Chad: Child custody rights when the father is deceased, including the mother's rights if she refuses levirate (2014-2016)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Chadian Laws

Several sources indicate that customary and/or religious laws are enforced, particularly with respect to family estate and status of persons (Chad June 2014, 21; IBCR May 2014, 39; Africa for Women's Rights 5 March 2010).

2. Custody of Children in the Practice of Levirate

Information on the custody of children in the practice of levirate was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, an anthropologist who specializes in Islamic history and culture in western Africa, and in Chad in particular, and who is affiliated with the African Studies Centre at Leiden University, stated the following with respect to the custody of children when the mother refuses to participate in levirate:

The customs in this respect are different in various ethnic communities, and where there is a supra-ethnic (Islamic) rule, the practice depends on the custom in a village, a region, even a family [and indeed…] on the relation in certain situations between customary law, the civil code, and religious law. In many cases, although customary law is often prevalent where family matters are concerned, people with power can make either of these systems work for them. (4 Dec. 2016)

In correspondence with the Research Directorate, a professor at the African Studies Centre at Leiden University, whose areas of interest include youth and children as well as violence and human rights in western and central Africa, stated that, with respect to the custody of children in the practice of levirate, [translation] "each subregion and sub-group in Chad has different rules" (1 Dec. 2016).

In addition, a report submitted by the government of Chad in 2007 to the United Nations (UN) Committee on the Elimination of Racial Discrimination states that in the country, "customary rules are so numerous and diverse that those of one region or ethnic group sometimes contradict those of another region or group" (Chad 4 Sept. 2007, para. 145).

In written correspondence with the Research Directorate, an anthropologist from Université de N'Djaména who specializes in history and mass communication in Chad stated the following:

[translation]

A woman who refuses to participate in levirate cannot have the custody of her children taken from her by her parents-in-law. Of course, part of the spirit of the practice of levirate is to keep the orphaned children in the "larger paternal family," but that practice is based on consent from the widow in the majority of Chad's ethnic groups. Consequently, even if a woman refuses levirate, she could, if she wishes, take custody of some of the children (usually the youngest).

…

The majority of ethnicities in Chad are patrilineal; therefore, children of both sexes belong to the paternal family. According to customary standards, all children of both sexes are supposed to be placed in the custody of their paternal relatives (paternal uncle, grandfather, aunt, etc.). However, for educational or practical reasons, boys are often placed in the custody of their paternal relatives and girls are kept by their mothers, if the mothers so desire. The context has changed today and it is possible for the mother to request and be granted custody of both sexes if she has the means to take care of them. (9 Dec. 2016)

However, Catherine Enel and Gilles Pison, two authors who co-wrote a book published in 2007 titled Genre et sociétés en Afrique, write that [translation] "[t]he practice of levirate exists in the vast majority of African societies. … If the widow refuses to participate in levirate, which she is generally entitled to do, she must leave her deceased husband's home and abandon her children" (2007, 327).

Furthermore, in a 2002 article on the status of widows in Chadian law, Djikoloum Benan Benjamin, a doctor of law at the Université de N'Djaména (Benan Benjamin 2002, 811), states the following with respect to the various customs in southern Chad (ibid., 823):

[translation]

The spouse's death automatically quashes the mother's authority over her children; guardianship is granted to the husband's parents, as is the case in the majority of Chad's customs. That is in contradiction to Chad's jus scriptum, which states that the surviving spouse has guardianship of the children.

…

It is easy to understand why a widow who is very close to her children feels obligated to accept levirate in order to be close to her children because, in those circumstances, raising the children is part of the widow's "inheritance."

…

Generally speaking, the decision to transfer care of the children is left to the family council. (ibid., 822-823)

The same source indicates that [translation] "it appears that, officially, Islamic law grants custody of the children to the widow" (ibid., 823). Furthermore, in his research paper on polygamy in Chad, Haroun Koumakoï, a student at the Demographic Training and Research Institute (Institut de formation et de recherches démographiques) of the Université de Yaoundé II, writes that according to Islamic law in Chad, [translation] "the widow is free to remarry and may have the right to keep her children" (Koumakoï Sept. 2007, 12).

In correspondence with the Research Directorate, a representative from Human Rights Without Frontiers - Africa (Droits de l'homme sans frontiers - Afrique DHSF - Afrique], [translation] "a Chadian law organization" with the aim of "promoting and protecting" human rights (DHSF - Africa n.d.) writes the following:

[translation]

In Chad, when the widow refuses to marry her deceased husband's cousin or brother, the law grants custody of the minor child to the widow … as long as she does not decide to marry outside of the family of her parents-in-law. [I]n that case, … the ascendants or the brothers and sisters with a direct connection to the deceased may seek custody of the children. The custom is such that a woman who has lost her husband cannot live under a new husband's roof with the children of her first, now deceased, husband. (20 Dec. 2016)

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Africa for Women's Rights. 5 March 2010. "Cahier d'exigences : Tchad." [Accessed 30 Nov. 2016]

Anthropologist, African Studies Centre, Leiden University. 4 December 2016. Correspondence with the Research Directorate.

Anthropologist, Université de N'Djaména. 9 December 2016. Correspondence with the Research Directorate.

Benan Benjamin, Djikoloum. 2002. "La condition de la veuve dans le droit positif tchadien des personnes et de la famille." Revue internationale de droit comparé. Vol. 54, no 3. [Accessed 30 Nov. 2016]

Chad. June 2014. Ministère de la Santé publique, de l'Action sociale et de la Solidarité nationale. Rapport national d'évaluation des vingt (20) ans de mise en oeuvre des recommandations du programme d'action de Beijing. [Accessed 5 déc. 2016]

Chad. 4 September 2007. Rapports présentés par les États parties conformément à l'article 9 de la Convention - Quinzième rapport périodique des États parties qui devait être présenté en 2006 - additif - Tchad. (CERD/C/TCD/15) [Accessed 5 Dec. 2016]

Droits de l'homme sans frontières - Afrique (DHSF - Afrique). 20 December 2016. Correspondence sent by a representative to the Research Directorate.

Droits de l'homme sans frontières - Afrique (DHSF - Afrique). N.d. "À propos." [Accessed 21 Dec. 2016]

Enel, Catherine and Gilles Pison. 2007. "Veuvage et lévirat : une étude de cas à Mlomp (Sénégal)." Genre et sociétés en Afrique : implications pour le développement. Edited by Thérèse Locoh. Paris: Institut national d'études démographiques.

International Bureau of Children's Rights (IBCR). May 2014. Cartographie et évaluation du système de protection de l'enfant et de la formation des forces de sécurité sur les droits de l'enfant au Tchad. [Accessed 5 Dec. 2016]

Koumakoï, Haroun. September 2007. Pratique de la polygamie au Tchad : à la recherche des facteurs explicatifs. Thesis, graduate degree specializing in demographics, Institut de formation et de recherches démographiques, Université de Yaoundé II. [Accessed 21 Dec. 2016]

Professor, African Studies Centre, Leiden University. 1 December 2016. Correspondence with the Research Directorate.

Additional Sources Consulted

Oral sources: African Centre for Democracy & Human Rights Studies; Association des femmes africaines pour la recherche et le développement; Association des femmes juristes du Tchad; Association pour la promotion des libertés fondamentales au Tchad; Association tchadienne des juristes; Association tchadienne pour la promotion et la défense des droits de l'homme; Avocats sans frontières; Cellule de liaison et d'information des associations féminines au Tchad; Centre d'études et de formation pour le développement; Commission nationale des droits de l'homme du Tchad; Femmes Africa solidarité; International Bureau of Children's Rights; lawyer in Chad; Ligue tchadienne des droits de l'homme; United Nations - UN Women, UNICEF Chad.

Internet sites, including: African Commission on Human and Peoples' Rights; Amnesty International; Centre for Civil and Political Rights; ecoi.net; Factiva; Human Rights Watch; IRIN; Juriscope; Ligue tchadienne des droits de l'homme; Minority Rights Group International; United Nations - Committee on the Elimination of Discrimination Against Women, UN Women; United States - Department of State.