Does indigenisation threaten law of succession?

THE political destiny of Africa is now notionally in the hands of the natives in all of its states while the key economic decisions about Africa’s future continue to be made by non-Africans notwithstanding the last five decades of uhuru.
The democratisation of Africa’s economic space is the enduring challenge that confronts the continent with equal measure, irrespective of the stage of economic development of the individual states.
The impact of the colonial state on Africa’s current asset ownership patterns is well acknowledged as is the dualistic nature of its economies. Although many of Africa’s individual states are registering positive growth rates, what is evident is that there is little or no positive impact on poverty.
In the quest to alleviate poverty and the marginalisation of its citizens in the economic space, many African governments subscribe to the notion that the state has a role to play in engineering the democratisation of the economy in as much as the colonial state was underpinned by an undemocratic political order whose sole purpose was to facilitate, promote and protect white capital accumulation.
The need to improve the standard of living of Africans in general cannot be overstated. The property rights that were legitimately or illegitimately acquired during the colonial period have endured in the post colonial state notwithstanding the changing of the guard in African statehouses.
If there are any lessons to be drawn from the last 50 years of Africa’s post colonial experience, it is that there appears to be no real strategy to deal with Africa’s economic question and legacy issues.
To whom does the African economy belong? Who is an African? Who should own African resources? What are the implications on development if asset ownership patterns are politically determined rather than market determined? Can Africa be transformed through market solutions or through state engineering? Can the state be a trusted nation building agent?
These are some of the questions that should occupy our minds as we continue the conversation about the future of our beloved continent.
Legacy is defined as that which is inherited; a title or property or estate that passes by law to the heir on the death of the owner, similar to a gift that is acquired without compensation. Acquisition without compensation forms a key part of the law of succession and as such, indigenisation is often cast as an integral part of the national democratic revolution.
Whether you call it indigenisation or black economic empowerment, the end game is the same. Opponents of indigenisation programs and strategies often use the arguments that inheritance of assets in the case of blacks should necessarily be merit-based while accepting that inheritance at its core has little to do with competency and capacity of the beneficiary than with blood lineage or wishes of the deceased. The successors of settler colonialists in Africa are today respectable businessperson in Africa and yet their inheritance may have been founded on looting.
How then should Africa deal with the economic challenges that confront it where the absence of serious African capital formation in the post colonial state is often attributed to the colonial legacy? Is it the case that Africa’s post colonial poverty is explained by colonial legacy or by the lack of vision of Africa’s own post-colonial elites? Is there any causal link between Africa’s cultural architecture and the lack of development?
The responses of Africa’s post colonial regimes to the colonially inherited dualistic economic structures have been varied ranging from outright expropriation to black economic empowerment programs. The last 50 years of post colonial experience gives us an opportunity to begin to reflect on the success or failures of such initiatives. The impact on poverty has been significant in the negative direction from indigenisation or economic empowerment particularly where the state has been involved as the agent for transformation.
Notwithstanding, many African governments have invested in undermining their own local capacity not only in terms of denying such capacity to meaningful public sector contracts but through a belief that the private sector cannot be trusted to be an honest partner in nation building.
The interest on Zimbabwe globally apart from obvious governance concerns arises from the fact that the government of Zimbabwe has positioned itself as the champion of economic justice. Faced with an unprecedented economic crisis, the need to find explanations and provide hope to its citizens has contributed to the radicalisation of economic policies. Given the poverty atmosphere that characterises many of the developing countries, Zimbabwe’s President Robert Mugabe has emerged as the Robin Hood of the poor.
It is for this reason that anyone interested in the African story cannot avoid dealing with the Zimbabwean issues not only because the country is now a laboratory of some recycled ideas of how economies should be managed but because it has now become a theatre for experimentation using untested and unorthodox economic management tactics.
Indigenisation has, therefore, taken centre stage as the only medicine capable of restoring the economy to its former self or at least to the same level of sophistication and efficiency as at the time of independence.
To what extent was indigenisation part of the policy thrust of the post colonial state or a craftily engineered politically expedient move to divert attention to policy bankruptcy will remain a subject for future generation to debate.
What is evident is that indigenisation was neither an imperative that informed the first 20 years of Zimbabwean independence nor is it the driving force today when juxtaposed with the attitude to investment from China and other so-called friendly states.
The Indigenisation and Empowerment Bill that seeks to create an enabling environment for indigenous people in Zimbabwe in their economic activities has been passed by both houses of Parliament. The intention is that an environment will be created in which at least 51% of the shareholding in the majority of businesses in all sectors of the economy is in the hands of indigenous people. An indigenous person is defined as any person that was at independence classified as historically disadvantaged.
The focus of my article is to provoke a conversation on the implications of indigenisation of the law of succession. While segments of the black African bourgeoisie act like a capitalist class, the primacy of kinship and ethnicity limits their effectiveness as agents of capitalist transformation in terms of property rights beyond underdeveloped capitalism. This presents a challenge to indigenisation particularly when the first generation of property owners who happen to be lucky as beneficiaries of the policy expire or die.
The passing of property or legal rights after death has to form part of the conversation among us as Africans as we begin to deal with the consequences of indigenisation. To what extent should inheritance laws be amended to provide for indigenisation is an issue that needs interrogation.
The distribution of property under a state’s intestate succession laws determines who inherits property when someone dies without a valid will and many Africans are found wanting in the area of wills preparation. Succession of property at law covers the two distinct concepts of inheritance (a gift made by will or other testamentary document on death) and heirship which applies where property passed to one or more dependants according to a formula set out in law, religion, custom or under the terms of a trust.
The familial mode of production elevates ethnicity and extended family identity and loyalty above class, tradition and custom above capitalist economic rationality, and the extended family above the conjugal nuclear family to the extent that the successor of the beneficiaries of indigenisation may not have the technical and financial capacity to promote and protect the legacy. How many of us have relatives who can step into our shoes and carry own our legacies seamlessly?
Many of the best educated and most influential Africans still see themselves first as members of their village and tribes, and their major areas of life are governed by these traditions and values. Succession stresses the importance of the nuclear family as the most important unit in modern Africa as opposed to the extended family. It favours intergenerational capital accumulation by the propertied families. Rather than promoting the concentration of wealth, customary law functions to redistribute wealth or unbundle the wealth created by the deceased among his/her numerous claimants.
In the case of Zimbabwe, where race has now been elevated to the most significant national question, it is not evident what will happen to black Zimbabweans married to whites who may qualify as beneficiaries of indigenisation. Would their successors who may well be white be eligible to keep the rights and transfer them in line with succession laws with no risk of the state seeking to negotiate such rights on account of race?
To the extent that dual citizenship is illegal in Zimbabwe, what will happen to beneficiaries of land reform whose children may all have acquired foreign citizenship and in doing so will no longer be Zimbabwean in terms of inheritance? Suppose you acquire 51% of a company and the next day you die and in your will you have given the shares as a gift to a white or foreign national. Would the shares be safe? If not, what are the implications on investment? Even in the case of land reform, I am not convinced that a lot of thought has been applied to the succession issue.
The decisions that are made by our generation have an enduring impact on the future of our continent and yet little or no thought is applied to the unintended consequences of policy instruments that may have conflicting and multiple objectives.
Colonialism invested in its own demise and I am sure that the policies of post-colonial Africa will generate their own revolutionaries if the continent is to move forward.