II. Formal Framework for Women’s Land Rights in Tanzania
This page will highlight a few areas for analysis.
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Both the Constitution and a number of written laws recognize women’s equal rights to property. Relevant laws include: the Law of Marriage Act of 1971; the Land Act of 1999 (establishing “The right of every woman to acquire, hold, use and deal with, land shall to the same extent and subject to the same restrictions be treated as a right of any man.”); the Village Land Act of 1999; and the Mortgage Financing (Special Provisions) Act of 2008 (amending the Land Act of 1999 to require additional safeguards for spouses in the mortgage context).
The Constitution of 1977, ,  as amended, guarantees every person the equal right to own property and declares deprivation of property unlawful, unless it is authorized by law providing for fair and adequate compensation in Article 24. The Constitution also explicitly prohibits sex-based discrimination in Article 13. The Constitution does not contain any direction related to customary laws inconsistent with women’s equal rights to property (or right against discrimination). However, the Village Land Act, as discussed below, covers in detail instances of conflict between customary and statutory law in regard to women’s land rights.
Formal statutory laws relevant to land
Key policy and legislative documents on land include: the National Land Policy of 1995; the Land Act of 1999 (for general land, including urban land, and reserved land); the Village Land Act of 1999 (for village land); the Land Acquisition Act of 1967; and the Law of Marriage Act of 1971.
Tanzania has also signed onto a number of international rights conventions that uphold property rights for women and girls and, more broadly, the equal rights of women and men. It has ratified, without reservation, the following instruments: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); the African Charter on Human and Peoples’ Rights; the African Charter on the Rights and Welfare of the Child; and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). For more information on International Agreements and How to Build a Legal Case for Women’s Land Rights click here.
Land Act (1999)
Under the Land Act of 1999, the State holds title to all land in Tanzania. The President, through the Commissioner of Lands, has authority to grant a right of occupancy for up to 99 years. Land is divided into three basic categories: general land (controlled directly by the state, and representing approximately 2% of the country’s land); village land (mostly controlled by the villages, and representing approximately 28% of the country’s land); and reserve land (designated by the state for national parks, game reserves, conservation areas, and public utilities). General land includes most urban land.
The Land Act establishes a number of principles that help provide legal safeguards for women’s land rights, including equitable distribution and access to land, participatory decision-making, and dissemination of information.
The Land Act provides that, in the case of any inconsistency or conflict between the provisions of the Act and any or other law on a matter of land law, the Land Act prevails. Therefore, it can be argued that any matter pertaining to land or inheritance of real property should fall under the purview of the Land Act, as further discussed below in Part III.
Village Land Act (1999)
The Village Land Act governs village land, which includes:
· Communal village land, which cannot be used for individual occupation or use;
· Land occupied or used by an individual/family/group of persons under customary law; and
· Land that can be allocated by the Village Council for communal or individual occupation.
Under the Act, the Village Council is legally responsible for the management of village land as a trustee managing property on behalf of the beneficiaries, the villagers. However, a Village Council is not allowed to allocate land or grant a customary right of occupancy without prior approval of the Village Assembly.
The Village Land Act upholds customary rules on land, but provides that the customary rule or any action dependent on the rules shall be void to the extent to which it denies women, children or persons with disability lawful access to ownership, occupation or use of any customary land.
The Village Land Act permits any individual, family unit or group of persons recognized as such under customary law to apply to the Village Council for a customary right of occupancy. The Act makes special provision for divorcees who have left their spouse at least two years prior, and who were villagers prior to the marriage. When family units apply, at least two persons from that unit must sign the application.
The law requires that the Village Council treat all applications equally, regardless of the gender of the applicant, and forbids the Council from adopting discriminatory practices or attitudes toward women applying for a certificate of customary right of occupancy (CCRO). The law further provides that the Village Adjudication Committee or officer must treat the rights of women and the rights of pastoralists to occupy use or have interest in land equally to those of men or agriculturalist. Moreover, the Act prohibits villagers from assigning their right of occupancy if it would interfere with the right of any woman to occupy land under a customary right of occupancy, a derivative right or as a successor in title to the assignor. In determining whether to grant a derivative right to Village Land, a Village Council must also take into account “the need to ensure that the special needs of women for land within the village [are] and will continue to be adequately met.”
If someone, who holds a right of occupancy, breaches his or her duty to the land and the village, the Village Council may temporarily assign the right of the occupancy to the spouse(s) of the occupier who lives and works on the land.
Although the Village Land Act did not decentralize land ownership to the village level, the Act devolves substantial authority to communities to govern village lands. Rather than to establish new local governance institutions for this purpose, the government chose to vest authority in existing village governance bodies (Village Councils and Village Assemblies). The national-level Commissioner of Lands serves as the chief authority for governance of general and reserve lands.
The legal framework for women’s land rights in Tanzania is relatively strong, but neither national nor international laws providing for women’s equal property rights are often followed in practice. And for some issues, like inheritance, a body of conflicting and discriminatory law continues to exist and the lack of clarity is used to reinforce customary traditions that harm women. These issues are further discussed below.
Legal requirements for women’s representation in land governance institutions in Tanzania
Tanzania has taken steps to increase the number of women represented in decision-making bodies (including those related to land). Fully leveraging this opportunity for increased women’s representation is important to fair and equitable outcomes from these bodies for women—including in allocation of customary land rights and village land use planning.
The Land Act requires that the Minister of Land, Housing and Human Settlements Development must have regard for the importance of ensuring a fair gender balance in appointing members to the National Land Advisory Council.
The Local Government (District Authorities) and Local Government (Urban Authorities) Acts of 1982 were amended in 2000 to establish affirmative action requirements for women in local government bodies. Women must now constitute one-third of the members of each District Council and one-fourth of the members of each Township Authority and Village Council. Women’s rights advocates hoped that this quota for women on the Village Council would help to alter land allocation practices of the Village Councils, which have frequently allocated land to male household heads. Village assemblies are comprised of all villagers aged at least 18, including both men and women, but are in practice often male-dominated.
Under the Village Land Act, seven-member Village Land Councils must be comprised of at least three women. The Village Council nominates members, who are approved by the Village Assembly. The Village Land Council has a minimum quorum of four members, at least two of whom must be women. The Act provides that the nine-member Village Adjudication Committees, tasked in part with safeguarding women’s interests, must be comprised of at least four women. Five members are required for a quorum; at least two of which must be women.
The Court (Land Disputes Settlements) Act of 2002 also establishes requirements for women’s participation at Ward-level tribunals and appellate tribunals. In Section 11, the Act provides that each Ward-level Tribunal (the court of first instance for local land disputes) shall consist of four to eight members elected by the Ward Committee. A minimum of three members must be women. In Section 14, the Act requires that every mediation includes three members of the Tribunal, of whom at least one must be a woman. The Act also establishes an appellate body for the Ward Tribunals, called the District Land and Housing Tribunal. The Tribunal consists of the Chair [person] and up to seven assessors, who are appointed by the Minister. At least three of these assessors must be women.
Quasi-statutory Law: Governmental Notices on Customary Land
In addition to formal statutory law, Governmental Notices NG 279 and GN 436 (Customary Law Declaration Order), which identify customary rules related to land, marriage and inheritance for some patrilineal communities in Tanzania, occupy an important place in jurisprudence as quasi-formal legal instruments. These Customary Law Declaration Orders, or CLDOs, only apply to districts that have signed on to them and are adopted through district councils. Although the CLDOs are not statutory law because they have not been passed by Parliament, they have force of law (in relevant Districts) because they have not been repealed by an act of Parliament. The CLDOs are not applicable to matrilineal communities. For purposes of this report, the substance of the CLDOs will be considered customary law, and will thus be addressed under Part III below.
Individual and household rights to land
The statutory law does not limit the categories of land women can own, vis-à-vis men.
The Law of Marriage Act
The Law of Marriage Act (or Uniform Marriage Act) of 1971 replaced a pluralistic legal system where Islamic, Christian, Hindu and customary laws, as well as a civil marriage regime, governed marriage and divorce. The Law of Marriage Act recognizes and applies to customary, religious and civil marriages. The Act incorporates previous laws and some religious or traditional rights, but explicitly provides that it supersedes Islamic and customary law in regulating all four kinds of marriage.
Valid marriage requires free consent of both parties, and a minimum age of 18 for males and 15 for females. However, the law allows the courts, at their discretion based on a number of factors, to permit marriage at age 14, and the Penal Code allows for persons of African or Asiatic descent to marry or permit marriage of a girl under 12 years of age in accord with custom or religion if consummation is not intended before age 12.
The law recognizes both monogamous and polygamous marriage, and requires that both be registered. Non-compliance is punishable by a fine, but does not render the marriage void in the absence of registration. According to Islamic law, Muslim men may take up to four wives. However the Law of Marriage Act provides that in any case the first wife may object to a polygamous marriage if this would result in hardship for her or her children. The Law of Marriage Act provides that women cohabitating with men for at least two years have the legal rights of wives. Under the Act, bride wealth is no longer a requirement for a legal marriage.
Both Islamic and customary law contradict the Law of Marriage Act on issues of bride wealth, in inheritance and other practices, as will be discussed in part III below. These differences have not been well-resolved, and as a result, discriminatory practices in inheritance remain the norm.
While the Law on Marriage Act governs all marriages and divorces, the choice of law governing inheritance is complex, and is discussed further below.
The Law of Marriage Act permits divorce. Under the Act, a party seeking divorce must first apply to the appropriate Marriage Conciliatory Board, which can be the reconciliation board at the social welfare district level, the Ward Tribunal, or the BAKWATA (Islamic Council). The appropriate board then must certify a failure to reconcile between the parties prior to initiation of a divorce, and the certificate can be presented to the court. To prove breakdown of the marriage before the court, parties must provide evidence of desertion, willful neglect (such as adultery or cruelty including assault, battery and other kinds of violence), voluntary separation, or that they have changed the religion to which they were subject at the time of the marriage.
The Law of Marriage Act provides that married women have the right to acquire, hold and dispose of property, movable or immovable, during the course of the marriage, and the right to distribution of property earned jointly when the relationship is dissolved. Property and other matrimonial assets that a woman has acquired individually belong to her. When there are two or more wives, they have equal rights and liabilities as spouses (Sections 56-63).
Joint occupancy can only be created among spouses and exists when land as a whole is occupied jointly under a right of occupancy or lease. No occupier is entitled to a separate share. This means that: (a) there can be no disposition without agreement by all occupiers; (b) the joint occupiers—while alive—can only transfer their interest to the other joint occupier(s); and (c) when a joint occupier dies, interest vests in the surviving occupier (or occupiers, in which case jointly).
With occupancy in common, each occupier is entitled to an undivided share in the whole. The implications are that: (1) any occupier in common needs the consent in writing of the other occupier(s) before he or she can transact his or her interest to another person, but consent cannot be “unreasonably” withheld; and (2) when an occupier dies, his or her share becomes part of the estate and his or her heir inherits the land.
The legal presumption is that spouses hold all land that is co-occupied and used by both (or all) as occupiers in common, and the presumption of co-occupancy for spouses applies to granted rights (certificate of occupancy) and customary rights (customary certificate of occupancy).
Spouses can register either form of shared tenure and each occupier is entitled to receive a copy of the certificate of title of right of occupancy.
In sum, the Land Act establishes a presumption that land that is co-occupied and used by spouses is shared property, in the form of occupancy in common.
Although joint occupancy is only available to spouses, joint occupancy rights are not presumed for spousal property, but must rather be registered as such. One critical important implication consequence is that under the standing presumption of occupancy in common for spouses, the share of the deceased spouse would not automatically become (by operation of the law of joint occupants) part of the surviving spouse’s estate. This would only be the case if the spouses had registered under a joint occupancy right.
Co-occupancy is not presumed, under the Land Act, to apply to land that belonged to one spouse prior to the marriage. Also, what is meant by “obtained” is not entirely clear under the Act. For example, it is not clear whether land obtained by one spouse through inheritance or gift (as opposed to payment) would also be considered to belong to both (or all) spouses as occupants in common.
Where the right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by their labor to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed to have acquired an interest in that land in the nature of an occupancy in common. The law also provides some safeguard for spouses who do not have an interest in their dwelling house or land as occupiers in common. If a spouse (who holds land or a dwelling house for a right of occupancy in his or her name alone) undertakes to mortgage the property, the lender has a duty to inquire whether the borrower has received spousal consent, and where that disposition is an assignment or a transfer of land, the assignee or transferee is required to determine whether the spouse or spouses have consented.
The Land Act provides that land occupied in common may be partitioned. One or more occupiers can apply for partition, but consent from all co-owners is required. The Registrar may order partition over the objections of one or more occupiers in common, but where occupiers in common are spouses or dependents, the Registrar must take into account whether the interests of all have been provided for, with a particular eye to ensuring that no spouse or the dependent is left homeless by the partition. If some occupiers in common have not agreed to the partition, the Registrar may order those who requested the partition to compensate them.
The Land Act provides specific safeguards for the marital home by requiring documented evidence of consent by all spouses prior to mortgage of a matrimonial home. The Act also requires notice to all spouses for actions by lenders regarding mortgages. The Mortgage Financing (Special Provisions) Act of 2008 amended the Land Act to provide further protections for spouses in the mortgage context. The Act establishes the mortgagor’s legal responsibility to disclose information about any spouse(s), and the mortgagee’s responsibility to take reasonable steps to verify this information. A mortgagor who provides false information in regard to existence of any spouse(s) may be punished with fines or imprisonment under the law.
The Law of Marriage Act prohibits one spouse from alienating his or her interest in the matrimonial home (including associated agricultural land allocated by a husband or wife to his or her spouse for exclusive use) without the consent of the other spouse(s). The Law of Marriage Act further provides that if one spouse alienates his or her interest in the matrimonial home in contravention to the law, the interest will be subject to the right of the non-consenting spouse to reside in the matrimonial home until (a) the marriage is dissolved; or (b) the court orders otherwise. The only exception to this is if the transferee had no notice of the interest of the non-consenting spouse, and could not through reasonable due diligence have determined it.
Statutory law provides a number of safeguards for spouses in the event that the spouse holding a granted or customary right of occupancy wishes to surrender that right, or abandons the property. For a granted right, the Commissioner cannot accept surrender designed to defeat a spouse’s rights to obtain or share in the land.
The Village Land Act makes void any attempt to surrender customary rights of occupancy if the effect would be to deprive or harm a woman occupying the land. Also, any attempt to surrender rights must be consented to in writing by any person who has an interest in the land. And after a customary right has been surrendered, the Village Council must offer it to the other spouse(s) before re-granting it.
In the case of abandonment, where an occupancy right holder has deserted the land for at least five years, has failed to pay rent for a minimum of two years, or has left the country without appointing a responsible steward for the land and failed to notify the Village Council, the Village Council may declare the land abandoned but only if no spouses or dependents are using the land.
Safeguards against sex discrimination in transactions
Tanzanian law provides for specific safeguards related to women’s land rights in the context of transactions, in addition to those discussed above related to shared occupancy rights and matrimonial property. For example, the Land Act prohibits a lessor from “unreasonably” withholding a lease based on the gender of the transferee, assignee or sub-lessee. The Act also directs that the “Court, in considering whether to grant an order of termination of a lease or to grant relief against such an order, shall have regard to the age, means and circumstances including the health and number of dependents of the lessee, and in particular whether a spouse of the lessee is likely to suffer undue hardship if an order were made.”
In the context of mortgage, the Land Act prohibits lenders from discriminating against borrowers based on sex, and establishes the Court’s authority to reopen a mortgage on this ground, and to “direct the lending institution to cease its discriminatory policy with respect to granting mortgage.” The Act provides further remedies to spouses, women and dependents in regard to mortgage in Sections 113(3)(c), 139(1), and 142(3)(a).
Most of the intestate inheritance laws in Tanzania discriminate against women, and are at odds with protections of women’s rights established in the Constitution, land and marriage legislation. Advocates have been pushing for an updated Uniform Succession Law for decades. The Law Reform Commission began working on a draft for such a law in 1987, and submitted a draft to the Ministry of Justice in 1995 (where it was held in confidentiality until 2002). The Commission has roundly criticized inheritance practices and current legislation. Currently four legal systems govern inheritance: (1)the Indian Succession Act, 1865 (with application to Tanzanians of European origin, and to Christians, not of African descent); (2) the Hindu Wills Act, 1870 (with application to a relatively small number of Hindus in the country—20,000 in 2002); (3) customary law, which regulates succession for “a person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted,” interpreted to include all Tanzanians of African descent unless they can meet one of two statutory tests; and (4) Islamic Law. Approximately forty-five percent of Tanzania’s population (including that of Zanzibar) is Muslim, and forty-five percent is Christian, yet for intestate disposition of property, customary law is the default regime for those of African descent under the current law.
The Probate and Administration of Estates Act of 2002 funnels all Tanzanians of African descent to customary law requiring proof of intent to be covered by Islamic or Christian law. This push toward customary law essentially guarantees that wives will not have a right to their husband’s land, which violates the Constitution, the Law on Marriage Act and several land laws. In contrast the Indian Succession Act is gender neutral and Islamic law gives widows some inheritance rights.
Women’s land rights advocates in Tanzania emphasize the importance of will writing practices, as wills that safeguard the rights and interests of female heirs are legally enforceable, and have proven a good way to protect the interests of widows, orphans and others. In addition, wills are the only absolute proof of the deceased’s intent, as required by the statutory tests to avoid application of customary law by the courts.
When a person dies intestate, a legally designated person must be chosen to distribute the deceased’s assets, and becomes the “administrator” of the estate. General statutory law requires that the nearest male relative of the deceased serve as the estate’s administrator for “small” estates, valued at 10,000 shillings or less. Only when the estate is very small (valued at less than 1,000 shillings) may the surviving spouse distribute it. However, few estates would be valued so low. When the estate is not “small”, the law sets out a gender neutral system for appointing an administrator, but this often results in the exclusion of women in practice. In the case of larger estates, the administrator may be “any person who, according to the rules for the distribution of the estate… would be entitled to the whole or any part of such deceased’s estate.” However, in the case of conflict, the court “shall take into account greater and immediate interests in the deceased’s estate in priority to lesser or more remote interests.” Under the existing regime, the likelihood that a woman will have the greatest share in the estate is minute.
Although Islamic law does not facially discriminate against women in the administration of estates, it operates to exclude women in practice. Islamic law does not specify procedure for selecting administrators. However, a Muslim widow must remain in mourning for 120 days, during which she is confined to her home and may not participate in public activities.
The next section summarizes key provisions of the Indian Succession Act of 1865, and Islamic laws on inheritance. Customary rules and practices will be covered in Part III below. The Hindu Wills Act of 1870 will not be further discussed because of its limited application.
1. Inheritance under Formal Law: The Indian Succession Act of 1865
The Indian Succession Act of 1865 is the primary statute governing inheritance in Tanzania, and applies to Christians and Tanzanian residents of European origin. Nothing in the Act prohibits its application to Christians who are of African origin, but customary law generally governs inheritance issues for an African person.
The Act applies to inheritance of both movable and immovable property, if both are located in the same physical space.
Only land that is held individually or by household, rather than communally, may be inherited.
The Act provides that the spouse and/or kin inherit in intestacy or per the valid will of the deceased. According to the Act, the amount of land that a spouse will inherit if her/his spouse dies intestate depends on whether (s)he leaves lineal descendants or not. If (s)he has lineal descendants, the spouse is entitled to one-third of the estate, while the descendants are entitled to two-thirds. If (s)he has left relatives but no lineal descendants, the spouse is entitled to one-half of the estate, and the relatives to the other half. If the deceased leaves no relatives, his/her estate goes entirely to his spouse. If there is no spouse, the deceased’s estate goes to the lineal descendants or other relatives. There is no distinction made between males or females who die intestate.
If there are lineal descendants, the part of the estate going to them is divided equally among children, regardless of sex. If there are no lineal descendants, the deceased’s parents and siblings share half of the estate.
The Land Act of 1999 establishes rules for joint ownership, that may affect the statutory right of a wife to her husband’s estate (e.g., if the spouses had registered their land as joint tenants prior to the death, the deceased’s share would automatically, by law, transfer to the surviving spouse).
Under the Indian Succession Act, a spouse inherits the same rights to the land as were held by the deceased spouse.
The District Courts have original jurisdiction over cases arising under the Indian Succession Act.
2. Inheritance under Islamic Law
Under Islamic law, Muslim men are able to take up to four wives. Polygamy among Muslim households is the norm in Tanzania.
The Quran provides for succession through will or intestacy, although only one-third of the estate may pass through a will. The rest must be distributed per intestacy rules established in the Quran, which assigns fixed inheritance shares to particular heirs including the surviving husband or wife, father, mother and children. Male heirs are generally entitled to twice the share of equivalent female heirs. If a deceased husband leaves either a wife (or wives) and children, the wife/wives are entitled to a total of one-eighth of the estate. If the husband leaves no children, the wife/wives are entitled to a total of one-fourth of the estate. Multiple wives share the total amount allocated to a wife or wives (either one-eighth or one-fourth).
As noted above, the Land Act provides that, in the case of any inconsistency or conflict between the provisions of the Act and any or other law on a matter of land law, the Land Act prevails. Both the application of Islamic law on inheritance (as well as customary law) can be challenged on the ground that it violates both the Constitution and the Land Act.
The Constitution allows for the State to compulsorily acquire property for a list of broadly defined public purposes, including “enabling any other thing to be done which promotes, or preserves the national interest in general.” The Land Acquisition Act of 1967 and the Land Act of 1999 govern compulsory acquisition. Both include “development of agricultural land” as valid public purposes for the State to acquire land compulsorily, leaving the door open for wide application of the state’s acquisition authority in the face of increased commercial interest in land investment in Tanzania.
To compulsorily acquire land, the state must compensate any landholder with a valid right to the land, defined broadly in the Land Act as “any person whose right of occupancy or recognized long-standing occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State…” However the Land Acquisition Act of 1967 and the Land Act define compensation differently; the 1967 Act limits compensation to “unexhausted improvements” to the land, the 1999 Act provides for a multi-faceted basis for compensation. It is not clear which definition of compensation currently governs, although recent litigation on this point affirmed (on technical grounds) the government’s ability to pay the lesser amount required under the Land Acquisition Act. The Land Acquisition Act does not provide any specific protection for women or spouses, however the broad definition of “valid right” could be helpful to women as it includes both a right of occupancy and also any recognized long-standing occupation or customary use. Under the Land Act as well, a spouse would have a presumed right of shared occupancy whether or not her name is recorded, and could also prove contribution to land clearly held as separate property by her husband. Monetary compensation, rather than land in-kind, is the norm, leaving open the possibility that families will be worse off than they were before, and in some cases landless.
The Village Land Act, Part V, addresses resolution of local-level land-based disputes. The Act requires that each village establish a Village Land Council to mediate disputes and assist parties in finding solutions to issues regarding village land. As stated above, three of the seven members of the Village Council must be women, and a quorum requires at least two women (out of four members total) on village land issues. Use of the Village Land Council’s mediation services is optional, and parties who reject the mediation outcome will be referred to the court with appropriate jurisdiction. These are listed in the Land Act as Village Land Councils, Ward Tribunals, the District Land and Housing Tribunals, the High Court, and the Court of Appeal.