, according to Stroud's Judicial Dictionary, 'to inherit' (is) held to mean 'to take' and 'inheritor' may be used in the sense merely of 'taker'.

Clearly, when someone dies, there are many 'takers' who assert claims to access of some part of the deceased's livelihood based on a range of justifications from kinship to simple opportunism.

It appears that the possessions of the deceased between the period of death and formal reallocation, when it has been 'bitten' (as the Herero would say), are especially vulnerable to informal redistribution and opportunistic theft.

On the other hand, during the colonial era the authorities would try to sell the unclaimed possessions of deceased contract workers and found that there were no buyers, even at giveaway prices.

Clearly, this was property of a special status.

This is not a problem unique to parts of Namibia.

Who can forget that scene in the movie Zorba, when the villagers move in to possess the property of the foreign lady even while she is dying? Property is not only bought or worked for.

There are many other ways of obtaining it, including conquest, seizure and tribute.

In many cases the border between theft and sanctioned acquisition is hazy.

Namibia, of course, has a long tradition of such forms of property acquisition.

Policing and ensuring that simple justice and satisfaction are given to all the stakeholders are challenges because they lay bare the liberal dilemma which the modern state like Namibia has to confront: On the one hand, we want equal opportunity and equity, especially for the vulnerable elements, while on the other we believe individuals should dispose of their estates as they please.

How these dilemmas are tackled will be the subject of future articles which will discuss a variety of issues such as the history of the Administration's efforts to control inheritance, the diversity of inheritance systems in Namibia, the plight of widows and orphans, the possibilities of using vernacular law to improve the position of women and how other countries are trying to deal with these problems.

* Namibian-born Professor Robert Gordon divides his time teaching at the University of Vermont (USA) and researching in southern Africa.

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